IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – GAUTENG PROVINCE “the Employer”

AND

E NQHATSETSENG “the Employee”

SECTION 188A IBA RULING

LAST DATE OF INQUIRY: 19 June 2023
LAST CLOSING ARGUMENTS RECEIVED ON: 25 July 2023
DATE AWARD SUBMITTED: 24 August 2023 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The last day of the inquiry took place on 19 June 2023. The last of the closing arguments were received from the parties on 25 July 2023.

2. The Employer is the Gauteng Department of Education, represented by Ms Morewane, T. The accused Employee is Mr Nqhatsetseng, E, (‘Nqhatsetseng”), represented by Mr Moeti, D, an attorney, after a successful application for legal representation.

3. Mr Seale, M, acted as interpreter, and the intermediary was Ms Shibisi, E.

4. The Employer submitted the documents in Bundle A, whilst the Employee only added page 45 to Bundle A.

Issue to be decided

5. I am required to determine whether Nqhatsetseng is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Nqhatsetseng is unsuitable to work with children.

Background and charges

6. Nqhatsetseng, an educator employed at Pitseng Primary School (“the School”), is charged with three allegations of misconduct.

7. Charge 1 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 2 November 2018 he conducted himself in an improper, disgraceful, and unacceptable manner in that he told a grade 7 learner that he love her and that he gave her R20,00 so that she did not tell anyone about the incident.

8. Charge 2 – charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 6 November 2018 he sexually assaulted a grade 7 learner by attempting to kiss her and attempting to touch her private parts.

9. Charge 3 – charged with misconduct in terms of section 18(1)(f) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 6 November 2018 he unjustifiably prejudiced the administration, efficiency, and discipline of the Department in that he gave a grade 7 learner a Geography question paper a day before the examination and the paper was supposed to be written on 7 November 2018.

Plea

10. Nqhatsetseng pleaded not guilty to charge 1 to 3 and denied all the allegations against him.

Summary of evidence

11. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

12. The matter relates to, inter alia, allegations of assault and sexual harassment of learners who were minors at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learners and other minor witnesses will not be disclosed. I will refer to the minor witnesses for the Employer as Complainants in this award. The minor witnesses testified by making use of the assistance of an interpreter and an intermediary through the ZOOM virtual process.

Employer’s case

13. Complainant no.1, a 16-year old female learner, testified under oath that she attended the School in 2018. Nqhatsetseng was her Geography teacher in grade 7 in 2018. She was 13 years old at the time. They had a heathy relationship. In October 2018 he asked her to come to the computer lab on a Wednesday when Mr Tsoga (“Tsoga”) and Mr Moloi (“Moloi”) were absent. She did not go to him.

14. On 2 November 2018, a Friday, the learners were locked in the classroom. Jafeta came and told her that Nqhatsetseng was calling her. She told Jafeta to tell Nqhatsetseng that they were locked in the classroom. After school she saw Nqhatsetseng standing on the grass next to the office. He called behind the office. There were two other learners behind the office, Ntabiseng and Thembikile. Nqhatsetseng came close to her and put a R20,00 note in her hand. He told her not to tell anyone, and that there was no learner in the School that he loved but her.

15. Complainant no. 1 went home and told her mother that he gave her R20,00. Her mother wanted to know why he gave her the money, and she said she did not know. Her mother told her to fetch her sibling at the creche.

16. The incident happened on 2 November 2018. Ntabiseng and Thembikile were not close enough to hear what Nqhatsetseng said to her. It made her uncomfortable when he told her that he loved her. She did not reply to him. She also told Complainant no. 2, who told her that Nqhatsetseng also sexually assaulted her. On 6 November 2018 Complainant no. 1 went to her class teacher, Ms Makhubo (“Makhubo”), and told her what happened. Makhubo said she would report it to the principal.

17. On 6 November 2018 Nqhatsetseng called her while he was on his way to his car. She went to his car. He took out a Geography question paper and gave it to Complainant no. 1. He asked her whether she remembered what he told her earlier. She said that she did not remember, and he told her again that there was no learner in the School that he loved more than he loved her. He told her that he wanted her to receive an award for Geography. She took the question paper and put it in her bag. She went home and found her brother at home after she fetched her other sibling from the creche. She showed the question paper to her brother. He took it and said that it was better that they waited for their parents. They showed the paper to her father when he arrived. Complainant no. 1 told her father the whole story, as well as to her mother when she arrived. Her father was angry.

18. Her father called the principal, Mr Maseko (“Maseko”), who said the matter will go to the District Office. The following day her brother and mother took the question paper back to the School. A22 to A36 reflect the question paper that she wrote on 7 November 2018. It is similar to one which Nqhatsetseng gave to her the day before. Only the two of them were present when he gave her the paper. She was not comfortable with him telling her he wanted her to receive an award for Geography. She was not supposed to be singled out from other learners.

19. During cross-examination Complainant no.1 testified that she did make a statement to the principal. She wrote it herself. Maseko said he took it to the District Office.

20. She found it strange that Nqhatsetseng called her to the lab. She did not report it to anyone because she did not take it seriously. He was standing on the grass next to the office when he called her after school. She went to him and he told her that they must go behind the office. She did remember step by step what happened.

21. Ntabiseng and Thembikile were more than three meters away, she could not hear what they were talking about. They did see her with Nqhatsetseng. He was standing next to her and put the R20,00 in her hand. She did not tell her classmates when she met them at the corner. She told her mother only about the R20,00 because she had to go and fetch her sibling at the creche. Her mother asked why he gave her the R20,00 and she said she did not know why. She did not take it serious at that stage, although it did make her uncomfortable. When he gave her the question paper she remembered what he said when he have her the R20,00, and then she reported it to the teacher. When he gave her the question paper, he asked her whether she still remembered what he said when he gave her the R20,00, and that is why she remembered it. She then started to take it seriously.

22. When she arrived home with the question paper she told her parents the story from the beginning, and what he said to her. She reported it to the School when Complainant no. 2 told her about what Nqhatsetseng did to her. She then realised it could have happened to her as well. It was before she received the question paper. She was with a classmate, Thato, when she reported it to Makhubo.

23. Geography was to be written on 7 November 2018. She was not aware that Geography was moved from 14 November 2018 to 7 November 2018. She did not write Geography on 6 November 2018, she received the question paper from Nqhatsetseng on 6 November 2018.

24. She did receive a timetable but cannot say whether it was the one reflected in A45. She is adamant that she did not write Geography on 6 November 2018. The matter was reported to the principal on 6 November 2018, and they wrote their statements on that day. On the same day, after school, Nqhatsetseng gave her the question paper. It was a blank question paper, the answers were not completed. Her mother and brother took the question paper to the School. She was not present when it was given to Maseko. She cannot testify whether it was in fact given to Maseko as she was not present. Her mother told her that Maseko made copies. Maseko has never called her to his office regarding the question paper that Nqhatsetseng gave to her.

25. Ms Nomvula from the District Office interviewed her at school as well as at home. She did not tell Complainant no. 1 what to say. She asked her to write it down. Her parents did report the matter to the police but were told to take it to the District Office as it involved question papers. They also told the police about the R20,00 Nqhatsetseng gave her.

26. A30 reflects the question paper Nqhatsetseng gave to her. He put it in between two papers.

27. Tsietsie Maseko (“Maseko”) testified under oath that he is the principal at the School since 1 September 2017. Nqhatsetseng is a teacher at the School, teaching SeSotho and Social Sciences for grade 7. He is a seasoned educator and they had a cordial relationship. Maseko would go to him for advice sometimes. They worked together in Orange Farm in the same union. Maseko even appointed him as acting HOD because of the confidence he had in him.

28. On 6 November 2018 he was at the District Office. When he came back Makhubo and Ms Maluleka (“Maluleka”) were waiting for him in the admin block. They said they wanted to see him urgently.

29. He took them to his office. They told him that Complainant no. 2 told them that Nqhatsetseng has touched her inappropriately on the breast if he remembers correctly. He phoned Ms Koma, his immediate supervisor and cluster leader for advice. She told him to write a report and to submit it to the District Office. He did write a report, printed it, and kept it safe to hand over to the District Office the next day. He then went home between 15:30 and 16:00.

30. At about 19:00 on the same day he received a call at home from a number he did not know. It was Complainant no.1’s father, Mr Zwane (“Zwane”). Zwane said he had a problem and that his child was crying. Until then Maseko only knew about Complainant no. 2’s matter. Zwane said his child had a question paper that was to be written the next day, and she said it was given to her by Nqhatsetseng. Maseko was sceptical about the question paper because it was late. He asked Zwane to bring it to him the following day so he could check whether it was from their school and whether it was to be written the next day.

31. The next morning the School started at 7:30. Complainant no. 1’s mother and uncle came and gave him the question paper. Maseko went through it and realised it was their School’s logo and it had the signature of the HOD who moderated it. He called the HOD of the department who confirmed it was their paper.

32. Because there was a leak on the paper, Maseko was worried that he did not know the extent of the leak. He told the HOD to cancel the exam session for the day so that another paper could be drawn up. Before he spoke to the HOD, he assured Ms Zwane that he would report the matter to the authorities, as she was hysterical and angry and also alleged that Nqhatsetseng gave her daughter money. She was furious.

33. There was a Gauteng Online lab that was utilised as a computer lab. Nqhatsetseng, the deputy principal and another general worker used it as their office space. They used to sit there and eat. Weeks before the incident Maseko requested them to vacate that room as he wanted to use it as a classroom due to the increase in learner numbers. However, Nqhatsetseng and his fellow dwellers refused to vacate it, and reported Maseko to the branch secretary of the union in Sebokeng. They accused him of using dictatorial means to manage the school by asking them to vacate a room that was needed as a classroom. Maseko also reported this matter to Ms Koma. He only received the key to the room after the circuit manager came to the School. Had they given Maseko the key when he asked for it, they might not have been sitting in this process, as it raises the question why they were so adamant to use that room.

34. A16 and A17 ar4e his reports in respect of the allegations. A22 is the question paper allegedly given to Complainant no. 1, containing the signature of the HOD. The paper was moderated on 6 November 2018, and was supposed to be written on 7 November 2018. It was not written on 6 or 7 November 2018 after he cancelled it. it was written on a later day. It would not have been written on the same day it was moderated, to allow for any possible changes to be made. The date next to the moderator’s signature is the date on which it was moderated, not the date it was supposed to be written. It is therefore not correct that it was written on 6 November 2018. The paper was set by Nqhatsetseng as he was the examiner. It was moderated by Mr Motloung.

35. During cross-examination Maseko testified that he called Koma to tell her what had been reported to him, and to seek her advice on what to do as it was the first time that he had to deal with such allegations. Makhubo and Maluleka told him about the incident of Complainant no. 2 only. They said she told them that Nqhatsetseng touched her inappropriately and tried to kiss her.

36. Maseko called Nqhatsetseng to his office to ask him what happened. He told Maseko that Complainant no.2 lost her parents in a car accident in May 2018, and he tried to hug her to show his condolences. Maseko found it strange that he only consoled her in November 2018 when she lost her parents in May 2018 already. Nqhatsetseng said Complainant no. 2 might have misinterpreted his gesture. Although Maseko earlier testified he did not call Nqhatsetseng to his office, he now remembered that he did. The incident happened four years ago, and memories returned as he testified. It does not change the facts of what happened on the day. It was only the two of them in his office. He wanted Nqhatsetseng to take him into his confidence.

37. After a few days the grandparents of Complainant no. 2 came to his office to enquire about the incident. Maseko told them the matter was in the hands of the authorities. They asked to speak to Nqhatsetseng. Maseko told them he could not allow it. However, the grandmother was crying, and considering that they were old and wheelchair bound, he called Nqhatsetseng to talk to them in his presence.

38. The grandmother asked Nqhatsetseng whether he was married, and he said he was married. Maseko told the grandmother he could not allow her to continue questioning Nqhatsetseng because the matter was in the hands of the authorities to deal with in terms of the policies of the Department.

39. Maseko did not know that it was Nqhatsetseng who reported him to the District Office for spending about R17 000 on KFC meals for SGB members. It was the SGB who spent that money for a welcoming function for Maseko. He was still new in his position of principal at the School. The incident did not nearly cost him his job. Maseko did not know who reported him. From Maseko’s side, the incident did not affect his relationship with Nqhatsetseng. The relationship was only affected after he reported him for refusal to move from the lab.

40. Maseko denied that he advertised Nqhatsetseng’s position on a Whatsapp group after he was suspended. The District Office told Maseko that Nqhatsetseng would be reporting to the District Office as a precautionary suspension, so Maseko needed someone to fill his position temporarily.

41. Maseko did confirm with Makhubo and Maluleka whether they were sure of what the learner reported to them. He did not call the learner to confirm it. It fell within the jurisdiction of the District Office to interview the learners.

42. The question paper that was brought to him was the same as the one reflected in A22 to A29. It had the School’s logo and the HOD’s signature on it. He made a copy of the paper they brought to him. He was worried about the extent of the leak and cancelled the session that was supposed to be written on 7 November 2018. He is not sure when it was written thereafter. It might have been 14 November 2018. The deputy principal was responsible for the timetable.

43. He does not know why Complainant no. 1 said she wrote the paper on 7 November 2018. The length of time between the incident in 2018 and the arbitration hearing in 2023 could have had an impact on her memory of the details. Maseko also cannot remember her making a statement in his office on 6 November 2018. He did not meet with the learners on that day.

44. The examination committee of the School is the custodian of the question paper before it is written. Once it had been approved by the HOD, the examination committee runs the process of the writing of the exam. The educator who drafted the paper, will be in possession of a copy of the paper he or she handed to the examination committee. Under normal circumstances the paper would be printed days before it is to be written, to allow enough time for preparation. In the rare case of late moderation it could be printed on the morning of the exam, but it would be exceptional circumstances. It is printed in advance to avoid unforeseen challenges on the day. The examiner would know who typed it.

45. The date next to the HOD on the paper is not the date on which it was written. It is the date on which it was moderated. Maseko instructed the exam office to redraft the timetable to have the paper written on a later date. In his report dated 8 November 2018 he wrote that the paper was supposed to be written, which meant it was not written by that time. His report was written a long time ago, and the time lapse might be the reason for discrepancies in respect of detail concerning times and names.

46. He did mention in the staff room that there was an incident and he asked staff not speculate about it. He denied that he implicated Nqhatsetseng because they were not on good terms. It is not true that he stopped Nqhatsetseng’s efforts to raise funds for transport for Complainant no.2’s family. It would have been strange that he did that outside of the School’s fundraising structures. Maseko was not even aware that he was doing it. Maseko did not tell the grandparents to lay criminal charged against Nqhatsetseng, he only advised them in respect of their options.

47. Maseko never officially called Nqhatsetseng to give his account of the events, he only called him when the grandparents came to School. After they left, he asked him what happened. He told Maseko he was offering his condolences to Complainant no. 2, which was a strange thing to do in November while the accident occurred in May already.

48. Complainant no. 1 is mistaken if she said she wrote the exam paper on 7 November 2018. She did not attend school on 7 November 2018 due to her emotional state. She could not have written it on 6 November 2018 as well. Maseko would not have allowed a leaked paper to be written on 7 November 2018. A45 corroborates that a new date was set for the exam.

49. Themba Zwane (“Zwane”) testified under oath that he the deputy principal at Tundulwazi Secondary School. He has been a teacher since 1989. Complainant no. 1 is his daughter. She is an honest, respectful, reliable, and energetic child and performs well at school. He knows when she is lying.

50. On 6 November 2018 he arrived home and found Complainant no. 2 crying. She wanted to tell him something, but he was tired and did not want to engage her then. After a while he realised she was still unhappy and he asked her what was wrong. She gave him a question paper and he asked her why she was giving it to him. He asked her whether she wrote the paper, and she said she did not. She told him it was still going to be written and that her teacher gave it to her to complete at home. Zwane told her that it was impossible. He was not happy when he realised his child had access to a question paper that was still to be written. She told him that she reported a matter to the principal, and that they wrote statements.

51. Zwane called the principal and asked him why he had not been informed of the allegations. The principal apologised to him and related the story to him. Zwane told the principal that he had in his possession the question paper that had been given to Complainant no. 1. It was already about 20:30, and the principal asked Zwane to take the paper to him the next morning. Zwane told him that he would send it with Complainant no.1’s mother and brother. He requested his wife on 7 November 2018 to go to the School, which she did. After an hour she called him and said that she gave the paper to the principal.

52. Zwane was angry because he knew the protocol and he questioned how it could have happened that an exam paper is given to one learner before it was written. He wanted to confront Nqhatsetseng himself, but his wife stopped him. A30 is the paper Complainant no. 1 gave to him, and the one he sent to the School with his wife. He does not know when Complainant no.1 wrote the paper.

53. During cross-examination Zwane testified that his daughter could have given the paper to his son earlier before he came home. She gave it to him when he found her crying in the house. He was the chief examiner for grade 12 at his school that date, and he was tired, that is why he did not engage her immediately when he came home. He just wanted to relax first. He later became concerned when she continued to cry. She said Nqhatsetseng gave her the paper.

54. She said the teacher called her aside and gave her the paper to complete at home, and he told her that he loved her. A day or two later she told him about the R20,00. One must remember she was only 13 years’ old at the time and could not relate a story like an adult would have done. The principal did not tell him about the R20,00 when he called him on 6 November 2018. Complainant no. 1 said she made a statement to the principal.

55. Note: The Employee then applied for disclosure of the statement of Complainant no. 1. A ruling was issued which forms part of the record. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This was a factor that I kept in mind as surely it would not have been in the best interest of the Complainant no.1 being a minor female learner to be called back again and be subjected to more mental trauma.

56. The Employee had the opportunity to canvass this issue at the pre-trail hearing, as well as during her testimony. These proceedings are conducted in terms of section 188A of the LRA, and the provisions of ELRC Collective Agreement 3 of 2018, which provides for compulsory inquiries by arbitrator in cases of disciplinary action against educators charged with sexual misconduct in respect of learners. The Collective Agreement was born out of the concern of the parties to the ELRC that learners who are victims of alleged misconduct committed by educators, are often required to give the same evidence about the same events in several hearings in different forums exposing them to unnecessary mental trauma. Allowing the disclosure of the statement at that late stage of the proceedings, with the resultant effect that the witness would have had to return to the witness stand, will also defy the spirit and objectives of the Collective Agreement. The prejudice to the minor witness clearly outweighed any possible prejudice to the Employee. I was not convinced that the Employee will suffer any material prejudice in the absence of the disclosure of the statements.

57. Zwane further testified under cross-examination that Complainant no. 1 did tell him about the R20,00. He did find her crying when he got home. She did give him the question paper.

58. Complainant no. 2, an 18-year old female learner, testified under oath that Nqhatsetseng was her SeSotho and History teacher in grade 7 in 2018. On 6 November 2018 she was in his class before the lunch break, together with other learners. She went out to the office of Nqhatsetseng. She knocked and he told her to come in. she told him she came to fetch an exercise book. He wanted to know why, and she said Makhubo wanted her to get one.

59. She went closer to him, and told her that he loved her, that he was fond of her as he had been seeing her in school. Nqhatsetseng held her, touched her private part, and attempted to kiss her. He said she must come and see him at lunch time and he will give her R100,00. He told her to make sure that nobody sees her when she visit him. Complainant no.2 responded by saying “yes sir”, she took the book and went outside. They were alone in his office.

60. She was scared when he touched her private part. After she left his office she went back to class. She called Complainant no. 2, who came with Tato. She went with them to the toilet where she told them what had happened in Nqhatsetseng’s office. Complainant no.1 told her that he also told her he loved her and that he gave her R20,00. Complainant no.2 told her parents what happened. They reported it to Makhubu and Maluleka, who reported it to the principal. The principal called them to his office.

61. During cross-examination Complainant no. 2 testified that the principal called her and Complainant no.1 on the same day and they wrote their statements. She stood still when Nqhatsetseng touched her. She remained in the classroom when Complainant no. 1 went to report to Makhubo. She was not feeling well and Complainant no. 1 told her to go back to the classroom. She went back after Complainant no. 1 left the bathroom. She told Complainant no. 1 that he kissed her. She did not lie when she said she reported it. She reported it to Complainant no. 1 who reported it to Makhubo.

62. Complainant no. 2 does not agree with the charge sheet wording that he only attempted to kiss and touch her. She told the officials who came to school that Nqhatsetseng kissed her and touched her private part. She did not clearly understand the meaning of the word “attempted” in the chargesheet, that is why she did not correct it earlier. She tells the truth when she says he did touch and kiss her.

63. Her parents went to the School after she told them what happened. She was not present. She was 13 years old at the time. She was not aware that she could have laid criminal charges. They did teach them at school that she could go to the police if someone touched her private part. She reported it to the School and thought they would deal with it.

64. After she took the book in Nqhatsetseng’s office, he asked her to come closer so he could see what book she took. He then held her and touched her private part. He held her with both hands. He started at her breasts, went down to her private part, and then kissed her. She regarded her breasts as part of her private parts, that is why she did not mention it before. She is telling the truth.

65. He was sitting when she approached him. He stood up before he touched her. She did not scream because she was he might do something nastier. Nqhatsetseng did ask her about the accident wherein her father and siblings passed away, but that was on another day before the day that he touched and kissed her.

66. Nqhatsetseng will be lying if he said he did not sexually assault her. He was alone in the lab when he did it. She considered him to be a good teacher before he did that to her.

67. Complainant no. 1 reported the incident to Makhubu and Maluleka. She did tell her that Nqhatsetseng kissed her and touched her private part. It is not correct that he only attempted to kiss and touch her. She did not scream because she was afraid he could do something worse.

68. Zwathi Maluleka (“Maluleka”) testified under oath that he is a grade 7 educator in Mathematics. Complainant no. 1 was an intelligent, confident learner. She came to his class and asked to speak with him outside. He went outside and she told him about the incident on 2 November 2018 and about Complainant no. 2 crying in the bathroom. He asked her to call Complainant no. 2. Complainant no. 2 came and told him that she went to fetch a book in the lab where Nqhatsetseng was sitting in his spare time. She told him that Nqhatsetseng tried to kiss her, but she ducked and he kissed her on the forehead. He tried to touch her private part. He promised her R100,00 not to tell anyone. Maluleka then involved Makhubo. He told her what was told to him, and they told the principal.

69. During cross-examination Maluleka testified that he asked Complainant no. 2 why she was crying and she told him what happened. The incident did take place, she would not be crying just for fun. She did not tell him that he touched her breasts. It happened a long time ago, and it would be difficult for the young learners to remember everything accurately.

70. Zandile Makhubo (“Makhubo”) testified under oath that she is an educator at the School. A20 is her statement. Complainant no. 1 and Tato came to report to her about Complainant no. 2. Complainant no. 2 was crying. Complainant no. 1 also told her that Nqhatsetseng put R20,00 in her pocket.

71. She went to Complainant no. 2 and found her in a state. She said something happened with a teacher. She could not speak properly, and Complainant no. 1 told Makhubo that Nqhatsetseng tried to kiss Complainant no. 2, that she ducked and he kissed her on the forehead, gave her R100,00 and tried to touch her private part.

72. During cross-examination Makhubo testified that Complainant no. 1 did not mention to her that Nqhatsetseng said he loved her. They first went to Maluleka, and he sent them to her. They then went to the bathroom where Complainant no. 2 was crying. She then went back to Maluleka and they decided to report it to the principal. The learners remained outside when they went in to speak to the principal. The principal called them in and they left them with the principal.

Employee’s case

73. Edwin Nqhatsetseng, (“Nqhatsetseng”) testified under oath that he is not guilty of the three charges.

74. On 2 November 2018 he did meet Complainant no. 1 behind the computer lab. They had a general conversation about life. He asked her as a brilliant learner what her ambitions were. He asked her what her parents’ professions were. She said her mother was unemployed and her father was a deputy principal. He said she should follow in her father’s footsteps and pursue a career in teaching. That was the end of the conversation and she left. He did not tell her that he loved her, he did not give her R20,00. He does not remember such incident.

75. He never gave Complainant no. 1 a question paper. They as educators do not have access to question papers, only the chief invigilator and principal have access to the strong room where it is kept.

76. Behind the lab it was only the two of them. He did not see other leaners around. He became aware of the allegations in charge 1 on Monday 5 November 2018. Setoga told him on 5 November 2018 of the allegations. It was before the date of the alleged incident of 6 November 2018. He would not commit further allegations on 6 November 2018 if he knew on 5 November 2018 of the first allegation.

77. Complainant no. 1 accused him because she was instigated by Maseko, who targeted learners close to Nqhatsetseng to bring allegations against him.

78. He did not attempt to kiss Complainant no. 2 and did not attempt to touch her private part. It would have been stupid of him while knowing he was already accused of similar conduct.

79. On 6 November 2018 Complainant no. 2 came to the lab where he was sitting. She knocked and he allowed her in. She said she was looking for a 72 page exercise book. He asked her why as she was supposed to write the Geography exam at 9:00am. She said Makhubo was looking for it. He was seated at the back of the class and she was standing at the door. He told her to look for the book close to where she was. While she was looking he remembered the family tragedy. He then spoke to her to assist her as he was collecting money for her. He went to ask her what happened. She took the book and left. She was in a rush to go write the exam. He did not kiss her and did not touch her private part. He would not do that to a learner.

80. His relationship with Maseko, the principal, was polite and friendly. They both came from the Orange Farm district. When Nqhatsetseng came to the School, the relationship was good until the suggestion to buy Kfc of R17 000,00 for a parents’ meeting. When Nqhatsetseng queried it in his office, Maseko said he had no right to query it as he was not the principal. Nqhatsetseng decided to write a letter to the district office and the MEC, Lesufi. Their relationship then went sour and they were not speaking anymore.

81. Nqhatsetseng does not recall Maseko calling him to a meeting to hear his side of the story. Maseko told the staff of the allegations against him. The paper was written on 6 November 2018, not on 7 November 2018 as Complainant no. 1 testified. A22 is dated 6 November 2018. Her marks were 47/50. He marked the paper on the same day. The HOD also signed it on 6 November 2018, as moderator. It is possible to write and moderate a paper on the same day. The principal lied when he testified he cancelled the paper.

82. He knows nothing about A30. He did not give it to Complainant no. 1. He did not have access to the strong room. He only saw the papers on the day it is taken out to be written.

83. During cross-examination Nqhatsetseng testified that he did meet Complainant no. 1 on 2 November 2018 after school. There were no one else present. He taught her SeSotho and Social Sciences and he was very close to her. They had a good teacher – learner relationship. She was a bright learner and was liked by all the teachers. He did love her in a parent/teacher and learner way. He did meet her, but did not give her R20,00. He did not say he loved her. She came to talk to him behind the computer lab. Learners would just come and talk to him, and that was what she did. It was the end of grade 7, that is why he asked about her ambitions.

84. Maseko, the principal, used her to lie against him for his own agenda. He targeted learners close to Nqhatsetseng. He agreed that he did not put it to the witnesses in cross-examination.

85. Nqhatsetseng later testified that he might have uttered the words that he loved her, but it was as teacher / parent kind of love. It was then put to him that he thus confirmed that he said he loved her, to which he answered that he did not, but that he was saying that it is normal for a teacher to tell a learner he loves her.

86. A22 is the paper set by him. Complainant no. 1 wrote that paper. The moderation was done on the same day that it was written. He also marked it on the same day.

87. He does not know where Complainant no. 1 got the question paper. He did not have a copy.

88. He will not call Setoga as a witness because he no longer teaches at the School.

89. He did not know Complainant no. 2 well. He did teach her. She came to him in the lab looking for a book. It was only the two of them in the lab. He asked her about her family. He did not use it as an opportunity to kiss her and touch her. She could be lying because Maseko could have influenced the learners.

90. All the false allegations against him are the result of Maseko influencing the witnesses to lie. Setoga told him on 5 November 2018 that there were rumours about him. He had a good relationship with Maluleka and Makhubo. He does not blame them for reporting the alleged incident.

Summary of arguments

91. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

92. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

93. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

94. All the allegations in the charge against Nqhatsetseng, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, and the evidence deduced by Nqhatsetseng in defence, were considered and weighed against the abovementioned standard of proof.

95. It is not disputed by Nqhatsetseng that the actions he had been charged with constitute misconduct. He merely denied committing the alleged misconduct as set out in the three charges below.

96. Charge 1 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 2 November 2018 he conducted himself in an improper, disgraceful, and unacceptable manner in that he told a grade 7 learner that he love her and that he gave her R20,00 so that she did not tell anyone about the incident.

97. Charge 2 – charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 6 November 2018 he sexually assaulted a grade 7 learner by attempting to kiss her and attempting to touch her private parts.

98. Charge 3 – charged with misconduct in terms of section 18(1)(f) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 6 November 2018 he unjustifiably prejudiced the administration, efficiency, and discipline of the Department in that he gave a grade 7 learner a Geography question paper a day before the examination and the paper was supposed to be written on 7 November 2018.

99. I am mindful of the fact that Nqhatsetseng is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

100. In respect of the all the allegations Nqhatsetseng disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.

101. Nqhatsetseng’s defence in respect of the alleged sexual harassment, sexual assault and unjustifiably prejudicing the administration, efficiency, and discipline of the Department, is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies, instigated by the principal, Mr Maseko, because Nqhatsetseng reported him to the Department for misuse of school funds.

102. I take cognisance of the fact that Complainants no. 1 and 2 are single witnesses in respect of what allegedly transpired in the presences of Nqhatsetseng. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. Even if the rule is not applicable in civil proceedings or arbitration proceedings, I must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.

103. It must be remembered that the Complainants were only thirteen years old at the time of the incidents, and that the incidents took place in 2018, while the arbitration hearing only commenced in 2021, and was concluded in 2023. Naturally the lapse of time would affect the memories of witnesses, and I assessed the evidence against this backdrop. I find no material discrepancies or inconsistencies in the evidence of the Complainants that would negatively affect their credibility. The fact that Complainant no. 2 testified that Nqhatsetseng not only attempted to kiss and attempted to touch her private parts, does not distract from the fact that were allegedly at least an attempt by Nqhatsetseng to kiss her and to touch her private part. Despite their young age, the Complainants stood steadfast by their versions. Complainant no. 2 was adamant that Nqhatsetseng indeed completed his actions of sexual assault and did not try to adapt her evidence in accordance with what was contained in the charge sheet. Her evidence was that she from the start relayed the same version.

104. It is highly improbable that Nqhatsetseng could not have known that his conduct would be regarded as serious misconduct, irrespective of how charge 2 was formulated. The charge set out in clear detail the misconduct he was alleged to have committed. In Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24 the Court stated that it has repeatedly held that there’s a major difference between the wording of charges in a criminal case and in a disciplinary case. An unduly technical approach to the description and consideration of disciplinary charges should be avoided. Also, an employee may be found guilty of an attempt if there’s not enough evidence to prove the main charge.

105. It also important to keep in mind that difficulties with time estimates, frequency of events, chronological order, and sequence of events, may arise because of the developmental capacity of an individual child. Especially with children as young as 13 years of age. Being able to give accurate evidence of seconds, minutes, hours, days, weeks, months, and years, develops very slowly over elementary school. Children may also confuse calendar dates and may have trouble reporting events in chronological order. Children who are sexually abused, concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners

106. The Complainants gave clear evidence in respect of the material elements of the sexual harassment and assault. Nqhatsetseng’s own evidence puts him in the presence of the Complainants on the days of the alleged misconduct.

107. The Complainant no. 1 was very clear in respect of how he told her that he loved her, and that he gave her R20,00, obviously with the intent to persuade her not to report his conduct. Nqhatsetseng admitted under cross-examination that he might have said he loved her, while he initially testified that he did not say he loved her. His explanation that it should be seen in the light of a teacher/parent/learner sense, is unacceptable. It is highly inappropriate for an educator to go around and tell 13-year old learners that he loves them. I accept that Complainant no/ 1 could only have received the blank question paper in the manner she testified, i.e. that Nqhatsetseng gave it to her. She was clearly upset with what he did, therefore her emotional state at home. If she received it from a different source with the intention to use it to her benefit, she would not have told her parents about it, and would not have been so upset. This appears to be, as in the case of the R20,00, part of grooming of a young, vulnerable learner.

108. Nqhatsetseng’s argument that he knew about Complainant no. 1’s allegations on 5 November 2018, and would therefore not have been so stupid to repeat similar conduct on 6 November 2018, holds no water. Complainant no. 1 testified that she only reported her incident on 6 November 2018, therefore Nqhatsetseng could not have known about it on 5 November 2018. He testified that Setoga told him on 5 November 2018 that there was rumours about him. Setoga was however not called as a witness. One would have expected of him to call Setoga, as this is a vital element of his defence. The fact that Setoga is teaching at another school, is no valid reason for not calling him, as a simple subpoena would have addressed his presence. I have no option but to attach a negative inference to his failure to call Setoga to corroborate his version.

109. Nqhatsetseng also failed to put his version that Maseko instigated the fabrication of lies and false allegations against him to Maseko and the other witnesses in cross-examination. This is a material aspects of this case. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The same principle will therefore apply in this matter.

110. I find it highly improbable that such a young children would be coached into fabricating such a version and agree to be used as pawns by Maseko to accuse Nqhatsetseng of sexual misconduct. It would have been an elaborate fabrication involving educators, very young learners, and parents with the intent to get rid of Nqhatsetseng, which I find highly improbable.

111. I find it improbable that the Complainants would disadvantage themselves with a false version to satisfy another educator, and more improbable that parents would allow their young child to go through the trauma merely to satisfy the whims of another educator.

112. I also find Nqhatsetseng’s evidence that the exam paper was moderated, written, and marked on the same day on 6 November 2018 highly improbable. The Employer’s evidence that moderation is done with enough time to effect any possible changes is undisputed. It would have been impossible to make changes if the paper was written on the same day of moderation.

113. I find Nqhatsetseng’s version that the Complainants decided to falsely accuse him because they were coached into it by Maseko, the principal, highly improbable. He failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. Nqhatsetseng could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.

114. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainants’ version has been materially the same throughout the inquiry. I find it improbable that they would make up such a detailed version of events without any reason. Nqhatsetseng’s version that it is a fabrication is not plausible.

115. There is a common misconception that sexual assault must necessarily involve contact with the genitalia, which is not the case. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. I find that the grabbing and kissing of the minor Complainant and touching her private parts by a male educator would probably violate or threaten the sexual integrity of the learner.

116. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that Nqhatsetseng the misconduct as contained in charges 1, 2 and 3. There is therefore evidence before me that proves that Nqhatsetseng contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding
117. The accused employee, Mr Nqhatsetseng, E, is found guilty of the following misconduct:

118. Charge 1 – contravening section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that on or around 2 November 2018 he conducted himself in an improper, disgraceful, and unacceptable manner in that he told a grade 7 learner that he love her and that he gave her R20,00 so that she did not tell anyone about the incident.

119. Charge 2 – contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that on or around 6 November 2018 he sexually assaulted a grade 7 learner by attempting to kiss her and attempting to touch her private parts.

120. Charge 3 – contravening section 18(1)(f) of the Employment of Educators Act 76 of 1998, in that on or around 6 November 2018 he unjustifiably prejudiced the administration, efficiency and discipline of the Department in that he gave a grade 7 learner a Geography question paper a day before the examination and the paper was supposed to be written on 7 November 2018.

Sanction

121. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

122. The conduct of Nqhatsetseng was of sexual nature, which resulted in the victims, i.e. the Complainants’ sexual integrity being impaired, or at least it inspired the belief that it will be impaired, it was done intentional and without consent of the Complainants, which rendered it unlawful.

123. Nqhatsetseng’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behaviour does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainants being minor female learners of 13 years old to be sexually harassed and/or assaulted by an educator.

124. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of sexual assault, which I keep in mind considering the nature of Nqhatsetseng’s misconduct. His misconduct in respect of leaking the question paper is even more deplorable as it was in all probability done as part of a grooming process of a 13 year old female learner.

125. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of summary dismissal is fair and appropriate in the circumstances.
Sanction

126. In terms of section 188A(9) of the LRA I direct that the employee, Mr Nqhatsetseng, E, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005
127. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.

128. The parties were given the opportunity to submit arguments in this respect. The Employer asked me to find that Nqhatsetseng is automatically unfit to work with learners. Nqhatsetseng made representations that such a finding should not be made.

129. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Nqhatsetseng’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.

130. Mr Nqhatsetseng, E, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, 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 Nqhatsetseng, E, 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.

COEN HAVENGA
Senior ELRC Arbitrator
24 August 2023