28 January 2025 – ELRC137-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN FLORIDA
CASE NO.: ELRC 137-24/25 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GAUTENG EMPLOYER

AND

MALINGA S. K EMPLOYEE
__________________________________________
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 16 July;21 August;16 & 24 October And 26 November 2024
Closing Argument: 03 December 2024
Mitigating / Aggravating Factors: 05 December 2024
Date of Award: 23 December 2024
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Inquiry by Arbitrator.

                                                           AWARD

DETAILS OF HEARING AND REPRESENTATION

The inquiry was held on 16 July,21 August; 16 and 24 October, and 26 November 2024, virtually and at the employer’s Johannesburg West District Offices in Florida. The employer was represented by Mr. N. Makhubalo, and the employee by Mr. S. Nkalanga, a SADTU union official. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

I am required to determine if the Employee committed sexual assault offences against a learner as charged by the Employer. If I find in favour of the Employer I must determine the appropriate sanction. ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
1. The Employer leveled one count of misconduct against the employee in
  terms of Section17(1)(c) of the Employment of Educators Act, Act 76 of 1998
  (EEA): –
  Allegation 1: It is alleged that during the year 2023, at or near Anchor Comprehensive School, you committed an act of misconduct in that, you had a sexual relationship with AO, a Grade 10 girl learner at the same school.

EVALUATION AND SUMMARY OF EVIDENCE

The following issues are common cause between the parties:

4.1 The Employee has been an educator at Anchor Comprehensive
School for seven years;
4.2 At the time of the alleged incidents in 2023, the learner AO was
15 years old and was in Grade 10;
4.3 AO’s mother BO works at the same school as a food handler.

Ms Kgapane Patricia Mokoena testified for the Employer that she is the school’s principal. On 31 July 2023, AO’s mother reported the incident of her disappearance on Friday to her and her colleague, Ms. Nkuna. Her complaint was that AO was found at Malinga’s place on Saturday evening. This is per the report at bundle R5. She immediately sought intervention from the department.
When the IDOS, Ms. Molete, and Mr. Mmotong arrived at the school, they convened a meeting with the parent. They called AO in the meeting. She denied having a relationship with Malinga.
When they requested her cell phone, she was fiddling with it and appeared to be deleting messages quickly before handing over her phone. However, they found a frequently used number saved on her phone as “Babe”. When the IDOS checked the number, it matched that of Malinga. They checked/matched Malinga’s numbers from the school data and WhatsApp groups.
R6 is a copy of the SAPS affidavit, which BO deposed to on Saturday, 29 July 2023, on the day of the incident. She brought it to the school. The community disrupted the meeting as they thought she was protecting Malinga. They indicated that Malinga impregnated AO. At the time, she was not aware that AO was pregnant. Later, she noticed the pregnancy.
BO wrote and signed a statement in Setswana, which was translated into English. The contents of the statement were consistent with the affidavit. She was upset and disappointed that she was not getting justice for her daughter. She felt the school and the department had let her down. Malinga’s car is a white VW Polo.
During cross-examination, she said that the DNA results would confirm the biological father of AO’s child. The community complained that Malinga was seen with AO on numerous occasions sometimes in his parked car.
She saw AO fiddling with her phone before she handed it over. She did not see the messages that she deleted. R5 is the information that AO’s mother, BO, related to her on 31 July 2023.
BO informed her that AO was in a sexual relationship with Malinga. On 28 July 2023, AO disappeared from her home and did not sleep at home. This prompted the family to approach the SAPS Orlando for assistance the following day (Saturday).
They were able to locate AO at an unknown place in the company of Malinga. She was in the company of the police and CPF when they found her at Malinga’s place on Saturday evening. The parent was upset and disappointed that the law and department were failing her in her request for justice for her daughter.
At the time, the learner and mother were staying at Mzimhlophe Hostel, in Meadowlands. Following the incident, they hired a room in Killarney. That was where Malinga was always seen in his car. When a version was put to her that Malinga was visiting other people in the household and not AO, she said that the community saw her with Malinga and accompanying him to the car.
The recent and frequent number they saw on AO’s phone was saved as “Babe” which matched the numbers of Malinga.
Sharol Molete testified that she is the Institutional Development support officer ‘IDSO’. She received a call on 31 July 2023 from the principal reporting the incident. They went to the school and held a meeting with the principal, parent, AO and aunt. They stated that AO went missing on Friday. They found her with Malinga on Saturday. The aunt said her child showed them Malinga’s place, where they found her with Malinga.
When AO was called in the meeting, she fiddled with her phone but denied that she had deleted any messages. Malinga’s number was saved as “Babe” on AO’s phone. BO told them that she lost hope of finding justice for her daughter.
R8 of the bundle is the information that BO provided them. She told them that she found AO with Malinga at his place. Furthermore, AO told her that she slept with Malinga twice without using a condom. AO did not refute what her mother was relating to them.
BO was not forced to write the statement. R6 is the affidavit that she saw when she arrived at the school. BO did not raise any issues with the affidavit. BO would be lying to suggest that she did not know Malinga. This is because she works at the same school as Malinga. She did not mention the issue of not knowing Malinga in the meeting.
The community confronted them whilst in the meeting. They said that Malinga rented a room for BO and AO to stay. Mmotong attended to R12-13 as she was on leave. R12-13 is a complaint from the community that Malinga impregnated AO. They requested an investigation into the matter.
During cross-examination, when a version was put to her that AO saved Malinga’s phone number as “Babe” because she had a crush on him, she responded that it could not be true as BO was concerned and was disappointed in the meeting that she found AO with Malinga. BO never mentioned the “crush” issue.
BO was fully aware of what transpired over the weekend. She never told them that AO lied to her about Malinga.R8 is the English translation of her Setswana R7 statement. She told them that she understood her SAPS affidavit that she brought to the school. She also understood her statement.BO said her sister, AO’s aunt told her that AO confided to her about her relationship with Malinga.
The community observed Malinga’s visits to AO’s residence. It is not true that BO did not know Malinga and that she did not go to Malinga’s place where she found AO.
BO, who I declared a hostile witness, testified that R8 is the statement that she wrote in the principal’s office in the presence of her sister and Department officials. She was not forced to write the statement. AO went missing on Friday,28 July 2023. Her friend informed them that she saw her talking to Malinga. AO denied that she was in a relationship with Malinga. She told her that she had a crush on Malinga.
AO denied to her that she had slept with Malinga two times without a condom. She told her that nothing happened between the two. She told her that she had a crush on Malinga. She told her this information, after she wrote her statement.
She found AO with another man which she assumed was Malinga. She realized later that it was not Malinga. Her friend told her that she was with Malinga. Hence, she mentioned Malinga in her SAPS affidavit on R6 after the search. She did not state in the affidavit, that says she found AO with Malinga as she did not know Malinga’s residence. Perhaps the interpreter made a mistake.
The police did not read it out to her. She can read English. She only realized the mistake on the affidavit when she was with the principal. She did not highlight the mistakes to them.
She conceded that she was disappointed and upset when she approached the principal because she was laboring under mistaken identity. She had since apologized to Malinga after realizing the mistake.
She denied that she changed the narrative because Malinga paid her. She was aware of the allegations that Malinga was paying her R5000 per month to protect him. She knows the father of AO’s baby. When she wrote the statement, she had not seen Malinga. She only saw Malinga for the first time when she apologized to him.
She searched for AO with AO’s dad. Her sister was not there. The police took them to the nightclub, where they found AO. She did not know Malinga at the time. She did not remember her sister telling her about Malinga and AO’s relationship. She conceded that Malinga once came to her house in Killarney with another learner. He wanted to know why she wrote a fake statement about him and the reputational damage it caused.
Later, AO and friend explained the truth, that she left with a male assistant teacher who works at the school and not Malinga. She found AO with a male person who used to work at the school as an assistant. She does not know his name. They found them at a pub and not at Malinga’s place. Initially, she said that she found AO at Malinga’s place because she did not know him.
At the time of the incident, she had been working at the school for 1 year and 8 months. She did not know Lebo Moletsane (OM’s mother) but used to see her children. She denied that OM used to see Malinga at her house. She always knew the whereabouts of AO.
She denied OM’s version that Malinga used to take AO on weekends. She denied ever drinking beer with Malinga. She knows Malinga’s white VW. She denies ever mentioning the name of the male person whom she found with AO to the principal. She does not know where the Principal took the name of Malinga from.
She assumed that the person she found AO with, was Malinga because she heard rumors that she was going out with Malinga. The following day, she apologized to Malinga. The assistant teacher, Ntloso, once came to her. She searched for him and realized that he had moved to the Northwest. She apologized to Malinga after knowing Ntloso.
OM, a 10-year-old grade 5 learner at Sapebutso Primary School, testified that he stays at Killarney with her mother. AO’s family was renting his grandmother’s outside room. At the time, he was staying in the main house with his granny. He used to see Malinga visiting AO. AO was staying with her mother and three siblings (B, P, and R). He used to play with these siblings.
AO was Malinga’s girlfriend because he visited her often. He bought her food and clothes and gave her gifts and money. He used to pick her up on weekends and bring her back on Mondays in his white Polo. Sometimes, they would chill in his car and have a nice time.
It is not true that Malinga was visiting AO’s mother because when AO’s mother was home, Malinga would not enter the room. They would chill in his car. He entered the room only when her mother was not there. However, her mother was aware of their relationship because she also saw them. Malinga would not frequent the place if he was not in a relationship with AO.
During cross-examination, he said that there is a distinction between Malinga and AO’s relationship and his with AO’s siblings. He was not their boyfriend by merely playing with them. Malinga and AO had a relationship because they spent time together and they would sit in the car or in the room and have a nice time. He bought her food and clothes. It is not true that Malinga visited AO just for nothing.
His teachers cannot just visit their learners without a reason. If Malinga was a friend of AO’s mother, he would not hang around with AO and he would come only when her mother was there. In the beginning, when he saw Malinga chilling with AO and her mother, he thought he was a member of their family. He later changed his mind when he realized that Malinga was always hanging out with AO.
He would see him giving AO money and clothes whilst playing in the yard. He would leave with her on weekends and return to her home on Mondays. They never went away with AO’s mother. She would always remain behind. His mother’s friends go away with his mother and leave them behind because she is their friend, not the other way round.
He assumes Malinga spent the weekend with her because when his uncle takes him from home, he would spend the time with him until he returns him like Malinga did with AO. He saw all these himself. If he was a friend to AO’s mother, he would buy these things for her and not AO. His teacher cannot frequent his place and buy him things.
Patrick Mmotong testified that on 31 July 2023, his colleague (Ms. Molete) informed him that the principal called requesting their intervention in a sexual assault case at the school.
When they arrived, the principal told them that the parent reported that her child disappeared on Friday, 28 July 2023. They convened a meeting with the principal, the learner, her parent, and her aunt.
During the examination in chief of AO’s mother, BO, the employer applied that she be declared a hostile witness. The grounds were that her testimony was opposite of her affidavit, statement, and her complaint against Malinga. This necessitated the employer to cross-examine her. I granted the application; the reason is provided below in my analysis.
BO confirmed that she reported the incident at SAPS and deposed to the affidavit. They searched for AO until they found her in Malinga’s rented room. There was a commotion when they found her because the landlord was not happy with Malinga’s conduct,
When they called in the learner, she fiddled with her phone. She denied the relationship with Malinga. Molete asked for Malinga’s phone numbers from the principal. The numbers of the person saved as “Babe” on her phone matched that of Malinga’s. She had erased WhatsApp messages with “Babe”.
Her mother confirmed that her affidavit on R6 was a true reflection of what happened. She said her Setswana statement was correctly translated in English. She made a Setswana statement, reflecting on Saturday events in their presence on 31 July 2023. She was not forced to write the statement.
The aunt also confirmed that she was suspicious when AO had money. AO told her that her educator boyfriend at the school, Koketso, gave her the money. The aunt wrote the statement.
The mother reflected in hindsight that she had previously found AO sitting with Malinga at the school on a Saturday. AO lied to her that Malinga was assisting her with schoolwork. She informed them that the signs of the relationship had always been there.
During cross-examination, he said that the AO refuted the relationship with Malinga. Molete is the one who viewed AO’s phone. AO confirmed the contents of the SAPS affidavit. She did not raise any issue with it.
They believed BO’s narrative that AO had a relationship with Malinga because she made efforts to look for the child by going to the SAPS and searching for her. She was found at his place with him. The relationship between educators and learners should end at the school.
He refuted the contention that the BO did not know Malinga when she reported the incident. She told them she had previously found AO with Malinga at the school on a Saturday. She had gone to school to prepare food for the matriculants. BO would be lying if she changed her version as she told them of her earlier encounter with Malinga.
He disagrees with the proposition that because they found AO at night, BO mistook Malinga to be someone else. This is because they went into the house to remove AO. The parent confirmed this in the affidavit and statement.
Mpho Litabe testified that she is a community member living at Killarney. She is a Ward 40 Street committee member. She had seen Malinga several times with AO. She does not know him personally. She saw him around their shops and in their street.
She started noticing him in the company of a young girl during afternoons and weekends. At the time, she did not know the girl’s name. Her mother and siblings were renting a room in their neighborhood. The girl turned out to be AO.
Initially, she thought Malinga was her father, and her mother was preventing them from meeting. As time went by, she realized that they were in a romantic relationship. She saw them being cozy at the shops. Later, her mother would be seen hanging out with different men at the pub and at times with Malinga.
After realizing AO was pregnant, she noticed the mother hanging around at the pub with Malinga. One evening in a full moon, she saw AO and Malinga kissing and cuddling in his white Polo Classic. It was during load-shedding. They appeared to be having sexual intercourse. Their car seats were reclined. They were parked in the street. At the time, she did not know who Malinga was and where he worked.
She became curious because he was much older than AO, hence she assumed he was her father. She started to investigate them. This was prompted by the fact that one child was raped by her father in their neighborhood. One neighbor told her the man was Malinga, an educator at Anchor High School, and that AO’s mother was working for the feeding scheme at the same school.
It was impossible for people not to notice them because they met regularly unless they also assumed it was her father. Other street committee members also confirmed what she saw. As time went by, she saw less of him. Councilor Tumelo told her that the mother did not care.
Later on, she was concerned when she saw him drinking alcohol with AO’s mother in the presence of AO and her sisters. She noticed her pregnancy around October 2023. Another time, she saw AO getting into Malinga’s car and driving off. That is when she realized that they had changed their meeting spot. They moved to Mzimhlophe.
During cross-examination, she said she saw Malinga and AO cuddling and kissing with their seats reclined in the car. She saw them from the reflection of the moon. She was patrolling. She saw Malinga and AO’s mother together after she became pregnant. One learner told her that AO was carrying Malinga’s child and was contemplating terminating the pregnancy.
Samuel Koketso Malinga testified that he got to know AO after BO reported them at the school. He did not know where she was staying. He denied all the allegations leveled against him
On Sunday morning of 30 July 2023, the security guard of the complex where he lives informed him that a bunch of people tried to access his place the previous night. He stays in an apartment with limited access. It is not possible to enter without providing access.
AO was not found at his place. He was never with her. He never met her mother outside the school premises. He met AO’s mother in February 2023 before the case. She came to his car to introduce herself. Another encounter with AO’s mother was when the principal called him to the office. She had said bad things about him.
She alleged that she found him and AO in the office. When they viewed the footage, it was found that her information was wrong. Outside the office, she told him that it was Kutlwano not him, she made a mistake. This was also before the present case.
About the current case, the principal informed him in the morning that a lady from the kitchen had reported a case against him. He did not know which lady. He went to the kitchen and asked her why she reported the case. She told him that she found her missing child at his place. He left her there. She never apologized. He never interacted with AO’s mother until January 2024, when the department gave him the audi letter.
It was the first time he saw OM (learner witness) during this hearing. He denied ever buying AO anything or giving her money. He was never in the company of her mother. He works from Monday to Saturday and only has Sunday for himself. He could not have gotten time to take AO out from Friday to Monday.
In 2023, he stayed with his colleague in New Canada. He never met Ms. Litabe and denies all her allegations. He denies that he gave AO his numbers.
The alleged incident was reported at the heart of a promotional post dispute which he was shortlisted for. Nxameza, whom he was sharing the apartment with, chased him out because he was not shortlisted. He had a good relationship with the principal. He denies any sexual relationship with AO.
During cross-examination, he conceded that his car was a white Polo sedan. Ditabe described his car as a Polo classic. He never met Ditabe. He thinks Ditabe lied because there was a political plot against him. All the witnesses are closer to the mother. AO’s mother was only close to him at the school. He did not know how OM was able to describe his car. He did not know why OM lied about him.
The allegations were reported two weeks following his interviews on 21 July 2023 and Nxameza chasing him out of his apartment. The allegations emanated from the post. Nxameza and AO’s matter connect because in February 2023, when she lied about him and later changed that it was Kutlwano who was with AO, he found AO’s mother and Nxameza in the guard room. It was a Saturday. Therefore, Nxamesa and AO’s mother are close. He met AO’s mother before Kutlwano’s incident when she introduced herself to him. Kutlwano was working at the clerk’s office.
He does not know the assistant teacher, Ntloso, whom AO’s mother referred to.AO’s mother, never apologized to him for the mistaken identity and for stating that she found AO at his place. He does not know why she lied about him. He denied convincing her to withdraw the case in exchange for money or in kind.
He was not aware that AO had saved his number. He does not give learners his numbers. Mmotong and the principal were forced to lie. He moved to Phomolong from New Canada on 15 June 2023. At the time of the allegations, he was residing at Phomolong.
AO testified that she is 16 years old. In 2023, she was 15 years old. She denied having a sexual relationship with Malinga. She never slept with Malinga. She had gone out with her boyfriend and friends and their boyfriends to the pub when allegations that he was with Malinga surfaced. Ntloso was her then-boyfriend.
Her stepfather arrived at the pub with the police and her mother. He told his mother that they found AO. Ntloso ran away. They went with the police to the station. The police refused her mother to make a statement whilst drunk.
They wrote the affidavit for her and instructed her to do another one on Monday when she was sober. The police took them home. She told her mother that nothing happened between her and Malinga and that she went out with friends and boyfriends.
Her mother was drunk when she was deposed to the affidavit. She said she was with Malinga because she saw him in the pub and believed she was part of them. She denied that she told her mother that she had unprotected sex with Malinga two times.
She knows OM. She denies that Malinga ever went to her place. OM might have mistaken Malinga for Ntloso. Malinga neither brought her clothes nor gave her anything.
She agreed with Mmotong’s version that she fidgeted with her phone. However, she was going through Instagram. She never saved Malinga as “Babe” on her phone. She once told her mother that she had a crush on Malinga. She rejected Litabe’s testimony.
During cross-examination, she admitted having a crush on Malinga. Her relationship with Ntloso lasted for three years (January 2022 to April 2024). Ntloso is her baby’s father.
On the day at the pub, he saw Malinga buying alcohol. She was not interested in him. Her mother, friends, and stepfather were all drunk when they arrived. The police and stepfather got inside the pub. Her father took her by the hand and went outside to hand her over to her mother. Ntloso and his friends ran away. He did not see where Malinga was at the time as everything happened fast.
Her mother asked her what she was doing. She told her mother that she was with her boyfriend Ntloso and friends. She apologized to her mother. They went to the police station. Her mother accepted her explanation that she was with Ntloso and her friends. They went to the police station because her mother thought she did not sleep at home.
She thinks her mother saw Malinga’s car parked outside the pub. This is because she asked her what Malinga was doing there. That is why they went to the police station. Her mother noticed Malinga’s car because she knew the educators’ cars. She saw Malinga’s car and thought she was with him.
She denies that her mother did not accept her explanation that she was with friends and Ntloso. She was sober. They were not drinking alcohol but were eating at the pub. Her mom did not believe her when she told her that she was with Ntloso and friends hence she opened a case against Malinga. Her mother was drunk.
Her mother was sober when she made the statement at the school. This was despite explaining to her that it was Ntloso, not Malinga. She does not know why her mother continued to humiliate her in the presence of the principal and district officials.
It is not true that she was deleting her WhatsApp messages when she handed her phone over. She was on Instagram. They took the phone from her while she was still fiddling with it. She went to Instagram to entertain herself because they were discussing untruthful information.
It is not a coincidence that she only knows Malinga’s car out of all the educators’ cars at the school. They were renting at OM’s house. Malinga never came to the house with his car. OM does not know Malinga. It was Ntloso who visited her frequently. Ntloso is 24 years old. OM fabricated the story that Malinga took her out for weekends because he is a child.
She does not know Litabe and her kids. She denies that Litabe saw her kissing Malinga. She denied that she was protecting Malinga because he paid her. Ntloso did not have a car, he borrowed cars from friends.
She conceded that she had previously been called to the office for a similar case and that she was involved with Malinga. She never discussed Malinga with her aunt. Her aunt was not present at the police station.
Her mother identified Malinga’s car because it did not have the rear registration number. The pub was close to her house and she went there often. Her birth date is 23 January 2008. Her baby was born on 1 April 2024. CLOSING ARGUMENTS
The employer argued that In Mofokeng v S (A170/2013) [2015] ZAFSHC 13 (5
February 2015). It was held that versions of witnesses must be credible to the extent that their corroborated evidence must satisfy the Court that on a balance of probabilities, it is the truth. The employer’s witnesses, to a greater extent, satisfied this requirement.
The demeanor of the defence witnesses was not convincing. Their testimony was full of contradictions. AO who said her mother believed her version that she was with her boyfriend and friends, could not explain why her mother went to the police station to open an affidavit that she found her daughter (herself) with Malinga.
BO contradicts her affidavit and statement that AO was found with Malinga. The employer’s evidence was coherent, credible and trustworthy in terms of the events that transpired on 31 July 2023, at the principal’s office, BO and her sister, made submissions that led to charges being preferred against Malinga.
It is difficult, if not impossible, to draw a reasonable inference as to the material form of the defense version, as the defense’s evidence was inconsistent, contradictory, and unreliable. AO said that she found herself in the pub with Malinga. Malinga shied away from making the same statement.
AO said her mother was drunk; hence she stated in the affidavit that she was found with Malinga. She could not justify why would her mother go to school to advance the same affidavit and statement on the issue. It is most probable that BO who was able to recognize Malinga’s car, as per Amantle, would have had a reasonable cause to believe that her child’s rights had been violated. Hence, she reported the matter to the police.
the employer contends that the hostile witness, BO, could not justify or give a plausible version for the turnaround in her submissions in the affidavit and also in her statement, save that these denials are bare.
It is probable that AO told her mother that she slept twice with Malinga without protection. The employer has succeeded in proving on the balance of probabilities that Malinga has committed the offence.
The employee argued that AO refuted the allegation made on the statements that she told her mother that she had sex with Malinga without a condom. She denied receiving any money from Mr Malinga to silence her. Furthermore, she denied being found with Mr Malinga at the pub.
Her boyfriend Nhloso does not have a car but he borrows his friends. So, it does not defy logic that the cars that Litabe and Olwabo might have seen at AO’s place could be Nhloso’s friends.

100 . The issue is whether Malinga had a sexual relationship with AO. They both denied this allegation; any reasonable person acting without prejudice or bias would accept their testimony because they are accused of having a sexual relationship, and it is they who have denied the allegation.

101 . In Early Bird farms (Pty) Ltd vs Mlambo (1997)541 (LAC) the test which should be applied is whether the version of the party who bears the onus of proof can be believed or not. The process involves comparing versions of both parties to determine which version is more probable.

102 . It was submitted that the employer has dismally failed to discharge the onus of proof that Malinga committed the offence leveled against him, as evidence led by the employer’s seven witnesses was not credible and probable to attest to the allegation.

103 . Based on the employer’s witness testimonies, it is clear that the allegations were case of mistaken identity and a personal vendetta towards Malinga. All seven witnesses under cross-examination had contrary views to their versions of evidence in chief which clearly indicated that the employer does not have a case and on a balance of probabilities they had failed to discharge the onus resting upon them.
ANALYSIS OF EVIDENCE AND ARGUMENTS

104 . I am persuaded that the employer’s witnesses are reliable and credible. The principal’s version relating to the complaint of AO’s mother (BO) about Malinga’s sexual relationship with AO is corroborated by Mmotong and Molete. This occurred in a meeting held on 31 July 2023, two days after her disappearance incident.

105 . According to BO’s affidavit that she deposed at SAPS on 29 July 2023, immediately upon finding AO with Malinga, there was no uncertainty about the identity of Malinga and her not knowing him. She knew that he was an educator at AO’s school. She stated that she found AO in the presence of community police forum (CPF) members and the SAPS.

106 . It is not disputed that the disappearance of AO for two days was devastating and horrific to the family and the community at large. This is evidenced by the entourage that assisted in the search.

107 . Finding her safe was a relief, but the person she was found with was a great concern, prompting intervention by law enforcement. Hence, she opened a case with the SAPS. It is sensible that she correctly deemed it fit as a responsible parent to report the incident to the principal on Monday without hesitation.
108 . The incident was still fresh when she approached the principal. The version that she related to the principal and repeated to the Department officials Mmotong and Molete is consistent with the content of her SAPS affidavit. She further supported all by writing a statement (Setswana R7) in the presence of the principal and the two Department officials. The Setswana statement was translated in English on R8. There are no anomalies between R7 and R8.

109 . I declared BO a hostile witness on the application of the employer. This was aimed at allowing them to cross-examine her. The grounds were that despite all that had transpired, actions she took to report the child missing, searching, opening a criminal case and reporting to the principal, she drastically contradicted her version to the detriment of the employer.

110 . The employee opposed the application with no sound reasons. It is not in dispute that she deposed to the affidavit and wrote the statement freely and was not coerced. She is the complainant in this case, which is about safeguarding the interest of her minor learner. She is vested with the responsibility to protect against all ills. I was persuaded that it was in the interest of justice to allow the employer to cross-examine BO.

111 . Her newfound contention was that she made a mistake about Malinga and had since apologized to him. She mistakenly reported Malinga instead of Ntloso, AO’s boyfriend. This was prompted by AO’s friend’s information that AO was with Malinga.

112 . Laboring under this misinformation, when they found AO with a male, she assumed him to be Malinga. At the time she had not met Malinga and did not know him. She met Malinga for the first time after she reported the incident. That was when she realized that she had made a mistaken identity. She did not know all the teachers at the school.

113 . BO has been working at the school for more than 18 months at the time of the incident. She is disingenuous at a high level with her U-turn that she did not know Malinga. Furthermore, she testified to the version, which was corroborated by Malinga and AO, that in February 2023, about five months before the incident, she had reported a similar incident when she found Malinga and AO at the school on a Saturday. It is the incident that allegedly involved one Kutlwanong.

114 . There was no issue of identity when she reported the incident to the principal and Department officials in that incident. According to Mmotong, she told them in that meeting that, in hindsight, signs of a sexual relationship between the two had always been there.

115 . She cited an incident when she found AO sitting with Malinga at the school on Saturday when she went to cook for the matriculants. AO lied to her that Malinga was assisting her with schoolwork. She wrote the statement and deposed to the affidavit with conviction. There was no doubt about the identity.

116 . She denies ever mentioning the name of the male person whom she found with AO to the principal. She does not know where the Principal took the name of Malinga from. This is a blatant lie and contradiction because she mentioned Malinga already in her affidavit, the statement and orally to all present in the meeting.

117 . She is not a reliable and credible witness. I am persuaded that she was coerced to fabricate an opposite version to protect Malinga for selfish reasons. Probably in exchange for cash or in kind. He was not charged for fathering AO’s baby.

118 . The DNA test was not administered to establish the biological father of AO’s baby. The allegation of fathering AO’s baby has been a burning issue to the community, which they raised with the Department. I am aware that he was not charged for fathering the baby. In my view, an educator facing a serious charge of a sexual relationship with a minor could have quelled the suspicions by doing a DNA.

119 . It has been 18 months since the incident, and the baby was born in April 2024. He had ample time to clear himself but chose not to. His action is suspect. Its link to BO’s change of heart in his favour is highly probable.

120 . The fact that BO knew Malinga well is corroborated by AO’s testimony that she could spot Malinga’s car, even when parked with other cars allegedly at the pub. Malinga also corroborated this version by saying that she had come to his car to introduce herself to him long before this incident.

121 . She changed the version that AO told her that she had unprotected sex with Malinga two times before. AO also denies it. I find it probable that they colluded to lie about this for selfish reasons to protect Malinga.

122 . Malinga’s representative put a version to OM that Malinga was coming to visit BO as his friend, not AO which he vehemently refuted. This is a concession that Malinga used to visit BO’s house regularly. As to who he was visiting, is an issue that I will determine below. However, this version corroborates the employer’s contention that BO’s change of version is a complete fabrication.

123 . She undoubtedly knew Malinga before the incident, and she identified him when she found AO with him. There was no mistaken identity. The issue of Ntloso was not raised during the meeting with the principal and the Department officials. This applies to AO’s lies that she was found with Ntloso. She would have informed the principal and the officials that the gentleman was Ntloso, not Malinga. The thought of fabricating came after the fact.

124 . BO was not alone when she found AO. She was with CPF members and police, hence her affidavit that she found AO at Malinga’s place was truthful. Which version she corroborated in her subsequent statement. She could not have lied in the affidavit and mentioned that she found AO elsewhere other than Malinga’s place because he was with the people who witnessed the incident. Her new version that it was at the pub is a pure lie.AO is an unreliable and witness like her mother.

125 . OM corroborated Litabe’s version that Malinga used to visit AO’s place. I tested OM before testifying if he was competent. He was able to distinguish reality and fiction; lies and truth. He testified confidently about what he saw when he was staying with his grandmother when BO’s family was renting a room.

126 . His observation correlates with the time Litabe used to see Malinga in the vicinity. Malinga could not explain how these witnesses knew he was driving a white Polo sedan. They did not attend his school and have no interest except to share their observations.

127 . Malinga contradicted himself with the version put to OM that he was visiting BO, not AO. Yet, in his testimony, he refuted ever visiting BO’s place.OM saw Malinga buying AO gifts, giving her money and buying clothes as he was playing with her siblings. OM and Litabe do not know each other but their evidence is consistent and corroborates each other.

128 . Litabe’s explanation of how Malinga and AO’s relationship and meet-ups caught her attention as a concerned mother and street community is justifiable and probable. OM’s contention is that the educator and learner relationship ends at school. His educators do not visit him, and they do not provide him with what Malinga was offering AO. He would see them chilling in the car. I found no evidence that Litabe and OM benefitted from narrating their version. Therefore, I am persuaded that they are credible and reliable witnesses.

129 . I reject Malinga’s contention that he was framed because of the promotional post that he was shortlisted for. This version was not put to the principal for the test. There is no link between the post and the incident because it has been proven that AO was found at his place. There was no mistaken identity.

130 . His testimony is contradicted by his witness AO. According to him, he was nowhere near AO when she was found. However, AO says he was in her vicinity at the pub. Hence, her mother was able to identify his car. However, the pub’s story is a fabrication and improbable. This illustrates the flawed attempt by Malinga, AO, and BO to cover up for him and that it was ill-orchestrated. The truth is that BO was genuine and honest when she reported the incident at the SAPS and school.

131 . It was too late and difficult for her to backtrack after she was influenced to do so.AO struggled to justify why her mother would proceed to open a case against Malinga if she had accepted her explanation that she was with Ntloso (her boyfriend) and friends and not with Malinga. The reason she struggled to inform anyone that her mother was drunk at SAPS was because her version is fiction. It never happened because she was with Malinga in his room.

132 . It is not probable that he was staying at the apartment with limited access. They were able to access his room with CPF and SAPS where they found him with AO. The existence of the sexual relationship between Malinga and AO is further corroborated by saving him as “Babe” on her phone and deleting the WhatsApp messages, which would have been further evidence.

133 . AO is disingenuous in suggesting that she was viewing Instagram during the crucial meeting. The version that she was bored by the lies they were discussing, prompting her to view Instagram is not probable. She was probably destroying evidence to cover herself and protect Malinga. It was not a new relationship. BO saw them together at the school on a Saturday. Therefore, I find the employer’s version to be more probable than Malinga’s bare denial.

134 . BO’s attitude in handling the issue is a social ill which should be discouraged at all costs. This contributes greatly to the exponential rise of sexual abuse cases of girl children. The perpetrators get away with this heinous offence by paying the parents and sometimes the victims. Some ruthless educators take advantage of the economically challenged community.

135 . I am satisfied that the employer has proved on the balance of probabilities Mr Malinga had a sexual relationship with AO. Therefore, the employer has discharged its onus in proving on the balance of probabilities that Mr Malinga had committed a sexual offence with a minor. I find him guilty of contravening Section 17. (1) (c) of the EEA.

SANCTION

136 . Section 17 (1) (c) of the EEA carries a mandatory sanction of dismissal for a sexual assault of a learner. I have found Mr Malinga guilty of having a sexual relationship with a 15-year-old learner from his school.

137 . In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court
held that “The interests of the community cannot be ignored in determining an appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility that they cannot leverage their power and
the esteem with which they may be regarded to satisfy their sexual lust.”

138 . In light of the seriousness of the offence and the mandatory sanction it carries, I have no discretion to impose any other sanction, regardless of mitigating factors. For this reason, I omitted to capture the mitigating and aggravating factors.

139 . The employee committed the offence against a young adolescent girl. He did not only engage in a sexual relationship, but it is also probable that he fathered her child. As an educator, responsible parents and the community have entrusted him to care for and protect learners. However, he ashamedly destroyed that relationship of trust.

140 . The young girl expected care and protection from her educator; instead, she became his predator. Clothed in sheepskin, he abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction as mandated by the EEA.

141 . I find Mr. Malinga unsuitable to work with children. I invoke Section 120(4) of the Children’s Act No 38 of 2005 to declare him on my own accord, unsuitable to work with children.

142 . The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120 (4) of the Children’s Act No 38 of 2005, that Mr. Malinga is unsuitable to work with children, for the director General to enter his name in Part B of the National Child Protection Register.

143 . The attention of SACE is drawn to the fact that Mr Malinga had engaged in a sexual relationship with a 15-year-old learner. It is probable that the relationship has produced a baby.

FINDING

144 . The Employee, Koketso Malinga, is found guilty of having a sexual relationship with a minor learner in terms of Section 17 (1) (c) of the EEA, which imposes a mandatory sanction of dismissal.

145 . The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120 (4) of the Children’s Act No 38 of 2005, that Koketso Malinga is unsuitable to work with children, for the Director General to enter his name in Part B of the National Child Protection Register.

146 . The ELRC is directed to forward a copy of this award to SACE.

Signed and dated at Pretoria on 23 December 2024.

MG Rabyanyana ELRC Panelist