28 January 2025 – ELRC230-23/24NC

Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 230-23/24 NC
Date of award: 21 January 2025

In the arbitration between:

Department of Education-Northern Cape Employer party

and

Mr. M Mothube Employee party

DETAILS OF HEARING AND REPRESENTATION

The present dispute between The Department of Education-Northen Cape (hereinafter referred to as the employer) and Mr. M Mothube (hereinafter referred to as the employee) was referred to, Inquiry by Arbitrator, in terms of Section 188A, of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Hartswater Magistrates Court, in Hartswater, on, 26 & 27 September 2023, the employee was represented by Ms. E Louw, an attorney, and the employer, was represented by Mr. T Obusitse.
The matter was partially heard on, 26 September 2023, due to the Court being in session, and thereafter, loadshedding interrupted the process, and the camera was not operative for us to continue. The matter stood down to, 27 September 2023, and still remained part heard, after the employer’s second witness was heard. The matter was to continue again on, 30 July 2024, but failed to as the representatives were not present, due to some misunderstanding.
Finally, on, 6 November 2024, the testimonies of both parties were concluded. Due to the numerous adjournments, and the time that had lapsed in the conclusion of the testimonies, parties were given the opportunity to submit written closing arguments, by no later than, 13 November 2024 hence, being the last day of the arbitration.
An application for extension of the submission, of the award was sought, and granted.

THE CHARGES TO BE DECIDED:

I am to decide, whether the employee, Mr. Mothube is indeed guilty of the following charges:

Count 1
On or about 21 and 23 April 2023 at or near your residence you allegedly sexually assaulted a learner (X) who is attending school where you are employed, whilst you knew or ought to have known you were not supposed to.

Count 2
You allegedly had a sexual relationship with a learner (X) who is attending school where you are employed, whilst you knew or ought to have known you were not supposed to do so.

Count 3
On or about 21 and 23 April 2023 at or near your residence you allegedly provided under age learners with intoxicating substance (Alcohol), whilst you knew or ought to have known you were not supposed to do so.

PLEA

The applicant pleaded not guilty, to the above three charges.

BACKGROUND

The employee is a math educator, and was charged on, 27 June 2023, as per the above allegations.
He was charged in terms of Sections 17 & 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for the charges, as listed above.
The employee was suspended from work since, the charges were laid against him.
The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, at an Inquiry by Arbitrator.
The various sittings of the matter are provided for, above, as per paragraphs 2 & 3, as well the reasons for their adjournments, or non-continuance.
Hence, we are at the present instance of the hearing.

SURVEY OF EVIDENCE AND ARGUMENT

Both parties were given the opportunity to submit opening statements; call witnesses and submit written closing arguments, due to the fact that the matter was previously adjourned.
The employer called three learners, as witnesses, and they are referred to as Ms. X; Y & Z.
The employer submitted the charge sheet, as its bundle of documents.
For the purposes of this award, the affected learners shall be referred to as Ms. X; Y & Z, to protect their identities, due to their ages, and them having being learners, or ex-learners at school.
Indeed, the learners were assisted with an intermediary, as well as an interpreter.
Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the argument, or evidence not be reflected hereunder, then, it does not mean, that it is not considered.
In any event, I am required to deal with the substantive merits of the dispute.

ANALYSIS OF EVIDENCE AND ARGUMENT

At the outset, I must reiterate that what is before are the testimonies of a hostile learner witness, and two contradictory versions of the other two learner witnesses. On the other hand, I have the testimony of Mr. Mothube, the educator.
Ms. X, the learner was the employer’s hostile witness, though the charge against the educator was related to a sexual relationship. There was no previous written statement by the witness, for the employer to make an application to examine the witness, at cross. The employer failed to use the learner’s previous statement, though it may not have been written, to use it to discredit the witness, or as proof of the evidence contained therein.
The declaration of a witness as hostile is a recognised exception to the rule that a party may not discredit, or cross-examine their own witnesses.
In view of the above, I am required to consider same, as it was testified to at the arbitration.
Ms. X nonetheless conceded that they had slept at the residence of the educator on, 21 April 2023, but denied that she had had sexual intercourse with the educator. She also testified that she was not sexually assaulted, on, 23 April 2023, either, as alleged by the employer. There were indeed three female learners, and three males, including the educator, and his colleague. They danced, and all three learners had slept together, on the sofa. Moreover, they had all been menstruating. Rather coincidental, I must admit that all three learners had had their menstruation cycle, at the same time.
She continued to testify that on, 23 April 2023, they had had warm non-alcoholic beverages. Indeed, she confirmed the educator’s version that he had gone to sleep, in his bedroom, however, the educator had invited her to join him. She claimed that they both slept however nothing happened between them. This is not plausible, and though the learner’s evidence was contradictory, it was not challenged that the educator had not invited her into the bedroom with him. She insisted that she chose to sleep with the educator on her own accord, and did not have sex with him. I am persuaded that the learner is being dishonest. But I must accept that she had not had a sexual relationship with the educator.
At cross-examination, the learner insisted that she had not had sex with the educator. Neither, had the educator gave her any alcohol.
I must admit the testimony of the learner, is contradictory, and did not substantiate the allegations brought against the educator. She is indeed a hostile witness, and gave no credibility to the employer’s case.
Learner Y testified for the employer that, nothing happened on either, 21 or, 22 April 2023. On, 23 April 2023, learner X had suggested that they go to the educator’s house. The learners suggested that they pick up the two males, which they did. These two males were also present on the night of, 21 April 2023. The same three learners were at the educator’s house on, 21 April 2023, along with a fourth learner. They went to the tavern to buy alcohol. She insisted that the educator had offered them alcohol; soft drinks or coffee. The learners requested coffee. I am impressed. She testified that she had had sex with “Spangkan”, a teacher assistant.
Learner Y testified that leaner X slept in the educator’s room. The third couple slept on the sofa. They did not hear anything from the educator’s room, whilst the educator and Ms. Y were in the bedroom. Obviously, the door was closed. At approximately 5h00, they were dropped off at home. Apparently, the educator had chosen his partner. She was informed by learner X that nothing had happened, between herself and the educator. It emerged that indeed, the only learner Y had had sexual intercourse on that night. Not the other two learners.
At cross-examination, Ms. Y confirmed that they had only had coffee at the educator’s home, on the evening of, 23 April 2023. It emerged that she was not present on, 21 April 2023, therefore her testimony in chief can hardly be accepted for, 21 April 2023. There was an issue about her twin sibling having taken some beers out of the refrigerator, but this has no relevance to the charges at hand. I must decide whether the educator, Mr. Mothube had indeed served alcohol to Ms. X, and if had indeed slept with Ms. Y. Apparently, both the employer’s witnesses could not testify that they had seen, or indeed were told that the educator had had sex with learner X. I therefore cannot establish any guilt on the part of the educator, thus far. Learner Y had put several different, and mostly contradictory versions before me, and she did not prove to be either credible, or reliable. Of course, Ms. Y was not able to see what was going on in Mr. Mothube’s bedroom. Therefore, it can so far not be established that there was a sexual relationship between Ms. X and the educator. It is wrong for the educator and learner to have been in the same bedroom with closed doors.
Ms. Z, the employer’s final witness testified that, they had asked Mr. Mothube for snuff money. After they got home and changed, they went to the educator’s home. She insisted that Ms. X slept with the educator. And she had slept with another male. On, 23 April 2023, they went back to the educator’s residence, and Ms. X slept with the educator. The witness had slept with Kgatlego. The learners drank coffee, whilst the educator and Spangkan drank alcohol. Spankgan offered the learners alcohol, but they refused. In the morning, they were driven home by the educator. On, 21 April 2023, the witness drank alcohol. The alcohol was not offered to her by the educator.
Ms. Z’s testimony is further contradiction to the previous two learners. Indeed, she admitted that she had drank alcohol, but was offered by Spangkan. The educator is not implicated with offering the learners alcohol. It is not in dispute that these learners were at the educator’s home, and had slept the night over, on both, 21 & 23 April 2023, but none could suggest that they had seen Ms. X having had a sexual relationship with the educator. The educator himself did testify that he had not had sex with Ms. X and that he had not offered the learners alcohol.
At Ms. Z’s cross-examination, nothing new emerged, that implicated the educator. The witness however insisted that Ms. X had gone to the bedroom with Mr. Mothube, and that Ms. X and the educator had had sex. I am not convinced as it was testified that the room door was closed. Ms. Z could not tell how she had known that for sure that the educator and Ms. X had had sex. Learner Z contradicted the earlier witnesses’ testimony that, they had not had alcohol. She also insisted that Ms. X had told them that she had not had sex with the educator. She insisted that they had had alcohol on, 21 April 2023, but not on, 23 April 2023. Whilst this was denied by the previous two witnesses.
Ms. Z was neither a reliable witness, because initially she testified that on, 21 April 2023, there were seven persons at the house of the educator, but later concluded that there were six of them, three males and three females. Indeed, she was told by Ms. X that she had not had sex with Mr. Mothube. She initially indicated that she would not be able say if Ms. X, and the educator had had sex. She explained that Ms X told her that the educator had broken her virginity. Whilst she testified that Ms. X had informed them, that she had not had sex with the educator. How then would Ms. X had lost her virginity. Then, the witness suggested that another colleague who was with them had told her.
As a result of these unreliable and contradictory allegations, I cannot find that the employer is able to prove the allegations against the educator. The circuit manager who had apparently taken the learners statements, was not called as a witness.
All three of the employer’s witnesses’ testimonies are unworthy of any credibility or reliability. They are riddled with inconsistencies, and contradictions, and therefore I cannot rely on their versions to be accepted on a balance of probabilities.
In Stellenbosch Farmers Winery Group Ltd & another v Martell et Cie & Others 2003 (1) SA 11 (SCA) the Court suggested that to come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. Having considered the credibility of the respondent’s witnesses as opposed to the applicant’s witnesses in demeanour, their blatant bias; internal contradictions; the improbability of aspects of the testimony; the performance in relation to the employee’s testimony, I am persuaded towards the version of the employee. Some portions of both the applicant’s and respondent’s testimonies remain unchallenged. I found, for the brief reasons stated hereunder that the employee’s version is not more probable, but at least, the employer’s witnesses were not persuasive. The incidents of the disputed weekend are not complicated.
Mr. Mothube, the accused educator testified on his own behalf, that on, 21 April 2024, four learners passed by his home, and sought some drinking water. He had been seated outside his home with Spangkan. He referred them to the tap at the back of his house. Three learners returned, later, and asked for cool drink. He insisted that they all sat outside. After, the educator’s friend offered them some water, the learners insisted on coffee. He denied that they had slept at his house on, 21 April 2023, but that the learners had slept at his place on Sunday, 23 April 2023. He denied having sex with Ms. X.
On, 23 April 2024, after the educator returned from Kimberley, he had seen the learners on the stoep of his house. The learners made their own coffee, on that night. Whilst the learners were having coffee, he went to bed.
At cross-examination, the educator confirmed that, on, 21 April 2024, he had just showed the tap at the back when the learners asked for water. The learner’s lived approximately 7 km from his residence. On, 21 April 2023, he allowed the learners to stay as they were having coffee. He denied that the learners drank alcohol. He did tell Kgatlego that the learners should go home. On, Sunday, 23 April 2023, he arrived at 19h30 from Kimberley. The three learners were sitting on his stoep.
At approximately 21h30, they went inside his house. At about 22h00, he went into his room, and left everyone in his lounge. They supposed to awake the educator, to drive them home. In the night Ms. X crawled into his room, and the educator found her in his bed the next morning. He did not expect the learners to have sex with his two friends/colleagues. Nothing further emerged, from the educator’s cross-examination.
For the brief, but compelling reasons above, I find that on a balance of probabilities the employer has failed to prove its case. The learner witnesses were deplorable, in relating the circumstances of that weekend.