Case: ELRC 390 – 21/22KZN
Date of Award: 01 January 2025
Panellist: Vuyiso Ngcengeni

Province : KwaZulu Natal

Employer : Department of Education – KwaZulu Natal

Employer representative : Ms Monica Mtetwa

Employee : Mr Kovilen Naidoo, instructed by Singh &
Gharbaharan attorneys.

Employee representative : Adv K Naidu

Issue : Inquiry By Arbitrator – s188A

Venue : Durban Training Centre

                           INQUIRY BY ARBITRATOR AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down before me on a number of days, the first being 31st August 2022 and the last date being 29th November 2024.
2. The matter was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 188A of the Labour Relations Act 66 OF 1995 (as amended) (LRA) in conjunction with Collective Agreement 3 of 2018.
3. The Employer was at all times present and represented by Ms Monica Mtetwa who is an official of the Department. The Employee was represented by Adv K Naidu, until his untimely passing occurred after the penultimate hearing held on 31st July 2024.
4. At the last hearing, held on 29th November 2024, Mr Ashwin Gharbaharan, the instructing attorney to Adv Naidu, who had been present in all the previous hearings, except on 27th August 2024, represented the Employee.
5. The hearing was conducted in English and there was an isiZulu interpreter. The hearing was digitally recorded.
6. This matter is about sexual harassment involving a former learner at Roseville Secondary School. For the purposes of confidentiality, I will henceforth refer to the learner involved as NS, and her witness, who was also a learner at the same school as QG. At the time of the conclusion of this matter, both learners were no longer based at the school.
7. I received all the closing arguments by the 13th December 2024.

ISSUE TO BE DETERMINED

8. I am called upon to determine whether the Employee is guilty of the charges that that he is accused of. The charges are written as follows: –

8.1 It is alleged that on or around 2nd school term in 2018, you allegedly committed an act of sexual assault on NQ, the then grade 8 learner at Roseville Secondary School, in that you lifted her skirt, brushed and kissed her thighs, fondled her breast with your elbow and forcefully pulled her hand towards your penis while she was in your class. You thus committed an offence in terms of Section 17 (1)(b) of the Employment of Educators Act 76 of 1998.

ALTERNATIVELY

It is alleged that on or around 2nd school term in 2018 and on or about June 2021 whilst you were on duty at Roseville Secondary School, you conducted yourself in an improper, disgraceful or unacceptable manner towards NS, a grade 11 learner at the school in that you fondled her breast with your elbow, tried to kiss her, tried to hug her, pulled her hand towards your penis and showed her your penis. You thus committed an offence in terms of Section 18 (1)(q) of the Employment of Educators Act 76 of 1998.

9. There is an obvious error on the alternative charge, instead of writing the year 2021, the Employer wrote 2018. The learner was in grade 11 and the year is 2021. She was in grade 12 in 2022.
10. The Employee denies being guilty of the charges laid against him.

BACKGROUND TO THE DISPUTE

11. The Employee was employed as a level two educator at Roseville Secondary School, Kwazulu Natal.
12. Around August 2021, the Employer preferred the above-mentioned charges against the Employee and then placed him on precautionary suspension, pending finalization of the matter.
13. A common bundle was submitted by the parties and it includes the following: –

13.1 The school principal’s report (Mr LP Khumalo) stamped on 05 July 2021.
13.2 Signed statements and / or affidavits from:

13.2.1 IP Khumalo – the school principal (during 2021),
13.2.2 NS – dated 27 July 2021, 28 July, 29 July 2021, 13 October 2021, 23 November 2021.
13.2.3 QG, dated 01 August 2021
13.2.4 HP Zondi, an Educator at the school, dated 29 July and 17 August 2021.
13.2.5 Mabusi Florence S (NS’ mother) – dated 29 July 2021 and 13 October 2021,
13.2.6 Sanelisiwe S (NS’s sister) – dated 30 July 2021,
13.2.7 Lutchman Rungasamy Naidoo, ex-principal – dated 30 July 2021,
13.2.8 Samkelisiwe G, a learner – dated 13 September 2021,
13.2.9 Sbahle M, a learner – dated 23 November 2021
13.2.10 Krishma Perumal Reddy – ex – principal who left the school in October 2015, dated 12 October 2021.
13.2.11 Promise Sihle Ngcongo, an Educator and also a disciplinary officer at the school, dated 11 January 2022.

14. The bundle also includes an incident report signed by the principal of the school, Mr IP Khumalo (divider C, page 1 to 4), pictures of two blocks of the school and the passage (page 55) on photo 1. On photo 2 is the Computer Applied Technology (CAT room) in which some of the alleged incidents took place. On page 56 in the CAT room is a reflection on photo 3 of where Sibahle sat on C, and on photo 4, where NS sat on B, as well as the Employee standing next to her. On page 57, on photo 5 on B is where NS sat, and photo 6 on C is also NS reflected from a different angle.
15. The photos referred to above are of common cause to the parties in terms of the standing of the CAT room and its internal features and where the allegations took place. They are for the purposes of demonstration only, as the Employee denies the allegations.

SURVEY OF EVIDENCE AND ARGUMENT
Employer’s case
Ms Hlengiwe Pretty Zondi (Zondi) testified under oath as follows: –

16. She is an Educator at the school and commenced in February 2008. She has been an educator since January 1996. She knows the Employee as a colleague.
17. In 2018, she was a grade 8 teacher during that year, NS and her friends came to her to report a matter. She cannot recall what month it was. NS said the Employee touched her in an improper manner, making her feel uncomfortable. NS was not specific on the details but she said the Employee touched her on her private parts, which was not proper. NS said the incident took place in the class room and she was the only learner left with the Employee when it took pace.
18. NS was with SS, Lungile and other learners whom she cannot remember. She went to Mr LR Naidoo, who was the Principal at the time and reported the manner, and she was with NS when she did so. LR Naidoo asked what NS would prefer to be done and NS said she would like that the Employee be warned, and that she would not like to press charges. When she related the story to LR Naidoo, he directly asked NS questions. She did not write a report on the matter and she did not get any report with regard to the Employee having been reprimanded. LR Naidoo did not tell her to write anything down.
19. She wrote a statement on page 24 because she was asked to do so. She thought she had finished her role after telling LR Naidoo about the incident. She also told a disciplinary officer, Mr PS Ngcongoe same account.
20. She denies that she said that NS told her that the Employee made her touch his private parts (p25).
21. She omitted in her statement to mention that NS had red eyes and also that she told PS Ngcongo because she was not asked to say so. She also mentioned that NS came, she did not mention that she came with others, as only NS was important.
22. She realised during the arbitration that her Identity Document number was also incorrectly captured in the affidavit she signed. She did not tell the investigator about the error which says NS said the Employee asked her to touch his private parts.
23. In 2018, she was NS’s class teacher and when NS reported the incident, they were in a class. She did not teach NS any subject at the time.
24. Cross examination – Some of the errors in her statement are that NS said the Employee made her touch his private parts, it should be that he touched her private parts. It is correct that the affidavit was read to her before she signed it but she did not hear the erroneous parts, otherwise she would not have signed it.
25. She did not mention in the affidavit that she told LR Naidoo that the Employee touched NS’s private parts. She cannot clearly remember, but it was between 2018 and 2019.
26. NS may have been confused when she said the principal was KP Reddy, it was in fact LP Niadoo. She denies that she did not report the incident to LP Naidoo. After reporting it to LP Naidoo, she did not go and look at the log book to see whether LP Niadoo had made an entry.
27. She does not know if Ngcongo raised the matter with LP Niadoo. The incident was serious and she was concerned when it was reported to her.
28. She does not remember if LP Naidoo was at the school from 2015 to 2018. She does not know why LP Naidoo would lie. She knows nothing about the log book, as it stayed in LP Naidoo’s office, so she cannot dispute it if there was no entry made by LP Naidoo.
29. In 2018, she was NS’ class teacher and she was like a mother to her. When she reported the incident to Ngcongo, as they were chatting, she told him that she was very shocked when NS told her that the Employee had touched her inappropriately.
30. She did not mention the above in her statement because she was not asked to do so. She was asked to write a statement about the NS incident, she was not asked about what she did herself.
31. The CAT room is a computer room and it was on the second floor in the middle rooms. She does not know if when one shouts from the computer room, others would hear in the other rooms.
32. She did not know that the blocks have 15 rooms, five rooms on each side.

NS testified under oath as follows: –

33. She was 17 years old when the arbitration started in 2022 and was in grade 12 at the same school. The Employee taught her Economic Management Science (EMS) in 2018 when she was in grade 8.
34. It was after an EMS period has ended in 2018, when the Employee asked her to come and sort out her file. The file was on the shelf in his class room next to his desk. At that time, the other learners had left the class and she was left with him alone, since the period was over. As she was sorting out the file, he stood next to her and he brushed her breasts using his elbow. As he was brushing her, she moved backwards, he brushed her on her right breast as he was seated on her right-hand side. After finishing the file, she left.
35. About a week later, again, as she was sorting her file, he brushed her breasts with his elbow.
36. The other incident is when one day, she arrived late at school and the Employee told her to go and wait for him in the Computer Applied Technology room (CAT room), and he gave her the keys. At the CAT room (page 56 photo no 4), he made her go behind the wall and sit next to C (photo 6). As he entered the CAT room, he closed the door. At that time, she was standing next to the door. He sat down on a chair and placed it against the wall and then asked her to come and sit on his lap. She declined. He then stood up, went to her and hugged her. She asked if she could go to the class and he said he would go first. He then left and she followed. As she entered the class, he scolded her for coming late, and yet he had first sent her to the (CAT room).
37. On another day, the Employee told her and Sibahle, her friend, to write an assignment in the CAT room. When in the CAT room, they sat at different desks. He went around and when he got next to her, he kneeled down and kissed her thighs, took her hand by force and made her brush his penis. After that, he sat on the chair and as she looked at him, his private part was exposed.
38. She did not tell anyone about the issue that took place when writing the assignment on the same day, apart from her friends, SG, A Khumalo, Akhona M, QG, Nokuthula M, L Mbambo and Thandeka. She told her friends about the incidents, they then went to tell Zondi who took them to the principal, Mr KP Reddy.
39. After a few weeks, she and Sibahle went out and reported the matter to Zondi, who took them to the principal, and the principal asked her if she wanted to report the matter to the police or she wanted him (principal) to speak to the Employee. She told the principal that she would like him to speak to the Employee.
40. When someone from the Department of Education came to take a statement from her, he suggested the name of the principal was KP Reddy, it did not come from her. She reported the incident to the principal, and she had become aware that it was Mr Luchman R Naidoo. When she reported it, he was not writing it down and she did not ask him to write it down. She did not get any feedback.
41. Approximately two years went past without any incident until 2021 when QG asked her to accompany him to the CAT room to make copies. When they were in the CAT room, the Employee was also present and he asked QG to go and fetch a cable. He then asked her to take his laptop, she did, gave it to him and she sat down.
42. He wanted pictures that were similar to those that QG had. He then asked them to send the pictures via blue tooth.
43. QG came back and he asked QG to bring him the photos via Bluetooth and QG complied. After QG had done so, he left and after that, she was left with the Employee. He asked her if she remembered what happened in grade 8 and she said she did not remember. He asked if the grade 8 incidents were good or bad memories, and she did not respond.
44. He then put his hand inside her thighs under the table, brushed her thighs and he stood, came to her back and he attempted to kiss her.
45. They finished printing the photos and after having gone out, she told Q that he must never send her to the CAT room again.
46. She recognised the door on photo 2 on page 55 and that is the CAT room in which she came to write the assignment. Photo 3 on C would be Sibahle and she would be the one on B. The gentleman standing would be the Employee. As she sat and wrote the assignment, she could not see Sibahle (B), due to the height of the petitioning on the desk and the computer, except her head. It was then that the Employee sat next to her, on her right side and showed her his penis, exposed from his underwear, took her hand and made her brush it and during that time, Sibahle was busy writing the assignment. She tried to move her hand away from him, but he tightened his grip on it. The main door was closed at the time.
47. She did not cry or shout. She was scared. She saw the Employee as he walked to Sibahle’s side but she did not notice anything untoward. On that day, there was no time where she was left only with the Employee at the CAT room.
48. She cannot remember who finished first between her and Sibahle, but they left the CAT room together.
49. From page 65-69 is the timetable in 2021, during Covid 19 period.
50. She does not know why she did not tell anyone on the same day about the incident, including QG. She told her sister, SS after a few days.
51. The photos reflected on pages 59 to 64 are the photos when she and QG went to the Employee at the CAT room. The reason she was left alone with the Employee was because QG had gone to fetch a cable.
52. SS then told their mother, who then told her other two sisters. They then asked her if that was true and she confirmed that it was. They then informed Mr Mgobhozi, who is an attorney and a close family associate.
53. She told her sister, not her mother, it was her sister, Sanelisiwe who then told her mother. The Employee never touched her private parts.
54. When the school re-opened, Mgobhozi and her sister, Sanelisiwe came to the school.
55. On the incident involving the pictures, the Employee used his computer to look for pictures but he could not find them, then he sent her to go and fetch his laptop on the shelf.
56. She wrote a number of statements. When the police wrote the statements, they told her to explain what happened and the policewoman would write her responses down. Afterwards, she did not read the statement, the policewoman did.
57. She is aware that there are multiple statements that were taken from her. However, she did not personally write any statement, the Police Officer did and after that, she was asked to read and sign them, which she did. She did not read the statements carefully, so as to be able to note the discrepancies contained in them.
58. All the issues she mentioned happened. The Employee inappropriately touched her in the CAT room after QG had returned from looking for a cable, and he had gone to the class.
59. She reported the 2018 incident to the Principal and she was with Ms Zondi at the time.
60. Cross examination – She was at the school from 2018 to 2022, and in 2018, she was in grade 8 and progressed each year until grade 12 in 2022. The Employee was not her class teacher but he had taught her EMS.
61. She does not know anything about the criminal case and the prosecutor’s decision not to prosecute the Employee.
62. She cannot recall if she made any statement/s prior to the one on page 8-9, to the police. She was with her mother when she signed the statement on page 8-9. The statement was taken by a female police officer.
63. QG took about ten minutes to come back, not one or two. The incident took place before QG came back. She does not remember the dates on which these incidents took place and she understands that recalling the dates would have been very important for the Employee to be able to defend himself.
64. She did not tell her mother; she told her sister and her sister informed their mother. She did not tell her mother that the Employee touched her breast, thighs and private parts, as reflected on her (her mother’s) statement on p28. She was not present when her mother wrote the statement, had she been present, she would have corrected her. She does not know where her mother receive the details of where she was touched by the Employee.
65. All she told her sister, Sanelisiwe Shezi, was that the Employee was harassing her. She does not know where Sanelisiwe got the other issues of touching.
66. She left the police station after making her statement with her mother on 27 July 2021 and they came back a couple of days later.
67. It was in June 2021 when she accompanied QG to have his identity document printed.
68. Although she cannot recall the exact date of the incidents, it is not true that these incidents never took place, they did.
69. When she was writing her affidavit, she remembered what happened but not everything. She did not write that the Employee fondled her breast because the police did not ask for such specifics. The police called her to go back to the police station for further questions and she did so on 27 July 2021.
70. In 2018, there was not one but four incidents, with the last one happening towards the end of the year. The first time she told someone about the incident was probably a few days later, and that was Sibahle.
71. The 2018 incidents could not have been in 2019 or 2020 as stated by Samkelisiwe in her affidavit, during these two years, the Employee did not teach her at all. After the 2018 incidents, she was not comfortable sitting next to the Employee as she became afraid of him.
72. In 2021, she was still wary of him, but not like before. She went to the CAT room because QG had asked her to. She remained alone with the Employee because he had QG’s phone with him.
73. After QG had left the CAT room, she again remained with the Employee because the printer had not finished printing, so she waited for the photos. She wanted the photos as they had to submit an assignment.
74. She did not tell Zondi that the Employee touched her private parts.
75. It was in June 2021 when the Employee asked her if she remembered what happened in 2018. In relation to what happened in the CAT room, she did not think of crying or shouting or running out when the Employee touched her and exposed his private part to her.
76. The CAT room has large windows but it is not possible that anyone could have seen what was happening inside because the bottom part of the windows is higher. It is possible that had she shouted, other people from nearby classes could have heard her.
77. As the Employee touched her, she was moving backwards. It is correct that she had every opportunity to shout or run out and she did not do so. However, that does not mean the incidents did not take place. The door was closed.
78. The touching and the attempt at kissing her by the Employee happened after QG had brought back the cable and then gone to the class, he was not in the CAT room.
79. It was during the second incident involving the sorting of her file that the Employee again touched her breast with his elbow and told her that her breasts have grown. Although she thought that was getting serious, she did not tell anyone.
80. When giving the statements, she was not told to be specific, the police were asking questions and she was responding to those questions. The elbow incidents happened in 2018 and the attempted kissing in 2021 when as she sat down, he came behind her and tried to kiss her.
81. She denies that she is making her version as she goes along.
82. When in the CAT room, Sibahle sat on the chair and the computer across her on the mark C whilst she sat on B. When they were seated, they could not see each other. Sibahle could not see when the Employee kneeled and showed her his penis. She was shocked but she did not tell Sibahle.
83. They were writing when they were in the CAT room, so she did not notice if Sibahle could see her.
84. All the incidences she testified to are true and they happened.

Ms Sanelisiwe testified on behalf of the Employer as follows: –

85. She is an older sister to NS. She does not know the Employee. NS told her in 2018 that there was a teacher who was harassing her at the school. Then again in 2019, whilst they were at home in the rural areas, NS related the same to her.
86. She then told their mother, who consulted Mgobhozi. Mgobhozi advised her to tell one of the teachers at the school.
87. NS told her that the teacher who had touched her whilst she was on grade 8 in 2018, did so again in 2021 whilst they were in the laboratory.
88. She gave the statement contained in pages 30-31. She did not tell her mother that NS told her that the Employee touched her on her private parts.
89. Cross examination – She never attended the same school as NS. She lived in the same house as NS together with the rest of the family. When one touches one’s thighs, the skirt needs to be lifted first. Se does not remember exactly when NS told her about the incident. Mr Promise Sihle Ngcongo (Ngcongo) testified on behalf of the Employer as follows: –
90. He commenced employment as an Educator in 1992 and started at the same school since 2002. He is a Disciplinary Officer. When learners have problems, they report to him. he knows the Employee and NS.
91. Around June or July 2018, NS came to him and told him that the Employee had touched her breasts and body, which made her uncomfortable. She reported this to him because when learners have problems with other learners or teachers, they reported such to him. She was crying when she was telling him what the Employee had done to her.
92. When a learner comes to report such incidents to him, he does not have the authority to tell her what to do, hence he told her to report the incident to Ms Madula, a Life Orientation Teacher as well as to Ms Zondi.
93. Also, he only deals with learners, and when it comes to his colleagues, the educators, he reports them to the Principal.
94. In 2021, Samkelisiwe also came to him and told him that the Employee had touched her, and her parents came to the school about the matter and spoke with him. the parents said they did not want to open a case and all they wanted was the school to engage the Employee.
95. The typed statement on pages 53-54 is not identical to the hand written on page 53B (three pages).
96. Again in 2021, the police arrived at the school regarding another learner who also complained of a similar conduct by the Employee, and that is Sne Gumbi.
97. Cross examination – The witness submitted the statement on page 53, but it was written by the police officer, who would ask him questions and he would respond. The police to his residence and took a statement. He had never saw the typed statement on pages 53-54, before.
98. He has files from grade 8 to grade 12 for learners where he records complaints and he would call parents for discussions. He reports learner problems to the Life Orientation Teacher, not to the Principal.
99. Whether the statement refers to NS having been touched on the breasts not breast, thighs instead of a thigh or a chest, it is still correct because all these are part of the body.
100. He did not contact NS’s parents regarding the 2018 incident.

Mr Irvin Khumalo (Khumalo) testified on behalf of the Employer as follows: –

101. He is the current Principal at the school and has been in the position since 2019. He has 35 years of experience as a teacher and has been a Principal for 17 years.
102. He has knowledge of the allegations laid against the Employee and he wrote the report on 05 July 2021 (divider 3) to Mgobhozi after he met with the Employee and cautioned him regarding incidents involving the Employee and learners. These incidents include one of May 2021 involving a learner named N Ngcobo whose mother came to report that the Employee had exposed his penis to her in the CAT room. He called the Deputy Principal and informed him of the incident and they called the Employee and he apologised.
103. He does not recall if he reported the above incident to the Circuit or District office. No formal action was taken against the Employee.
104. After Mgobhozi and NS’s sister had left the school, at the school, he held a meeting with the Employee and informed him about the sexual harassment allegations.
105. He did not interview NS and neither did he ask for her statement. He has no knowledge of NS having reported the matter to Ngcongo.
106. On 29 June 2021, he received an email from Ugu District’s Employee Relations division.
107. Cross examination – It is correct that there was no direct complaint by Ngcobo against the Employee about the said allegations. He did not proceed with the matter any further because Ngcobo’s parent said she wanted the school to caution the Employee.
108. When referred to the top para on page 4, he said he does not know why he said the Employee had apologised.
109. With respect to Ndlovu, the Employee apologised and then he said he does not know where that is coming from.
110. He did not talk with the Employee about the incident, he spoke with the Deputy Principal and then escalated then escalated the matter to the District.
111. He knows that when he says something that was told to him by someone else, that is hearsay.
112. Hlongwa’s statement read to him where her mother said the Employee did not do anything untoward against her child, when he was then asked if he can confirm that, he said he cannot confirm nor deny that.
     Mr QG testified on behalf of the Employer as follows: –
113. He was a learner at the school from 2018 to 2022 and NS is his friend. He is now a student at the University of Johannesburg. At some point around 2021, NS told him not to ever send her to the Employee again. He does not know why NS said so.
114. On page 37 is his statement which was taken from his residence. He was speaking and the police officer was writing down the answers, and then it was given to him to sign.
115. A week after the incident involving the pictures and the printing thereof, he asked NS why she told him never to send her to the Employee again. That was when NS informed him that the Employee touched her inappropriately.
116. The pictures as depicted on pages 59-64 are the pictures that he and NS went to print for a project they were busy with.
117. He believes that NS told him that the Employee touched her inappropriately.
118. Cross examination – The pictures reflected on pages 59-64 have no date but were printed in 2021. He cannot agree nor dispute that they may have been taken around June or July 2021.
119. Nothing was added or omitted in his statement which he told the police. He remembers stating that NS told him about the incident on 24 June 2021, but he mentioned the date because the police officer told him to be specific.
120. He believes when NS told him, it might have been after about two weeks. NS did not tell him about the incident when he came back from fetching the cable.

THE EMPLOYER ARGUEMENTS

121. The Employee is charged with one Section 17 (1) (b) charge and Section 18 (1) (q) alternative which are both serious misconduct offences. NS was steadfastly consistent in her testimony on what transpired when the offences took place. Even when she was vigorously cross examined, she was able to give a consistent account of details of the event.
122. Certain facts were common cause namely the fact that the incident that happened twice in 2018 when the leaner was in class alone and called by the Employee to check her portfolio file. Her testimony was corroborated by Ms Zondi and Mr Ngcongo that NS came and reported the incident to them.
123. NS gave a detailed version of how the assault occurred in the presence of another leaner when they were writing a test. The documentary evidence supported NS’s version that the assault probably happened looking at the layout of the computer lap.
124. QG testified that he left NS alone in the classroom with the Employee waiting for his pictures to be printed, he further testified that when she gave him the pictures, she told him “not to ever send her” to the Employee. He further stated that after some weeks or days NS told him that the Employee touched her inappropriately and tried to kiss her while they were alone in his classroom.
125. The Employee in his defence said nothing to rebut the evidence that was led by employer’s witnesses. He only read the statement that he wrote. He testified that he and NS had healthy learner teacher relationship there were no hard feelings or ulterior motives that he was aware of. He failed to put his version to the Employer witnesses when they were giving evidence and came up with new version when they were long gone.
126. He failed to dispute the evidence of the witnesses on how the events unfolded and did not bring witnesses to corroborate his version. The school is entrusted by parents to take care of learners while there are at school (In loco parentis). With the Employee around, learners won’t be safe. “Section 28(2) of the Constitution provides that, “A child’s best interests are of paramount importance in every matter concerning the child.” The department is obligated to make sure the interest of the child is prioritized by providing safe schools.
127. The trust relationship is irreparable. Section 120 (1) (c) of the Children’s Act (CA) provides that
     a finding that a person is unsuitable to work with children may be made by—
     (a) a children’s court;
     (b) any other court in any criminal or civil proceedings in which that person is involved; or
     (c) any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.
128. This inquiry by arbitrator is such a forum established in terms of Section 188A of the LRA.
129. In terms of the CA, the Employee must be declared unfit to work with children.
130. The Employer prays that the Panellist rule in favour of the employer and find the Employee guilty of a misconduct. The appropriate sanction for the Employee is that of dismissal.

The Employee’s case
Mr Lutchman R Naidoo testified on behalf of the Employee under oath as follows: –

131. He was the Acting Principal at the school from October 2015 to December 2018 and is now retired. He took over after Mr KP Reddy retired as the Principal at the school.
132. His affidavit is on pages 34-35, and he gave it after the police officer contacted him.
133. Every school has a log book where they record everything that happens at the school and that is mandatory. There is nothing that was recorded in respect to NS and he does not know her.
134. Around 2015 to 2018, they always had about 1000 learners. Ms Zondi never informed him of any complaint by NS involving the Employee.
135. Cross examination – In 2018, there is no specific learner that he personally knew. Mr Ngcongo was also responsible for discipline at the school.
136. He denies that Zondi has ever reported the issue involving NS and the Employee to him. Anything that involves a serious sexual misconduct has to be reported to the Child Protection Unit and the parents.
137. NS allegations against the Employee were never brought to his attention and they never took place during his time at the school. The fact that he said it was never brought to his attention does not mean it never happened.

Captain Kishore Giani (Giani) testified under oath as follows: –

138. He has been employed by the SAPS for 38 years and he was the investigating officer in the matter in July 2021. The case number thereof is: 316/7/2021. The case was declined by the Regional Court Prosecutor.
139. He commissioned Ngcongo’s affidavit. He asked Ngcongo questions and he was writing down the responses.
140. It is his picture which reflects a man standing in the photos number 3 and 4 on page 56. They took the pictures as they were trying to recreate the scene as part of the investigation. These are part of the documents submitted and they form part of what the prosecutor relied on when dismissing the matter.
141. Cross examination – If both learners were seated in the CAT room, they would not have been able to see when the Employee touches the other’s thighs.
142. The Prosecutor works on the criminal standard of beyond a reasonable doubt test, whereas in this case, the test is that of a balance of probabilities.
     The Employee testified under oath as follows: –
143. He has been an Educator at the school for approximately 17 years, having started in 2007. He was suspended in September 2021. He knows NS and he taught her EMS in 2018. He is not certain as to how old she was in 2018.
144. He teaches Accounting, EMS, CAT and Business Studies. He has about 20 years’ experience as a Teacher.
145. He first heard of the allegations by NS on 06 August 2021 from Giani. By that time, he had not heard anything from the school principal, Mr R Naidoo, who was the acting principal.
146. Giani told him that NS said he had tried to touch her thighs, breasts and attempted to kiss her, kiss her thighs and exposed himself to her. Giani told him that the said allegations took place in the CAT room.
147. He denies the allegations in general, denied having committed any of the sexual offences mentioned and he also informed Giani that he denied the allegations.
148. Giani asked him to prepare a statement he did so (Annexure A) which partly reads thus –

“On the 28th June 2021, my current principal, Mr IP Khumalo, informed me in the presence of the Deputy Principal (Mr CKR Govender) that an attorney, Mr N Mgobhozi with the complainant’s sister had come to my school. They made a complaint of sexual harassment/assault to the principal against me. Attorney Mgobhozi and the complainant’s sister requested to see me personally about this matter. However, it seems that the principal prohibited them from seeing me. When questioned about the reason for wanting to see me, they claimed that they wanted to inform me that they are going to report the alleged sexual assault/or sexual violation acts against me involving the complainant to the Department of Education.

2.1 I wish to add that SAPS through the investigating officer, Captain Giani also informed me on 6th August 2021 that the complainant was also making a second allegation against me in that it was alleged during June 2021 I committed the following sexual acts / and or sexual violations on the complainant by:

2.1.1 Touching her breasts,
2.1.2 Touching her thighs, and
2.1.3 Attempting to kiss her.

2.2 In general, I deny the specific allegations against me in committing the aforesaid sexual acts against the complainant. I specifically also deny touching her breasts, thighs and as well as attempting to kiss her.
…
Para 4: The investigating officer, Captain Giani also informed me that the complainant alleged that in June 2021, she accompanied her friend, QG, to my class, to print pictures from his phone for his Business Studies project. I recall that one of my learners, A Masondo (Grade 12A) who I am currently teaching Computer Applications Technology (CAT) was in my class during this time arranging his worksheets in his file.

Para 5: The pictures from Q’s phone had to be downloaded from his phone via a USB cable connected from his phone to my desktop which is in my classroom, which would then have enabled me to print the pictures that Q required. I told the complainant and Q that it seemed that I did not have a USB cable with me after I had a cursory search for one. I then informed the complainant and Q that I would not be able to assist him as a USB cable was required to connect his cell phone to my desktop computer to print the pictures. Q then went in search of a USB cable after speaking to the complainant.

Para 6: A short while later I asked the complainant to look around in my class for a USB cable and she found one in the plug point situated under the table towards the front right corner. I attempted to connect the cell phone to the computer but had failed after a few attempts as the cell phone was not set up to be used as a media device and it was possible that the cable was defective.

Para 7: I then attempted to use Bluetooth to send the pictures from the phone to my personal laptop. As I connected to Bluetooth and sent the first four pictures from Q’s phone to my laptop, Q then returned to my class with a USB cable. The complainant told Q that the USB cable which he brought was not necessary because the first four pictures had already been transferred from Q’s phone to my laptop via Bluetooth and could be printed from there. Q then left with the USB cable since it was not necessary. The complainant then sat for a while to ensure that the remainder of the pictures were downloaded from Q’s phone to my laptop and they were printed. I handed the printouts to the complainant and she left.
… .”

149. Cross examination – The issue which is alleged to have taken place in 2018 in the classroom is not true, that never happened. In his evidence, he remembered the CAT room incident because it involves pictures.
150. When asked why he had not disputed the 2018 incident that took place in the class room, during his evidence in chief, he said he did not know.
151. Nothing happened in 2018 regarding NS or her friend, nothing at all.
152. He denies ever asking NS in 2021 if she remembered what happened in 2018. He is disappointed at the fact that three witnesses had testified that the incident happened and was reported. The incident/s was/were not reported to him.
153. He was not going to call A Masondo as his witness that he was left with him in the CAT room, because he has lost contact with him and he completed school in 2021.

THE EMPLOYEE ARGUMENTS

154. LR Naidoo, testifying on behalf of the Employee stated that Zondi did not come to him with NS and did not report what the Employee allegedly did as alleged by Zondi, which is that he –

154.1 Touched NS’s thighs;

154.2 Touched her breasts;

154.3 Attempted to kiss her;

154.4 Kissed her thighs

154.5 Exposed himself to her

155. There is no reason for LR Naidoo to categorically deny that he had any knowledge of the alleged allegations which Zondi alleged said were made by him. On the face of it, there is no reason why LR Naidoo would have deliberately lied if Zondi made a report to him regarding the Employee.
156. In general, the Employee strongly denies NS’s allegations that he committed any act of sexual assault on her, as a then grade 8 learner in his EMS class at the school, during 2018.
157. The Employee also denies that he allegedly lifted NS’s skirt whilst she was in his class: –

157.1 He lifted her skirt;

157.2 Brushed and kissed her thighs;

157.3 Fondled her breast with his elbows;

157.4 Forcefully pulled her hand towards his penis

158. The Employee was a good witness and he was closely cross examined by the Employer. He maintained his version that he did not commit the alleged offences against NS and he was not in any way broken or discredited under cross examination by the Employer.
159. In a nutshell, his version was a bare denial of committing any sexual assault against NS.
160. The Employer did not ask the Commissioner to make any poor credibility finding against the Employee.
161. The totality of the evidence before the Commissioner in respect of the Employer had not proved the allegations in the charge sheet.
162. The Employee askes the Commissioner to find him not guilty of the charge and the alternative charge. ANALYSIS OF EVIDENCE AND ARGUMENTS
163. Although there are five different incidents alleged to have been committed by the Employee to NS, four of which allegedly took place in 2018 and one in 2021, all of them are denied by the Employee.
164. One of the issues that are of common cause is that the Employee, during the years from 2018 to 2021, was an Educator at the school, and during the stated years, NS was a learner at the same school, having started in 2018 on grade 8 and finished in 2022 when she passed her grade 12. So, the tenure within which the allegations took place is such that the two were indeed, at the same school.
165. Also, it is common cause that in 2018, when NS was in grade 8, the Employee taught her EMS.
166. One further issue is that although the Employee in his prepared statement said that the incident in relation to the printing of the pictures happened in his class room, as opposed to the CAT room as stated by NS, he also stated that QG left him and NS alone and NS was waiting for the pictures to be printed. The latter part thereof is not in dispute.
167. NS submitted that in 2018 just after an EMS period ended, the Employee asked her to come and sort out her file, and that was after the other learners had left the class and she was left with him alone. As she was sorting out the file, the Employee stood next to her and he brushed her breasts using his elbow, she responded by moving backwards. After finishing the file, she left. She further submitted that the Employee repeated this action about a week later.
168. NS mentioned that on one day in 2018 after she arrived late at school, the Employee told her to go and wait for him in the CAT room, and he gave her the keys. The Employee then entered the CAT room and closed the door. At that time, she was standing next to the door. He sat down on a chair and placed it against the wall and asked her to come and sit on his lap, which she refused. He then stood up, went to her and hugged her before allowing her to go to the class after she pleaded for that.
169. According to NS, the fourth incident is when in the same year, 2018, she came to the CAT room to write the assignment with Sibahle. NS averred that the Employee then sat next to her, on her right side and showed her his penis, exposed from his underwear, took her hand and made her brush it. She tried to move her hand away from him, but he tightened his grip on it. The main door was closed at the time.
170. NS further averred that the fifth incident happened in 2021 when QG asked her to accompany him to the CAT room to make copies for his project (pages 59-64). When they were in the CAT room, the Employee was also present and he asked QG to go and fetch a cable. He then asked her to take his laptop and give it to him, which she did and she then sat down.
171. QG came back and he asked him to bring him the photos via Bluetooth and QG complied. After QG had done so, he left, leaving her alone with the Employee. The Employee asked her if she remembered what happened in grade 8, and she said she did not remember. He asked if the grade 8 incidents were good or bad memories, and she did not respond. He then put his hand inside her thighs under the table, brushed her thighs and then he stood up, came behind her back and attempted to kiss her.
172. QG stated that a week after the CAT room incident involving the pictures and the printing thereof, he asked NS why she told him never to send her to the Employee again and that was when she informed him that the Employee touched her inappropriately.
173. The Employee, reading through his submitted statement, denied all the allegations by NS. It has to be borne in mind that the allegations started from two incidents that allegedly took place in 2018. The Employee’s prepared statement only responded to the allegations that are said to have taken place in 2021, not 2018. When he was asked as to why he did not dispute the 2018 allegations, he said he did not know the reasons, which I found surprising. He afterwards said nothing happened in 2018.
174. Regard must be had to the fact that Zondi as well as Ngcongo corroborated the alleged inappropriate conduct by the Employee on NS during 2018 and Zondi said she reported the incident to the Principal, LP Naidoo.
175. During cross examination, Zondi stated that after reporting the allegations to LP Naidoo, she did not go and look at the log book to see whether LP Naidoo had made an entry. Also, that LP Naidoo did not tell her to write down the allegations.
176. The mere fact that these incidents were not recorded in the school’s diary does not and cannot on its own invalidate them. The narration of such incidents and the steps taken by NS in reporting same firstly to her friends, and then through their persuasion, she reported it to Zondi and then to her sister, hold more credence than not being written in the school diary.
177. It has to be born in mind that as a learner, NS had no responsibility to ensure that such reporting is officially captured in the school’s diary.
178. There is a palpable dominating effect underlying these allegations, and that is the planning by the Employee to be alone with NS. This is apparent from the two 2018 allegations and also, during one CAT room incident when he sent NS to the CAT room after she arrived late for a class.
179. I find that the above three incidents were carefully planned by the Employee.
180. I find that two incidents might appear as having been opportunities that presented themselves to the Employee, and those are the fact that QG left NS with the Employee for her to wait for the pictures. The second incident is when she was writing assignment together with another learner in the CAT room.
181. The allegations submitted by the Employer are substantiated by the evidence led, and NS gave details of the events, sometimes in pain as she recalled what happened and she would have tears running down her cheeks.
182. In all accounts, these are painful experiences that she unfortunately had to endure, firstly as a 14-year-old and later as a 16-year-old learner.
183. I am cognisant of the fact that the Employee has dismissed these allegations and as he said, he generally denies them, and I find that he denials lacked substantiation.
184. In Emfuleni Local Municipality v SALGBC and others (JR 2525/11) [2015] ZALCJHB 356 (handed down on 14 October 2015) the Court outlined the steps that a Commissioner should follow in evaluating conflicting versions before him/her as follows:

(a) In misconduct disputes the Employer need only show that, on all the evidence presented by both parties, its version is more probable than the Employee’s version.

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

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

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

(e) An Employer must prove its own case on a balance of probabilities. If it does so, it therefore flows that the Employee’s case is false.

185. One profound take away from the Emfuleni case is that the Employee had the evidential burden to prove that the Employer’s evidence does not meet the standard of the balance of probabilities. The court mentioned that the Employee is not entitled to the benefit of the doubt as to the convincing nature of his explanation. To this end, the Employee’s general denial of the serious allegations levelled against him amounts to nothing other than a bare denial and falls far short of being a convincing explanation.
186. I find that NS did not fabricate the allegations against the Employee and she eventually had the courage to report the incidents to her teachers. It was also notable that during her testimony and as she recalled the incidents, she still cried, even though it was about two and four years later, an indication that such recollection brought pain and confusion to her.
187. The Constitutional Court held that section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to consider the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of learners in general who have the right to be protected against sexual abuse from educators.
188. The evidence presented in this case is such that on the balance of probabilities, the Employee is guilty of the two charges, the main charge that relates to the 2018 incidents and the alternative charge that relates to the 2021 incidents. I have noted an error in that the alternative charge should have been referred to as the second charge. Also, the Employer erroneously wrote that the second charge occurred in 2018. This is an obvious error as the charge stated that NS was in grade 11 at the time, and the correct year therefore is 2021.
189. The charges are both serious and reflect a traumatic experience which NS was subjected to.
190. I find that the Employer has discharged its onus of proving the two allegations against the employee on a balance of probabilities.

AWARD

191. The employee, Mr Kovilen Naidoo is found guilty of Charge 1 and the alternative charge (actually Charge 2 as clarified in paragraph 188).
192. The employee, Mr Kovilen Naidoo is dismissed with immediate effect.
193. The employee is found to be unfit to work with children in terms of section 120 (4) of the CA.
194. The Education Labour Relations Council as the administrator of this Section 188A inquiry is entitled to do the following: –

194.1 In terms of section 122 of the Children’s Act, Act 38 of 2005, notify the Department of Social Development, in writing of the findings of this Tribunal, and

194.2 Send a copy of this arbitration award to the South African Council for Educators (SACE) for the revocation of Mr Kovilen Naidoo’s SACE Certificate.

Vuyiso Ngcengeni Panellist / Commissioner