Panellist: Khuduga Tlale
Case Reference No.: ELRC509-24/25FS
Date of award: 30 January 2025

In the matter between:

Department of Education – Free State Employer

And

Nicolas Jacobus Van Rooyen Educator

ARBITRATION AWARD

Details of hearing and representation

1. This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
   Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Free State (“Employer”), and Mr. NJ Van Rooyen (“Educator”) at the Employer’s offices in Bloemfontein on 20 and 21 November 2024. Ms. Lindiwe Cweba, Labour Relations Officer, represented the Employer. The Educator appeared in person, and Mr. P Havenga, SAOU official, represented him.

Preliminary Issue

2. Ms. Cweba made an application to amend the date of the incident on the charge sheet at the beginning of the re-examination of the learner as the witness. I, as the commissioner allowed the parties to proceed with leading evidence, and I gave them an opportunity to address me after leading of evidence on record, and I reserved my ruling.
3. I need to determine whether the amendment of the charge sheet can be sought during the middle of the proceeding. Employer
4. The Employer representative stated that she made a typing error on the charge sheet relating to the date. She wanted the date on the charge sheet to be changed from July 2024 to July 2023. This change does not add to the severity, seriousness, or substance of the charge. The amendments to the charge sheet could be made at any stage during the proceeding before a finding is made.
5. The Employer representative referred me to Munnik Basson Dagama Attorneys v CCMA & other, and argued that this case was her authority that the charge sheet can be amended at any time during the proceeding. An amendment would be allowed without prejudice to the other party. There was nothing prevents an employer from amending the charge sheet before a finding is made. The Educator confirmed that the incident occurred on 26 July 2023, therefore, there would be no prejudice. Educator
6. The Educator representative referred me to EOH Abantu v CCMA & others (2019) 40 ILJ 2477 (LAC), and argued that the charge sheet could not be amended after the commencement of the inquiry. By amending the date was to change the categorization of the matter, and it would not be allowed. The Educator representative further referred me to Munnik Basson Dagama Attorneys v CCMA & other, and argued that the amendment is allowed if there is no prejudice. In this matter, the issue of the amendment came after the testimony of the learner. The Educator was not given an opportunity to deal with the amendment, and that would be the prejudice the Educator would suffer.
7. The Educator representative further referred me to AMCU obo Dube v CCMA & others (2022) (LAC), and argued that paragraph 75 specifically deal with the wrong dates. The court said that the charge sheet must categorize the correct date of the incident. The learner while given evidence stated that the incident occurred in May or June 2023. The Educator entered a plea for this charge, and it is not correct to say there will be no prejudice to the Educator. It is clear that the Educator will suffer prejudice if the charge sheet could be amended.

Ruling

8. The Employer representative made an application for the amendment of the charge sheet at the beginning of the re-examination of the learner as the witness. The essence of the charge preferred against the Educator was that he touched the buttocks of a grade 11 learner when taking a photo in the classroom during July 2024. During the sitting of the inquiry on 20 November 2024, the Employer led evidence through a learner. During the learner evidence in chief, she stated that the incident occurred in May or June 2023 while doing Grade 10. She disputed the allegation to say the incident occurred during July 2024 while doing Grade 11.
9. The question that needed to be ask is whether the amendment of the charge sheet can be done after the Educator entered a plea, and evidence led? This question was answered by our Courts in Rabie v Department of Trade and Industry and another (J 515/18) (2018) ZALCJHB 78 (handed down on 05 March 2018) the Court held the amendments to a charge sheet can be sought at any stage of the disciplinary proceedings, including section 188A, pre-dismissal arbitration before a finding is made. The granting or refusal of an application for an amendment of a pleading is a matter for the discretion of the court, to be exercised judicially in the light of all the facts, and circumstances before it.
10. In Munnik Basson Dagama Attorneys v CCMA and others (JR 1153/08) (2010) ZALC 183; (2011) 32 ILJ 1169 (LC) (handed down on 03 December 2010), the Court held that an amendment will be allowed where this can be done without prejudice to the other party. In terms of this case law, in order for the presiding officer to allow the amendments to the charge sheet, one needs to check whether there is prejudice to other party. When this proceeding commenced, the charge against the Educator was read to him before an Educator could entered a plea. I did that precisely for the Employer representative if there is any changes that needed to be made, or anything to be brought to my attention. It was confirmed that the charge was as it was, and evidence was going to be led based on the charge, and the Educator entered a plea of not guilty based on what was there. Evidence in chief of the Employer’s main witness was led based on the charge sheet, and cross-examination was done in terms of the charge sheet without the Employer representative opposing, or stopping the processes.
11. It was after the Employer representative seeing that there was a contradiction between the charges, and on what the learner’s testified made an application at that late stage to amend the charge sheet. Allowing to amend the charge sheet after evidence heard, it was going to prejudice the Educator party because they had already cross-examined the main witness. Amending the charge sheet at that late stage, it will definitely prejudice the Educator because they will not have an opportunity to argue the case afresh. It will then mean that the Employer witness will have to be released in order to be coached about the new date. It is clear that it will prejudice the learner, and the Educator. I, therefore, conclude that the application is not granted. Background to the dispute
12. The Educator is currently employed as a Deputy Principal at Wessel Maree High School in Lejweleputswa District. The Educator acknowledged receiving the allegation against him well in advance on 28 August 2024. The notice of set down was served to the Educator on 22 October 2024. The ELRC (“Council”) appointed Mr. M Hlujane, as interpreter, and Ms. M Twala, as intermediary.
13. The allegation levelled against the Educator is as follows: Charge one- “You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”) in that during July 2024, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner when you touched the buttocks of a grade 11 learner when taking a photo in your classroom”. For the purpose of this award, the name of the learner will be kept confidential, and the learner will simply be referred to as “the learner”. The Educator registered a plea of not guilty to the charge levelled against him.
14. These proceedings were conducted in English, and were manually, and digitally recorded. The parties submitted a bundle of document, which was marked bundle “E1”, and “E2”. The parties agreed to submit the written heads of argument on 26, and 29 November 2024, and they both submitted.
15. In all matters in which an Employer wants to take disciplinary action against an Educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Council, shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the Council.

Issue to be decided

16. I have to decide whether an Educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction. Survey of Evidence Employer

First witness: Learner

17. The witness testified under oath that she was 17 years doing Grade 11. She knew the Educator as a class teacher in the year 2023. The classmates wanted them to take a photo as a memory, and they took a photo together with the Educator. The Educator was standing behind him when they were about to take a photo, he placed his hand below her lower back, and lower it further to her buttocks. Afterwards, she moved forward away from the Educator, and they took a photo. The photos were taken in May or June 2023.
18. She felt uncomfortable, the bell rang, and she went home. She told her friend about the incident, and she advised her to tell her mother. She did not report it immediately because she was not sure how her mother would react. There were six (6) learners in class when the incident occurred. The touching happened before they took a photo as per “E1”. They took a lot of photos, but she could not remember who the photographer was.
19. It was not the first time the Educator touched her buttocks. The other incident happened at the beginning of the year 2024. The Educator was talking to her, but he put his hands in her shoulder, and he lowered his hands, and touched her buttocks. This incident occurred at the sports event, outside the school premises. She reported this matter to other Educator by the name of Mr. Pretorious, and she later told her mother. Mr. Pretorious reported the matter to the school principal.
20. Under cross-examination, she stated that the incident occurred in May or June 2023. She had no knowledge why the charge sheet was indicating that the incident occurred during July 2024. She did not tell the Employer representative the correct date because she was not sure whether it was June, or July 2023. She was doing Grade 10 in the year 2023, and she was doing Grade 11 in the year 2024. The Educator was her class teacher in the year 2023.
21. After the incident, she was uncomfortable to be around the Educator. She left his class because she was not doing well, but she likes the subject taught by the Educator. She maintained that the incident did happen. There were five (5) learners’ in the classroom when this incident happened. The photographer was present when the incident happened, and he/she was facing them. The touching happened before they took the photos. She could not remember whether it was Corne de Beer who took them photos. The other learners could have seeing her when moving forward after the touching.
22. According to the picture at “E1”, she was second person from the left hand side, and the Educator was standing behind her. She confirmed that she was smiling on the photo, but she had no comment why smiling after feeling uncomfortable around the Educator. She stated that the Educator touched the upper part of her buttocks, closer to the lower back. It took her five (5) seconds before moving forward. The photos were sent to the group, and she had access to the photos. She did not provide the Employer representative with the photos because she cleaned her phone. She could not remember when cleaning her phone.
23. There was a camera inside the classroom. The camera could not captured everything that happened. She had no knowledge why the Educator would do something like that knowing that there was a camera inside the classroom. She had no knowledge why the footage was not viewed. This incident happened during the last period. She informed her friend about the incident, and it occurred in the year 2023. She reported this matter after the second incident. The touching was not accidental, and she had no knowledge whether anyone in the classroom witness the incident. Her friend would not be testifying in these proceedings.
24. Under re-examination, she stated that she did not check the time after the incident. The Educator went to his position as per “E1” after she moved forward.
25. Under clarity questions, she stated that the incident occurred in the year 2023, not in the year 2024. She was doing Grade 10, not Grade 11 when the incident occurred. Second witness: Ms. Maryna Adraiana Lombard
26. The witness testified under oath that the Employer employ her as the principal at Wessel Maree High School. This incident came to her attention through Mr. Pretorious in March 2024. She called all the girls in that classroom, and the learner said that it was the truth. The Educator made remarks in the class that made her uncomfortable. The learner did not want to go to the Educator’s class because he likes touching her buttocks. The learner said that the Educator touched her bums while taking a photo, and again at the rugby fields. She did not specify the date, but it could not be in July 2024, because it was reported in March 2024.
27. The learner was nervous, but she explained what had happened. She did not view the camera in the classroom. The system could save the footage for almost six-eight weeks. She was the one who reported this matter to the Employer. The Educator said to the learner “she would make a husband happy one day”. The Educator further said that the “girls have beautiful legs”.
28. Under cross-examination, she stated that this incident was reported to her in March 2024. She knew the learner’s friend, and she was part of the girls she called, but she did not say anything about the allegation. The learner reported two incident in the classroom, and the other one at the rugby fields. She only reported one incident. She confirmed that there was a camera in the Educator’s classroom, and it would have captured the alleged incident. The footage would not be available after eight (8) weeks. The Educator could have been aware about the camera in the classroom.
29. If the incident really happened, the Educator could have known that the incident was recorded. She did not ask the learner why she reported this matter late. The learner was a self-centre person. If it was reported earlier, it could have been verified through the footage. She had a good working relationship with the Educator. The Educator was a father at the school. She does not think the incident happened intentionally because she trusted him. She confronted the Educator about this allegation, but he denied the allegation. Educator First Witness: Mr. Nicolas Jacobus Van Rooyen
30. The witness testified under oath that the Employer employ him as a Deputy-Principal at Wessel Maree High School. He was teaching Life Science at Grade 11. The learner was in his class while she was doing Grade 10 in the year 2023. He was familiar with the picture as per “E1”. This picture was taken on 26 July 2023. The pictures were taken because the learners wanted to have memories, and the photographer was Ms. De Beer. He denied the allegation against him.
31. He was responsible for discipline at the school, and there was camera in his classroom. He did not notice that the learner was uncomfortable around him. The camera could have recorded the alleged incident, if it really happened. He was aware of keeping distance from the learners. There were six (6) learners in his class, and he had good working relationship with them. During the year 2023, especially from July 2023, he did not notice any tension between him, and the learner(s).
32. Under cross-examination, he stated that there were three (3) educators teaching Grade 10’s. The school had six (6) male educators. He was eager to know why the learner was picking him from other male educators. He had no knowledge about the motive of the learner because they had no tension. He maintained that he did not commit this act of misconduct. He could have been crazy to do that knowing that there was a camera inside the classroom. He was only left with three (3) years to retire, why could he do stupid thing like this.
33. Document “E1” showed that he was far away from the learner. The person who took a photo said that she only took one picture. He put his hand around her neck, and he asked her, whether she was fine at the rugby fields. He denied ever touching her buttocks at the rugby fields. He could have picked-it up if there was any learner(s) who was uncomfortable around him. The alleged incident at the rugby field could have happened in the year 2023. He was aware of the educators’ code of conduct, not to have a physical contact with a learner.

Survey of Argument

Employer

34. The Employer representative submitted that the learner’s testimony voids any suspicion of fabrication, or blackmail in order to destroy the Educator’s reputation. The learner’s failure to remember the exact date of the incident does not negate the fact that the incident took place. This incident happened fifteen (15) months ago, and the learner was bound to forget the date, and other details. The mere touching of a learner’s buttocks was a direct contravention of the values, and obligations prescribed by the Code of Professional Ethics for Educators. This kind of conduct was not acceptable within an educator, and a learner context. The Educator’s conduct was improper physical contact that put the teaching profession into disrepute. The Educator’s breached the trust relationship between him, and the Employer as he had been entrusted as loco parentis. The Educator must be found guilty as charged.

Educator

35. The Educator’s representative submitted that the learner could not remember important aspects such as the date on which the incident took place. The learner could not be deemed to be a reliable witness, and she contradicted herself. The learner failed to provide the proceedings with a coherent, reasonable, and plausible version of events. The Employer’s second witness could not contribute to the facts of the matter. The failure to act timeously has severely prejudiced the Educator.
36. The Educator was the reliable, and credible witness. He provided a reasonable, and plausible explanation for the course of events on the day in question. This was done despite no clear evidence implicating the Educator. The Employer completely failed to discharge the onus to prove the allegation levelled against the Educator. The learner’s evidence should be rejected, and the Educator’s evidence should be accepted. In the absence of any credible evidence, the charge against the Educator must be dismissed, and that a not guilty finding be rendered.

Analysis of evidence and argument

37. Section 28(1)(d) of the Constitution of the Republic of South Africa provides, among other things, that: “Every child has a right –
    “to be protected from maltreatment, neglect, abuse or degradation”. Furthermore, this Section also provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The above provisions are therefore important consideration in deciding the issue before me.
38. The allegation against the Educator is that he conducted himself in an improper, disgraceful or unacceptable manner when he touched the buttocks of a grade 11 learner when taking a photo in the classroom. A false claim of sexual assault has very serious implications for the person against whom the allegations are made. Not only could such a person lose his job with very little hope of finding similar employment, but his family, and community standing can be negatively affected. The arbitrator has a duty to determine if the Educator is fit to work with children. Once declared unsuitable the ELRC has a duty to submit a report to the Director-General of Social Development to be added to the National Register For Sex Offenders. Whether Educator guilty?
39. The Educator entered a plea of not guilty. In Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA 4/11) (2013) ZALAC 29 (handed down on 7 November 2013) the Court held that the test at all times remains one of balance of probabilities. Reasonable or strong suspicion is not adequate to terminate the employment relationship. It is expected from the Respondent to adduce evidence to prove that the Applicant committed a gross misconduct that warrant a dismissal. The question that needed to be ask is whether the Employer produced evidence to support the charge of misconduct for which the Educator disciplined for?
40. Reading of this allegation against the Educator, the Employer is alleging that the Educator touched the buttocks of grade 11 learner when taking a photo in the classroom during July 2024. The Employer was required to prove that the learner was doing grade 11, when the touching, and photo taken occurred in July 2024. Although the Employer made an allegation against the Educator, there was no evidence presented during the proceedings to support this allegation.
41. It is important to note that the testimony of the learner said nothing about touching, and photo taken in July 2024. It was the learner’s testimony that the alleged incident happened in June 2023, while doing Grade 10, not Grade 11. The Educator was not charged for touching the Grade 10 learner’s buttocks when taking photos in July 2023. The alleged misconduct testified by the learner, and Ms. Lombard differed from date on the charge sheet. It is not open for me as the commissioner to formulate a charge, different to the charge the Educator had faced during the inquiry. I, therefore, find the Employer failed to discharge the onus to prove the said allegation against the Educator. Whether the allegation was proven?
42. Even if it was to be said that we do not focus on the dates, but focused only on the incident itself, the question that needed to be ask is whether the Employer proved the allegation of misconduct against the Educator? In Old Mutual Life Assurance SA (Pty) Ltd v Makanda & others (JR 1246/18) (2019) ZALCJHB 285; (2020) 41 ILJ 444 (LC) (handed down on 14 October 2019), the Court emphasized the importance of a commissioner’s duty to grapple with mutually destructive versions tendered by single witness. The correct approach to untangling this knot, is to assess both versions against three factors, namely: credibility, reliability, and the probabilities. The importance of this approach is particularly pronounced in cases involving sexual harassment. This is because sexual harassment often takes place in isolated circumstances, away from the glare of the third parties. In such cases, there is little more than (i) the complainant’s version, (ii) the alleged perpetrator’s version, and (iii) the objective facts. It behoves a tier of fact to interrogate both versions to determine where the truth lies.
43. It is important to note that this incident did not happen in isolated circumstances, it is alleged to have happened inside the classroom while the other learners’, and the photographer were present. It is the learner’s version that the Educator’s was standing behind her when they were about to take a photo. After the Educator touched her buttocks, she moved forward. According to document “E1” there were six (6) learners on the pictures. The question that needed to be asked is in which point did she moved from, and to what point? It is the learner’s version that other learners’ should have noticed her moving forward prior taking the photos. The question that needed to be ask is why they were not called to these proceedings in order to give evidence? There was no explanation why they were not called.
44. It is the learner’s version that she told her friend about the alleged incident, but she will not be called as the witness. The question that needed to be ask without an answer is that why the learner’s friend did not confirm the incident to the principal, or tell the principal that the learner told her about it. It is further the learner’s version that the photographer was present when the incident occurred, and she/he was facing towards them. It is probable that the photographer could have seen the learner’s movement away from the Educator, but he/she was not called to give evidence. Again, there was no explanation why she/he was not called.
45. The testimonies of the learner, and the principal contradicted each other. How probable a 17 year old girl, who felt uncomfortable around the Educator, but was seeing relaxed, and smiling around the Educator as per “E1”. How probable that she was calm like nothing happened. Is the behaviour, or conduct of the learner probable? The testimony of the principal did not take the matter in the Employer’s desired direction. The evidence presented by the Employer on the facts, excluding the dates, is still not the most probable one. I, therefore, conclude that the learner’s versions were not probable. In this matter, the party burdened with the onus of proof has failed in discharging it.

Conclusion

46. It is clear from the evidence presented during the proceedings that the Educator did not breach any Employer’s rules. The Employer cannot escape the consequences of the way it decided to word the charge sheet, and the charge on which it proceeded to discipline the Educator. Award
47. I find the Educator, Mr Nicolas Jacobus Van Rooyen, not guilty of the charge that preferred against him.

Signature:
Commissioner: Khuduga Tlale
Sector: Education January 2025.