29 October 2024 – ELRC250-24/25NC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR NEO HENDRICK SESENG EMPLOYEE

Case No: ELRC250-24/25NC
Dates: 30 July 2024
Venue: Magistrates Court, Kuruman

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Superintendent-General: Northern Cape Department of Education (hereinafter ‘the employer’), and Mr Neo Hendrick Seseng, ‘the employee’.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was scheduled for 30 July 2024 at the Magistrates Court in Kuruman. Both parties attended the Inquiry. The employer was represented by Mr Aone Leboko, its Labour Relations Officer. Mr Daniel Snaar, an Official from the trade union NAPTOSA, represented the employee.

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued per section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Mr MP Mbobi was the Interpreter. Ms Dolly Molale was the Intermediary. At the end of the inquiry, the parties’ representatives requested that they submit closing arguments in writing by 30 July 2024.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, per the allegations against him. If I find that he did commit the misconduct(s), I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employer has employed the employee as an Educator and has been teaching Economic and Management Sciences CMS, Economic Grade 10-12 FET Phase at Ikakanyeng Secondary School, Dikhing Village in Kuruman, since 01 April 2023. Following alleged acts of sexual misconduct between 27-30 April 2023, the employee was then suspended on 19 April 2024, and the proceedings against him commenced on 30 April 2024.

7. The allegations levelled against the employee are as follows:

Count One (1)
On or about the 27th of April 2023 at Dikhing Village near Kuruman, while you were at your residence you committed a misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that you inter alia committing an act of sexual assault on a learner by performing oral sex on him while you knew or ought to have known that you were not allowed to do so. [sic]

Count Two (2)
On or about the 29th of April 2023 at Dikhing Village near Kuruman, while you were at your residence you committed a misconduct in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that you inter alia committing an act of sexual assault on a learner by showing a learner pornographic movie while you knew or ought to have known that you were not allowed to do so. [sic]

8. The employee (hereinafter the teacher) pleaded not guilty to all the charges. He was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. His rights and obligations were also correctly explained to him at the commencement of the Inquiry.

9. For this award, the learners’ names shall be kept confidential. The male learner who was allegedly sexually assaulted was 18 and in Grade 11 at the time the alleged incidents took place. It appears that the alleged incidents took place at the teacher’s residence.

10. The parties have agreed that it is common cause that the teacher was at his residence from 26 to 29 April 2023, that the teacher knew that the acts alleged were prohibited, and that he (the teacher) was bound by law and the standards of the South African Council of Educators (hereinafter SACE).

SURVEY OF EVIDENCE AND ARGUMENT

11. This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all the submissions in arriving at my conclusions.

Documentary Evidence

12. The parties handed in the following bundles of documents:
Employer: Bundle A
Employee: Bundle R

Employer’s Case

13. Ms M, a 16-year-old female learner who was in Grade 10 in 2023, testified as the employer’s first witness. She testified that the employee (hereinafter ‘the teacher’)used to be her favourite teacher. Ms M stated that concerning Mr M (the learner who was allegedly sexually assaulted), Mr M and the teacher were very close, and that Mr M and the teacher used to visit each other and shared lunches as well. She confirmed that she and Mr M visited the teacher at the teacher’s residence between 27-29 April 2023.

14. Ms M testified that nothing much happened at the teacher’s residence during their visit, other than that the teacher offered them soft drinks and cupcakes. She stated that the teacher offered a can of beer to Mr M.

15. In cross-examination, Ms M stood by her version and added that they were watching television (tv) at the employee’s place, and that the signals of the tv and network were poor. In re-examination, Ms M stated that she did not notice anything strange happening between the employee and Mr M.

16. Mr M, the male learner who is the alleged victim, testified as the second witness for the employer. He testified that following a fight he had on the school premises with one of his peers, the teacher witnessed the battle from a distance, the teacher then decided to adopt him as a special learner at school around 23 April 2023. Mr M testified that the teacher, on the same day, and during a lunch break, offered him and someone else food and cake at the teacher’s classroom.

17. Mr M testified that on 26 April 2023, the teacher invited him and told him to visit him on 27 April 2023 at the teacher’s residence. He stated that he did so and that on 27 April 2023, at the teacher’s residence, the teacher gave him wine, and that both of them consumed it until he (Mr M) became drunk (intoxicated).

18. Mr M testified that they consumed the alcohol in the teacher’s bedroom and that the teacher started to touch him whilst he (Mr M) was on the teacher’s bed. He stated that the teacher wanted him to get an erection. Mr M stated that the teacher then pulled his (M’s) pants down, whilst the teacher was naked himself. He stated that the teacher kissed him, and touched his penis, and gave him a ‘blow job’ with the mouth. Mr M stated that he was drunk and partly asleep or partly passed out.

19. Mr M testified that he then passed out and slept. He stated that upon waking up sometime later, he then went home and returned the following day (28 April 2023) to the teacher’s residence, together with his sibling, Ms M. He stated that the teacher was not impressed by the fact that he (Mr M) brought his sibling along. Mr M said that he could not remember whether they were offered food first and, thereafter, alcohol. He stated that they left the teacher’s residence later on, and went back home.

20. Mr M testified that he revisited the teacher the following day on 29 April 2023, to find the teacher watching pornographic material on the television. He stated that he was frightened, and left again. Mr M stated that what motivated him to report the case was the fact that the teacher also liked to talk about sex in class, and to describe their private parts in class. He stated that the teacher also at some point described his (Mr M) genitals in front of his girlfriend.

21. Mr M testified that the teacher and a friend also invited him and three others to his residence. He stated that the teacher had a case of beer and locked them all inside his bedroom. Mr M testified that whilst the teacher’s friend was busy playing with the other three (girls), the teacher was all over him and kissed him, whereafter the four of them (learners) decided to escape. He stated that the teacher had a habit of harassing him at school with kisses in front of anyone, which caused him to leave school for a whole term just to be away from the teacher.

22. In cross-examination, Mr M stood by his version. He insisted that the teacher had a tv in his (teacher) bedroom in April 2023, and that he (Mr M) also left the school for a whole month, and that upon his return to school, the principal refused to have him (Mr M) back at the school, whereafter the teacher persuaded the principal to take him back. Mr M stated that the teacher gave him a ‘blow job’ because he (Mr M) could not get an erection.

23. In closing arguments, the employer’s representative submitted that the employer seeks a guilty finding, dismissal, and the teacher’s name being listed in the Child Protection Register. He submitted, amongst other things, that no learner should be subjected to abuse because of the learner’s poverty background. The employer calls for the teacher’s immediate dismissal.

Employee’s Case

24. Mr Neo Hendrick Seseng, the teacher, testified as the only witness in his case. He testified that he is originally from the Free State Province, that he commenced duties with the employer in April 2023, and remembered having had an online meeting with his PHD supervisor around 11:00 on 26 April 2023, and that he was the last one to leave the premises on that day, because his colleagues attended a memorial service on that day.

25. The teacher stated that later on the same day (26 April 2023), he went to sit with Mr Mohare. He said that he and Mr Mohare later went to Maqueen’s Place. He stated that after the memorial service, he and Ms Ferika, a co-tenant at their residence, left the school premises and went home, because Ms Ferika had the key. He stated that upon their arrival at their residence, Ms Ferika prepared food, whilst he was busy preparing Chapter 1 of his doctoral proposal, which needed to be submitted the following day at 11:00.

26. The teacher stated that he worked throughout the night and was pressed to also submit Chapter 2 of his proposal by 16:00 the following day. He stated that he never knew Mr M and Ms M in April 2023, other than the principal. The teacher testified that he is a ‘queer guy’ and not 100% straight. He admitted to having wanted to adopt Mr M. He stated that he only returned back to Kuruman on 11 May 2023, after his Masteral Graduation.

27. The teacher stated that there is no way in which he could ruin his career in two weeks and select Mr M for that matter. He submitted that he is homosexual, a caring teacher and attracted to the same-sex. The teacher stated that Mr M left the school in May/June 2023, and that the adoption relationship has already started at that time. He stated that he also assisted Mr M’s mother in writing a letter to the school to start the adoption process. The teacher denied having provided any learner with alcoholic drinks and cigarettes.

28. In cross-examination, the teacher stated that he worked at the same school in 2020 for three months and cannot remember why Ms Ferika did not want to testify at the inquiry. He stated that he left on 04 May 2023 to attend his graduation after the adoption process started on 02 May 2023

29. In closing arguments, the teacher’s representative submitted that the employer’s witnesses’ testimonies were inaccurate and that the teacher was wrongfully accused. He submitted that the school was discriminating against the teacher on the basis of his sexuality. The representative submitted that there were ulterior motives to get rid of the teacher following a grievance which the teacher lodged against the principal. The representative calls for an acquittal of the teacher on both charges.

ANALYSIS OF EVIDENCE AND ARGUMENT

30. As stated, the teacher pleaded not guilty to the charges against him. The employer called two witnesses, and the teacher was the only witness in his defence. The employer’s witnesses were consistent in their versions with no contradictions. I, therefore, find them credible and reliable. The teacher only denied the allegations against him and later on claimed to have been away from Kuruman after 27 April 2023. However, in his testimony he indicated to have left Kuruman on 04 May 2023, which in my view made his evidence problematic, amongst others.

31. I shall now proceed to determine the charges levelled against the teacher, in light of the evidence led by the parties:

32. The teacher did not deny inviting Mr M on 26 April 2023 to visit him on 27 April 2023. One of the problems with the teacher’s defence is that he denied having even known Mr M and the sibling Ms M in April 2023, yet he confirmed in his testimony that he commenced adoption proceedings on 02 May 2023. I fail to understand why a teacher would want to adopt a learner whom he/she hardly knows or knows for only two days. The adoption process discussed here is not the formal type of adoption under family law but rather a particular type of teacher/learner adoption, which takes place at schools by teachers for the purpose of mentoring and paying special attention to the learners involved.

33. Ms M’s evidence clearly shows that she was uncertain about the exact date of her visitation with her brother, Mr M, to the teacher’s residence. It is important to note that the teacher and a colleague were apparently renting backrooms at another person’s residence in the village of Dikhing in Kuruman.

34. I accept Mr M’s evidence that the alleged act of sexual assault took place on a different date than the date on which he and his sibling Ms M visited the teacher. According to the evidence of the employer, Mr M was allegedly sexually assaulted on 27 April 2023, and the visitation with Ms M took place on the following day on 28 April 2023. There is no way that Ms M could have witnessed the alleged incident on 27 April 2023 because she was not there. It, therefore, makes sense that it cannot be expected of Ms M to corroborate Mr M’s version about the happenings of 27 April 2023.

35. Ms M and Mr M testified independently in camera, and their versions about their visitation on 28 April 2023 are consistent, which I therefore regard as credible and reliable evidence.

36. Mr M gave evidence that the teacher gave him alcohol and that the whole alleged sexual assault took place after he was heavily intoxicated and close to passing out. Other than a blanket denial of the submission, the teacher, in his defence, claimed to have been busy working on his studies and that one Ms Ferika was busy preparing food for them in the central kitchen. The teacher could not explain under cross-examination on why he did not call a crucial witness like Ms Ferika to come to this arbitration and to corroborate his version. I am not persuaded that the teacher’s defence to be accepted, based on the fact that no evidence was placed before me on why a learner in the position of Mr M would make up such a story.

37. The teacher in his own words, described himself as a member of the LGBTQI+ community, which in essence, makes it plausible that he could have been attracted to Mr M. Mr M’s description of the event, as well as his reference to past events like what happened in December of the previous year (about the alcohol party in the teacher’s bedroom) paints a picture that the teacher (and his friend) preys on learners for their sexual needs.

38. No links between the alleged discrimination on him by the school’s principal and Mr M were even mentioned or attempted to be established by the teacher. On a balance of probabilities, it is my finding that the employer has made out a prima facie case through its witnesses that the teacher has sexually assaulted Mr M on 27 Apil 2023, after intoxicating Mr M with alcohol.

39. The same applies here more or less in relation to the evidence before me. Again, there is no need for Ms M’s evidence to corroborate that of Mr M as regards 29 April 2023, because Ms M and Mr M together visited the teacher on 28 April 2023. The alleged incident about the showing of pornographic material took place on 29 April 2023. In any event, Ms M has confirmed in her testimony that the teacher has provided Mr M with alcohol even on 28 April 2023. This gives me more reasons to attach more weight to the evidence of Mr M in relation to the conduct of the teacher towards him.

40. Mr M’s evidence is that on 29 April 2023, he entered the teacher’s residence and found the teacher watching a pornographic movie. Notwithstanding this, the teacher continued to watch the movie in his presence and wanted him to join him. The teacher only denied this incident, with a contradiction: He claimed to have not been in Kuruman on 29 April 2023, yet submitted in cross-examination that he only left Kuruman on 04 May 2023.

41. I find it probable that the allegation is true, as the teacher’s defence is rather odd, and the teacher never denied having invited Mr M to his residence on a regular basis. It is my finding that the employer has proven, on a balance of probabilities, that the teacher showed a pornography movie to the learner on 29 April 2023.

VERDICT

42. Count 1: The teacher is found guilty of having contravened paragraph 17(1)(b) of the
Employment of Educators Act 76 of 1998 as amended, in relation to having sexually assaulted the learner.

43. Count 2: The teacher is found guilty of having shown a pornographic movie to the learner while
he knew that he was not allowed to do son.

SANCTION

44. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.” [my emphasis added]

45. It is clear from the ELAA that a peremptory duty exists on me to dismiss the teacher if he is found guilty of having sexually assaulted a learner in accordance with section 10 of the ELAA. A dismissal, therefore, automatically follows a guilty finding. If put differently, one may also say that the teacher is dismissed by operation of law after being found guilty of having sexually assaulted a learner of the school where he was employed.

46. Based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory and must be handed down to the teacher. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. The teacher, in my view, abused his authority as a teacher and betrayed the trust placed in him while standing in loco parentis towards the learner.

47. I do not rule out the possibility that the teacher might have been subjected to some form of indirect discrimination at the school based on his sexuality. However, the case and evidence before me relate to the conduct of the teacher who stood in loco parentis towards the learner and the breach of trust he committed. The allegations of discrimination at the school are something that the employer must seriously look at.

48. Having found the teacher guilty of the main charge, which is based on paragraph 17(1)(b) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the teacher must be dismissed.

CHILD PROTECTION REGISTER

49. The parties did address me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the learner. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

50. It is common cause that the learner was about to turn 18 years old at the time when the teacher committed the misconduct against him, which by its very nature, is serious.

51. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

52. It follows that the finding which I have made in paragraph 38 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the teacher’s name in Part B of the Register.

53. Based on this evidence, I shall make an order that the teacher, Mr Neo Hendrick Seseng’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

54. In the premise, I make the following award:

AWARD

55. Mr Neo Hendrick Seseng, is found guilty of the charge of sexual assault levelled against him, by the Superintendent-General: Northern Cape Department of Education.

56. The mandatory sanction of dismissal is imposed with immediate effect on Mr Neo Hendrick Seseng.

57. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.

58. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the Department of Social Development in writing of the findings of this forum, made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Neo Hendrick Seseng is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

This is done and dated on, 22 October 2024, at Kimberley.

David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator