IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – MPUMALANGA PROVINCE “the Employer”

AND

I NTLEBI “the Employee”

SECTION 188A IBA RULING

CASE NUMBER: ELRC470 – 23/24MP
LAST DATE OF INQUIRY: 19 August 2024
LAST CLOSING ARGUMENTS RECEIVED ON: 2 September 2024
DATE AWARD SUBMITTED: 29 September 2024 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days and the last day of the inquiry took place on 19 August 2024 at the offices of the Employer in KwaMahlanga. The last of the closing arguments were received from the parties on 2 September 2024.

2. The Employer is the Mpumalanga Department of Education, represented by Ms Madingwana, ZF. The accused Employee is Mr Ntlebi, I, (“Ntlebi”), represented by Mr Mahloboagoane, M, an official of SADTU.

3. Mr Luthuli, S, acted as interpreter, and the intermediary was Ms Padi, M.

4. The Employer submitted the notice of a disciplinary hearing containing the charge, marked for record purposes as Exhibit A. The Employee did not submit any documents.

Issue to be decided

5. I am required to determine whether Ntlebi is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Ntlebi is unsuitable to work with children.

Background and charges

6. Ntlebi, an educator employed at Hlonipha Secondary School (“the School”), is charged with one allegations of misconduct.

7. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998. It is alleged that during the first and second term of 2023 he contravened item 3.8 of the SACE Code of Professional Ethics in that he sexually harassed a grade 10 learner by:

7.1 Saying that she must offer him a sexual favour (“akufakise ihloko”).
7.2 Touching her thighs.
7.3 Peeping under her table and commenting that she was causing him an injury with her short skirts (“niyasilimaza”).
7.4 Beating her with his hand on her buttocks on 10 June 2023 while she was attending his Saturday class.

Plea

8. Ntlebi pleaded not guilty to charge 1 and denied all the allegations against him.

Summary of evidence

9. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

10. The matter relates to, inter alia, allegations of assault and sexual harassment of a learner who was a minor at the time of the alleged incidents. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the minor complainant as “the Complainant” in this award, and the other minor witnesses as “Learner X, Learner Y, Learner Z and Learner A”. The minor witnesses testified by making use of the assistance of an interpreter and an intermediary through TEAMS virtual process.

Employer’s case

11. Elizabeth Mahlangu (“Mahlangu”) testified under oath that the Complainant is her daughter. The Complainant called her one day while Mahlangu was in Groblersdal. She was crying. She said Ntlebi, her teacher, refused to let her enter his classroom because she did not attend his Saturday classes. She also told Mahlangu that Ntlebi requested her to go with him and that he was only going to put the head of his penis in her. He also asked the Complainant’s friend to tell her that he was just going to put the head of his penis in her and that he would not hurt her. The Complainant was very emotional when she called Mahlangu.

12. Mahlangu called her husband, Hendrik Mahlangu (“Hendrik”) and asked him to go to the School to find out what happened. He phoned her about two hours later. Hendrik was very angry. He said that he spoke to the principal and Ntlebi, and Ntlebi denied that he said he wanted to put the head of his penis in the Complainant. Hendrik told her that Ntlebi said he apologised if he said it, but that they must teach their children how to dress. Ntlebi said to Hendrik that their children could not come to the School with their short skirts, the girls must remember that they are men.

13. Ntlebi asked the Complainant for a sexual favour when he asked to put the head of his penis in her. The Complainant confirmed to Mahlangu that Ntlebi wanted to have sex with her. The Complainant is not a liar. The Complainant is not coping well with what happened, and is reluctant to go to the School, whereas before she was always eager to go.

14. Mahlangu told the principal that she did not want Ntlebi dismissed, because he was still young, but that what he said to the Complainant was not normal and acceptable.

15. During cross-examination Mahlangu repeated that the Complainant told he that Ntlebi wanted to have sex with her, that he said that he would only put the head of his penis in her and that he would not hurt her.

16. Hendrik told her that Ntlebi said that if he said it, he apologised, but that they needed to teach their children to dress properly, because the teachers are men.

17. Wilhelmina Ngoma (“Ngoma”) testified under oath that she is the principal of the School. Ntlebi taught physical sciences. Om 12 June 2023 at about 9:45am Hendrik came to her office. He told Ngoma that the Complainant said that Ntlebi touched her buttocks during the Saturday extra class, and because the Complainant did not attend Ntlebi’s Sunday extra class, he would not allow her to write the exam on the Monday. The Complainant also told him that Ntlebi asked her to allow him to put the head of his penis in her.

18. Ngoma told Hendrik that they could not discuss it then because the learners were writing exams and Ntlebi was invigilating. She asked him to come back at about 11am. He came back at 11am. Ngoma requested the Complainant to tell her what happened. She told Ngoma the same story as what Hendrik said she told him. She said that Ntlebi touched her buttocks, he told her that they must not wear short skirts as they were hurting him being a young teacher. Ngoma asked her why she did not report the issue of the skirts to her earlier, and the Complainant said she was afraid that Ntlebi might fail her.

19. Ngoma testified that the Complainant told her that Ntlebi asked her to allow him to put the head in. It started in term 2. The Complainant said that her friend, learner X, was aware of what Ntlebi said. Learner X told the Complainant that Ntlebi asked her to speak to the Complainant about allowing him to put only the head of his penis in the Complainant.

20. Ngoma called Ntlebi in at about 11:30am. Hendrik, the Complainant and learner X were present. Ngoma asked the Complainant to repeat in front of Ntlebi what she told her. The Complainant repeated the same story. Ngoma asked Ntlebi whether he had a response. He told Ngoma that in respect of the issue of the short skirts, he always reprimanded the girls to not wear short skirts because there are young male educators at the School. Ntlebi denied that he asked the Complainant to allow him to put the head of his penis in her. He denied that he touched her buttocks. He said that he always walked fast and maybe he touched her buttocks by mistake. He apologised if it did happen.

21. Ntlebi told Ngoma that all he remembered is that he took the phone of the Complainant before they wrote exams, and he apologised for that as well. Hendrik was furious and wanted Ngoma to deal with the allegations. Ngoma indicated to him that she would write a report and refer the matter to the District Office. She understood “put in his head” to refer to sexual actions.

22. During cross-examination Ngoma confirmed the issue of the short skirts. Learner X confirmed the Complainant’s version about the skirts and the request to put his penis head in the Complainant. The Complainant said she was afraid to report it earlier. The father, Hendrik, came with a friend to the School. The mother, Mahlangu, was not there. Ntlebi apologised that he might have touched the Complainant’s buttocks by mistake because he walked fast. He also apologised for taking her phone. He denied the allegations of wanting to put the head of his penis in the Complainant.

23. The Complainant, a 16-year-old female learner, testified under oath through Teams with the assistance of an intermediary that she is currently in grade 10 in Zakheni Secondary School. She moved there from the School (“Hlonipha Secondary School”) because she was not comfortable with Ntlebi around her in the same school. Ntlebi was her physical science teacher in 2023.

24. Ntlebi told her that she was hurting him when she wore a short skirt to school. She saw his remark as a sexual advance. In June 2023 they were in the classroom, she had a skirt on. She was with Learner X and another friend. Ntlebi came to where they were seated and greeted them. He put his hand on her thigh. She removed his hand, and Learner X asked him what he was doing. Ntlebi told Leaner X that she must talk to the Complainant and ask her whether he can put the head in a little bit. The Complainant understood that he wanted to have sex with her as he touched her thigh.

25. During a Saturday class the Complainant and Learner X went to the bathroom. Ntlebi stood outside the classroom. When they came back, they found him standing at the door. Ntlebi said “you grade 10’s, you are playing games”. Learner X entered the classroom, and when the Complainant followed, Ntlebi hit her on her buttocks. He called Leaner X again and again asked her to talk to the Complainant to allow him to put the head in just once. Ntlebi pretended that nothing happened. Learner X told the Complainant that Ntlebi asked that she allow him to put the head in just one.

26. There was another incident when Ntlebi sent them to the office to collect papers. He found them next to Mr Ntuli’s car. He came to them and asked the Complainant why she would not allow him to put the head in just once. She told Ntlebi that she was attending a ritual dance, and that she could not allow him to do that, as her mother would punish her. Ntlebi ran after her around the car. While she was running from him, she told him that she could not do what he wanted, and that they had to go and collect the papers. He again told Learner X to talk to the Complainant to allow him to put the head of his penis in her. Learner X responded in a playful manner that she would talk to the Complainant. The Complainant told Ntlebi that she will tell her mother. He laughed and said she must report it, he was not scared of her mother. He then left them to go and collect the papers.

27. When they were writing the final exam, Ntlebi told them that he was not going to allow them to write because they did not attend his extra classes. Ntlebi once found her in possession of her cell phone in the classroom. He took her phone and checked the call log and screen time settings. He shouted out loud that the Complainant was busy calling the daily drug during school time. Daily drug is a nickname used by lovers. He went through her gallery and said that she was watching nudes. His actions made her feel embarrassed because he was speaking in a loud voice. The rest of the class laughed at his remarks.

28. The Complainant now feels free in her new school. She could not stay in the same school as Ntlebi. When Ntlebi told them they won’t be allowed to write exams, she sent a please call me to her mother, who called her back. She told her about the exams and the other things Ntlebi did. She was afraid that if she reported it earlier, he would make her fail. Her classmate told her that Ntlebi could fail her if she reported it. She told Thando that she was going to report Ntlebi. Thando said Ntlebi was the only breadwinner in his family, and it would be the end of his career if she reported him.

29. The Complainant did not seduce Ntlebi. She did not know why he only picked her, as many other learners wore short skirts. She was sitting with Learner X in class when she wore a skirt. She had her bag on her thighs. Ntlebi peaked under the table, and she closed her legs.

30. During cross-examination the Complainant testified that she had one skirt which she wore to school when she did not wear trousers. He was touching her thighs when he said she was hurting him, that is why she thought he wanted to sleep with her. She had a similar experience with a stepfather before. Ntlebi said he wanted her to allow him to put the head in.

31. He was leaning on the desk when he put his hand on her thigh and slid it upwards. She removed his hand. He then went to Learner X and told her to tell the Complainant to allow him to put the head in. Learner X just laughed about it.

32. On the Saturday they met him at the door when they returned from the bathroom. He said us grade 10’s was contemptuous and disrespectful. He hit her on her buttocks as she was entering the classroom. Learner X was in front of her. He talked to Learner X after he hit her on the buttocks.

33. One time they requested a lift from Ntlebi. He then asked if she was going to allow him to put the head in, and that he would not hurt her.

34. Note: At this stage Ntlebi’s representative requested an inspection in loco to allow the Complainant to point out how the incident at the door of the classroom happened. The matter was adjourned to the School. Ntlebi did not attend the inspection in loco. His representative attended, as well as the Employer’s representative, the Complainant, the interpreter and the intermediary.

35. The observations and sketch made from the indications by the Complainant during the inspection in loco was placed on record. The classroom building has a stoep. The learners were approaching the door on the stoep. Ntlebi came running from the carports when he saw them and went to stand in the doorway facing the stoep. When the learners were about 2 meters away, he moved towards the edge of the stoep. He then shouted his comment about the conduct of the grade 10’s. Learner X was at the door, the Complainant was behind her and Ntlebi behind the Complainant. He then hit her on her buttocks. He then asked Learner X to talk to the Complainant about allowing him to put the head in, while she was still in the doorway. She stopped to listen to him. Learner X went into the classroom and the Complainant followed her. Ntlebi then entered the classroom. The Complainant pointed out the configuration of the furniture in the classroom on the Saturday. There were less learners than usual because it was a Saturday.

36. The cross-examination continued back at the hearing venue. The Complainant repeated the incident at the classroom door. Learner X would have been able to see when he hit her on the buttocks. The Complainant just looked at Ntlebi in disapproval when he hit her on her buttocks.

37. Learner X, a 16-year-old female learner, testified under oath through Teams with the assistance of an intermediary that she is currently in grade 10 in the School. She is repeating grade 10 in 2024. Ntlebi was her physical science teacher. The Complainant was her friend.

38. The Complainant told her about a dream she had about having Ntlebi’s child but being married to Mr Mahlangu.

39. Ntelbi was always reprimanding her about her short skirt. Ntlebi said that there were assistant teachers who just started. The Complainant said she wore it for Ntlebi. The Complainant was stalking Ntlebi on Facebook.

40. Ntlebi said that the Complainant was hurting him and the young assistant teachers with her short skirts. Ntlebi said to the Complainant that she must allow him to insert the head. He said that to her while she was wearing a short skirt.

41. Ntelbi chased after the Complaint around a car, and Ntlebi told Learner X to ask the Complainant to allow him to insert the head. It meant he wanted to sleep with her.

42. During a Saturday class they went to the bathroom. When they came back, they met Ntlebi at the classroom. Witness X entered the classroom. After that the Complainant told her that her that Ntlebi hit her on her buttocks. She was told to say that Ntlebi peaked under the Complainant’s skirt.

43. During cross-examination Learner X testified that the Complainant said that she wore the short skirt for Ntlebi and Mahlangu. The Complainant did stalk Ntlebi on Facebook. Ntlebi did tell Learner X to tell the Complainant to allow him to insert the head. She understood it to mean that he wanted to sleep with her. He never said he wanted to sleep with her. She did not see what happened behind her when she entered the classroom on the Saturday. Ntelbi was standing outside the door. She did not see if he hit the Complainant on the buttocks. Ntlebi did ask Learner X to tell the Complainant to allow him to insert the head after he chased her around the car. He did not touch her thighs.

Employee’s case

44. Izman Ntlebi, the Employee, testified under oath that he is an educator at the School. He teaches physical science and mathematics. He is also the HOD. He started at the School in 2018.

45. Ntlebi taught the Complainant in 2023. He did not know her well; the class was overcrowded. He had issues with her absenteeism, as he was part of the disciplinary committee.

46. He called the grade 10 class to attend extra classes on Saturday 12 June 2023. He had two classes which he interchanged between. They did not finish the work, and he agreed with the learners to return on Sunday. They did go back on the Sunday. On Monday he told the learners that he would not allow those who did not attend on the Sunday to write the exam. One learner phoned her parent and Ntlebi said he only wanted to scare them. The parent wanted to know why he asked the learners to go to the school on a Sunday.

47. On the Monday he was called to the principal’s office. He found the Complainant there who said he committed a sexual offence on her. The father arrived. Ntlebi said that all he could remember was fighting with the Complainant because she had a cell phone in class. He asked to see what she was busy with on the phone, but she refused to open the phone. He gave the phone back after a while.

48. He cannot remember well what happened on the Saturday, it was long ago. He is very strict on discipline and the learners don’t like him. He cannot remember that learners went to the bathroom. He did nothing to the Complainant.

49. He could have run around the car after the Complainant. Maybe “putting the head in” meant putting brains in her head. Maybe he meant he will put brains in her. It might have happened that he said he wanted to put the head in, it might not have happened. he might have run after her around the car, as he always chased learners when he found them outside. He always runs.

50. He did not say he wanted to put the head in. He did not hit her buttocks. He did not ask for sexual favours. He did not know why she say those things. He made a mistake when he told them they would not be allowed to write exam.

51. He cannot remember an incident where he peaked under her dress. He would not do it in front of the class. He has no idea why she would falsely implicate him. She was very emotional, but he did not entertain her crying.

52. They did remind learners to dress properly. He did not speak to the Complainant directly.

53. He admitted and apologised in the principal’s office because he was bullied. There was no one to defend him. He just wanted it to pass. He apologised if he maybe touched her buttocks in passing. He has his own girlfriend and would not risk his job.

54. During cross-examination Ntlebi testified that he was trying to discipline the Complainant by telling her she would not be allowed to write the exam. The learners might have gone out of the classroom on the Saturday, he cannot remember. He did not know why the Complainant and Learner X would make up the story about him wanting to put the head in the Complainant.

55. He may agree that he ran around the car after the Complainant, but not that he said she must allow him to insert the head. He cannot remember exactly telling Learner X to speak to the Complainant, but he might have done the running around the car after her.

56. Putting the head might also mead to lay down or to give advice. The principal asked him to give Learner X a lift home after the previous sitting of the arbitration hearing. He did not influence her, and it is not the reason why she brought new evidence to the witness stand. He did apologise for maybe touching the Complainant by mistake.

57. Witness Y, a 16-year-old female learner, testified under oath through Teams with the assistance of an intermediary that she is currently in grade 11 in the School. The Complainant was her classmate. They had a short friendship in June 2023. She was told by female educators that the Complainant was a bad influence. They said she loved boys, was always absent and victimised people on Facebook. She stalked Ntlebi on Facebook.

58. She did not remember leaners going out of class on the Saturday. Girl learners were reprimanded for wearing short skirts.

59. During cross-examination Leaner Y testified that the Complainant did tell her that Ntlebi touched her and asked her to allow him to put the head in her. Learned X also told her that she knew about Ntlebi wanting to insert the head in the Complainant.

60. Learner Y testified that Ntlebi did say they were hurting him with the short skirts. The Complainant and Learner X did tell her that Ntlebi touched the Complainant’s thigh.

61. Learner Z, a 16-year-old male learner, testified under oath through Teams with the assistance of an intermediary that he did not see any learner leave the class during the Saturday class.

62. Learner A, a 17-year-old female learner, testified under oath through Teams with the assistance of an intermediary that the Complainant helped her with traditional cleansing issues. It is not true that the Complainant and Leaner X left the Saturday class to go to the bathroom.

Summary of arguments

63. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

64. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

65. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

66. All the allegations in the charge against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, and the evidence deduced by the Employee in defence, were considered and weighed against the abovementioned standard of proof.

67. It is not disputed by the Employee that the actions he had been charged with constitute misconduct. He merely denied committing the alleged misconduct as set out in the charge below.

68. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998. It is alleged that during the first and second term of 2023 he contravened item 3.8 of the SACE Code of Professional Ethics in that he sexually harassed a grade 10 learner by:

68.1 Saying that she must offer him a sexual favour (“akufakise ihloko”).
68.2 Touching her thighs.
68.3 Peeping under her table and commenting that she was causing him an injury with her short skirts (“niyasilimaza”).
68.4 Beating her with his hand on her buttocks on 10 June 2023 while she was attending his Saturday class.

69. I am mindful of the fact that the Employee is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

70. In respect of the all the allegations the Employee disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.

71. The Employee’s defence in respect of the alleged sexual misconduct is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies but could not provide a reason as to why the learners would accuse him falsely. The Complainant’s mother testified that she told the principal that she did not want the Employee to be dismissed, as he was still young. This is not the conduct of a person who had a vendetta against the Employee, otherwise she would have insisted on dismissal.

72. The Complainant’s version is corroborated in all material aspects by the person she made the first report to, her mother, as well as by Learner X. the Complainant’s explanation that she was afraid to report it earlier because the Employee might have failed her, is not uncommon behaviour in cases of sexual misconduct involving young children.

73. It must be remembered that the Complainant and Learner X were only sixteen years old at the time of the incidents, and that the incidents took place during 2023, while the arbitration hearing was only concluded in 2024. Naturally, the lapse of time would affect the memories of witnesses, and I assessed the evidence against this backdrop.

74. It has been shown that children who are sexually abused, concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details like dates, or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners.

75. The Constitutional Court has held that that the sexual assault of children has the inherent effect of rendering child victims unable to report the incident, sometimes for several decades, and that they should not be penalised for the consequences of their abuse by blaming them for the delay. The Courts have accepted that feelings of fear and shame often prevent children from reporting such incidents immediately and that the victims often distance themselves from reality and transfer responsibility onto themselves. In 2007 the law was amended to provide that no inference may be drawn from the length of any delay between the alleged commission of such offence and the reporting thereof. The fact that a child does not tell another teacher at school about an incident that occurred at school, but only tells a parent or grandparent later at home, or visa versa, is therefore no indication that the child has fabricated the evidence. Sometimes children would due to feelings of shame not tell a parent or teacher, but rather tell a close friend.

76. The above is aptly relevant in this case where the victims reported the incidents later or to another learner. I reject the arguments of the Employee that the late report by the Complainants tarnish the credibility of their evidence in any material way.

77. The observations made during the inspection in loco supported the Complainant’s version of how the Employee hit her on her buttocks in all material aspects and strengthened the probability of her version.

78. The Employee admitted that he probably chased the Complainant around the car. This alone is a disturbing admission by the Employee, that he would chase young female learners around the school grounds.

79. Leaner X did contradict the Complainant in respect of certain aspects of their evidence, but what is of utmost importance is that she corroborated the Complainant’s version that the Employee asked the Complainant to insert the head of his penis in her, and that he asked Learner X to speak to the Complainant to allow him to do that. Even if it is true that the Complainant stalked the Employee on Facebook, it was no justification to exploit the infatuation of a young female learner. It is not uncommon for young learners to have childish infatuations towards young educators, but the responsibility lies with the adult not to exploit it.

80. The Employee starts off his evidence by stating that he did not know the Complainant well because the class was overcrowded. He then immediately continued to testify that he had issues with her. If he had issues with her, the question arises how he could say he did not know her well. He was also vague about what happened during the Saturday class and testified that he could not remember anything. He can therefore not dispute the evidence of the Complainant with any contradicting probable facts.

81. The Employee’s explanation of what “putting in the head” would mean, i.e. putting brains in the head or laying the head down, borders on the ridiculous. He testified that he could have run around the car after the Complainant. He testified that maybe “putting the head in” meant putting brains in her head, or maybe he meant he will put brains in her. He testified that it might have happened that he said he wanted to put the head in, it might not have happened. He testified that he might have run after her around the car, as he always chased learners when he found them outside. He always runs.

82. The only inference that could be drawn is that it meant that he wanted to insert the head of his penis into the vagina of the Complainant.

83. The Employee admitted that he might have touched the Complainant’s buttocks by mistake, by apologising to the parents. I find his explanation of how he could have touched her buttocks in passing, highly improbable. by mistake by waving his arm.

84. I find no material discrepancies or inconsistencies in the evidence of the Complainant and Learner X that would negatively affect their credibility. Despite their young age, the Complainants stood steadfast by their versions.

85. The Employee alleged that he apologised in the principal’s office because he was bullied. He also testified that he might have touched the Complainant’s buttocks by mistake. These versions were however never put to Complainant or the principal in cross-examination, and it was also never proven by the Employee. This is a material aspect of this case. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The same principle will therefore apply in this matter.

86. I find it highly improbable that the Complainant and other witnesses fabricated allegations against the Employee, and that Leaner X agreed to be used as a pawn by the Complainant to accuse the Employee of sexual misconduct. It would have been an elaborate fabrication involving educators, young learners, and parents with the intent to get rid of the Employee, which I find highly improbable.

87. I find the Employee’s version that the Complainants decided to falsely accuse him because of social media posts claiming to have a crush on him, also highly improbable. It is common knowledge that learners develop infatuations with young educators, but it is the duty and responsibility of such educators to not take advantage of such vulnerable learners. The Employee failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. The Employee could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.

88. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainant’s version has been materially the same throughout the inquiry. I find it improbable that she would make up such a detailed version of events without any reason. The Employee’s version that it is a fabrication is not plausible.

89. There is a common misconception that sexual assault must necessarily involve contact with the genitalia of the victim, which is not the case. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. I find that hitting the Complainant on her buttocks, touching her thigh and demanding to insert his penis head into her vagina would probably violate or threaten the sexual integrity of the learner.

90. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the employee committed the misconduct as contained in charges 1. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding
91. The accused employee, Mr Ntlebi, I is found guilty of the following misconduct:

92. Charge 1 – contravening section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that during the first and second term of 2023 he contravened item 3.8 of the SACE Code of Professional Ethics in that he sexually harassed a grade 10 learner by:

92.1 Saying that she must offer him a sexual favour (“akufakise ihloko”).
92.2 Touching her thighs.
92.3 Peeping under her table and commenting that she was causing him an injury with her short skirts (“niyasilimaza”).
92.4 Beating her with his hand on her buttocks on 10 June 2023 while she was attending his Saturday class.

Sanction

93. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

94. Although the Employer charged Ntlebi with sexual harassment under section 18(1)(a) of the EEA, it is evident that his conduct also falls within the definition of sexual assault on a learner, within the ambit of section 17(1)(b) of the EEA. The conduct was of sexual nature, which resulted in the victim, i.e. the Complainant’s sexual integrity being impaired, or at least it inspired the belief that it will be impaired, it was done intentional and without consent of the Complainant, which rendered it unlawful. Ntlebi’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a minor female learner of 16 years old to be sexually harassed and/or assaulted by an educator.

95. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of sexual assault, which I keep in mind considering the nature of Ntlebi’s misconduct. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Employee was employed in, and the years of service of the Employee, I do find that the sanction of dismissal is fair and appropriate in the circumstances of this matter as well.
96. I find that summary dismissal is an appropriate sanction in the circumstances.

Sanction

97. In terms of section 188A(9) of the LRA I direct that the employee, Mr Ntlebi. I, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005
98. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.

99. The parties were given the opportunity to submit arguments in this respect. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Ntlebi’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.

100. Mr Ntlebi, I, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Ntlebi, I, 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.

COEN HAVENGA
Senior ELRC Arbitrator
29 September 2024