30 September 2024 – ELRC352-23/24WC

In the INQUIRY BY ARBITRATOR between:

RANDY BAILEY
(Employee)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for an Inquiry by Arbitrator to the Education Labour Relations Council (ELRC) for a dispute relating to alleged misconduct (sexual assault of learners) in terms of section 188A of the Labour Relations Act No 66 of 1995 as amended (the LRA) and ELRC Collective Agreement No 3 of 2018 Inquiries by Arbitrators in Cases of Disciplinary Action against Educators charged with Sexual Misconduct in respect of Learners, dated 25 September 2018 (the Collective Agreement), read with clause 32 of the ELRC Dispute Resolution Procedures, for a disciplinary hearing in the form of an arbitration, which was heard in person at the premises of the Employer’s Provincial Offices in Cape Town over nine sittings on 16 October 2023, 21 February 2024, 22 February 2024, 19 March 2024, 4 April 2024 (in loco inspection only at Elsies River High School), 15 July 2024, 13 August 2024, 14 August 2024 and 15 August 2024. Postponement was granted in advance by the ELRC for the first sitting scheduled on 20 September 2023.

2. The Western Cape Education Department (the WCED as the Employer) was represented by Ms Venessa Mortlock, a Labour Relations Officer. Mr Randy Bailey, the Accused Employee, was represented by Mr Juwa Dimande, a SADTU Full-Time Shop Steward. Present at the sittings, where this was required, were also Ms Stephanie Marks, an Intermediary to assist the Learner witnesses, and Ms Bianca Mankay, an Interpreter to assist with Afrikaans and English interpretation. Ms Helen Bruwer substituted Ms Marks as Intermediary at the sitting on 15 July 2024. Ms Nkemeleng Hloahloa, an Employee Relations Intern with the Employer, attended several of the sittings as an Observer.

3. The proceedings were conducted primarily in English, with English interpretation where needed for Afrikaans-speaking witnesses. Digital and electronic recordings were also made of the proceedings.

4. The Inquiry was conducted in the form of an arbitration with reference to the provisions of Collective Agreement No 3 of 2018 (the Collective Agreement), the ELRC Dispute Resolution Procedures and the relevant sections of the LRA, with the necessary changes required by the context.

5. The Inquiry proceedings were explained to the Employee, which he confirmed he understood. He also confirmed that he had received the charge sheet, has been made aware of his rights and was ready to proceed with the Inquiry after preliminary issues were dealt with.

ISSUE TO BE DECIDED

6. The purpose of this Inquiry convened in terms of section 188A Inquiry by Arbitrator of the LRA, which provides for an inquiry by an arbitrator in the form of an internal disciplinary hearing, Collective Agreement No 3 of 2018 (the Collective Agreement) and clause 32 of the ELRC Dispute Resolution Procedures, is to determine – whether the Employee, Mr Randy Bailey, is guilty, on the balance of probabilities, of the following charges relating to two female learners associated with Elsies River High School as levelled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on any or all of the following charges:

CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, No 76 of 1998 (hereinafter referred to as the Act) in that during 2022, you committed an act of sexual assault on Learner A, a learner enrolled at Elsies River High School, by:

(a) Sucking her nipple; and or
(b) Touching her vagina with your hand.

ALTERNATIVE TO CHARGE 1

It is alleged that you are guilty of misconduct in terms of Section 18(1)(dd) of the Act, to be read with Section 5 of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act, Act 32 of 2007, in that during the second term of 2022, you unlawfully and or intentionally sexually violated Learner A, a learner enrolled at Elsies Rivers High School by,

CHARGE 2

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner A, a learner associated with Elsies River High School by texting her and remarking the following:

(i) “..Plesier my bby. Miss u…”

CHARGE 3

(i) By whispering in her ear and remarking the following: “you have nice legs and sexy also I would like to taste it”.

CHARGE 4

(i) “I miss you baby when can I see you (with heart emojis) ….”.

CHARGE 5

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during the first and or second term of 2023 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Learner B, a learner associated with Elsies River High School by looking her in the eyes and remarking the following:

(i) “I want to make a house appointment; your parents must not be at home when I visit….”

CHARGE 6

It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during the first and or second term of 2022 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Learner B, a learner associated with Elsies River High School by putting your arm around her.

7. The original charge sheet which contained the first five charges was served on the Employee on 18 August 2023, with the additional Charge 6 added afterwards and the amended charge sheet served on the Employee before the Inquiry commenced.

8. The Employee pleaded not guilty to these charges.

BACKGROUND

9. A Pre-Inquiry Minute had not been finalised by the parties, with the following facts common cause and in dispute established and confirmed at the Inquiry. The following facts were established as common cause:

The Employee was employed in the position of Post Level 1 Educator at Elsies River High School teaching History and Social Science, with Persal number 5043292. He commenced employment with the Employer in January 2016 and was previously employed at the same school before he resigned in 1989. At the time of the inquiry commencing on 16 October 2023 he was still in full employment and was not suspended from duties. It was reported at the sitting on 15 July 2024 that he was subsequently placed on precautionary suspension on 19 April 2024. He had no prior disciplinary record and these were the first incidents of alleged misconduct brought against him. Learner A is presently in grade 11 and 20 years old and Learner B is presently in grade 11 and 17 years old. Both are still learners at Elsies River High School.

10. The following facts were established as being in dispute:

Whether the Employee was guilty of the charges brought against him.
What the appropriate sanction should be if the Employee is found guilty on any or all of the charges, with it noted that the mandatory sanction for a finding of guilt on Charge 1 would be
dismissal.

11. Documents were handed in by both parties during the proceedings and admitted as evidence, except where indicated otherwise, with witnesses to be called to testify to the disputed documents. At the sitting on 13 August 2024 the arbitration award under case ELRC72-23/24WC issued on 21 July 2024 by Commissioner Gail McEwan in the Inquiry by an Arbitrator between SADTU on behalf of Ryan Andrews for the same school and the same Employer and served on the parties by the ELRC on 24 July 2024, was handed in by the Employer party as having relevance to this dispute, since this award also referred to the Employee and some of the witnesses in this matter. The admission of this award was disputed by the Employee party and the parties were advised that its relevance should be argued in closing and considered if relevant in the evaluation of the evidence, but could not be ignored.

12. Five female learners of Elsies River High School were called by the Employer to testify at the Inquiry, with their identities protected. The names and surnames of the Learner witnesses are not disclosed in the award, and are identified as Learners A, B, C, D and E. Learners A and B were the learners implicated in the allegations against the Employee, with the other three being witnesses to the alleged incidents. The identities of other learners who were referred to during the evidence and did not testify are also not disclosed. Although Learner A was 20 years old at the time of this inquiry and was no longer considered to be a child in terms of the Children’s Act 38 of 2005 (the CA), which deems a “child” to be person under the age of 18 years and is entitled to the protection guaranteed in terms of section 28 of the Constitution and the CA, it was agreed that her identity will also not be disclosed similar to the identities of the other four learner witnesses who were all below 18 years old at the time of the inquiry. Ms Velma Jackson, Principal of Elsies River High School, was also called to testify for the Employer. The school’s Social Worker, Ms Desmolene Wolmarans, was also to testify for the Employer but was on sick leave and unfit to testify when she was to attend the Inquiry and the Employer elected to dispense with her evidence since her report was contained in the admitted documents. The Employer elected to not call an ex-learner who had reported the incident relating to Learner A to the Principal Ms Jackson and was also to testify for them.

13. The Employee, Mr Randy Bailey, and Ms Carmen Jansen, the Food Preparer for the School Feeding Scheme at Elsies River High School testified for the Employee party. The Employee was to call an additional witness of an ex- Learner, but elected not to do so. The Employee party informed that their other witness, Mr Jason Nel Junior, an Educator at Elsies River High School who was referred to in the Employee’s evidence, decided not to testify in the proceedings.

14. It is noted that an affidavit was attested to by Learner A, the main complainant/victim learner, on 15 October 2023 that she is withdrawing the allegations against the Employee, as well as Mr Ryan Andrews, the other Educator at the same school who was charged for similar misconduct. Subpoenas were applied for by the Employer on two occasions and issued for Learner A to attend the inquiry, which were both not complied with. A protection order was also applied for by Learner A on 15 February 2024 during the proceedings against the Employer’s Representative Ms Mortlock for alleged harassment relating to her attendance at the inquiry, which was heard and denied by the Court on 17 April 2024, whereafter Learner A attended the inquiry voluntarily. These interventions resulted in the inquiry to be delayed and that it could only be concluded on 15 August 2024.

15. All the learner witnesses testified in English in a separate facility on the same premises, supported by the Intermediary. The adult witnesses presented their evidence under oath.

16. Two in loco inspections were held at Elsies River Primary School where the incidents were alleged to have occurred. The first was on 19 March 2024 after the four Learners B, C, D and E had testified, but they could not also participate since the school had already adjourned for the day at the time the inspection commenced. The second inspection was arranged for 11h00 on 5 April 2024, specifically with respect to the Learner witnesses, but all four the Learners were reported as being absent from school due to illness. The Panellist made a video of the first inspection on 19 March 2024 to identify the locations that the witnesses had testified to, which was shared with the parties.

17. Written closing arguments were requested by the parties and agreed for simultaneous submission to the ELRC on 30 August 2024. The parties were requested to include mitigating and aggravating circumstances should there be findings of guilt on charges that did not have the mandatory sanction of dismissal. Both parties’ closing arguments were received on due date, with the Employee party not submitting any mitigating circumstances, after being reminded thereof, by the time of writing this award.

THE EMPLOYER’S EVIDENCE

18. The Employer handed in documents, which were exchanged during the inquiry and admitted as evidence (except where indicated otherwise), and called the following witnesses to testify in support of its case:

19. Learners A and B, the female learners who brought the allegations against the accused Employee, as well as three other learners, being Learners C, D, and E, and Ms Velma Jackson, Principal of Elsies River High School, testified for the Employer.

20. The Employer’s witnesses’ evidence is summarised below in the sequence that they testified.

21. Learner B testified as follows in her evidence in chief: She is presently 17 years old and in Grade 11 at Elsies River High School. Charges 5 and 6 brought against the Employee, to which he had pleaded not guilty, were read out to her. She was aware of an incident in which the Employee was involved and explained what happened. In 2022 her earrings got taken off at the gate and she asked the Employee if he could help get her earrings from the Educator who took them off her since it was her late grandmother’s earrings and meant a lot to her. After the Employee’s period was over he told her to stay behind and handed her the earrings. She asked him if she could buy him chocolates in appreciation and he told her he does not want a chocolate but “something else”. When he said he wanted something else she thought that he wanted sex.

He could not tell her what the something else was when she asked him. She then walked out and went to her next class. Learner C was standing outside the door at the time when she walked out of the class. When she was in the Employee’s History class he never scolded her as he did to the other children. She did homework when she was in the Employee’s History class in grade 8 but did not get homework in his History class when she was in grade 9. She thought she did not get homework because he never scolded her as he did for the other children. When she said in his class that she did not understand something he would stand close to her and put his arms around her. He stood close to the other children but did not put his arms around them. She would sit at her desk and he would stand at her desk and put his arm tightly around her, which she demonstrated how with the Intermediary. He did not do this to the other learners. It made her feel uncomfortable and she did not say anything when he got close to her.

After the earring incident when she did not understand she would wait until after the class to ask somebody else. She did not know why he treated her differently from the other Learners. There was another incident that happened in 2023, with reference to the photos in the Employer’s bundle of documents of the school courtyard and the entrance to the classrooms. It happened on the steps at the entrance to the passage on which the classrooms are located. The Employee was standing on the first step (the highest step) and she was standing on the second step. Classroom 5 is opposite the entrance and the Employee’s classroom was down the passage to the left of the entrance. The Employee called her out of her line gesturing with his hand, which she demonstrated. She went to him and he lifted up her face with both hands, which she also demonstrated. He rubbed his thumbs on her cheeks when he held her face. After that he told her he wanted to make a house appointment, but her parents must not be at home. She asked him what he meant by that and he said she knew what he meant. She then walked away and went to her class. She thought that was inappropriate and that he wanted sex. She thought he wanted sex because she was not in his class and what was there to discuss when her parents were not at home. No Educator or someone else was standing close to hear the conversation. Only the children standing in the line could have heard the conversation.

This conversation about the house call and her parents not being at home made her uncomfortable and did not make sense to her, like with the chocolates. What did not make sense to her was that she first thought he wanted sexual intercourse and now wanted her parents not to be there and probably wanted them to be alone. After she went into class she told her friend Learner D that the Employee touched her face inappropriately and Learner D told her that she saw him touch her face. She did not only tell Learner D about the incident, but also told her mother. After that incident the Employee gave her dirty looks and ignored her, made remarks and “clean stripped” her when he walked past her. When she was taken to Elswood High School by the Employer for the preparation of this inquiry, the Employee and another Educator Mr Andrews were standing at the gate and gave dirty looks at each other. When they returned Mr Andrews asked Learner E where they had come from and who were all there, what they were doing there and she does not know what else. The evening that she reported the incident to her mother, her mother reported the incident to Mr Nel Junior another Educator at the school and he told her mother to come to the school to report it to the office.

22. Learner B testified as follows under cross-examination: She met the Employee the first time in 2021 when he taught her History and Geography in Grade 8. During 2021 the Employee was very strict in class and everyone was scared of him. He was strict when they misbehaved in class and with their work and was a strict teacher when they did anything wrong such as you could not make a noise in his class and must sit and work. He would then scold you really badly if you did anything wrong. It was put to her that she was not telling the truth since the Employee never taught History and Geography in 2021 for Grade 8 but only for Grade 9 in that year, to which she responded that she was taught History and Geography by the Employee for two years and could not respond as to the year. She explained the procedure expected of learners before they entered the classrooms. They must stand in their line and line up for class in front of the school hall. The Employee would stand in front on the steps to the classrooms or in the shade in front of the hall. They can talk and no one had ever told her to keep quiet when standing in the line waiting to go to class.

The teacher will stand in front and give instructions to go to the classroom. When the Employee was standing in front she would not make a noise or talk to anyone because she was scared of him. On that particular day she could not remember anyone making a noise in the line as everyone was too scared of the Employee. He was standing on the first step to the corridor and she was standing on the second step when he told her he wanted to make a house appointment and her parents must not be at home. There was nobody standing with the Employee on the first step. They were going to attend the History period in Grade 10 and it was in 2023 when the Employee said that to her. She was with her two class friends Learners D and E when she was waiting to attend the History class. The Employee had called her with his hand without reason and touched her face inappropriately when he said he wanted to make a house appointment. She left her friends because he called her.

She did not know if the other Learners saw him holding and rubbing her face but knew that Learners D and E saw it and asked her afterwards why he was touching her face and wanted to know what had happened. It was put to her that she was lying as the Employee denied that he touched her face and said that to her, to which she responded that she was not lying and that he had done that. She was not “close” to the Employee. She was not the only girl that he touched as he was very touchy with girls. As to whether the Employee touched learners because of his strictness it may have been his way of making learners scared and not come forward because that is what happened to her in the beginning. When the Employee touched her face and said he wanted to make a house appointment, she backed off and went to her class. The other learners would see the Employee put his hand around her in class. It was only Learner C she knew of who saw that and the other children who saw that did not want to speak about it. As to whether the Employee did not do this to learners in class as he knew the consequences of doing that, he maybe did not do it to other learners, but he did do this to her, which was true and which she is going to stick to what happened to her. She was not aware that the Employee was a disciplinary officer at the school and had a role to discipline in the school. She did not know what happened to make the Employee want to make a house appointment. The Employee’s version that he called her because she was unruly in the lines and said to her that he is going to call her parents and that she knew exactly what would happen if her parents are called was put to her, which she denied and said was not what happened and what he said to her, which was that he wanted to make a house visit and her parents must not be there. At first she did do homework but after that when she did not do homework the Employee did not scold her afterwards for not doing it. She then never did homework, never got scolded for it and did not know about the other learners. Although the Employee did not scold her the first time she did not do her homework, she was still afraid of him because he could get her into trouble.

She did do the projects she was supposed to submit, but did not do random homework. She did not know if the Employee did not mind if she was not doing her homework. The other learners were aware that she did not have to do homework in that period and did not like her because of that. She only told Learner C about the homework because she was in her class and did not tell the others Learners D and E because they were not in her class at the time. She only became friendly with Learners D and E last year when they were in the same class. All her friends knew that the Employee was strict. The children standing in the line did not hear what the Employee said to her from where they were standing on the steps, but they could see him touch her face. Mr Nel Junior was standing where their class lines up as they never stood in line and Mr Nel had to put them in line, which is when the Employee called her. The Employee was not teaching her at the time but he knew her because he taught her History and Geography in Grades 9 and 8. Mr Nel had taught her History and Geography in the beginning in Grade 8 and then the Employee took over teaching her these subjects during Grade 8. As to why she brought new information that Mr Nel had also taught her in Grade 8, it was because she was nervous and had never done anything like this before. As to why the first thing that came into her mind when the Employee spoke to her about the house appointment and that her parents must not be there that he wanted to have sex with her, it was because if it was something else why could it not be discussed at school, that she did not have class with him and why her parents must not be at home. At that time she was 16 years old and is now 17 years old. She did not know if the Employee visited the parents of children who are misbehaving at school. She had heard that the Employee had slept with school children, but could not mention names from whom she heard this. It was put to her that she was there to fabricate a story and tarnish the name of the Employee and that he had never in his entire career as an Educator had ever attempted to have an affair with a school learner. She responded that she had nothing to say further about this and reiterated that she was not lying.

23. Learner B testified as follows under re-examination: She said that the Employee was a strict teacher because of the way he would scold (“skel”) and make his voice “thick”. He was strict with her at first but not after the earring incident. She could not remember him disciplining any learners in front of her, and she never saw him hit children. They could speak outside the class, but not inside the class, with everyone inside the class quiet and doing their work. As to the Employee’s version that he did call her but denied touching her face and spoke to her about coming to talk to her parents, she confirmed that the Employee had touched her face and said he wanted to make a house appointment and that her parents must not be home. She would think exactly the same if any other Educator said that to her. The stories that she heard about the Employee at school was that he is known as a pervert.

24. Learner C testified as follows in her evidence in chief: She is presently 17 years old and in Grade 11 C at Elsies River High School. She was in Grade 9 A when the incident happened between Learner B and the Employee in 2022. The Employee was their subject teacher for History and Geography and they were in his class. She described what happened the one day when Learner B’s earrings that she got from her grandmother were confiscated at the gate and the Employee said he would get them for her. As they entered the class Learner B said she would ask the Employee to get the earrings for her. She was seated behind Learner B in class and she started crying, which is when the Employee went to fetch the earrings for her. When the Employee returned he handed the earrings to Learner B. When the bell rang the class left and the Employee asked Learner B to wait.

Learner B asked her to wait at the door for her. She waited outside the door for Learner B when Learner B went to the Employee’s desk. Learner B thanked the Employee and she could hear that Learner B was very grateful. She heard Learner B ask the Employee, who was standing at his desk, if she could buy him a chocolate to say thank you for fetching the earrings. She heard the Employee say to Learner B that he does not want a chocolate but she was distracted then as one of her friends came out of the next class. She agreed with Learner B’s testimony that the Employee was very strict and at first she was very scared of him, but he was a very good Educator and taught them well until the incident happened and things changed after that. She saw that the Employee was very different to Learner B than he was with the rest of the class. There were many examples such as the class had to do History essays in a specific time frame and when he came to the class he would ask them to recite the essay to him but when it came to Learner B he would always give her another chance to do it by the next day. He would press the shoulders of other learners, even girls, if they had not done their work, but with Learner B he let it slide. He saw the Employee put his arm around Learner B. There were also times he would touch her own face when she was looking away and bring it to look to him. At the time she had no idea why Learner B got that so-called special treatment. Learner B did occasionally tell her how uncomfortable she felt when the Employee was speaking to her in a certain kind of way. She could see that Learner B was very tense when she came out of class to tell her what happened (about the earrings).

25. Learner C testified as follows under cross-examination: She was not sure, but she thought that Mr Nel Junior taught them History and Geography in Grade 8 before they switched over to the Employee in Grade 8. She remembered that the Employee taught them in Grade 9. Learner B did not tell her how close she was to her grandmother. She just remembered Learner B telling her that her grandmother’s earrings were personal to her, she thinks before her grandmother died. Ms Jooste confiscated the earrings from Learner B. There was a policy in the school that they are not allowed to wear earrings on school grounds. Ms Jooste was not wrong since they are supposed to take off earrings before they enter the school grounds. Learner B was crying when the earrings were confiscated. Learner B went to the Employee because she really needed to get the earrings back. Learner B did not go to another teacher but asked the Employee since she was in his class. Learner B did not tell her specifically why she went to ask the Employee, but it was the first period of the day. Learner B went alone to the Employee’s desk to ask about the earrings. She was seated in front of the class and the other children were also seated in the class. The Employee did not say anything funny to Learner B when she approached him and she heard him tell her to sit down and he then left. Learner B was crying when she heard the earrings were confiscated until the Employee returned. She was not aware of anything that bothered Learner B to make her emotional and she also did not know that Learner B needed emotional support before, but only that time. They were not best friends but Learner B shared a lot with her, such as that she at some point wanted to commit suicide, for the reason that she was under too much pressure and going through a lot, without going into the details. She did not think Learner B needed special treatment but needed some kind of support, such as someone to talk to, like many teenagers such as herself. She saw the Employee come back with the earrings. She was in the class when the Employee called Learner B to his desk and handed the earrings to her.

Learner B did not ask her to stand outside but asked her to wait at the door for her when the bell rang. She herself decided to stand outside the door. She did not know why the Employee asked Learner B to see him after class, as she already had the earrings at the time, but she knew he asked her to come and see him after class. Learner B did not receive the earrings while she, Learner C was standing outside the class since she had already received them at the time. She was in the class the moment the Employee gave Learner B the earrings, when she saw her put the earrings in her pocket. She did not hear the Employee say to Learner B what was written in charge 5 of the Employee’s charge sheet. The day of the incident when they were standing in the line at school she did not know Learner B’s exact position where she was standing in the line. She was standing in the line but did not at all observe the Employee calling Learner B out of the line. She repeated that she did not see the Employee calling Learner B out of the line, but when they entered the class he would also put his arm around Learner B. There were many times the Employee called Learner B and they would have conversations. She demonstrated how the Employee would put his arm around Learner B while they were walking on the way to class. This happened most of the time. The other things that she saw done by the Employee was that he and Learner B would talk. They would stand and talk as they are walking to enter the classroom and sometimes he would call Learner B from the line and wrap his arm around her neck and have a conversation. She did not hear Learner B say anything when the Employee put his arm around her. Learner B did not share with her what they were talking about. Besides putting his arm around Learner B the Employee would also touch her chin at times to just move her face to his direction. It was put to her that her version of what happened differed from that of Learner B and it was questioned whom of the two should be believed, to which she had nothing to say about that. She was asked to tell what happened at the gate of Elsies River High School when they went to Elswood High School to prepare for the inquiry. Nothing happened at the gate and she was in the car driven by Mr Olyn with Learners E and A. There was nobody at the gate when they went out and she did not see the Employee and Mr Andrews there. One of the days that they went to Elswood High School she was not at school that day. She was not aware of what the Employee’s Representative was talking about that Learner B had stated that the Employee and Mr Andrews were at the gate and giving each other bad looks. She only went to Elswood High School once with Learner E and Learner A and was not aware of how many times people went to Elswood High School. She later made the correction that she did not go to Elswood High School with Learner A, but only with Learner E and another Learner, who is not one of the witnesses. She did not go to Elswood High School with Learner B. She knew that Learner B was rarely up to date with her work, such as the times that the Employee would give them History homework and Learner B would not do the homework. She did not know of the reasons that Learner B did not do the homework. Nothing would happen to Learner B if she did not do her homework. There were a few other children in the class who also did not do their homework. The Employee would give them some sort of punishment by pressing their shoulders or shooting their ears with his fingers, except for Learner B. He would just tell Learner B the next time he sees them again she must do her homework.

She was referred to that it was mentioned that Learner B nearly committed suicide and needed to be treated carefully or specially. She did not think that Learner B needed to be treated special and different from the rest. She did not know what it meant when the Employee did not talk harshly to Learner B. She felt it was unfair to the rest of the class how the Employee dealt with Learner B for not doing homework. She could not recall how often Learner B did not do her homework and whether it was for the whole year or term. She was not sure about the first term but during the first term Learner B at times asked her, Learner C, for help with her homework. She thought that Learner B starting slacking and not submitting her homework all the time from the second term. She was sure there were other learners who were also not during their homework. She could not respond to Learner B’s version that she was the only one not doing her homework and that the teacher did nothing about it. If a learner did not understand or have a problem with something in class and the Employee was called for help, he would explain it. She was not sure if Learner B had called the Employee for help with schoolwork when she had some difficulties in class with a subject. When learners did not do their homework, the Employee would press on their shoulders with his hands as a sort of warning to them to do their schoolwork. The class was very well-mannered because the Employee was very strict. He was strict to help them do their work as learners. He treated both boys and girls in the same way when they did not do their homework. She did not at any point hear that the Employee was having an affair with school learners. She had nothing to say about the Employee’s record or any scandal before he joined Elsies River High School. She did find something wrong if it was said that “I want to make a house appointment and your parents must not be at home”. What was wrong with that is that she would feel unsure and unsafe on what the person’s intentions are and why the parents cannot be at home. She did not know if Learner B had a good relationship with the Employee. She was not aware that Learner B had testified that the Employee while she was in class put his arm around her while he was helping her with her schoolwork.

26. Learner C testified as follows under re-examination: She was in Learner B’s class in 2022 with the Employee. They separated in 2023. She was referring to 2022 when she was standing in the line and did not see the Employee calling Learner B. She was also referring to 2022 when she saw the Employee call Learner B and wrap his arm around her. This was the only time she witnessed that. It happened at the classrooms outside the hall and happened outside most of the time. She confirmed that she also witnessed the Employee touching Learner B’s chin during 2022. She was only present the second day Monday 19 February 2024 on the three days that they went to Elswood High School and was not there the first day of Friday 15 February and the third day of Tuesday 20 February 2024. Learner B did not do homework all the time in 2022 when they were in the same class. She felt Learner B had special treatment because the Employee did not scold her like he scolded the other learners. She herself would not do homework if she was not scolded for not doing it. She had not witnessed Learner B call the Employee to help her in class. Even if the Employee was never associated with wrongdoing before at Elsies River High School, she did not think it was right what he did to Learner B.

27. Learner D testified as follows in her evidence in chief: She is presently 17 years old in Grade 11 at Elsies River High School. She was read out charges 5 and 6 against the Employee which involved Learner B. She was aware of the incident that happened in 2023 between Learner B and the Employee. She was not in the Employee’s class at the time and Learner B was in her class. She received History and Geography from the Employee in 2022, but was not in Learner B’s class then. The incident in 2023 took place in front of the hall as they go to the classes. She referred to the pictures of the school courtyard and entrance to the classrooms. They were lining up in front of the hall and the Employee called Learner B out of the line. Learner B was standing in the line to the left and the Employee was standing on the top step of the corridor, the first step level with the gate. The Employee called Learner B with his hands to come to him. They were standing in the line and saw Learner B walking to the Employee. The Employee then placed his hands on Learner B’s face and lifted her head to look him in the eyes. She demonstrated that the Employee cupped Learner B’s face with his hands and placed his thumbs to lift her head. She saw the Employee do this and did not know what happened afterwards as Learner B just walked away. The Employee was talking to her but she could not hear what they were talking about. When Learner B returned her face was just “down”. This was the first time according to her that the Employee touched Learner B’s face. When she was in the Employee’s class he was strict but always had his favourite children, both girls and boys, which he would not pick on. Although he was strict he was flirty, with the example that with certain girls in the class he would smile and touch them, like randomly playing with their hair and placing his hands on their shoulders. He never played with her own hair. With reference to the house call that the Employee wanted to make for Learner B, she did not feel it was appropriate to talk like that to a learner. As to why the Employee would want to make a house call when the parents are not there, the only thing she could think was that he wanted to have sexual intercourse with her or do other things with her. If a house call was to discuss school work, she did not think a teacher and learner should be alone at home without the parents’ consent. Learner B did discuss with her what the Employee said to her. She believed what Learner B told her. There was no other Educator around them or close to them who could have heard the conversation. It was not right what the Employee had said to Learner B, because if he wanted to make a house appointment, he should rather speak to the parents about it and not the learner. She only attended the Friday, the first day of the three days’ preparation for the inquiry at Elswood High School. Mr Olyn had brought them to Elswood High School. An Educator, Ms Lauren Jaftha, was in the car with them. The Employee and Mr Andrews were at Elsies River High School, she thinks to go out to the shop and had just walked to the gate. She was not sure if they had seen them in the car as the Educator driving with them told them they should look away. No Educator at Elsies River High School asked them anything when they returned from Elswood High School.

28. Learner D testified as follows under cross-examination: She was currently in grade 11 at Elsies River High School. She started to know the Employee in Grade 9 in 2022. The incident in charge 5 happened in 2023. She did not hear the Employee say those words to Learner B. The Employee was a very strict teacher in that he would reprimand and was hard on learners when they did not do their work. He did not treat all the learners the same as he also had his favourites and only favoured learners who finished his work. It was not a good thing for him to favour learners who were doing his work as they are a number of children and he could not just leave the rest irrespective of them doing the work or not. She did not expect him to favour learners who were not doing their work and were misbehaving in class. It would not be a bad thing to reprimand learners who are misbehaving. The Employee demonstrated that he was strict by placing his hands on their shoulders and pressing his fingers in the collar bones of all the learners who do not do their work or if he does not like what they are doing. She was in the line when the Employee called Learner B from the line with his hand to tell her something. Learner B was not quiet and was busy talking to them when the Employee called her. They are not allowed to make a noise when they are standing in line but the children make a noise until the teachers come. She was not aware that the Employee was responsible for discipline at the school and she herself had never been called for discipline. Learner B has been called for discipline for backchatting to a teacher at school. When Learner B got closer to the Employee he placed his hands on her face and lifted up her face to look at him. This would mean that he wanted her to look at him and was done in front of everybody. Learner B did not cry and she could not hear what the Employee said to her. When Learner B left the Employee she returned to the line and stood there with her face looking “down”. They asked Learner B what was wrong and she eventually responded. The version was put to her that the Employee called Learner B for making a noise and had said to Learner B that he would call her parents and that she knew what would happen if he did, to which she responded that the Employee did call Learner B because she was making a noise and that there was nothing wrong in the Employee telling Learner B that he would call her parents about her misbehaving. She did not know if the Employee knew where Learner B stayed. The Employee was not a friend of Learner B. She had not ever heard that the Employee had an affair with a school learner. She could not answer if the Employee had displayed unbecoming conduct with learners with the intention of sleeping with them since he taught at the school. She agreed that he was strict and did not take nonsense.

As to whether the Applicant had only called Learner B out of the line to reprimand her for misbehaving and that Learner B had lied about the Employee uttering those words to her, she questioned why he only called Learner B out of the line for misbehaving when there were other children performing worse than Learner B. It was not wrong for the Employee to call learners for misbehaving but she was not the only one misbehaving in the line. She was not in Learner B’s class at the time, although they were both taught by the Employee. She therefore could not comment on the Employee putting his arm around Learner B as contained in Charge 6, but could only testify to Charge 5 about what happened in the line. With respect to the issue at the gate when they went to Elswood High School, the Employee and Mr Andrews were waiting at the gate to open to go to the Pick n Pay there when they were going out. She was in the car with Learner B and Learner E. The other people in the car were Ms Jaftha and Mr Olyn. The Employee and Mr Andrews did not say anything to her on their return as they did not see them then at the gate and might have been in their classrooms. She did not know about Mr Andrews calling Learner E and having enquired what they were doing and where they came from as testified to by Learner B. She was only saying what she knew about. She could not remember the time of day that they went to Elswood but it was close to the end of the school day. Learner B had shared with her that she once wanted to commit suicide, both recently and last year, but did not tell her the reasons for wanting to commit suicide. The reason for a person wanting to commit suicide would be if a person was going through too much and cannot keep up with it anymore. Although the statement that the Employee made to Learner B when he called her out of the line did not say that he wanted to have sex with her, the first thing that would come to mind is what he wanted to do with her when her parents were not at home, and that he wanted to have sex with her or touch her inappropriately. She could not respond to the version that the Employee had said to Learner B that he would call her parents and she would know what would happen if he did so, but could only respond to what Learner B had said to her.

29. Learner D testified as follows under re-examination: She confirmed that the Employee did not treat all the learners the same and had favourite learners because he only pressed his hands on certain learners and let the others be. It was true that the Employee put his hands on Learner B’s face and lifted it up to look at him. She would not like it if an Educator put his hands on her face and want to make eye contact with her. For her it was inappropriate and would make her feel very uncomfortable. Learner B had no reason to lie to her about what the Employee said to her. She would have heard if the Employee was reprimanding learners and he did not normally reprimand learners like that, hence in her view it was definitely not a reprimand and if he had reprimanded Learner B, the group would have heard it. When they saw the Employee and Mr Andrews at the school gate when they were leaving for Elswood in the car they would have all seen the same thing. It was not during class time but interval as there were a lot of learners outside. They were not all together afterwards when Learner E was called back by Mr Andrews after their return from Elswood.

30. Learner E testified as follows in her evidence in chief: She is presently 16 years old and in Grade 10 at Elsies River High School. She was aware of an incident that happened at school while they were on their way to class involving Learner B and the Employee, but was not sure when this happened. She explained that the Employee was standing on the first step to the corridor and Learner B on the second step as in the picture shown to her. The first step is the highest step and the second step is the lowest step. The Employee had called Learner B out of the line by beckoning to her with his hand. Learner B went when the Employee called her. The two of them were speaking on the steps and she could not hear what they were talking about. After that they went to the classroom and the Employee and Learner B were still speaking. There was nobody else standing there when the Employee called Learner B. She was not sure if all the other learners saw the Employee calling Learner B, but the whole class was standing in the line. When Learner B went to the Employee after being called he saw they were speaking and saw the Employee take his two hands, touch Learner B’s chin and lift up her head. She was in the Employee’s class in Grade 9. He always had a favourite learner in the class, who was a girl, with her name given and identified as Learner F. Learner B was not in the class when she was in the Employee’s class. Learner B was regarded as the Employee’s favourite because he was always talking to and hanging onto her. When the Employee reprimanded learners in the class, he would call them, maybe go to them, touch them and do stuff with their shoulders. They would hear it if the Employee scolded learners. When they left the school to drive to Elswood High School for the preparation for the inquiry, the Employee and Mr Andrews were on their way to the gate. When they returned from Elswood High School she went to her class, which was next to Mr Andrews’s classroom. On her way there Mr Andrews stopped her and asked her where they were and what did they do there. She did not reply to Mr Andrews, but just looked at him and walked away. As to whether the Employee would testify that he called Learner B out of the line because of making a noise, she did not hear the Employee and Learner B talking.

31. Learner E testified as follows under cross-examination: She was referred to the pictures of the school courtyard where the learners would gather before going into class. Learner B was standing in the second classroom line on the one picture. The learners there were talking and she, Learner E, was standing just behind them. The Employee was standing on the first step, the highest step, but was not in the picture. She was not sure when the picture in the Employer’s bundle of documents was taken. The picture was not taken when the incident happened, which was on another day. She did not hear the Employee saying to Learner B what was stated in Charge 5. Although she did not hear what the Employee said, she with her own eyes had seen what the Employee had done to Learner B and had come to testify of what she saw the Employee did to Learner B. With respect to Charge 6, she did not see the Employee putting his arm around Learner B.

32. Learner E testified as follows under re-examination: She had stood in the line portrayed in the one picture, did see the Employee talking to Learner B and did not hear what the Employee said to Learner B.

33. Ms Velma Jackson testified as follows under oath in her evidence in chief: She is currently the Principal at Elsies River High School and has occupied this position since 2019. The Employee was known to her as a Post Level 1 Educator at the school. The incident relating to Learner B in Charge 5 was reported to her when Learner B came to school with her mother and the mother informed that Learner B wanted to report something to her about what happened between her and the Employee. Learner B explained to her that the Employee called her out of the line where the children gather to go to their respective classrooms and said to her that that he will come and do a house visit or house appointment at her house but her parents must not be there and she knows what that means. She asked Learner B what this meant to her and she said it made her feel uncomfortable and felt that it was inappropriate for the Employee to say that to her because what did it mean that her parents must not be there. Learner B also felt that there was a sexual connotation to that statement. Learner B’s mother said that a teacher should not make such a statement to a child and did not want to leave it there and that the school must report it, for what if it happens to other children. She called the Employee to the office to inform him about the allegation and that she has to report it, whereafter Learner B and her mother left. The Employee’s reaction was that it was not his intention to do what the child said but that he also understood that she had to report it. She then completed the Form 22 and mailed it to the District. She and the Employee did not have any further discussion around this incident. She was referred to the pictures in the Employer’s bundle of documents and explained the layout of the school courtyard and classrooms, of which the detail is not repeated here, save to point out that the Employee’s classroom was number 1 at the time, right at the end of the corridor facing the road to the left of the steps. The learners for all the classrooms 1 to 7 are supposed to queue in a line in front of the school hall to be fetched by their teachers. Some of the Educators would stand by the children in front of the line and others would stand in the gate at the entrance to the corridor. She explained how she received the complaint regarding Learner A. One day after school she saw learners standing outside and went out to ask if their parents are fetching them or if they were sorted out with transport. As she was talking to them an ex-learner, with her name provided and identified as Learner G, came inside the school premises and approached her. Learner G informed that she has been wanting to talk to her, Ms Jackson, for a while. Learner G informed her that there is a learner, identified as Learner A, who confided in her that the Employee and another Educator Mr Andrews had been inappropriate with her in a sexual manner. Learner G also told her that the girl was too scared to come forward herself and that the Employee is also starting to make advances to a girl friend of hers, Learner G , by calling her, and if the school did not do something about it, that she, Learner G will. She mentioned this to the Employer’s Representative who at the time came to interview some of the learners in another case. Learner A was 18 years old at the time. She introduced Learner A to the Representative and left her to be interviewed. She later served the charge sheet on the Employee.

She was referred to the letter dated 1 September 2023 in the Employer’s documents. This letter was given to her by the school Secretary who said it was dropped off by a lady, who did not give a name and asked that it be given to her, the Principal. She opened and read it and called Learner A to the office. She asked Learner A whether she was sure she wanted to stop the case against the Employee and Mr Andrews, the other Educator. Learner A informed her that she did not want to withdraw the charges but her grandmother and the Employee did not want her to continue with the case and she had no choice but to do that otherwise there will be problems at home. She said further she did not type the letter and her grandmother and the Employee did it on her behalf. She was referred to a picture in the Employer’s bundle of documents and identified it as the container on the school premises situated between the Administration block and classrooms 8 to 11 where the feeding scheme prepares food for their learners. Educators and other people are not allowed to go into the container other than the person preparing the food, since it is small. Food is also not served from there unless there is a hungry child and it is raining outside. As to Learner A having told the Representative that the Employee asked her to come after hours to rewrite a history paper in the container where the alleged incident between her and the Employee had occurred, this was not allowed. She was also referred to a subpoena issued by the ELRC on 11 March 2024 to Learner A to attend the inquiry scheduled on 19 March 2024. She was asked to serve the document on Learner A. One of the Educators was present, as well as Mr Nel Junior the Deputy Principal, when she called Learner A to her office. She showed the document to Learner A and she said she had seen it before and that her grandmother had torn the other forms up. It was established that these previous forms related to the subpoenas issued for the case relating to the other Educator. She told Learner A to read the document first and asked her to sign it, which she signed in front of her and she e-mailed back to the Employer’s Representative. She was directed to a document signed by Learner A’s legal guardian (her grandmother) and Learner A herself dated 10 October 2023 in which many references were made to her, Ms Jackson, to which she responded. It was correct that she had to go and fetch Learner A from her home as she was not at school and had an appointment with the Employer’s Representative. She had called Learner A and she said she was at home. She told Learner A that she would come and fetch her. When she pulled up in front of the house there was a gentleman standing outside the house and she asked him to call Learner A. Learner A got in the car and she did not discuss anything with her or ask her any questions and dropped her off at school. It was not true that the case had been withdrawn by the Employer as stated in the document of 10 October 2023. Learner A had said to her that she did not want to continue with the case, but her answer was always that her grandmother and the Employee did not want her to continue with the case. Learner A was an adult at the time and did not need the consent from the parent. There were so many rumours about the two gentlemen from other children, which she was scared would get out into the community and would impact on the school and admissions and the trust that they have in the school. Other cases were not reported to her and she only heard from the children who came forward.

34. Ms Jackson testified as follows under cross-examination: She knew Learner B as a learner at the school. Learner B’s mother came to see her because she had a concern due to the learner telling her parent that a teacher made an inappropriate remark to her. The mother said that the Employee had told her that he will come to her house when her parents are not there and must not be at home and the mother did not understand what that meant. She herself did not understand why the parent must not be at home if it’s to do with the child’s academic behaviour. Educators at the school do not generally do home visits. They may be allowed to do home visits at other schools, but not at their school. Although they do not have a policy on paper if an Educator has to visit a learner at home there is an unwritten law that they must ask her to do so as she as Principal must be aware of everything and it must be done through her. The parent had told her that the teacher had intentions with a sexual connotation when he said that to Learner B. She could not say that the parent felt that the teacher wanted to have sex with their daughter when he said that the parents must not be home. She did report the matter as requested by the parent by completing the Form 22 with what Learner B had said and e-mailed it to the District and also called the Employee in to inform him about the allegations. His reaction was of surprised shock on his face and he said that it was not his intention when he said those words. She did not investigate this to find out what the Employee’s intention was. She was referred to the pictures of the learners in front of the school hall. They are supposed to be in line but some of them are not. She could not say where the Employee was standing that particular day as she was not present. The children must face the hall when standing in the lines, with some of the teachers standing in the front of the line and some at the entrance gate to the corridor with the classrooms. She explained again how the incident involving Learner A was brought to her attention by Learner G, which is not repeated again. Learner G had left the school for more than two years at the time when she came and reported this to her but she told her if she, Ms Jackson, was not going to do something about it, that she, Learner G, will. Learner G did not elaborate on what inappropriate conduct the Employee was engaged in with Learner A and the discussion ended there. Learner G said Learner A was scared to report it herself as she is a very shy child who keeps to herself and does not speak a lot. Learner A was already 18 at the time and is now 20 years old. She had fetched Learner A to speak to the Employer’s Representative when the Representative visited the school to investigate another matter. She left them alone and did not know what Learner A said to the Representative. She was referred again to the letter of 1 September 2023 received from Learner A that she did not want to continue with the case against the Employee and another Educator. She did not ask Learner A why her grandmother and the Employee wanted her to withdraw the case, with Learner A only saying that she did not want any problems at home with her grandmother. She had asked Learner A if she was sure about this and sent the letter to the Employer’s Representative. She found out afterwards that it was Learner A’s grandmother who dropped the letter off at the school.

Learner A said to her she was not involved in the drawing up of and typing of the letter. Teachers are not allowed into the feeding scheme containers. At the time of the alleged incident the lady who was responsible for the feeding scheme is the only one who is supposed to be in the container. She repeated her testimony surrounding the subpoenas served on Learner A. When Learner A said she wanted to withdraw the case it implied two things to her, the one being that it did not happen and the second being the emotional experience as she is in senior grade with a lot of pressure on her. The grandmother was not present when she asked Learner A to sign receipt of the subpoenas and she did not ask permission from the grandmother for Learner A to sign receipt of the subpoena for her to testify on 19 March 2024. She did not explain anything to Learner A but just asked her to read the subpoena and to decide if she wants to sign it or not. Learner A was in class when she called her to sign that subpoena. The day that she went to fetch Learner A at home for the meeting with the Employer’s Representative when the gentleman was there, Learner A’s grandmother was not at home that day and she took Learner A back home after the meeting. She has been working with the Employee as an Educator for the past years and had never heard anything about him indulging in or trying to molest or do funny things with children, but rumours came out after this from other girls, as well as these allegations. As the Employee’s Supervisor she found him to be a very caring teacher who was always at school, with his work always impeccable. He was also a parent and she could not fault him in his behaviour towards colleagues and children in class, with never anything said about him until now, but now a lot of girls are coming forward with rumours, but not to her. She knew that girls could say nasty things on social media. The Employee is strict and does not take nonsense, but is fair. They had a different kind of learner now because before if you were strict they respected you, but it is a different generation now where there is not a good relationship if you are a strict teacher.

35. Ms Jackson testified as follows under re-examination: She did not have a problem for a teacher to do a home visit but she needed to know and a parent must be present, but according to this parent she was not supposed to be home. When they needed to discuss a learner with a parent they did not go to their homes and they normally called the parent to the school and set up a meeting, and if there were more teachers with the same problem with the child they would ask them to be present too. She identified the other WhatsApp profile picture for the Employee in the documents. It was not the first time that Learner A was subpoenaed when she gave her the subpoena for 19 March 2024. She agreed that learners were scared to speak up before, but have been prepared to come forward since Learners A and B have spoken up.

36. Learner A testified as follows under oath in her evidence in chief: She was presently in grade 12 at Elsies River High School and is 20 years old. The incident between her and the Employee started in 2021 when she was in Grade 10. The Employee was her registered teacher in Grade 10 and he taught her History. She identified the letter dated 1 September 2023. She did not type the letter. It was typed by the Employee and he asked her to sign the letter. The reason for the letter was that he wanted her to back off and get out of the case in order to save his job. She did not read the letter before she signed it. She agreed to the letter since her grandmother wanted her out of the case because the Employee spoke to her grandmother. Mr Andrews’ name was also mentioned in that letter because the Employee and Mr Andrews are best friends and did not want her to be part of the case and it felt like he was threatening her. Her best friend Learner G reported this to Ms Jackson. She told Learner G the truth of what the Employee did to her. Her grandmother did not know what the Employee did to her. She did not tell her grandmother because her grandmother would not have believed her, but her best friend believed her. Her grandmother would not have believed her because of what had happened between them before and they had so many arguments, where she got her grandmother into trouble. She should be believed now because she is telling the truth of what the Employee did to her. She wrote and signed the affidavit attested to on 15 October 2023 at the SAPS Community Service Centre in Elsies River. The Employee told her to write the affidavit, which was not in her own words. The Employee made her copy it from his phone. The WhatsApp message screenshots in the Employer’s documents of 15 October 2023 were referred to. She explained that it was a message that the Employee forwarded to her grandmother containing what she had to write in the affidavit. The Employee took her to Elsies River Police Station to write the affidavit. She was very uncomfortable to go to the police station with the Employee but she went with him as her grandparents wanted her to withdraw the case so that she would not be part of it. She was referred to the protection order application dated 15 February 2024 brought by her against the Employer’s Representative. The Employee and Mr Andrews asked her to take it out against the Employer’s Representative because they did not want her to be part of their cases and were afraid they might lose their jobs. Mr Andrews came to pick her up to take her to the Court in Bishop Lavis on 14 February 2024 to put in the application since the Employee could not come that day. They first went to the Elsies River Police Station and from there to the Court in Bishop Lavis where she completed the protection order application. The Court date on the application was 17 April 2024. Mr Andrews gave the protection order application to the Employee to bring to the inquiry. She attended the Court date. The Employer’s Representative and Assistants were also present. The Magistrate’s outcome was that the Employer’s Representative was only doing her job to protect and help her and told her to go forward with the case. She was referred to Charge 3 in the Employee’s charge sheet and asked to explain what happened.

She was in grade 10 in the Employee’s class when all those things happened. The Employee gave them History and while they were busy with History he came around to her and said to her she has nice sexy legs and he would like to taste it and whisper this in her ear. This was very uncomfortable for her coming from an Educator whom she saw as a father figure. She found it disgusting and weird when the Employee said he wanted to taste her legs. She basically just ignored him when he said these things to her. He did all these things in class and outside and would give her a side hug and kiss her on the forehead. Most of her classmates saw the Employee do this to her. When the Employee whispered in her ears, he was so close that she could smell his breath. It made her feel uncomfortable and she questioned why he would say such things to her. At the time she saw the Employee as a funny father figure and a good person. Now everything that is happening to her is because of the Employee. She never trusted the Employee because she could see how he was, despite being a worthy person when it came to his subject. She was referred to Charge 1 on the Employee’s charge sheet. This incident happened in 2022 and was reported to the school by her best friend Learner G. It happened in the afternoon at the school. She had to complete a History task for the Employee that afternoon in the food container where the workers would hand out food for the learners. There are three containers at the school, with two in front at the tuck shop and this one behind the office. This food container is close to the Employee’s classroom and a two to three minutes’ walk away. She completed the History task in the food container in the afternoon around past 12. She showed where she was seated in the container in the pictures of the container in the documents. When she came to school that day she was wearing a tracksuit over a sweater without a bra. When she arrived at the school that day she first went to the classroom and when she did not find the Employee there she walked past the container and saw him talking to one of the container ladies. The lady he was talking to left and it was just the Employee and herself in the container. When she entered the container the Employee went to fetch the papers and gave her the papers to complete the task. While she was busy with the task the Employee came to her and unzipped her tracksuit top what was zipped up. When he zipped it down he lifted up her T shirt and saw that she was not wearing a bra and took her breast and sucked her right nipple. He then wanted to touch her vagina. She pushed him away and told him to stop and lied that she had her period, but his son saved her by just coming in on time. When he sucked her nipple she froze and told him to stop but he did not want to stop. He bent down and did it with his mouth wide open. The Employee’s son is in Grade 12 at the same school. His son “saved” her by coming in looking for the Employee in time before the Employee wanted to do something to her. She thought the Employee wanted to have sex with her because of the way he sucked her nipple and that he wanted to rape her. After that happened, she rushed through the task and went home crying and told her best friend and her other friend immediately when she got home.

She cried because she was shocked by what the Employee did to her. Nobody had ever done those type of things to her before and it made her scared. She was referred to Charges 2 and 4 in the Employee’s charge sheet and the screenshots of WhatsApp messages in the Employer’s bundle of documents and asked to explain the messages. The messages at 21h52 at night during 2023 related to when one of her classmates, with her name given and identified as Learner H, asked her to ask the Employee how many paragraphs they needed for a task. The Employee messaged her it did not matter how many paragraphs there are to which she said “thank you Sir”. The Employee (as Sir) replied “Plsr my bby. Miss u” meaning “pleasure my baby miss you”. The Employee had perhaps replied to her like that because he did not see her that day as she was not at school. She just ignored the message and pretended that it did not happen. She thought such a message from the Employee was uncomfortable and inappropriate to speak to a Learner like that. It would be fine if it was from an uncle but not from an Educator. In the WhatsApp messages of 8 June 2023 Ms Jackson the Principal had phoned random people’s numbers and she, Learner A, phoned the Employee to find out what is happening at school as it was the last week at school. She messaged her friend, with name given and identified as Learner I, in the morning on 8 June 2023 who asked her if she (Learner A) had phoned the Employee and asked the people on the group if Ms Jackson had phoned them. She told her friend Learner I at 4:18 pm that same day that the Employee showed up at her house. The Employee was there to explain to her grandmother what happened at school. This was after the incident and it was the second time that he had come to her house. She was very uncomfortable and stayed inside her room when he spoke to her grandparents. On 22 June 2023 at around 14:29 she sent a message to the Employer’s Representative that the Employee had turned up unexpectedly at her house. The Representative had asked if he had messaged her again and asked her to take a picture. She had replied that the Employee had not sent her messages again. The Employee had showed up at her house again to see her grandmother but she did not go out as she was in her room. She did not send the picture to the Representative because she was in her room. The Employee knew her grandmother because he was her Grade 10 teacher. The Employee did not do house visits to all the learners. It was shocking that the Employee did this and made her uncomfortable as she did not know what he was doing there. She felt the Employee treated her differently because she was older and he had said she had beautiful legs. The first time that the Employee came to her house was when Ms Jackson had called the random people and this was the second time when the Employee came to her house.

37. Learner A testified as follows under cross-examination: She knew the Employee as her registered teacher in Grade 10 and her History teacher in Grade 10. She and her grandmother signed the letter dated 1 September 2023 in which it was stated that the allegations against another Educator and the Employee were withdrawn by her. She was not responsible for that letter. The Employee wrote it and was responsible for it. She was 20 years old and an adult when the letter was written. She could read, write and type and it was her and her grandmother’s handwriting at the bottom. When she went into class the Employee called her in before they started class as she walked into the classroom and asked her to sign the letter, which she did and then she went to sit in her seat. She did not read the content of the letter before she signed it. She signed it because the Employee wanted her to sign it since he did not want her to be part of the case. The Employee had on the day before on WhatsApp asked her grandmother to sign. She agreed there was no signature there of the Employee as proof that he wrote the letter, but there was proof on WhatsApp. She did not have a laptop and could not have typed the letter. The Employee was the only one with a laptop and always had a laptop in class. The Employee said nothing else to her but only asked her to sign the letter. She did not ask what it was about because she knew what it was about and it was not the first letter that she was asked to sign. The other letter was for the Court protection case against the Employer’s Representative which the Employee and the other Educator were working on together.

As to the Employee denying that he wrote the letter and that it was her and her grandmother who wrote and signed the letter, he knew that he wrote the letter and is now denying it. It made her think that he did not want to lose his job when the Employee found her grandmother at Pick n Pay and asked her to ask her, Learner A, to leave the case as he had many things to do and was busy building, which her grandmother conveyed to her when she got home. As to the Employee denying that this conversation took place, she questioned how the Employee’s Representative could defend someone who is lying to him and does those things. She was adamant that the Employee did meet her grandmother. She knew that the Employee and the other Educator were best friends and so did everybody else. She herself was not a friend of the other Educator Mr Andrews. Mr Andrews came to her grandparents’ house to see her because he was happy she was going to withdraw the case, which is when he decided to get close to her grandparents and came to the house to check on them, when her grandmother kept on asking why there was a case against them and they kept on denying there was a case against them. She felt that the Employee was threatening her when he found out about the case and would pick on her class when the class made a noise. Learner G was her best friend and she told her everything that the Employee did to her. The incident of the Employee sucking her right nipple happened in the food container. Children have to walk past the container and it is visible to everyone but one cannot see inside because the windows are closed with see-through lace curtains. She described again how the incident happened. The Employee had said she can go home and must come back. She had her tracksuit on with the top zipped up. She was looking for the Employee when she came back and he said she must go and wait in the container to complete the History task she had done for him. Normally a learner can fail if all the tasks are not completed. Not all the learners who do not complete their tasks are called to go to the container. The Employee liked her a lot and wanted her to complete the task. This was the first time she went to the container. She was not sure why they had to work in the container where food is prepared, but she would not want to go to the Employee’s class, which is the last classroom, and it would be weird to have just a teacher and one child there with nobody else around. There were no other people at school, except for the Principal who was in the office and is always at school, when the incident happened past 12 around midday, which was close to when school ended.

School normally ended at 14h45 and one could go home during examination times after a subject had been written. This incident happened after examination time and there were no learners at school busy with exams at the time. There were no children around when she was in the container around midday but she knew that the Employee’s son was playing basketball in the quad and there were a few children sitting on the verandah and chilling in the parking lot. The Employee did not close and lock the door when they were in the container. The door was open and there was no one else around there. As to whether there was someone else present, being the lady who works in the kitchen, when she arrived the lady was speaking to the Employee and then left when the Employee came in and helped her with the task. While she was busy with her task the Employee pulled down her tracksuit zip. She was uncomfortable but just continued doing her work and afterwards he took her left breast out and stood sideways and put his entire mouth on her breast and asked for a kiss and she told him to stop and then went home and told her best friend. The lady who works in the container was not present when everything happened. The Employee thinks she did not know that the lady who used to work in the container is the Employee’s ex-girlfriend, which she heard from people, especially ex-learners. It was no wonder that this lady is going to testify for the Employee since they had a thing going on. She did not know that the lady was married. Before they knew about the incident in the container her uncle and her grandparents were mad at her because she would be the cause of the Educators losing their jobs, and her grandmother kept on asking what was going on and no one wanted to tell her the truth. She did not tell her grandmother about this since her grandmother would not believe her because of something that happened between them when she ran away to Elim for a weekend. This caused her grandmother not to trust her, but she regained her grandmother’s trust and her grandmother believes her now because she is telling the truth. She explained again where she was sitting in the container based on the pictures in the Employer’s bundle of documents, with the layout of the interior of the container now different to what it was at the time of the incident. No one from outside could see her through the open door because she was sitting right in the corner at the end of the long table facing the wall near to the wall plug with the fridge and door behind her. She questioned why the Employee’s Representative was asking the same questions over and over again and became angry and irritated with the Representative. Learner B was asked to draw a sketch of the layout of the container and where she was seated at the time of the incident, assisted by Ms Bruwer the Intermediary. After the sketch was produced and shared with the parties, she confirmed where she sat at the long table next to the wall plug facing the wall with her back to the door and the fridge behind her. Because the fridge was behind the door it stood straight open, so if somebody walked past the entrance to the container they would not see her, only a shadow. She did the assignment there with the Employee. Ms Jansen, the lady who worked in the container was not there.

She had seen Ms Jansen but did not know her and heard she is the Employee’s ex-girlfriend. She found Ms Jansen talking to the Employee in front of the door of the container at the entrance of the container. Ms Jansen was standing half inside and half outside the container while they were talking. Ms Jansen left and she and the Employee were the only ones inside the container when she, Learner A, entered. She came to the container to look for the Employee because he was not in his classroom and she found him in the container. She was looking for the Employee because she had to finish her History task and was supposed to be there past 12 after the Employee had told her she can go home and come back again. There was no time that she had to be at school that day. She was the only one who came as the Employee wanted her to pass. She did not know that five of them came to finish the assignment that day and that the rest had finished and left before 12h00. It was put to her that the reason why she did not find the Employee at the time was because he was not in his class, or the container, and was busy marking in the Janitors’ room while the lady who works in the container sat with her while she was writing the assignment, to which she responded that the Employee was denying the truth while she had proof in the bundle of documents that he is lying. She was the girl that he did these things to and the Employee and Mr Andrews asked to pay a girl not to testify. There were many who matriculated, even her own cousin, who knew the Employee and said he did the same to her. She was referred to the WhatsApp messages in the Employer’s documents that she had testified to and confirmed her evidence in chief relating to these messages. She was also referred to undated WhatsApp messages between 15:52 and 16:27 in the Employee’s bundle of documents and identified the messages as between, name given and identified as Learner J, and the Employee. Learner J was one of her ex-classmates who had passed while she, Learner A, had failed. Learner J was telling the Employee everything that she, Learner A, has asked her, Learner J, to be her witness but she is coming up for the Employee and for they all know she likes the Employee. What she noticed about Learner J is that when she was in her class and the Employee spoke to her, she always had that smile on her face. Learner J was only 19 years old and acts like an adult. Not only her, but the other learners in the class, noticed about Learner J being so close to the Employee. She questioned where Learner J got the Employee’s cell number since nobody had his number except her, Learner A. Learner J was the first person she told about Mr Andrews just kissing her in the presence of two other learners when Learner J had said that it was not serious. It was clear to her that Learner J, who is good at lying, was trying to cover up for Mr Andrews and the Employee. As to Learner J stating in the WhatsApp message at 16:21 to the Employee that she, Learner A, is delusional, she found it weird that a learner would send these type of messages and emojis to an Educator, which was clearly flirting with him. She did not give her assignment to the container lady or anybody else but left it in the container and went home. As to the other things that the Employee did to her, he would hug her, kiss her on her head and would be so close that she could smell his breath. This would make her so uncomfortable and before the holiday started he asked if they can go out for cocktails. The Employee knows what she says is the truth and will deny it and from the chats and screenshots you could see that the Employee and Mr Andrews are together in this. She was asked if it was wrong for the Employee to call her “baby” as she was a baby to him, to which she responded that “baby” to her meant like a boyfriend or girlfriend and by saying thank you baby it would be like a child lover. She did not have an affair with the Employee.

The Employee would be lying if he had to testify that he never said those words to her that she had nice legs and sexy and would like to taste it. He said all those things to her at school in the class or walking down the corridor and he was so close to her face that she could smell his breath. He would also come around and whisper in her ear. She vehemently denied that she loved the Employee. As to whether she had fabricated these allegations because she was not doing well in all her subjects, that the Employee was trying to help her and that she hated being reprimanded by the Employee, she responded that the Employee had changed her subject codes going back to 2021 and had cheated for her to get code 5. With respect to Charge 4 and the Employee sending her a WhatsApp message ‘I miss you baby when can I see you (with heart emojis)”, in May 2023 and that the Employee would say that he never made any communication with her via WhatsApp, she remembered that he did say that and she had immediately sent it to her best friend Learner G. As to whether the Employee is going to come and testify that everything that she alleged was not true, baseless and fabricated and the reason why she is doing this is because he was busy reprimanding her for her bad behaviour at school and for not doing her work at school, she responded that all her teachers could be asked if she had bad behaviour at school. She did not respect elders who come and say she is lying, while everything she had said so far is the truth. She concluded that a lie detector test should be done which will prove that the Employee is guilty and she is innocent.

38. Learner A testified as follows under re-examination: There was nobody in the container with her when she finished her task. The Employee went out after she told him to stop, whereafter she rushed through the task, went home and told her best friend and other friends about what had happened. At the time he told her he always wanted to do that. She found the WhatsApp message from the Employee in which he said to her “pleasure my baby, miss you”, disgusting and did not reply to it. He would have said he missed her because he did not see her at school for a while.

THE EMPLOYEE’S EVIDENCE

39. The Employee handed in documents, which were exchanged during the inquiry and admitted as evidence (except where indicated otherwise), and called the following witnesses to testify in support of his case:

40. The accused Employee, Mr Randy Bailey, and Ms Carmen Jansen, the School Feeding Scheme Food Preparer testified for the Employee party.

41. The Employee’s witnesses’ evidence is summarised below in the sequence that they testified.

42. Mr Randy Bailey, the accused Employee, testified as follows under oath in his evidence in chief: He is employed at Elsies River Secondary (not High) School as an Educator and was currently on suspension. He commenced as an Educator in 1998, resigned and left education around 2002 and returned in 2016. He will now be 62 years old and stays in Matroosfontein, a suburb next to Elsies River. He is not married, having lost his wife 15 years ago and has two children, a girl of 24 years old and a son of 18 years old who also attends Elsies River Secondary School. He was presented with Learner A’s version of what transpired with respect to Charge 1 and asked to explain his version of what happened. A day or two before this incident he told the learners that those who have outstanding assignments should come at 9 o’clock the morning to come finish their History assignments as it was beneficial for them to have the mark. Four or five learners were identified and on the morning of the allegation he took the assignments and gave them all to Ms Jansen, the lady who works in the food container, and asked that as the learners come in they must finish under her supervision. He left this to her as he was marking his exam papers. At round about 12 o’clock he went down to the container. As he and Ms Jansen were chatting at the door Learner A came and she asked if she can finish her assignment. It was correct that Ms Jansen was standing halfway in and halfway out of the container and he was standing outside the container as Learner A had testified. When Learner A asked him if she can finish he said yes and that the assignment is inside. Learner A then entered the container and Ms Jansen went in with her. He still said to Learner A that he will see her later and then he went up to the Janitors where he was sitting marking. As to Learner A saying something differently that Ms Jansen left and that he entered the container, he repeated that he left and that Ms Jansen stayed with Learner A and he never went into the container after that. This happened during the exam time and normally when learners don’t write an exam they don’t come to school. It is during this time that the teachers used to get learners to finish their assignments that they did not do for the term. On the question of where the other learners were, they were all on school premises. Some come to school just to walk around and others do their assignments or sit in classes in groups. He did not see where Learner A was sitting in the container.

The reason why he did not see where she was sitting is because he was standing outside and he did not go into the container to see where she was sitting after she entered the container. His classroom is number 1 right at the furthest end of the school. The reason why he did not use his classroom was because the learners come and go on their own time. The Principal prior to that had said to them she did not want learners in classes alone with teachers and this is the reason why he asked Ms Jansen to oversee the children in the container. He himself did not want to mark alone in his cold classroom, which is why he went to sit at the Janitors and mark there. All the Janitors saw him sitting there marking at the big table and he mentioned four of their names that he remembered as they were going in and out. As to why he did not sit with four or five learners in his classroom, even if he had told the learners to come at 09h00 they do not all come in at once and even if they are all in the room they do not all finish at the same time. He did not want to sit with situation that three or four were done and he could not sit alone with the last one and would have to pack up everything again to move.

That is why he gave the assignments to be done in the container. He informed the learners the day before that they had to come at 09h00 and they all amazingly pitched at 09h00, except for Learner A. It was about 12ish when Learner A arrived. She was alone and did not give a reason why she was late. He did not see Learner A earlier that morning and he never told her to go home and come back later as she had testified. If Learner A was at school that morning she could have finished the assignment with the others, not with him, but in the container, but she was not at school that morning. He denied unzipping Learner A’s tracksuit top and did not touch her or kiss her nipple or touch her vagina and he had no idea why Learner A was saying that. He did not write the letter signed by Learner A on 1 September 2023. He has now discovered that the letter was drawn up by Mr Andrews, the other Educator, which was also sent from his, the Employee’s, phone to Learner A’s grandmother. Learner A came to him a day or two days after the Principal informed him there was a case made against him and said to him she wanted to get out of the case and wanted to write to state that she did not want to be involved in the case anymore and that her grandmother asked if he could help them with writing a letter to say she does not want to be involved any more. Mr Andrews drafted this letter on request from Learner A and her grandmother. When Learner A asked him he said he could not help with the letter as he did not know what to put there and also said to her if he is involved then she should not be talking to him, after which she left. How he knew that Mr Andrews drafted the letter is that later that day Mr Andrews came to ask him if he could use his phone as he did not have data and wants to send a message to Learner A’s grandmother, which he agreed to. They were sitting in the staff room when Mr Andrews was typing on his phone and Mr Andrews gave the phone back to him, thanked him and left. When he checked his phone there was no message sent, which meant it was sent and then deleted.

He had the cell number of Learner A’s grandmother on his phone since 2021/2022 when Learner A was in Grade 10. As to whether he and Learner A’s grandmother were close, they had a good understanding concerning Learner A’s school work. He did not feel offended about statements that Learner A made about him as it was her perception. He did not have an affair with Ms Jansen. He knew Ms Jansen from when they started working at the school since 2016. When he took over as head of the school feeding scheme they started working close together with the ordering, making sure everything was right and that the food was cooked on time and that the children were fed. It was his duty to liaise with Ms Jansen and the supplier of the food. His relationship with Ms Jansen expanded to meeting her husband, her mother and the whole family in the household. He did not know what was going on in Learner A’s mind and her perception that Ms Jansen is coming to cover for him. He was referred to Charge 2 and the WhatsApp message containing the words “pleasure my baby miss you”. Learner H is one of the learners in the class he is teaching History to and he is the Sir with the motorbike in the profile. These are different dates and is prior to Charge 2 and happened a long time ago.

Learner A had asked him prior to this about how many paragraphs there had to be in an essay and there are other messages leading up to those two responses. This was Learner A communicating with him and he did not know how Learner H was copied in. As no date appeared on the WhatsApp messages he did not know when this communication took place, but it was before the allegations were made for after that he did not communicate with them or Learner A. He had Learner A’s number on his phone because she gave it to him to communicate if her grandmother’s phone was not available and was all to do with school work. Teachers are allowed to have learners’ contact numbers if it is school related and nearly every class has a WhatsApp group with their teachers where they communicate. He did not only have Learner A’s number on his phone. He corrected his response that it is a conversation between him and Learner H and not Learner A as its not Learner A’s phone and he was initially confused. He had communicated with Learner H for school work and the essay. He agreed there was a conversation that took place before that but was not captured there. When he said “pleasure my baby”, he was referring to Learner H and not Learner A, who was like a daughter to him. He saw them all as his children and to him baby means you are my child, my baby. He did not know how Learner A drew that statement out to imply a love relationship as she said she saw him as a father figure and he saw her as his daughter. He was confused as to whom he was communicating with there and they would need Learner H to clarify this but she is not present. He never uttered those words to Learner A as stated in Charge 3. He secondly never spoke softly in his class and all his learners if asked will say that he addressed them in an audible manner. He would only lower his voice if someone did not look well, but also so that others could hear.

He was also known as one of the loudest teachers in the school. If he wanted to compliment a woman and if she is looking nice with nice legs he would say it so that people can hear and he will not whisper and say things like that to his learners. He had no idea why Learner A would say that. He could also not find any WhatsApp message in the bundles of documents where he sent a WhatsApp to Learner A in which he wrote “I miss you baby when can I see you with heart emojis”. He had never sent such a message to Learner A with such words. He also did not ever send her emojis with hearts as far as he can remember. He truly had no idea what was going on there and it meant to him that Learner A’s stories were fabricated. He was referred to Charge 5 which was related to Learner B. He did not use the words to her that he wanted to make a house appointment and that her parents must not be home when he visited. He had said to her if she does not behave he will have to call home for her parents. He had taught Learner B Social Science, he thinks in Grade 9. The earrings mentioned related to when he saw Learner B not looking well in class and was very tearful.

Learner B came to him and said to him her earrings were taken and it was her grandmother’s earrings which she forgot to take off. She asked him if he could speak to the teacher who took them off her and maybe get her earrings back. He gave the class work to do and went to speak to the teacher, who gave the earrings back and he returned the earrings to Learner B back in the class and told her to make sure she did not wear them again at school. The rule at the school is that no jewellery is allowed to be worn to school and if the jewellery is confiscated they do not get it back. After he gave the earrings back to Learner B she asked if she could buy him chocolates in appreciation, to which he said no, she didn’t need to buy him anything. He did not say to her that he did not want chocolates but something else. As to Learner B having said that he did not mention what he wanted when she asked him, it was because he did not get the earrings for something in return. As to Learner B walking out because he did not respond, he would not allow her to walk out of class during the period, so it must have been at the end of the period. At that stage in Learner B’s life she was a very troubled teenager and was dealing with a lot of emotional things which she confided and spoke to him about. One was an attempt to take her own life, being suicide, and a lot of other emotional things she was dealing with that he gathered during their conversations in class when she looked troubled. He did treat Learner B differently knowing the emotional state that she was going through. He maybe gave her a tap or pat on the shoulder and ask if she is OK when he saw she was not looking well, but he never held her tightly. He explained what happened on the day when the learners were lined up in front of the hall to go to class. He always stood on the top step in the picture of the entrance to the corridor to the classrooms and where he barks/shouts at the learners to get in line. On that day all the learners jumped and moved into their lines. Learner B stayed out of line and continued talking, looking defiantly at him. He then called her from where she was standing out of line and she came to stand at the bottom step, not on the step, but on the paving, so that there was one step between them.

Another Educator Mr Nel Junior was standing behind him. It was there that he said to Learner B that if she did not behave that he is going to call home to inform or get hold of her parents. She looked very upset when she went back to the line and was not happy with him because he called her out in front of her friends. This happened in front of all the children lined up there who needed to go to classrooms 1 to 7 who could see everything what he was doing. As to him saying that he could not speak softly and whether the other learners could hear what he said to her, he was only focusing on Learner B and not the other learners. He would press the shoulders of learners as Learner C had testified. He did not touch the face of Learner B or Learner C. What Learner B shared with him she could not share with any of her classmates, but they judged him not knowing what Learner B was going through. He reiterated that he did not ever touch Learner B’s face and confirmed that there was a step between him and Learner B, contrary to what Learner B had testified.

He had asked the other Educator who was present at the time to testify, who had said it was a long time ago and he is teaching Learner B now and would not like to get involved. He was shocked in that Learner B had thought that he wanted to go to her place to have sex with her, did not even know where she stayed and at no point wanted to go to her house for that purpose. He was not allowed to go to her home while her parents are not there and he had no idea why she would say that he wanted to come to her place when her parents are not there. As to whether he gave any of the learners dirty looks after the allegations were made, he did not do that to any of them but knew that his learners called him Hitler because he sometimes looked like he had a “storm” on his face. With respect to the learners going to the other school for consultations, he did not pay attention to any vehicles moving out and was on his way to Pick n Pay at the parking area outside the school. It was only when the other learners started shouting at each other “there they go again” that he became aware that there are learners in the vehicle going out of the gate. Although some of the witnesses seem not to have heard what he said to Learner B on the steps of the corridor, it seemed that Learner B was angry because he reprimanded her as he was a strict teacher with a strict voice. He treated all his learners the same and if he gets to know a learner’s background and the learner is struggling with problems at home he will change his way of handling them as it would be unfair to apply the same strictness on a learner who is going through difficulties. He did not touch or pull up Learner B’s face when he called her to him but said to her to look at him when he is talking to her.

43. Mr Bailey testified as follows under cross-examination: He confirmed that he had been teaching History and Social Science at Elsies River Senior Secondary School for 8 years since 2016 as a Post Level 1 Educator teaching grades 9, 10, 11 and 12. He only taught Social Science for grade 9 and history for grades 9 to 12. He did not type the letter withdrawing the case which Learner A had said he had typed and had asked her to sign in class. He did not know who typed the letter and he did not call Learner A to sign it in class. He was referred to the screenshots of the WhatsApp messages on 31 August 2023. The messages were between him and Learner A’s grandmother. The letter that he referred to in these messages did not relate to the letter signed by Learner A and her grandmother on 1 September 2023, but he was referring to the day that Learner A was off when they wrote an exam for him in class and when they are absent they produce a letter that they can rewrite the exam. He drew up this letter for the grandmother as she did not know what to write in the letter for Learner A to rewrite the test, for Learner A and her grandmother to sign. It was put to him that he was lying as 1 September is just after 31 August and he did not know why this version was not put to Learner A when she testified. As to why he would let Mr Andrews use his phone, Mr Andrews had come to him and said he did not have data on his phone and wanted to send a message. He gave Mr Andrews the phone and Mr Andrews returned it to him after he had typed out the message.

Mr Andrews had come to him out of all the educators because they were colleagues and used to eat and sit together in the staff room. They did not know about each other’s cases. He was suspended because of the allegations brought against him and was not suspended for victimising the Employer’s witnesses as he did not interfere with them. He had liaised with Learner A’s grandmother, but not relating to the case. He received the affidavit dated 15 October 2023 from Learner A’s grandmother the Sunday evening of 15 October 2023 at Elsies River Police Station. Mr Andrews forwarded this affidavit word by word to his phone so that he could forward it to the grandmother so that they should know what to write in the affidavit. He had prior to this affidavit informed the grandmother that he could not get involved with anything in this case. At that stage she was aware that he was involved in the case. As to whether he and Mr Andrews were aware that they were not supposed to liaise with the Employer’s witnesses, he was not aware that he should never speak to Learner A, but he spoke to the grandmother. Initially they wanted him to take them to the SAPS for the affidavit but he said it was Sunday and he was busy with church work and did not want to get involved. He had no proof that Mr Andrews had sent the wording of the affidavit to him. As to Learner A having testified that he had taken her to the police station to complete the affidavit and that it was not put to her that he had not taken her, he did not do her questioning. He was referred to the WhatsApp messages of 15 October 2023 and agreed that he had forwarded the message relating to the affidavit to Learner A’s grandmother but denied again that he had taken Learner A to the police station but had just forwarded the message. He was referred to the arbitration award for Mr Andrews in which it was stated that the whole thing was dictated by Bailey and Andrews who wanted Learner A to save their jobs. It was not true as he was not part of anything that Mr Andrews had pleaded.

He did not know about the protection order application and it was the first time that he had seen it. He was referred to the screenshots WhatsApp messages the morning of 14 February 2024. He supposed he was speaking to Learner A’s grandmother in those messages and that the grandmother had asked him to come to her house and he had said he could not as he had to ask time off the day before and did not want to take the next day off too, not knowing what the grandmother wanted to speak to him about. This was the time he wanted to distance himself from the whole family so he had no knowledge about that. It was put to him that both he and Mr Andrews wanted Learner A to take out the protection order as they did not want to lose their jobs, to which he responded that he knew nothing about the protection order. The one message said that if he cannot come then Mr Andrews can come but the grandmother did not say anything about what they wanted him to come for. With respect to Charge 1, he confirmed that Learner A wrote her task in the container. She was not the only one writing her task in the container. About four to five other learners also wrote their tasks in the container since 09h00.

He was referred to the picture of the interior of the container and asked whether four learners could write inside that container, to which he responded they could as the layout had changed and there was a long table there at the time, at which eight learners could sit there comfortably next to each there. They wrote in the container as it was the most convenient rendezvous point for them all and at the time Ms Jansen was there to supervise them and give them the task. As to Learner A’s testimony that he had told her that morning to go home and come past 12h00 for her task, he questioned how he could tell her in the morning to go home when she was not at school that day. The only time he saw her was when she came around 12h00. Learner A was part of the four to five learners who came to finish the task that day. Ms Jansen was the cooking lady who prepares the food for the children. He was not sure if she was employed by the school or the organisation which supplied the food for the school. The feeding scheme people normally came from the broader community. He did not know if it was in Ms Jansen’s job description to assist with learners, but in their school they all helped out where they can and stand in for one another. Ms Jansen did not invigilate but just handed out the tasks to the learners and it was convenient for her and the learners for her to be in the container. As to Ms Jackson having testified that learners and Educators are not allowed to go into the containers, he responded that it was in the best interest of the learners and was convenient for them. He did not think the Principal was aware that a cooking lady was assisting learners in a container. He explained again what happened when Learner A came to the container around 12h00 and repeated his evidence in chief in this regard and why the learners wrote their tasks in the container, as well as who were all with him in the Janitors’ room where he was marking. None of these people were being called to testify to corroborate that he was there. He did not suck Learner A’s nipple as she testified, neither did he touch her vagina. Since he was not in the container with Learner A he could not confirm that his phone rang while he was with her, that it was his son and that she was “saved” by the son, since he was not there in the container with her. Learner A was not treated differently by him and she was not the class spokesperson, with the other learners speaking to him individually. There was one message Learner A sent about an assignment on behalf of other learners, but that was all. As to why she would say that he was a father figure to her, he supposed it was because she came to him a couple of times to say she is hungry and did not get food that morning. He would get food for her from the food container and take it to her as she was shy to go there herself. By seeing him as a father figure she was comfortable with him and he had no idea why she would change towards him.

He did not pick on Learner A in class after he found out about the case. As to her testifying that he made her feel uncomfortable and that she never expected it from an Educator, he was not aware that he made her feel uncomfortable and focussed on the whole class and not only on her. He was referred to the screenshot of the undated WhatsApp messages of around 21:52 on which the name of Learner H and his Sir appeared. According to that there is a message between him and Learner H and he did not know whose phone it came from. As to why he would say to Learner A “pleasure my baby miss you”, this does not say that he sent it to Learner A as her name does not appear anywhere. This was his WhatsApp profile picture, he did send the message as its next to his name, but it does not say to whom he sent it. As to Learner A having testified that she was disgusted that he said that and how an Educator can say that to a learner, she saw him as a father figure and “baby” to him is anybody younger than him, he called his children baby and the learners at school are his babies and that is how he addressed them. All the male teachers call children “babies”. He could not answer if Learner A had seen this as something different and what her perception was. He had never made any comments to Learner A as contained in Charge 3. He never whispered in the ears of both Learner A and Learner B as testified by them. He did not whisper to them, but speaks to them and is quite loud. He had treated Learner B differently because he was aware of her emotional problems and that she had already been suicidal. With respect to the message with the heart emojis in Charge 4, he agreed he sent Learner A messages but never “I miss you baby when can I see you”. As to the text that Learner A had sent to the Employer’s Representative that he, the Employee, was at her house and she did not want to come out of the room because she was scared, the reason why he went to her house on 22 June 2023 is to speak to her grandmother about Learner A’s exams and tasks that she had just completed. The grandmother had come to the school in 2021 when he was still Learner A’s class teacher and asked him if he could every term give her a report on Learner A’s work because she never saw her term reports and this day he went to tell her how the term went. He was not Learner A’s registered class teacher in 2023 and he taught her History in 2023. As to why he would report to the grandmother if he was not her registered class teacher, he went to explain Learner A’s subject progression and percentages in History. He had no proof that the grandmother had asked him to do that. He did not know why Learner A did not want to come out because she was scared of him. He was referred to charge 5 relating to Learner B about the house appointment, to which he has pleaded not guilty. He did call Learner B out of the line that day and spoke to her after he called her. She was not in the line but in an unorderly manner when he called her. He confirmed where he was standing right on top of the second step and Learner B came to stand on the bottom ground level after he called her out. There was ground level, step 1 and step 2. She was standing facing him in a straight line from ground level. He looked at her, did not touch her and said to her “that if you do not behave I will definitely call home to speak to your parents”.

She was not lining up for his class as she was not in his class in 2023. She had misbehaved and he spoke normal to her when he reprimanded her and was not shouting or whispering. Learners D and E as they had testified would not have heard what he was saying to Learner B as there were about 600 to 700 children there and when he came out and “barked” at them they were running into their lines and Learner B was deliberately and defiantly still talking. As to Learner B having testified that that he never reprimanded her and had said he wanted to make a house call but her parents must not be there, that is not what happened. He was not the only Educator present as Mr Jason Nel Junior was standing behind him with his back against the wall. He agreed with Learner D’s and Learner E’s testimony that when Learner B came back from him she looked “down”, for she would have looked “down” because he had reprimanded her. As to him having treated Learner B differently because of her emotional difficulties and attempt on her life, he was not acquainted with the school’s procedure for learners who are struggling with emotional difficulties. There was a Grade Head at the time, but he did not know who it was then. He sorted out learners’ difficulties himself and if there are major problems he will talk to the Grade Head regarding the curriculum and misbehaviour. He knew there was a Social Worker assigned to the school and he never referred Learner B to the Social Worker. Learner B told him she had already seen the Social Worker and that there are other female Educators who knew about her situation. He did not seek advice from his Grade Head regarding Learner B because she was not a problem in class. He had helped Learner B with the earrings of her late grandmother and did not know that she always looked up to him, as she had testified. It was not necessary for Learner B to buy him chocolate or biltong as she offered for returning the earrings, which is why he replied he did not want it. He responded to Learner B’s testimony that when she did not do her homework he would not reprimand her like the other learners, who he pinched, and would always give her a second chance, that he did not pinch the other learners but pressed on their shoulders to remind them that they must have their work done. Under the circumstances he felt it fair to give Learner B a second chance and she was not the only one he gave second chances to. With respect to Charge 6, he never put his arm around Learner B in class as testified to by Learner B and Learner C. Both these learners were in his History class in Grade 9. As to Learner C’s testimony that he treated Learner B differently in class and that it was also an issue in the class, he did not pick up any issue in his classes and he was not aware if it was an issue amongst them. Learner C was correct in her observation that he treated Learner B differently. He never came close up to Learner B and did not always put his arm around her as testified by Learner B and Learner C.

44. Mr Bailey testified as follows under re-examination: He was not sure if he was suspended because he committed the allegations to those learners as the suspension letter was not at hand. He did not intimidate anyone or any of the witnesses. He was not involved in the writing of the affidavit attested to by Learner A on 15 October 2023 at Elsies River Police Station. He did not write it and received it from Mr Andrews who asked him to forward it to Learner A’s grandmother because he had the grandmother’s phone number as he, Mr Andrews, did not have it. Mr Andrews only had Learner A’s number. He had read what was written on the affidavit before he forwarded it to Learner A’s grandmother. When he saw his own name appear there he initially did not want to send it, but Learner A’s grandmother phoned him that morning and said Learner A wanted to get out of the case and he could hear the grandmother was desperate, which is why he forwarded it to them. He had informed the grandmother that he did not want to get involved in the case because he did not want to be in contact or part of whatever they were planning with the case. He was not part of writing the affidavit and did not take Learner A to the police station. The WhatsApp message of 15 October 2023 in the Employer’s documents (relating to the affidavit) showed that it was forwarded to him by somebody else. The WhatsApp Messages of 31 August 2023 were between him and Learner A’s grandmother talking about Learner A being absent for a test they were writing. This was part of the conversation and it did not show that they were talking about a test or Learner A. The WhatsApp message of 14 February 2024 at 07:46 must have been from him, but it does not show to whom it was sent or from whom the other messages were received and appeared to be only part of a conversation. It was clarified that the messages of 14 February 2024 was a screenshot of Learner A’s grandmother’s phone of a conversation between the grandmother and himself. He explained the last message at 07:46 which was about the grandmother who wanted him to come there as she wanted to talk to him and he explained he left school the previous day to get medication for his son and he could not get off again. He also said to the grandmother he did not want to come to her house. She had said it was important and asked whether Mr Andrews can come. He had spoken to Mr Andrews who said he would go as he thinks he knows what it is all about, which is why he wrote the message and notified the grandmother that Mr Andrews is coming. He did not take Learner A to the police station and had no knowledge of the protection order. He had anything between 37 to 45 learners per class. The History task was supposed to be done by all the learners at home, not at school. Four to five learners had not submitted the task yet, which was supposed to be done before they go into exams. He thought he gave them a second chance and did a favour for them to come in and complete the task. All of those learners were there by 09h30, except for Learner A. As they arrived he was busy marking and they were walking around looking for him and found him at the Janitors. He told them they knew the task was at the container and told them to go straight to the container. The other learners completed the task and he did not know where Learner A was when they completed the task. He confirmed his evidence as to what happened when Learner A arrived and his version of what happened in the container. When he referred to my child, my “baby” he was implying that it is his child who is younger. In the undated WhatsApp conversation at 21:52 in the Employer’s bundle there were two people having a conversation, Learner H and Sir, with Learner A not present. He did not know who the Sir is and did not know who Learner H was speaking to there. He is Sir at school and that is his profile picture.

45. Ms Carmen Jansen testified as follows under oath in her evidence in chief: She stayed within walking distance of Elsies River High School. She worked at the school for the feeding scheme for seven years. She knew the Employee from the first day she started working at the school on 18 July 2016. She found him to be a peoples’ person in that he talks to everyone. When she started at the feeding scheme she started working in the hall, then was moved to the Janitors’ office and then to the container when the previous Principal bought the container. She prepared food for the children in the container. She was referred to Charge 1 brought against the Employee. She described the interior of the container as contained in the pictures in the Employer’s bundle of documents. After she left they changed the set up inside the container. She showed where the door of the container was. The container was not so far from the school office and the classrooms. If somebody was doing something funny in the container such as perhaps stealing, somebody could be seen if they were standing at the door but not in the corner. The container’s door was always open and there is a security gate before she can close the door. She could not be seen inside the container if the door was closed. The door would be closed if one wanted to do something “skelm” (illicit) inside. She knows Learner A and Learner A also knows her. Normally the Employee would drop the assignments or tasks with her to keep for the Employee and Learner A will drop her assignment task with her for the Employee. She laughed when it was put to her that Learner A said she would come and protect the Employee because they had an affair. The Employee was her Supervisor, her overseer. She was not here to protect the Employee but she knew Learner A and Learner A knew her in response to Learner A having stated that she did not know her, Ms Jansen. On that day there were four learners who came to write in the container and Learner A was the fifth one. They came in bit by bit some came in past 9 up to 10 and Learner A was the last one to arrive. The Employee gave her the tasks beforehand so when the learners arrived she gave them the tasks. Learner A arrived on or around 12 o’clock. When Learner A arrived she found her and the Employee talking. She, Ms Jansen, was standing at the door of the container and the Employee was standing outside the door. When Learner A arrived the Employee told her to please give Learner A her work and he left to continue marking at the Janitors. Learner A had greeted her and said “hallo Aunty Carmen”, which everybody called her. Learner A did not on other days came to collect food at the container. She agreed with the Employee that Learner A was a shy girl. When Learner A went inside the container she went to sit at the desk and she sat with Learner A and read a book while Learner A continued with the task. As to Learner A having said that when she arrived she, Ms Jansen, left and the Employee remained with Learner A, this was not the case as the Employee left and she and Learner A remained alone in the container. With respect to what Learner A had alleged the Employee had done to her in the container, the Employee was not in the container and it was only the two of them alone in the container. She would not know why Learner A had said that she was alone with the Employee in the container, as it was only her and Learner A alone in the container. She was also alone with the other children in the container. After Learner A had finished writing she gave her papers to her, Ms Jansen, and left. She got all the papers of the learners together and gave it to the Employee so that he had all the documents of the learners. She did not see the Employee’s son while they were talking at the door. The son played the other side on the field or something. As to the Employee having received a call from his son while he was with Learner A, the children may not have cell phones on the school premises so the Employee’s son was not supposed to have his phone with him. She did not think that it was possible for Learner A to see if the Employee was responding to his son on the phone, but then the son is not supposed to have a phone with him.

46. Ms Jansen testified as follows under cross-examination: She worked for the feeding scheme at the school for seven years since 2016 and then went over to the WCED. She did not receive a payslip and did not have a post title and just worked for the feeding scheme, which is like volunteer work. She was employed as a cooking lady by Mr Bryden, the previous Principal of the school. She worked with learners in that she made the food and gave them only the two meals of breakfast and lunch. That was the only time she worked with learners. It was part of her job as cooking lady to give the learners food if they came to her when they were sick. As to whether she was ever appointed by Mr Bryden to look after learners who do tasks, she allowed them to come in “skelmpies” (on the quiet) without permission of the powers that be to do the tasks in her container. Learner A came to do a History task, which was the Employee’s subject. The other learners came in between 9 to 20 to 10. With respect to Learner A testifying that when she came there she, Ms Jansen, stood in the door and the Employee was inside, her response was that the Employee was outside and she was inside. She showed on a picture where Learner A was seated that specific day in the container. She had told Learner A to go and sit in the corner at the long table. At the time the table went right through and Learner A sat right in the corner where the freezer was. She sat behind Learner A on the chair next to the freezer. With regard to Learner A testifying that the Employee sucked her nipple, touched her vagina and that Learner A told the Employee that she was on her period, the Employee was not there and it was only Learner A and herself there. As to Learner A having said that from where she sat no one could see her from outside, she explained that she herself always sat there every day during break time and they could see her. She was asked to describe the interior layout of the container, and described the location differently from how Learner A had described and illustrated it. As to Learner A having said that she did not really know her, Ms Jansen, and rarely spoke to her, she had spoken many times to her and knew Learner A. She last saw the Employee at the door when he left and he was not alone in the container with Learner A. At the time of the incident Ms Jackson was the Principal. With respect to Ms Jackson having testified that learners are not supposed to be in the containers, Ms Jackson had herself sent learners to her if they don’t bring food and she has done needlework for fixing their pants, etcetera. Ms Jackson never sent learners to come and do tasks in the container and she had never sat in the Employee’s class with children who are doing tasks. If the Employee had children in the class to do tasks he would always ask Aunty Rachel, a cleaning lady who is in that section.

47. Ms Jansen testified as follows under re-examination: When Learner A came and found her with the Employee and she was inside the container door, the Employee was not inside, but outside. From where she had told Learner A to sit, anyone could see where she was sitting with the door behind her. She herself sat there and did not move, waiting for Learner A to finish. All the learners know her, including Learner A, and they greeted her as Aunty Carmen. She had resigned and has since left the school.

CLOSING SUBMISSIONS

48. The Employer’s closing submissions are summarised as follows, with reference made to the evidence of the witnesses to each of the six charges, of which the detail is not repeated, save to highlight certain aspects of the evidence and to add their supplementary submissions: The Employee offered no plausible explanation of the allegations levelled against him and offered bare denials of the charges. These bare denials do not clearly and concisely state the material facts upon which he relies for his defence and/or does not state his defence with sufficient evidence or witnesses corroborating his version. With respect to Charge 1 relating to Learner A, the Employee had denied sucking her nipple or touching her vagina and that he was not in the container with the victim Learner A when she was completing her task, but that the food aid lady, Ms Jansen, was invigilating her while she was completing her task. Ms Jackson, the school Principal had testified that educators are not allowed to take learners into a container to do any schoolwork. The Employee stated that he had not obtained the permission of the school Principal for the learner(s) to write in the container. Neither had Ms Jansen obtained the permission of the Principal to invigilate learners or allow learners to write in a container. The victim Learner A experienced the trauma and relayed her experience in detail on numerous occasions, and it is impossible to fabricate the encounter as improbable. The Employee had testified that he was marking in the Janitors’ space and he was not alone, with the names of four persons mentioned, whom he never called to testify or corroborate his version. They argued that the Employee is grossly dishonest and fabricates every story in a lie to verify his version. It was also found strange that the Defence never put their version to the victim when she testified. With respect to Charges 2 and 4, the content of the WhatsApp messages between him and the victim Learner A can be identified as mimicking an interest/love interest, which communications can be described as appalling and unbecoming of an Educator. The Employee had confirmed that it was a conversation between him and another learner (Learner H) and that it was his profile picture on the message.

He initially did not know who the “Sir” in these messages were, but conceded in re-examination that he was the “Sir”. It was clear that the Employee was a dishonest person since he should know that it’s his number if the profile picture is his. The Employee was furthermore dishonest because the version that he went to Learner A’s house on 22 June 2023 to explain to her grandmother about the exams and task the victim completed was never put to the victim when she testified, with no evidence to corroborate his version. It was clear to the Employer that the Employee is lying about the other things raised in Charge 4 because if he did all the other things, it is highly likely based on a balance of probabilities that he did commit the other acts as indicated in Charge 2, with the only inference that can be drawn being that he is misleading the forum. Regarding Charge 3 involving Learner B, the Employee had also denied that he had said those words and done those things to her like hugging and kissing her forehead, but it was highly probable that this happened as the Employee had sent similar messages to the victim Learner A. His behaviour came across as a sexual predator, who was grooming Learner B as this all started in 2021 when he gained her trust, by coming across as charming, helpful and kind to Learner B. The Social Worker, Ms Desmolene Weavers was unable to testify at the inquiry because she was booked off sick, with her report as contained in the Employer’s bundle of documents relating to Learner A referred to. This report reflected that the Employee’s actions towards Learner A had a negative impact on her emotional and physical state of life. The victim Learner A had also testified that the Employee had typed a letter on her behalf and she signed it on 1 September 2023 in the classroom because he wanted her to back off the case and told her that he does not want to lose his job. The Employee had stated that he did not type the letter, but Mr Andrews, when he later confirmed that he had typed and sent that message, whereby he was lying under oath. Reference was made to the affidavit at Elsies River Police Station and the victim Learner A’s testimony that she had copied the affidavit content from the Employee’s phone from the message he had forwarded to her grandmother and that he had taken her there on 15 October 2023.

The Employee’s version was that Mr Andrews had sent the message to his phone and he had forwarded it to Learner A’s grandmother and never took her to the police station to do the affidavit. He however had no proof that Mr Andrews had sent that message to him. In the arbitration award of Mr Andrews in which he pleaded guilty to all the charges against him, he had stated that the Employee had dictated the whole thing and he, Mr Andrews, wanted the victim to save their jobs. Reference was also made to the protection order against the Employer’s Representative because the Employee and Mr Andrews did not want the victim Learner A to be part of the cases against them, as also confirmed by the victim in Mr Andrews’s arbitration award. It was therefore clear that the Employee lied and tried everything for the victim Learner A not to testify and to withdraw the case. Regarding Charge 5 involving Learner B, Learner B’s versions of what happened with the earrings in class and when she was called out of line were corroborated by the other Learner witnesses who had testified. Learners D and E corroborated that the Employee had called Learner B out of the line and touched her face, talked to her and that she looked down in her face when she came back from the Employee, but they could not hear what was said. The Employee’s version of what he said to Learner B was never put to Learner B when she testified. The Employee himself said that when he reprimands learners he talks loudly, but on that day no one could hear his conversation with Learner B. Corroboration is independent evidence which confirms the testimony of a witness, which confirmation may either be in a material aspect or on a point tending to prove the guilt of the accused, with Learner B’s version corroborated in all material aspects. With respect to Charge 6, it was corroborated by Learner C that the Employee treated Learner B differently, that she did not do homework and he would always put his arm around Learner B.

He testified that he did treat her differently because he knew her emotional state, that he never put his arm around her but would pat her on the shoulder. The pat on the shoulder was never put to Learner B and Learner C, which is an uncorroborated version, with no other witnesses called to corroborate his version. He also said he never referred Learner B’s emotional difficulties to the school Social Worker. They submitted that the Employee’s evidence should be rejected to the extent that it was selective and misleading in respect of material parts of the allegations. As an Educator he was placed in a position of trust and failed in this task. They also pointed out that the education systems and schools specifically have been entrusted to ensure the safety and wellbeing of learners, with reference to the relevant provisions of the Constitution. Teaching is also a public trust profession and educators are persons with a professional code and entrusted to provide a service in public interest, with the public having a legitimate expectation that educators will perform the specific professional functions entrusted to them to be in a lawful, ethical manner and with devotion and care. Sexual grooming of children is a statutory offence and constitutes a great number of sexual acts against children. Educator sexual predators use the features related to their work at schools and match their grooming behaviour to resemble typical innocent learner-educator interactions to evade suspicion and detection. It was submitted that the Employee made himself guilty of such behaviour in the examples contained in the charges levelled against him. In the light of the foregoing they submitted that the evidence proved that the Employee is guilty of all charges and that he is not suitable to work with children.

49. The Employee party’s closing submissions are summarised as follows: The Employee has been employed as an Educator with the Employer in various schools working with children for more than 20 years and in all those years has never been found of guilty of committing any misconduct. The six charges which the Employee pleaded not guilty to and the evidence of the witnesses were referred to, with the detail not repeated, save to highlight certain aspects. With respect to Charge 1 and Learner A’s evidence on what happened in the container, Learner A was framing the Employee because she hated him with passion and it was seen how disrespectful she was towards him by testifying that he has a rotten breath, which is regarded as very degrading and disrespectful coming from a learner. Both the Employee and Ms Jansen had testified that the Employee was never in the container with Learner A, with Ms Jansen explaining exactly where Learner A sat in the container. It was strange that the Employee would want to do this kind of thing without trying to hide himself, knowing that the container is not far from the office and that the door was open. Learner A was trying to destroy the Employee about a fabrication of something that did not happen because he was a strict educator who took no nonsense. With respect to Charge 2, Learner A had lied that the Employee had texted those words to her, since it was never shown on the documents that the WhatsApp with that text was sent to her by the Employee, but instead it showed that it as Learner H who was communicating with the Employee. The Employee testified that he never communicated like that with Learner A and that he refers to all his kids/children like that at school as well as to his own children at home. The Employee had denied that he had whispered to Learner A in her ear and remarking that she had “nice legs and sexy also I would like to taste it” as alleged in Charge 3. According to Learner A the Employee did this in front of other learners in class, which could have been heard by other learners, and it could not be correct that not a single person came to corroborate what she alleged had happened to her. Again Learner A was not telling the truth and instead fabricated her story to destroy the Employee’s career. The Employee had pleaded not guilty to Charge 4. Learner A mentioned that she received a WhatsApp message from the Employee containing those words as stated in the charge, but could not produce the message that she was talking about. Regarding the incident in Charge 5, the Employee had testified that he had never touched Learner B’s face and had said to her that she knows what will happen when he reports her to her parents. The reason he called Learner B was to reprimand her for not standing on the line and for misbehaving, which made her furious, and he knew that learners hate to be reported for wrongdoings at school to their parents. It was strange that any teacher would in front of all learners and your colleagues (since there was another teacher also present in the Employee’s version) will call a learner and publicly say what Learner B alleged he had said, especially since he does not speak softly but loudly. Learner B’s two friends who came to testify said they did not hear what the Employee said to Learner B and the one friend testified that the Employee rubbed his thumbs on Learner A’s face, which is disturbing since Learner B herself had not testified on that. Regarding Charge 6, Learner B’s evidence on what had happened to her was contradictory. Learner B had also immediately thought that the Employee wanted to have sex with her when he said he did not want chocolate from her but something else, which was ridiculous for a learner to think when a teacher speaks to her.

The Employee in treating all the learners at the school like his own children, endangered his career and it looks like he is not allowed to take care and treat them with care. They pointed out that the standard of proof required in an arbitration is a balance of probabilities, with the Employer having the responsibility to prove the allegations, with its evidence led in the form of oral testimonies and documents. The Employer had a burden to prove through sufficient evidence their case according to the Evidence Act 45 of 1963 and case law. Witnesses in some instances provided hearsay evidence which is considered to be inadmissible. Irrelevant evidence is also regarded as inadmissible, with reference to case law in this regard. Some of the evidence of the Employer’s witnesses was irrelevant and did not speak to the allegations which were claimed, but were instead clouded with issues not related to the case. The Employer had failed to prove that the Employee committed all the allegations that were brought against him. They were of the view that the Employer did not provide sufficient evidence in the sense of how evidence was provided during the arbitration, with reference to case law in which it was ruled that evidence must be evaluated as a whole to determine sufficiency. They concluded that the learners who testified failed to demonstrate that the allegations did really take place and that these learners acted as a cabal to frame the Employee, with justice to be served. The Arbitrator was requested to find the Employee not guilty, with case law in matters of burden of proof and sufficient evidence to be considered.

ANALYSIS OF EVIDENCE AND ARGUMENT

50. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the accused Employee, Mr Randy Bailey, is guilty of the charges of alleged misconduct leveled against him by the Employer, the Western Cape Education Department, as well as the sanction if guilt is established on any of the charges.

51. I am mindful that the onus is on the Employer to prove that misconduct of an improper, unacceptable, unprofessional or a sexual nature has been committed by the Employee and that I am required to consider the prescripts and provisions as contained in section 188A Inquiry by Arbitrator of the LRA, Collective Agreement No 3 of 2018 (the Collective Agreement), clause 32 of the ELRC Dispute Resolution Procedures and sections 17(1)(b), 18(1)(q) and 18(1)(dd) of the EEA in terms of which the charges against the Employee were formulated. Of particular relevance in arriving at my findings and sanction in this matter is clause 5 The Outcome/Judgement/Arbitration Award of the Collective Agreement, which states as follows at 5.1:

5.1 An arbitrator arbitrating a dispute in terms of this collective agreement must, in the light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator:
5.1.1 the concept of fairness as provided for in the Labour Relations Act, as interpreted by the Courts;
5.1.2 the SACE Code of Professional Ethics for educators;
5.1.3 the United Nations Convention on the Rights of the Child (CRC) in 995;
5.1.4 the African Charter on the Rights and Welfare of the Child;
5.1.5 the best interests of the child as enshrined in section 28 of the Constitution of the Republic of South Africa;
5.1.6 the sanctions provided for in the Employment of Educators Act, including the mandatory sanctions of dismissal prescribed for certain forms of misconduct by the Employment of Educators Act;
5.1.7 any other relevant factor.

52. From the onset I am aware that this matter poses the particular challenge of the testimony of child witnesses as defined in the Children’s Act No 38 of 2005 (the CA) and the application of the principle of the best interests of the child as contained in section 28(2) of the Constitution of the Republic of South Africa, as well as the precautions relating to the assessment of the evidence presented by children in these type of proceedings. Although Learner A was 20 years old at the time of the inquiry and could no longer be deemed to be a child in terms of the CA she is presently still a learner at a public school and for this reason I have elected to still refer to her as Learner A to be consistent with the references to the other learners cited in this award.

53. In making this determination I therefore have to consider the reliability, credibility and probability of the evidence of the parties’ witnesses, in particular that of the learner witnesses who testified in this inquiry. In order to reach a just verdict I should also consider all the relevant admissible evidence. For this reason the basic principle in evaluating evidence is that evidence must be weighed in its totality. In this regard Navsa JA in S v Trainor 2003(1) SACR 35(SCA) at 41b-c said the following:

“A conspectus of all evidence is required. Evidence that is reliable should be weighed alongside such as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of the evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course; must be evaluated against the onus on any particular issue or in respect of the case in its entirety….”

54. When evaluating or assessing evidence, it is therefore imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.”

55. From the aforementioned it is therefore clear that the evidence must be assessed in its totality in order to arrive at a meaningful conclusion. Without repeating their evidence, of which sufficient detail is provided in the body of the award, I will focus on the reliability, credibility and probability of the evidence presented by the witnesses of both parties in support of their versions in relation to each of the charges that were levelled against the Employee. The charges are repeated below for ease of reference.

CHARGE 1

(a) Sucking her nipple; and or
(b) Touching her vagina with your hand.

ALTERNATIVE TO CHARGE 1

56. This could be regarded as the most serious of the misconducts alleged against the Employee and was the main charge that emanated from the Employee’s alleged sexual misconduct against Learner A. The Employee had denied that such an incident as described by Learner A took place in the container on the school premises while Learner A was completing a History assignment/task. The following became common cause during the inquiry: The Employee had offered the opportunity to Learner A, as well as other learners who had not completed the History assignment which was a prerequisite for the pending examinations, to complete it. He had instructed them to complete the assignment in the container on the school premises in which food is prepared for the learners under the school feeding scheme. Learner A did present herself at the container around 12h00 on that day for the purpose of completing her assignment, as confirmed by Learner A herself, the Employee and Ms Jansen the lady who prepared the feeding scheme food, referred to as the “cooking lady”. From that point onwards the testimony of the parties differed.

57. The Employee stated that he returned to the Janitors’ office/area to continue marking papers there and had given the assignment paper to Ms Jansen to give to the Learner. Ms Jansen stated that the Employee had left her with Learner A and she was seated alone with Learner A for the entire time that Learner A completed the task and received the assignment from her to return to the Employee with the assignments of the other learners who had also completed their tasks in the container. Learner A was adamant and consistent with respect to her version of what transpired in the container and that the Employee, and not Ms Jansen, had entered the container with her and handed her the assignment paper and it was during that time that the Employee committed the alleged misconduct as described in the charge and in more detail in her testimony. She stated further that Ms Jansen had left the container when they entered and was not present afterwards, also that the Employee’s son entered the container looking for the Employee, which in her words “saved” her from further action by the Employee.

58. Ms Jansen’s testimony supported the Employee’s version that he was not present in the container and had gone to mark papers in the Janitors’ space. The Employee had testified that he and Ms Jansen had a working relationship at the school and that his relationship with Ms Jansen expanded to meeting her husband, her mother and the whole family in the household, hence it is reasonable to infer that Ms Jansen may have wanted to support the Employee’s version surrounding the incident. Ms Jansen had also laughingly dismissed the suggestion that she came to protect the Employee because they had an affair, as testified to by Learner A. In this instance Learner A’s evidence that Ms Jansen was not present with her inside the container came across as more credible than Ms Jansen’s version, who would appear to have had a motive to be untruthful under oath about what happened in the container in support of her friend. Curiously the Employee did not call any of the persons whom he had mentioned by name who were present when he in his version was marking papers in the Janitors’ area to corroborate his version that he was there and not in the container with Learner A, which would have been an important factor to consider.

59. It was also noted that the Principal had testified, whose testimony was not disputed, that Educators and learners may not go into the food container other than the person preparing the food and that food is also not served there unless there is a hungry child and it is raining, also that it was not allowed that learners are asked to do work in the container. Both the Employee and Ms Jansen had also conceded that they did not get permission for learners to use the container to do their work. The evidence also confirmed that it was not part of the functions of Ms Jansen as the food preparer for the feeding scheme at the school to invigilate learners for Educators, with Ms Jansen stating that having learners work in the container was something that was done “skelmpies”, or on the quiet. Learner A had furthermore testified that she had attended school that day in the morning but was told by the Employee to return at 12h00 to do the assignment, whereas the Employee had denied this with his version being that the four to five learners, which included Learner A, who were given the opportunity to complete their assignments attended between past 9 up to 10 as confirmed by his witness Ms Jansen. One would have expected the Employee to have assumed after the other learners had left that Learner A was not going to come and complete her assignment and would have left to continue his marking, yet was there at 12h00 when Learner A arrived at the container. This creates the reasonable suspicion that Learner A was indeed requested by the Employee to attend that time when all the other learners had left so that he could be alone with her in the container, especially since Learner A had also testified that she was unaware that the other learners were to also come and complete their assignments that day.

CHARGE 2

(i) “..Plesier my bby. Miss u…”

60. This charge was derived from a screenshot of the undated WhatsApp messages at 21:52 between Learner H and a Sir, who the Employee first denied was himself, but later confirmed that he was the Sir with his profile picture of the motorbike attached to that message and that he had indeed sent that message. He confirmed Learner A’s testimony that she had asked him about how many paragraphs there had to be in an essay, with other messages leading up to these two responses and that it was Learner A communicating with him, whilst he did not know how Learner H, who was a learner in his History class, was copied in. He then corrected his response that it was a conversation between him and Learner H and not Learner A since Learner A was not identified on the WhatsApp message which came from Learner H’s phone and that he was initially confused, with the version that he had communicated with Learner H for school work and the essay. When he said “pleasure my baby”, he was referring to Learner H, who was like a daughter to him, and not Learner A. Under re-examination he confusingly denied any knowledge of that message, although he confirmed he was the “Sir” in the message. Learner A had explained in her evidence that she was asked by Learner H to contact the Employee to enquire about how many paragraphs were to be contained in an assignment for him and that this was the context in which those messages were sent and received. The message contained in the charge was in response to her thanking the Employee for supplying the information. Learner A stated that she had used Learner H’s phone to make this enquiry, not her own, which is why her name did not appear on the screenshot extract of the messages in this regard. Although Learner H was not called to testify to corroborate both Learner A and the Employee’s evidence in this regard, Learner A’s version is not regarded as implausible in the circumstances and the probability is that those words were indeed directed towards Learner A.

61. The Employee had explained that the use of the term “baby” was not in a sexual context or expression of love or affection, but the manner in which he addressed children and those younger than him, including his own children since he also regarded the learners at school as his children. By adding the “Miss u” inserts a different flavour to that message. The Employer had submitted in argument that the use of such expressions can be features of the sexual grooming of children. Although such terms and expressions may be acceptable in other contexts, in particular with close family ties, it is found not to be acceptable in the education context, which should be of a more formal and circumspect nature, especially with respect to the responsibilities and roles of educators to protect and uphold the best interests of the child, who can often be very suggestible and vulnerable. Even if the Employee had directed those words to Learner H as in his amended version, that would still remain an inappropriate expression to use in the Education context.

CHARGE 3

(i) By whispering in her ear and remarking the following: “you have nice legs and sexy also I would like to taste it”.

62. There were no witnesses to corroborate either party’s version of this incident. The Employee denied that he had ever whispered and uttered those words to Learner A whilst in the classroom and that he moreover was not prone to whispering to learners but tended to speak loudly in general and was known as one of the loudest teachers in the school, such as “barking” to learners when they assembled outside in the school courtyard to enter their classrooms. When he had to lower his voice to speak to a learner, it was always done audibly and could be overheard by others and he would never whisper and say things like that to his learners. Learner A was however adamant that the Employee had whispered those words to her. I could find no reason or motive why Learner A would want to fabricate that incident, whilst the Employee had all the more reason to deny that the incident had happened, given the consequences.

CHARGE 4

63. Although Learner A had testified that she had received this WhatsApp message from the Employee, the evidence of the WhatsApp message that the Employee allegedly sent to Learner A with these words was not provided in the Employer’s bundle of documents, whereas the screenshots of the other WhatsApp messages referred to during the inquiry were contained in the documents. The Employee had denied that he had sent such a message to Learner A and requested proof of the WhatsApp message, which as already stated, was not forthcoming, and denied he had ever sent a message with such words to Learner A. Such a message would however be consistent with the tone of the other message of “pleasure my baby, miss you” therefore it is more probable that the Employee had sent Learner A this message than that it had not ever been sent to her. No reason could again be found why Learner A would fabricate this incident and testimony

CHARGE 5

(i) “I want to make a house appointment; your parents must not be at home when I visit….”

64. The Employee testified that he had on 26 February 2023 as stated in his written statement, called Learner B out of the line in the school courtyard that particular morning before classes commenced to reprimand her for misbehaving because of her talking and not falling into line when instructed to do so. Learner B admitted to being called out of line by the Employee. Both Learner B and the Employee confirmed in their evidence that the Employee spoke to Learner B on the steps in front of the entrance to the corridor that led to the row of classrooms, which included the Employee’s classroom at the far end. Their versions as to which step either of them stood on differed, as well as what the content of the conversation was and whether the Employee touched Learner B’s face or not during the conversation. Both their testimonies indicated that the Employee stood on a higher step than Learner B and that the Employee had looked down towards Learner B who was standing lower down, either on the lower of the two steps or on ground level, with the Employee’s version that he always stood on the top step. Pictures of the courtyard area were provided in the bundle of documents, as well as an in loco inspection held to familiarise the Panelist and parties with that location.

65. The most significant difference in the Employee and Learner B’s testimonies are what the content of the conversation was. In the Employee’s version he said to her that if she does not behave he will have to call home for her parents and that she knows what that means. In Learner B’s version what she heard was the following words as stated in the charge: “I want to make a house appointment; your parents must not be at home when I visit”. It is from these words she inferred that he wanted to do something to her like engage in sex with or touch her inappropriately whilst her parents were not at home. She had also testified that he held her face in both hands with his thumbs against her cheeks and turned her face up towards him when he said those words to her, whereas the Employee denied ever touching her when he spoke to and reprimanded her. Learners D and E, who were present at the time, both corroborated Learner B’s version that the Employee called her to the steps. Learner D testified that Learner B was making a noise in the line but that were others performing worse at the time and were not called up by the Employee, but only Learner B. Both Learners D and E also corroborated Learner B’s version that the Employee held Learner B’s face and turned it up to him, with Learner D providing the same detail of the Employee also holding Learner B’s cheeks with his thumbs. Both these witnesses confirmed that they could not hear what the Employee was saying to Learner B.

These two learners also corroborated Learner B’s version that she looked “down” when she returned to the line afterwards. The Employee had on several occasions testified that he was not prone to speaking softly or whispering but tended to speak loudly, even “barking” to the learners if they were unruly in the lines. It is therefore curious that the Employee’s version of what he said to Learner B was not heard by anybody else if he was prone to speaking loudly, especially when reprimanding a learner. The Employee’s explanation why they could not hear him was that he was only focusing on Learner B and not the other learners. Learner B in her testimony was also sufficiently disturbed about what was alluded to by those words of the Employee and went to share it with her mother, who in turn reported it to the Principal on the advice of Mr Jason Nel Junior, as corroborated by Ms Jackson in her evidence. The reasonable inference that could be drawn from Learner B’s version of what was said to her is that the Employee wanted to engage in something inappropriate with her, especially if the parents were not supposed to be present. The Principal had testified that Educators at their school were not allowed to do home visits, unless it was with her knowledge and permission, and that parents were normally requested to visit the school for her and the relevant Educator(s) to discuss any problems experienced with learners, rather than to visit them at home.

CHARGE 6

66. The Employee conceded that he paid special attention to Learner B because of certain difficulties and personal challenges that she had experienced and which she had shared with him, such as contemplating suicide. He did treat Learner B differently knowing the emotional state that she was going through. He maybe gave her a tap or pat on the shoulder and asked if she is OK when he saw she was not looking well, but he never held her tightly. Learner B testified that the Employee would come very close to her in class, whispered to her, touched her and put his arm around her, which made her very uncomfortable. The Employee also did not reprimand her in the same way that he reprimanded the other learners for not doing their homework. Learner C who was in the same class as Learner B at the time testified that she had observed this conduct of the Employee towards Learner B and that the other learners in the class were unhappy about the preferential treatment that Learner B seemed to be receiving from the Employee, such as not reprimanding her when she did not do her homework. The Employee was questioned as to this interest in Learner B’s wellbeing and he admitted that he did not refer Learner B’s difficulties to the school’s Social Worker or the Grade Head for them to assist in this regard. It is accepted that in the best interest of the child that Educators should be sensitive to, support and protect the emotional and physical wellbeing of the learners who are placed in their care. Male Educators should however be circumspect as to the nature of the attention and support that they provide to in particular female learners with emotional challenges, lest this be regarded as nurturing confidence and trust in them as a form of sexual grooming and a precursor to more intimate interaction.

67. With respect to the overall evidence of the parties, the following is noted: The Employee had consistently denied all the charges brought against him, which is understandable given the devastating impact of a finding of guilt on these charges on his livelihood and career as an Educator. It is important to note at this juncture, since it was not part of the charges levelled against the Employee, that it was reported by the Employer that Learner A was reluctant to testify and had to be subpoenaed to attend the inquiry on two occasions, but eventually came to testify voluntarily. The evidence presented surrounding this was the following: Learner A denied having voluntarily put her name to the affidavit attested to on 15 October 2023 at the SAPS in Elsies River, the withdrawal statement of 1 September 2023 and the application in terms of section 3(4) of the Protection of Harassment Act, 2011 (the protection order application) of 15 February 2024 against the Employer’s Representative in this matter, and submitted that the Employee and Mr Andrews had instigated these actions with the cooperation of her grandmother. The Employee had in turn denied any involvement in the drafting and execution of these documents and had ascribed them to his colleague Mr Andrews who was also charged for similar acts of misconduct at the same time as himself. In this regard it was noted it was never put to Learner A when she testified that she came to him, the Employee, a day or two days after the Principal informed him there was a case made against him and that she had said to him she wanted to get out of the case and wanted to write to state that she did not want to be involved in the case anymore and that her grandmother asked if he could help them with writing a letter to say she does not want to be involved any more. It was further not put to Learner A that the WhatsApp correspondence between the Employee and her grandmother on 31 August 2023 did not relate to the statement of 1 September 2023, but related to a letter that the Employee was assisting to draft for the grandmother to apply for Learner A to rewrite an exam for Learner A and the grandmother to sign. The WhatsApp correspondence screenshots presented as evidence of communications between the Employee and Learner A’s grandmother however supported that he was indeed involved in the drafting of these documents, if not directly, but had facilitated them in conjunction with Mr Andrews.

68. The arbitration award for the separate Inquiry by Arbitrator for Mr Ryan Andrews, an Educator at the same school, issued on 21 July 2024 under case reference ELRC72-23/24WC and served on the parties on 24 July 2024 was handed in by the Employer as being relevant to this inquiry since this award also referred to the Employee and Learner A with respect to the allegations brought against Mr Andrews. The parties reported that this arbitration award had attracted undesirable social media and public media attention and reporting, which is very concerning given the impact that this may have on the witnesses in that case and the sensitivity of the issues raised, which would be more so in this matter. Mr Andrews was not called to testify in this inquiry hence the Employee’s testimony relating to Mr Andrews’ involvement in this matter and the drafting of the documents could not be tested. It was noted too that Learner A’s grandmother, who was also understood to be her legal guardian, and who was referred to on several occasions during the evidence presented, was not called to testify in the inquiry by in particular the Employee party, with the inference drawn that her evidence may not have supported the Employee’s version in the end. However, regardless of who did what, it is significant and highly probable that the Employee, with his erstwhile colleague Mr Andrews and assisted by Learner A’s grandmother, had made every attempt possible to prevent Learner A from testifying in their respective inquiries, with these efforts not having been made if they were indeed innocent of the offences that they were respectively charged for.

69. The inference that must be drawn from the attempts to prevent Learner A from testifying in this inquiry is that the Employee was indeed guilty of in particular Charge 1 and that the incident had happened as described by Learner A, who had valiantly stood up and came forward in the face of all resistance in the end to testify in the proceedings. As to whether Learner A’s description of what happened was a figment of her imagination or deliberate fabrication driven by hatred and that she and her co-learners who also testified in the inquiry acted as a cabal to frame the Employee as referred to by the Employee party in their closing argument, the detail of Learner A’s testimony however supported to make Learner A’s version of this incident more probable than improbable or a fanciful vindictive fabrication. In Learner A’s testimony and that of the other learners who testified to the other charges levelled against the Employee there was no detection of animosity or hatred towards the Employee and they had all described him as a good but strict Educator, hence no substance could be found that they would deliberately fabricate and implicate the Employee in actions that he was never engaged in.

70. With respect to the reliability, credibility and probabilities of the parties’ witnesses’ evidence the following is observed with respect to the Employee party. The evidence of the Employee, who has a lot at stake in this process and persisted with his denial of guilt on all the charges, albeit with some minor concessions, and had a motive to lie in the inquiry, did not present as credible and probable, for the reasons as already described. Ms Jansen’s evidence as to what transpired in particular in the container between the Employee and Learner A in order to protect her friend is also to be approached with caution, for the reasons already referred to.

71. With reference to the evidence of the learner witnesses, they made a positive impression and all presented as consistent, honest and credible in their evidence, despite some minor discrepancies. Learner A in particular had no reason to come and give false testimony or had a grudge to satisfy in these proceedings, despite being initially prevented from testifying in the inquiry by the Employee, his erstwhile colleague Mr Andrews and her grandmother.

72. The Employee party had testified to and included in their bundle of evidence undated WhatsApp correspondence between Learner J and the Employee in which it was alleged by Learner J that Learner A had messaged her relating to the case and requested her, Learner J to admit to certain things which she did not know of and had enquired from the Employee what was going on, as well as stating that Learner A was delusional, which included somewhat inappropriate emojis with hearts from that learner to the Employee in an attempt to discredit Learner A. This WhatsApp correspondence was disputed by the Employer on the basis that Learner J was not called by the Employee to testify in the inquiry relating to these allegations and also has to be approached with caution.

73. It was unfortunate that the Social Worker for Metro North Education District, Ms Desmolene Weavers, was unable to testify in the inquiry due to being booked off sick when her time came to testify, with her admitted undated Confidential Psycho-Social Report having to be relied on. Ms Weavers stated in the introduction to the report that the purpose of the report was to provide feedback regarding the psycho-social support that was rendered to the learner victim concerned (being Learner A) after she received a request on 9 June 2023 from the Employer’s Labour Relations office to support the learner regarding allegations of an educator on learner abuse that was reported. This report was consistent with some of the evidence presented by Learner A in the inquiry, and that Learner A had communicated to Ms Weaver that her grandparents had asked her to withdraw the case for the reason that the Employee might lose his work. Ms Weaver’s conclusion was that based on the information received from Learner A it was evident that the allegations reported possibly impacted her emotional and physical well-being and the fact that the Employee is still teaching the learner is triggering everyday trauma and resulted in poor academic performance. Her recommendation was to consider that Learner A change to a different classroom as the alleged incidents might be a barrier to teaching and learning.

74. The question remains as to why all the learners, in particular Learner A, would fabricate their versions of the alleged incidents, which they knew would have a devastating impact on the Employee and his career as an Educator. I have to bear in mind that the absence of a motive to lie is a relevant factor in assessing probabilities and making credibility findings in relation to the evidence of child witnesses, with the absence on the part of the child of a plausible motive to fabricate false evidence against an accused Educator being a factor that will normally weigh in favour of the version of the child against the version of the accused educator.

75. In this regard reference is also made to the guidance provided in Woji v Santam Insurance Co Limited 1981 (1) SA 1020 (A) in which Diemont JA sets out the approach to be followed in dealing with the evidence of a child witness, as stated at 1028A-E:

The question which the trial Court must ask itself is whether the young witness’ evidence is trustworthy. Trustworthiness, as is pointed out by Wigmore in his Code of Evidence para 568 at 128, depends on factors such as the child’s power of observation, his power of recollection, and his power of narration on the specific matter to be testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears “intelligent enough to observe”. Whether he has the capacity of recollection will depend again on whether he has sufficient years of discretion “to remember what occurs” while the capacity of narration or communication raises the question whether the child has “the capacity to understand the questions put, and to frame and express intelligent answers” (Wigmore on Evidence vol II para 506 at 596). There are other factors as well which the Court will take into account in assessing the child’s trustworthiness in the witness-box. Does he appear to be honest – is there a consciousness of the duty to speak the truth? Then also ‘the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility’ (per Schreiner JA in R v Manda (supra)). At the same time the danger of believing a child where evidence stands alone must not be underrated.”

76. The Employee was charged in terms of sections 17(1)(b) alternatively 18(1(dd) and 18(1)(q) of the EEA, which respectively read as follows:
17. Serious misconduct
17(1)(b) committing an act of sexual assault on a learner, student or other employee;
18. Misconduct
18(1)(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.
18(1)(dd) commits a common law or statutory offence;

77. A finding of guilt on a misconduct defined in section 17(1)(b) of the EEA carries the mandatory sanction of dismissal. A finding of guilt for a misconduct defined in section 18(1)(q) and 18(1)(dd) of the EEA does not carry the mandatory sanction of dismissal, with a range of applicable sanctions listed in section 18 (3) of the EEA, which includes dismissal, if the nature or extent of the misconduct warrants dismissal.

78. As to what constitutes “sexual assault” as referred to in section 17(1)(b) of the EEA, guidance is firstly sought from The Concise Oxford Dictionary, Eighth Edition which inter alia defines “assault” as follows: a violent physical or verbal attack; in law an act that threatens physical harm to a person (whether or not actual harm is done). This implies that an element of actual or threatened physical harm should be present in the action perpetrated. This Dictionary also defines “sexual” as pertaining to relations between the sexes, with specific reference to mutual attraction and to gratification of resulting desires. The term “sexual assault” could therefore be regarded as a violent act or the threat of such an act to gratify sexual desires. To these elements could also be added the accompanying emotional harm and distress inflicted on the victim.

79. I find it necessary, in the context of prevailing labour legislation, to also refer to the prescripts relating to and definitions of sexual harassment as contained in the 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Code) issued under the Employment Equity Act No 55 of 1995 (the EQA), and the new Code of Practice on the Prevention and Elimination of Harassment in the Workplace.

80. In terms of this legislation and the related Code sexual harassment is regarded as a form of unfair discrimination in the workplace and is described as unwelcome conduct of a sexual nature which inter alia violates the rights of an employee. The unwelcome conduct must also be of a sexual nature and includes physical, verbal or non-verbal conduct, with examples provided. Notably the physical conduct includes all unwelcome physical conduct, ranging from touching to sexual assault and rape. The Code specifically refers to sexual harassment as a form of misconduct, which includes sexual assault.

81. Although these prescripts relate to the workplace and the rights of an employee, the same principles could also be applied to the rights applicable in other situations and to other persons, such as children, in that “sexual assault” would also refer to sexual contact or behaviour that occurs without the explicit consent of the victim, whether or not it is accompanied by violence or threats, and would include intentional and unwanted physical contact or unwanted sexual touching of a victim’s body or private parts, as had occurred in the case of Learner A in this matter. This would include the unwelcome and unsolicited physical contact, conversation and text messages to learners, which has the effect of making the learners uncomfortable and concerned about the educator’s intentions towards them.

82. Both parties also referred to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the CLA) which at section 5 defines Sexual Assault as follows and supports the foregoing statements:

(1) A person (‘A’) who unlawfully and intentionally sexually violates a complainant (‘B’), without the consent of B, is guilty of the offence of sexual assault.
(2) A person (‘A’) who unlawfully and intentionally inspires the belief in a complainant (‘B’), that B will be sexually violated, is guilty of the offence of sexual assault.

83. The standards and Code of Professional Ethics (the Code) of the South African Council of Educators (SACE) are referred to in establishing what is improper, disgraceful or unacceptable conduct, with specific reference to item 3 of Conduct: The Educator and the Learner relating to the conduct required of an educator in that he/she inter alia –

3.1 respects the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality;
3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological;
3.6 refrains from improper physical contact with learners;
3.9 refrains from any form of sexual harassment (physical or otherwise) of learners;
3.12 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners;
3.13 takes reasonable steps to ensure the safety of the learner;

84. Bearing in mind the foregoing descriptions of “sexual assault” and “improper, disgraceful or unacceptable” conduct in the SACE Code, on the evidence I am accordingly satisfied that the Employer had succeeded in discharging its duty to prove the Employee’s guilt on the charges of sexual and improper misconduct on a balance of probabilities, for the reasons already described above and find that the Employee is guilty of the charges levelled against him. The findings on each of the charges are as follows, with the detail of the charges not repeated again:

Charge 1 Relating to section 17(1)(b): Guilty (on the main charge, not the alternative relating to section 18(1)(dd))
Charge 2 Relating to section 18(1)(q): Guilty
Charge 3 Relating to section 18(1)(q): Guilty
Charge 4 Relating to section 18(1)(q): Guilty
Charge 5 Relating to section 18(1)(q): Guilty
Charge 6 Relating to section 18(1)(q): Guilty

SUBMISSIONS ON SANCTION AND ANALYSIS THEREOF

85. Due to the nature of this matter, the best interests of the child require to be highlighted again, since the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of the RSA and section 8 of the Children’s Act No 38 of 2005 (the CA). This principle is reinforced by the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds arbitrators or panelists in a forum such as this to give consideration to the effect their decisions will have on childrens’ lives, and learners collectively, when they determine sanctions in matters of this nature.

86. Section 17(1) of the EEA states that an Educator must be dismissed if he or she is found guilty of serious misconduct, which includes sexual assault/misconduct. No other lesser sanctions are provided for in these circumstances, since dismissal is peremptory by law. A finding of guilt in terms of section 18(1) of the EEA provides for sanctions other than dismissal, depending on the nature and extent of the misconduct.

87. The parties were requested to provide aggravating and mitigating circumstances in case there were findings of guilt on any or all of the charges which did not attract the mandatory sanction of dismissal. Only the Employer provided aggravating circumstances, whereas the Employee party did not provide mitigating circumstances at the time of writing this award.

88. The aggravating circumstances submitted by the Employer are summarised as follows: The Employee had committed transgressions which are unforgivable and unacceptable. He was charged for sexual assault on Learner A, which is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired or which inspires a belief that such an impairment of his/her body is to take place, also that assault by means of menacing threats of a sexual nature may occur without any touching. Reference was also made to section 17(1) the EEA that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee, as well as to section 10 of the South African Constitution. The conduct of the Employee with respect to Charge 1 showed intent and was unlawful because Learner A told him to stop. Learner A’s bodily integrity was impaired and it is found on the balance of probability that the Employee had indeed sexually assaulted Learner A. Section 28 (1)(d) of the Constitution states that a child has the right to be protected from maltreatment, neglect, abuse, or degradation and should not be required to commit certain acts that are inappropriate or place the child at risk.

The Constitution further states at section 28(2) that the best interest of the child shall be paramount in any matters affecting the child. Reference was also made to the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE) Act 31 of 2000 and what was ethically required of an Educator, which includes to refrain from any form of sexual harassment of learners and to refrain from any form of sexual relationship with learners from any school. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards learners because society must be able to trust educators unconditionally with their children, whereas the Employee’s conduct towards Learner A in the container was inappropriate, unacceptable and not in her interest. With respect to the other charges in terms of section 18(1)(q) of the EEA and the WhatsApp messages and sexual comments to Learner A and his conduct towards Learner B, it is clear to the Employer that the Employee is unsuitable to work with children. The preamble of the South African Schools Act was also referred to, which supported that such behaviour cannot be condoned by the Employer with a clear message to be instilled on the Employee that his behaviour and actions were not acceptable as a WCED employee. In the light of the seriousness of the charges the Employer appealed that the sanction of dismissal be imposed as this educator is not suitable to work with children.

89. It would serve no purpose to provide a separate sanction on each of the charges that the Employee has been found guilty of, but rather one overall sanction that applies to all the charges. The Employee has been found guilty of one charge that attracts the mandatory sanction of dismissal, hence the overall sanction should be that of dismissal. Even if section 17(1) of the EEA did not apply, the cumulative effect of the findings of guilt on the other five charges brought in terms of section 18(1) of the EEA could still justify the sanction of dismissal in the circumstances of this case. In the light of the best interests of the child being paramount, no other sanction than dismissal would in any event have been appropriate, since the Employee can as a result of his conduct no longer be entrusted with the emotional and physical safety and welfare of learners placed in his custody and he as a consequence is found to be unsuitable to work with children. It is furthermore recommended that the Employer request the South African Council for Educators (SACE) to revoke the Employee’s certification with SACE.

90. I have also considered the provisions of section 120 of the Children’s Act No 38 of 2005 (the CA). Section 120(1)(c) of the CA provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Arbitration proceedings under the auspices of the ELRC can be regarded as such a forum.

91. Section 120(2) of the CA provides that a finding that a person is unsuitable to work with children may be made by such 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 Panelist who is arbitrating the Inquiry by Arbitrator in terms of the LRA under the auspices of the ELRC would therefore be entitled to make such a finding on his or her own accord, which I hereby do on my own accord in terms of the aforementioned provisions of the CA.

AWARD

92. The Employee, Mr Randy Bailey, is found guilty, on the balance of probabilities, of one charge of misconduct in terms of section 17(1(b) and five charges of misconduct in terms of section (18)(1)(q) of the Employment of Educators Act No 76 of 1998 (the EEA).

93. The mandatory sanction of dismissal is imposed as prescribed in section 17(1) of the EEA with the Employee to be dismissed with effect from the date that the award is served on the parties by the ELRC.

94. The Employer, the Western Cape Education Department, is directed to request the South African Council for Educators (SACE) to revoke the Employee, Mr Randy Bailey’s, certification with SACE with effect from the date of his dismissal.

95. The Employee, Mr Randy Bailey, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act No 38 of 2005 (the CA).

96. The General Secretary of the ELRC is directed, in terms of section 122(1) of the CA, to 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 CA, that the Employee, Mr Randy Bailey, 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.

Panelist: Alta Reynolds