5 May 2023 – ELRC350-22/23 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC350-22/23 KZN

In the matter between

Department of Education KZN Employer
And
M.B. Mkhwanazi Employee

ARBITRATOR: R. Shanker

DELIVERED: 04 May 2023
AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Inquiry by Arbitrator process. The matter was heard on 13 December 2022 and 29 March 2023. The parties thereafter submitted written closing arguments which I considered in making this award.
2. The employee (respondent) in this matter, Msawenkosi Mkhwanazi (“Mkhwanazi”), was represented by SMB Buthelezi, an official of NATU. The employer, Department of Education KZN, was represented by M.E. Mabaso.
3. The matter relates to allegations of sexual assault of a learner who is minor. In accordance with the protection of the rights of minors, the identity of the learner will not be disclosed. I will refer to the learner as her as “Learner A” in this award. Her evidence was led via an intermediary and an interpreter.
ISSUES TO BE DECIDED
4. The issue to be determined is whether Mkhwanazi had committed the misconduct for which he has been charged (Bundle A at page 2) and, if so, to determine an appropriate disciplinary sanction.
5. In summary, Mkhwanazi is charged with contravening section 17 of the Employment of Educators Act 76 of 1998 (as amended) in that, around February 2022, he committed an act of sexual assault against Learner A.
BACKGROUND TO DISPUTE
6. Mkhwanazi is a physical science educator at the same school as Learner A. As a result of the serious nature of the allegations, he is currently on suspension.
7. Learner A testified at this hearing with regard to an incident that took place around February 2022. She claimed that Mkhwanazi had sexual assaulted her in his car. She was in Grade 12 at the time of the incident. The school principal, Mr Mdlethse, also testified.
8. Mkhwanazi testified and denied that he had sexual assaulted Learner A.
9. The parties relied on Bundle A during the proceedings.
SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence necessary to determine whether, on the balance of probabilities, Mkhwanazi had sexually assaulted Learner A. All evidence and arguments were considered prior to drafting this award.
11. Learner A alleges that Mkhwanazi sexually assaulted her in his car in February 2022. The incident was reported in May 2022.
12. Learner A rents accommodation near the school as her home in the township is far away. Mkhwanazi resides in the same township as where Learner A resides. On occasions when there are extra classes, Mkhwanazi gave learners, including Learner A, a lift to the township.
13. On the day of the incident, during lunch time, Learner A requested Mkhwanazi to give her a lift to the township. After school, Learner A got into Mkhwanazi’s car and he drove towards the township. It was just the two of them in the car – a VW Polo. Along the way, Mkhwanazi stopped in town where he bought fried chips and cool drinks.
14. The versions of Learner A and Mkhwanazi differs as to what happened next. Learner A’s version is that, after buying the chips and cool drinks, Mkhwanazi drove to a park and sexually assaulted her there whilst they were in his car. Mkhwanazi’s version is that, after buying the chips and cool drinks, he drove straight to the township where he dropped off Learner A – They did not go to the park and he did not sexually assault Learner A.
15. In May 2022, Learner A’s father phoned and requested Mkhwanazi to give a lift to Learner A to school on a daily basis as he did not want his daughter to rent at the premises near school any more. The incident was reported by Learner A thereafter.
16. Learner A’s version is that they had a normal conversation about school on the way. When they were close to the cross road, Mkhwanazi told her that there was something he needed to do in town and will drive to the township thereafter. She agreed as her books and clothing in her bag was heavy and they were still far from the township. When they got to town, Mkhwanazi bought fried chips and cool drinks. He gave her the chips and a cool drink and Mkhwanazi then proceeded towards the park. Along the way, Mkhwanazi told her that he stays alone, he sometimes goes to the park to read the newspaper, he does not have anyone to socialise with and that he needs someone to socialise with.
17. He showed her where he resides and where his doctor is stationed. He went to an area in the park that’s like a playground with an open space. He parked the car there and they ate chips whilst having a conversation. He told her that he needs a friend and that age doesn’t matter. He asked her if he could trust her as a friend and if he can trust that she won’t tell Fezile and Notholola (class mates that she rents with). She didn’t respond to these questions. He also asked her about her relationship with other learners in class.
18. Mkhwanazi then got out of the car, took out the sunscreen and put it on the front windscreen of the car. He sat at the driver’s seat. She was seated in the front passenger seat. He reached over and reclined her seat. He then moved from the driver’s seat and came on top of her on the passenger seat. He pulled down her school track pants. She started to cry as he pulled off his jeans. He was on top of her when he opened her thighs and penetrated her. He continued until he heard voices of people going pass. He then stopped and wore his pants. By that time, he moved to the driver’s seat. She was still crying as she pulled back her track pants. He told her don’t tell Fezile (her classmate) what happened. He started the vehicle and went to the township where he dropped her off.
19. She initially indicated that the track pants was the only thing she was wearing but after reflecting on her written statement in which she stated “I tried to fight him but he was powerful. He put his hand in my panty”, she indicated that she did wear a panty on the day and that Mkhwanazi had pulled off her panty together with her track pants. She indicated that she tried to push him away from her but he grabbed her hand and pushed it backwards. She agreed that she had a boyfriend but insisted that it was Mkhwanazi that raped her. This was the first time she travelled with Mkhwanazi alone. She agreed to go with Mkhwanazi into town because she thought it was going to be fast.
20. She only reported the incident in May 2022. She took long to report it because Mkhwanazi was the only science teacher and the school results will drop if he was not there. She did not want to be blamed for reporting it and not having a science teacher. She told her sister in May because at that stage, her father wanted her to travel to school every day with Mkhwanazi.
21. She didn’t tell anyone at school about the rape. She didn’t tell Fezile about the rape because she didn’t trust her enough. She told her classmates about Mkhwanazi wanting to be her friend. Her friends told her that the issue must be raised towards the end of the year because they didn’t want teaching to be disturbed.
22. She agreed it was a small vehicle. She maintained that the seat recliner control was on the left side of the seat and disputed that it was on the right-hand side of the seat. She didn’t open the door and exit the vehicle when Mkhwanazi was coming on to the passenger seat because the door was locked. She didn’t mention this before because she could not remember everything. She agreed that she could also not remember whether she was wearing a panty on the day of the incident. She tried to scream but she didn’t have a big voice so she cried. She agreed that she told her boyfriend about the incident. It was not easy to talk to her parents about such matters. She also didn’t talk to the principle because the pass rate would have dropped and because she thought that the principal would side with Mkhwanazi as a result.
23. She denied that she did not want to stay at home and that she had made up this story to convince her parents that it was not good to travel with Mkhwanazi. She was comfortable staying at home. She reported the incident to her parents because Mkhwanazi would have to give her a lift every day. She was sick, had flashbacks about what happened and had sleepless nights about travelling with Mkhwanazi so she decided to talk.
24. Mkhwanazi’s version is that, when Learner A approached him during lunch time, he made it clear that he needed to stop in town first and Learner A agreed to that. After school, they proceeded towards the township and about 700m away from the cross-road to town, he reminded her that he would stop in town first. She agreed and said her bags were too heavy. He then drove to town. He spent an hour at the bank and then went to the supermarket to buy food as he stays alone. He bought fried chips and two cans of cool drinks before returning to the car. He drove straight to the location and dropped her off at the Health Care Station. He was in a hurry that day as he needed to go to the mechanic and fix the car he was driving. Nothing else happened that day, especially not what was testified to by Learner A.
25. Mkhwanazi maintained that Learner A fabricated her version because she wanted to continue renting near school and did not want to stay at home. She tried to convince her parents that it was not good to travel with him. He also believed that the principal had something against him but couldn’t say what.
26. The principal testified about how the incident was reported and the process followed. He recommended that disciplinary action be taken against Mkhwanazi and that he be removed from school. He denied that he had any personal vendetta against Mkhwanazi. He considered Mkhwanazi to be a good science teacher and requested him to come to the school in 2016. (This version was then withdrawn by Mkhwanazi). He denied that Learner A’s father had paid him to remove Mkhwanazi from the school.
ANALYSIS OF EVIDENCE AND ARGUMENTS
27. The key issue to be determined in this matter is whether Mkhwanazi had sexually assaulted Learner A. Mkhwanazi denied that he had done so. As to whether Mkhwanazi had sexually assaulted Learner A would depend on the credibility and reliability of the witnesses and the probabilities of their versions being true.
28. Mkhwanazi’s version amounted to a bare denial of the incident. He did little to discredit most of the evidence of Learner A and failed to provide me with a probable alternative version to consider.
29. Learner A, on the other hand, was a compelling witness. She gave her evidence clearly, honestly and with sufficient details and accuracies to convince me that her version was probably true. She gave a description of how Mkhwanazi had drove around the area and showed her his house and where his doctor was stationed. This evidence was not disputed and, contrary to the Mkhwanazi’s version, it points in the direction that they did not drive straight to the township after buying fried chips and cooldrinks. This, together with her description of the park ties in with her version that they went to the park.
30. I accept her version that Mkhwanazi thereafter sexually assaulted her. She gave a detailed description of how and what happened. I accept that it was a small car but it is not impossible that Mkhwanazi could have jumped over to the passenger seat from the driver’s seat. I accept her version that she tried to push Mkhwanazi away but he held her down and that there was nothing she could do to escape Mkhwanazi’s control, eg exiting the car by unlocking the door or by screaming aloud.
31. The only real contradiction in her evidence was with regard to whether she had worn a panty on the day of the incident. I accept that the incident had taken place a year ago and, given the traumatic incident, she may have focused on the incident and not on what she wore. After she was reminded of her initial statement, she willingly agreed that she had worn a panty and maintained that her panty and track pants were pulled down at the same time.
32. I reject Mkhwanazi’s version that Learner A had fabricated her version because she did not want to stay at home and tried to convince her parents that it was not good to travel with him. This version was rejected by Learner A and it amounts to mere speculation on the part of Mkhwanazi. I accept that a substantial period of time had passed before Learner A decided to report the incident. I accept that, in her mind, she did not want to be the person to be blamed for Mkhwanazi leaving the school as this would have affected the school results. I accept that, given the nature of the incident, it would have been intolerable for her to travel daily with Mkhwanazi and that this was the reason why she had to disclose what happened at that stage. I also reject any speculation on the part of Mkhwanazi that the principal had any vendetta or motive to get rid of him from the school.
33. I therefore find that the evidence, on the whole, is sufficient to substantiate the employer’s version that Mkhwanazi had sexually assaulted Learner A. The misconduct that Mkhwanazi had committed is of a sexual nature and is dealt with in section 17(1)(b) of the Employment of Educators Act, 76 of 1998. In terms of Section 17, the misconduct is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity and that Mkhwanazi is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.
34. I therefore find that a sanction of dismissal is appropriate in the circumstances. In addition, given the egregious nature of the sexual misconduct involving a vulnerable learner, I find that Mkhwanazi should not be permitted to ever work with children again.
AWARD
35. In the circumstances I make the following award:
35.1. The employee, Msawenkosi Mkhwanazi, contravened section 17 of the Employment of Educators Act, 76 of 1998.
35.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Mkhwanazi in terms of the said Act.
35.3. The ELRC General Secretary must forward this award to the Department of Social Development for Mkhwanazi’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.