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

DEPARTMENT OF EDUCTION – MPUMALANGA PROVINCE “the Employer”

AND

V TEMBE, M NDLOVU & N ZITHA “the Employees”

SECTION 188A IBA RULING

CASE NUMBER: ELRC112 – 24/25MP (Incorporating ELRC113 &114 – 24/25MP)
LAST DATE OF INQUIRY: 5 August 2024
LAST CLOSING ARGUMENTS RECEIVED ON: 21 August 2024
DATE AWARD SUBMITTED: 30 August 2024
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council
ELRC Building
261 West Avenue
Details of hearing and representation

1. This inquiry by arbitrator process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days and the last day of the inquiry took place on 5 August 2024 at the premises of Hoёrskool Kriel in Kriel. The last of the closing arguments were received from the parties on 21 August 2024.

2. The Employer is the Mpumalanga Department of Education, represented by Ms Madingwana, Z. The accused Employees are Mr Tembe, V (“Tembe”), Mr Ndlovu, M (“Ndlovu”) and Mr Zitha, N (“Zitha”), represented by Mr Zitha, B, an official of SADTU.

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

4. The Employer submitted the documents contained in Bundle A. The Employees did not submit any documentation.

Issue to be decided

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

Background and charges

6. Tembe, an educator employed at Bonginhlanhla Primary School, is charged with the following three allegations of misconduct:

7. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.9 of the SACE Code of Professional Ethics by failing to refrain from any form of sexual relationship with either Bonisile Tsotetsi (“Bonisile”) or Refiloe Makola (“Refiloe”), who were then learners in grade 12 in Sibongamandla Secondary School (“the School”).

8. Charge 2 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 7.2 of the SACE Code of Professional Ethics by behaving in a way that did not enhance the dignity and status of the teaching profession, and brought the profession into disrepute. He brought alcohol into the premises of the School and offered it to the learners to drink, inclusive of Bonisile Tsotetsi and Refiloe Makola who were then learners in grade 12.

9. Charge 3 – misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.12 of the SACE Code of Professional Ethics by failing to take reasonable steps to ensure the safety of the then grade 12 learners in the School, Bonisile Tsotetsi and Refiloe Makola whom he stole from the matric camp and took them to a place of booze where he bought them alcohol and caused them to sleep over around the same place when they were drunk.

10. Ndlovu, an educator employed at Bonginhlanhla Primary School, is charged with the following two allegations of misconduct:

11. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.9 of the SACE Code of Professional Ethics by failing to refrain from any form of sexual relationship with either Bonisile Tsotetsi or Refiloe Makola, who were then learners in grade 12 in the School.

12. Charge 2 – misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.12 of the SACE Code of Professional Ethics by failing to take reasonable steps to ensure the safety of the then grade 12 learners in the School, Bonisile Tsotetsi and Refiloe Makola whom he chilled with at the place of booze, drank alcohol with them and ultimately caused them to sleep over around the same place when they were drunk.

13. Zitha, an educator employed at Bonginhlanhla Primary School, is charged with the following three allegations of misconduct:

14. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.9 of the SACE Code of Professional Ethics by failing to refrain from any form of sexual relationship with either Bonisile Tsotetsi or Refiloe Makola, who were then learners in grade 12 in the School.

15. Charge 2 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 7.2 of the SACE Code of Professional Ethics by behaving in a way that did not enhance the dignity and status of the teaching profession, and brought the profession into disrepute. He brought alcohol into the premises of the School and offered it to the learners to drink, inclusive of Bonisile Tsotetsi and Refiloe Makola who were then learners in grade 12.

16. Charge 3 – misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.12 of the SACE Code of Professional Ethics by failing to take reasonable steps to ensure the safety of the then grade 12 learners in the School, Bonisile Tsotetsi and Refiloe Makola whom he stole from the matric camp and took them in his car to a place of booze where he bought them alcohol and caused them to sleep over around the same place when they were drunk.

Plea

17. Tembe, Ndlovu and Zitha pleaded not guilty to all the charges and denied all the allegations against them. They were not aware that Bonisile Tsotetsi and Refiloe Makola were learners in grade 12. They first became aware of them being learners when they received the charges against them.

Summary of evidence

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

19. The learners who testified are 20 and 22 years of age respectively, and elected to testify in the same room where the Employees were seated. Although they did not require the assistance of the intermediary, the intermediary was present to assist should it have become necessary.

Employer’s case

20. Sibongile Mahlalela (“Mahlalela”) testified under oath that she is an educator at the School. She did not know any of the three accused Employees. There was a matric camp at the School on Friday 17 November 2023. During weekends, the learners were given opportunity to do their washing and self-study.

21. They were at the gate of the School at 2pm. Other learners informed them that two learners have left on Friday. The witness did not have a problem with that, but wanted to know where they went. The learners did not know where they went.

22. A white and a grey car entered the premises slowly. They drove to where the girls slept, near the library. She did not know what was happening, because parents sometimes came to visit over weekends. The vehicles left after about 5 minutes. Children came running and said that Bonisile and Refiloe got out of the two vehicles.

23. Mahlalela called Bonisile and Refiloe to find out where they were, but they did not come to her. They went to sit at a table to do self-study. She fetched them and took them back to where they were sitting with the SGB. She asked them where they were. Bonisile did not respond. Refiloe said they went out with Tembe and another gentleman, who were educators at Bonginhlanhla PS. She said they went with them to their place of residence. She said they had drinks and ended up sleeping with them. Mahlalela called their parents, who came to the School. They were informed of what happened and that management would make a decision.

24. There was voting done at the School. Mlangeni, the acting deputy principal arrived. He took over the process and spoke to Bonisile’s father. He phoned the police, and the leaners were suspended.

25. Mahlalela found out from the learners that they sneaked out of the School with the Employees, Tembe and Zitha. Bonisile and Refiloe were part of the matric camp. Mahlalela did not know whether the Employees knew that they were learners.

26. On the Friday there was a soccer match at the School. Mahlalela was not involved in the event. She was at the camp until 8pm when food was dished out. Two learners came to the staff room. They were under the influence. The next day Refiloe said to her that Tembe bought them the alcohol. She said that they all contributed money and gave it to Tembe, who bought the alcohol and brought it to the soccer match. Bonisile and Refiloe told her that the Employees were their boyfriends.

27. It appeared that the learners knew the Employees from before. Only Refiloe responded to questions. Bonisile did not speak at all. Refiloe said they went to where the Employees resided, had drinks, and slept with them. She did not specify who slept with who.

28. Educators from Bonginhlanhla PS came to the School for the soccer match. Bonisile and Refiloe were grade 12 learners.

29. During cross-examination Mahlalela testified that she could not comment on what happened at the soccer match as she was not part of it. She did not know whether the Employees took the learners from the soccer match where they were part of the people watching the game. The learners came back drunk. Only Refiloe was answering questions. She did not say whom she slept with.

30. When you looked at Bonisile and Refiloe you would never say that they were learners. They were grownups of 19 and 21 years old, respectively. The learners were not wearing uniforms on that Friday, and you could not tell they were learners. The learners did make arrangements with the accused Employees to buy them alcohol and bring it to the School. They should have known they were learners.

31. Hlengiwe Thabete-Mokoena (“Mokoena”) testified under oath that she is part of the SGB of the School. She did not know the three accused Employees. She saw on 17 November 2023 that there was a soccer match between educators and learners. The grade 12 camp was also happening.

32. Two vehicles with educators entered to support the soccer match. After the match they found two learners under the influence. They did not want to say where they got the alcohol. They started to cry. They left them with the educators. The following morning, she returned to the School and was informed that two learners were not at the School. They searched for them and reported it to the principal.

33. On Saturday two vehicles entered the grounds and went to the sleeping quarters of the learners. Mokoena went one way and Mahlalela the other way. They found that the learners were back, but it looked as if they had been drinking. They took them to the gate and questioned them. They did not want to say where they came from. They decided to call their parents. One of the learners then said that they left with educators in their vehicle to their place of residence. They slept in the one of the educator’s room.

34. Refiloe said they contributed money and sent it to the educators of Bonginhlanhla PS to buy alcohol for them. Mokoena did not know what the relationship between them were. There were only learners at the School and only parents were allowed in. There were no community members there. She saw no need to search the vehicles of the Employees when they entered the premises. The same vehicles came in on the Saturday to drop off the learners. Refiloe said they slept with the educators in different rooms.

35. During cross-examination Mokoena testified that she did not check who was at the soccer match. The School was a voter registration centre but there was no registration on that day. She did not see people loitering on the School grounds. The vehicles of the Employees were not searched. Refiloe did not say which Employee they gave the money to.

36. Refiloe Makola (“Refiloe”) testified under oath that she is 20 years of age. She is currently taking a gap year. She finished grade 12 in the School in 2023.

37. She knew Ndlovu and Zitha. She did not know Tembe. She met Ndlovu and Zitha in October 2023 at the spot where they hitched a lift. They gave her a lift to town and she and Ndlovu exchanged telephone numbers. They were in one vehicle, it was Zitha’s vehicle. She did not know Tembe, she only saw him at the School when they came to play soccer.

38. On 17 November 2023 they communicated with Ndlovu and Zitha who told them that they were coming to the School to play soccer. Ndlovu and Zitha did not know that she and Bonisile were learners. Refiloe and Bonisile told them that they were going to the School to take beverages to their siblings. They lied to them about not being learners. Refiloe was in a love relationship with Ndlovu.

39. NOTE: At stage of the proceedings Ms Madingwana wanted to have the witness declared as a hostile witness. She however decided to withdraw the application because she had no prior statement from the witness that would show any deviation.

40. Refiloe continued to testify that she and Bonisile told the Employees that they wanted to go back to the School again so that they could visit their siblings. They hid themselves in the back of the car. Ndlovu did not notice that they were hiding themselves because his attention was on driving the vehicle.

41. They had wine and they were a little drunk. They had one exam on that day. After they wrote the exam, Bonisile went out as if she were going to fetch something from her residence. She brought money and she used it to go and buy alcohol. Refiloe took the alcohol from her through a hole in the palisades and Bonisile then went back inside the School grounds through the gate.

42. The Employees came to play soccer. Refiloe and Bonisile poured the wine into a bottle, and they went to watch the soccer game. They were hiding the wine from their own educators so that they could not be caught consuming alcohol.

43. They later went back to the Employees’ residence, and then went out to a place of entertainment called Emkopeni. After they returned from Emkopeni they went to the Employees’ residence again and Refiloe and Bonisile wanted to go to sleep. They were offered Zitha’s room and Refiloe and Bonisile slept alone in that room. When they woke up the Employees prepared food for them and then took them back to the School in Tembe’s vehicle, driven by Ndlovu.

44. That day was the first time that Refiloe visited their place of residence. The educators offered Refiloe and Bonisile a separate room to sleep in on their own. Refiloe never slept with any one of the Employees. Ndlovu was her boyfriend, but it was not a serious relationship.

45. They lied to the three accused Employees when they first met them and told them that they were working. They only later found out that the Employees were educators, and they then decided to continue to lie to them about not being learners at school. Refiloe and Bonisile lied to them because the Employees made it clear that they would not get involved with learners.

46. The Employees picked them up at the School because Refiloe and Bonisile told them that they would be at the School to take money for the siblings. Ndlovu never saw Refiloe in a school uniform. She met him when they took a lift with them. They decided to lie about their status before they knew that the Employees were educators. It was common for Refiloe to lie about her working status to men who were interested in her.

47. When they were taken back to the School, they remained in the dormitory until the female educators came to fetch them. They were then questioned at the gate and their parents were called. They told their parents that they escaped from the matric camp. Mlangeni called the police, and they were expelled from the matric camp. Refiloe told Mahlalela where they were. Bonisile did not speak.

48. Refiloe denied that she made a confession to Mahlalela. She never told Mahlalela that she slept with an educator.

49. Refiloe knew that educators were not allowed to have relationships with learners. She lied to the Employees so that they would not know she was a learner. She told anyone that was interested in her that she was already out of school and working.

50. During cross-examination Refiloe testified that everyone was allowed to enter the School to visit siblings on the matric camp. They were allowed to go to the soccer game. There were learners and female educators watching the game. She cannot recall whether there were community members as well. There was control at the gate. Friends and parents were allowed to visit the learners on the camp.

51. Neither Ndlovu nor Zitha were involved in taking them from the School. She came to know Tembe on the day of the soccer match. She lied about her learner status because she was interested in Ndlovu. She did not know then what danger they put the Employees in by lying to them, but she now knew.

52. She denied that she told Mahlalela that she slept with an educator. Even if she did sleep with one, she would never have said it in front of her mother. The Employees only became aware that Refiloe and Bonisile were actually learners after they were expelled from the matric camp. They spoke to the Employees and explained to them what was going on. The Employees up to that point did not know that they were learners.

53. She did not know Tembe, and he was not part of anything that happened. She only saw him at the soccer match. She did not see him at all after that. She spoke to Ndlovu after she had been expelled.

54. Bonisile Tsotetsi (“Bonisile”) testified under oath that she is 22 years of age. She is currently at home because she did not register for college in time. She finished grade 12 in the School in 2023.

55. Bonisile only knew Zitha and Ndlovu. She did not know Tembe. She never met him and saw him for the first time at the arbitration hearing.

56. There was a soccer match on 17 November 2023 at the School. They were chilling with friends and decided to all contribute money to buy alcohol. Bonisile requested permission to exit to go and buy Grandpa tablets for her headache. She went to the shop and bought wine. She took the inner bag with the wine out of the box and put it in a plastic bag with clothes she got from home. She returned to the School and passed the plastic bag through a hole in the palisade fence at the back of the School.

57. They the drank the wine while they were chilling at the soccer match. There were players and spectators watching. Bonisile and Refiloe later they voluntarily exited the School premises in Zitha’s vehicle. Ndlovu was also in the vehicle. They went to the Employees’ residence, then they went to a place of entertainment and then back to the residence. They drank alcohol which was bought by Zitha and them.

58. Bonisile and Refiloe asked to sleep in their own separate room, and they were given a room to sleep in. They did not drink too much that day. Bonisile was in a relationship with Zitha and Refiloe was in a relationship with Ndlovu. They met them in October 2023 when they gave them a lift. When they met them, they told them they were working. They told them they had to go to the School to take clothes to their siblings. Zitha and Ndlovu dropped them off in their vehicle.

59. They were then called by Mahlalela. Refiloe explained what happened, and Bonisile kept quiet. They wanted them to agree that they were sleeping with educators, but they could not agree to that. Refiloe did not admit that she was sleeping with Ndlovu. Bonisile just started to date Zitha, and she would not sleep with a person she just started to date. Since the incident she and Zitha are no longer in a relationship. The Employees stopped seeing them when they found out that they were learners. She lied to Zitha about not being a learner. He would not have dated her if he knew she was a learner.

60. During cross-examination Bonisile testified that she was not lying to protect Zitha. She kept quiet when she was questioned because she did not want to be expelled. Ndlovu and Zitha did not know they were learners. They slept in their own room. There were also community members at the soccer match, so the Employees would not have known that they were learners. Bonisile and Refiloe took advantage of Ndlovu and Zitha, not the other way around.

61. There was no point where they could have known that they were learners. Family members also visited learners that were on the matric camp. They asked Ndlovu and Zitha to accompany them to the School to drop off stuff for their siblings, not to drop off Bonisile and Refiloe.

62. Bonisile now realised the danger they put the Employees in. Bonisile and Refiloe did not think that they would be caught out. They took advantage of the Employees.

63. She emphatically stated that the Employees did not bring wine or alcohol on to the School premises for them. Other learners were also drinking and were drunk on the day of the soccer match. Bonisile and Refiloe passed the alcohol through a hole in the fence at the back of the School. They did not take it in through the gate. Other learners brought alcohol on to the School premises in the same manner through the hole in the fence.

64. Job Mlangeni (“Mlangeni”) testified under oath that he is a departmental head at the School. He did not know the three accused Employees. There was a matric camp at the School on 17 November 2023. The School was a voting station for the IEC. The incident was reported to him.

65. He questioned the learners, but they kept quiet. He informed the principal and advised that the two learners be expelled from the matric camp. The parents were called and both Refiloe and Bonisile were sent home. Bonisile at first refused to go and the police was called in. The police came and took both out of the School premises with their belongings. He gave his report to the principal on the Monday.

66. He has no knowledge of what transpired on 17 November 2023. He was not part of the team responsible for the matric camp. He received no explanation from the learners.

67. During cross-examination Mlangeni testified that as far as he knew, the palisades were in good condition. It is possible that learners might have jumped the fence. During the camp they had one guard on day duty and one on night duty. Learners were allowed to leave the premises with permission of an educator. In 2022 they did catch four learners who jumped the fence.

68. Voters did not loiter within the School premises. Parents would drop off items for leaners. It would be done at the gate in the presence of an educator. He cannot say how the accused Employees removed the learners if security was so tight. The soccer match was between educators and grade 12 learners. Educators and learners were allowed to watch the game.

69. Thembikosi Donald Msani (“Msani”) testified under oath that he is an educator at the School. He was on the SGB and was part of the sport committee. They arranged the soccer match between the educators and learners. They invited educators from the Bonginhlanhla PS to fill up the team. Msani was the organiser of the match, so he left the SGB members and other educators in control of the gate.

70. After the match, the educators and other community members went out. He did not get opportunity to search the vehicles of the educators. They could not search their vehicles as they were their friends. He did not see anything in the vehicles as they left.

71. Only Ndlovu played in the match, Zitha and Tembe did not play. They also invited community members for purpose of participating. He did not know what happened at the gate while he was not there. Most of what happened he did not observe.

72. All openings in the fence were closed before the camp started. Learners did sometimes jump the fence where a tree gave access for that purpose. They did not realise there was a place to jump the fence it before the game.

73. During cross-examination Msani testified that on Friday there were no IEC activities. He played in the match and did not take notice of who was watching the match. There were learners watching them. There was voter registration on the Saturday. He could not say whether there were community members watching the soccer match. He did not see the educators taking the learners out. He saw the three accused Employees leaving the School premises.

74. He would not comment on how learners could disappear from the camp for a full night without the SGB or the educators in control being aware of it. The matter is sub judice and the law has to run it course.

Employees’ case

75. Velaphi Themba Tembe (“Tembe”) testified under oath that has been employed at Bonginhlanhla PS for 2 years. On 17 November 2023 he went home after school, where he met Ndlovu and Zitha. They told him that they were invited to a soccer match at the School. He went there in his own car as he had his own plans for the day. He passed security at the gate and drove to the parking area for educators. Security just asked him where he was going, and he said to the soccer match. They showed him where to go. He then went to the soccer field. Ndlovu and Zitha came in their own car. Ndlovu played in the match and Tembe and Zitha watched. There were other spectators who were not educators or learners.

76. When the match ended there was a lot of movement of educators, cars, and community members’ vehicles. Some spectators looked intoxicated. After the match Tembe left because he had an appointment with his girlfriend. He picked her up and they went to his residence. They were there together until the Monday. On Saturday Ndlovu borrowed his car. They did not ask one another where they were going when they borrowed cars. Tembe knows nothing about Ndlovu and Zitha taking learners from the School. He did not see those girls. He did not take alcohol to the School.

77. Their residence has a main house with two bedrooms. Tembe stays in one room and Zitha stays in the other room. There are also rooms outside and that is where Ndlovu stays. Where Tembe stays there is a bathroom, a toilet, and a kitchen. In the passage there is a door that separates the kitchen and the bedrooms. Tembe spend most of his time in his room. He would sometimes spend time with the others, as he is like an older brother to them. He does not entertain their private stuff, like who they are in love with.

78. He heard about the incident when the Employer charged him. He asked how he was involved, and he was told that he will find out at the hearing and then he can prove his innocence there. He does not know Refiloe and Bonisile so he could not have had sexual relations with them. He would not give alcohol to people he did not know, and he did not steal them from the matric camp. He was at home with his girlfriend the whole weekend.

79. During cross-examination Tembe testified that he did not know the grade 12 learners. The two schools are close together. Ndlovu and Zitha used his car on 18 November 2023. He did not lure the learners out of the School, did not bring them alcohol and did not let them sleep over. Both Refiloe and Bonisile testified that he was not involved in their activities.

80. Makosazana Pretty Mabuza (“Mabuza”) testified under oath that she and Tembe is lovers. They have been together for more than a year. She is with him most of the time. He picked her up on 17 November 2023 and they were together at his residence for the whole weekend. She did not see Ndlovu and Zitha that Saturday.

81. During cross-examination Mabuza testified that Tembe did not consume alcohol on that Friday.

82. Mcedisi Ndlovu (“Ndlovu”) testified under oath that he is an educator at Bonginhlanhla PS. He started there in May 2023. He was involved with Refiloe. He met her in October 2023 when they gave them a lift. They exchanged then numbers.

83. On 17 November 2023 they went to the School for a soccer match. He spoke to Refiloe and told her that they were going there. She told him that they were also going to the School, and they wanted to meet them there. It was busy when they got to the School. They signed in at security. The educator who invited them told them where to go. There were many people there. After the match he contacted Refiloe and told her they were leaving. Refiloe asked that they took them along. They came to their car, and they left.

84. They know Refiloe and Bonisile not to be learners. They said they were just taking stuff to the School. Refiloe told him that she was just hustling to make a living. They left with them openly, they did not sneak out in their car. When they got to the gate it was open and they just drove out.

85. They went to their place of residence. They went to Tops to buy some alcohol and went back home. They chilled and had some drinks. Later they went to Emkopeni to drink and dance. They went home and chilled some more. Refiloe and Bonisile then wanted to go to bed. They asked to sleep on their own in a separate room as they were not comfortable to sleep with them in a room. They gave them Zitha’s room and Ndlovu and Zitha slept in Ndlovu’s room. He did not have sexual intercourse with them. He would never force them to sleep with him. It would be a criminal offence. They allowed them to sleep where they wanted to because they wanted to continue the relationships.

86. On Saturday they drank some more. They then told the girls that they would take them home as they wanted to take the car to the carwash. On their way the girls asked them to swing by the School as they wanted to fetch items from their siblings. They dropped them at the parking area where they picked them up the previous day. They said they were just at the School to take stuff to their siblings. They knew that it was a customary practice for parents to take stuff to the School.

87. They first found out that Refiloe and Bonisile were learners when they told them late on Saturday that they had been expelled from the matric camp. Ndlovu felt hurt that the learners deceived them. They are now in trouble because the girls lied to them. When he asked Refiloe why she did it, she avoided him.

88. During cross-examination Ndlovu testified that Refiloe told him she was hustling when he asked what she did for a living. Zitha’s room is in the main house, and Ndlovu’s room is outside. They gave the girls Zitha’s room because it was inside. Zitha slept in Ndlovu’s room with him.

89. They used Zitha’s car. The girls were just in the car. He did not notice whether they hid themselves in the back. He was in front. They did not take alcohol to the School. They were in a hurry to get to the game and did not have time to stop to buy alcohol. The girls said they were going to the School to deliver items to their siblings. He respected their wish to sleep in a separate room.

90. Njabula Zitha (“Zitha”) testified under oath that he is an educator at Bonginhlanhla PS since February 2021. They met the girls when they once gave them a lift to town. They said that they were working on the shut down at the mine. He later started a relationship with Bonisile. He informed her about their invite to go and play soccer at the School. She said that they would also be at the School as they would be taking their siblings some clothes. They arranged to meet there.

91. They went to the School. After the match Tembe said that he was in a hurry, and he left. After Ndlovu took off his soccer jersey they went to the parking area. Refiloe and Bonisile came to them where they were parked. Zitha said that they were leaving, and the girls said that they would go with them as they were done with their visit. They left with them in the car. They did not hide away.

92. They went to their residence. They went to buy some alcohol and went back home. They chilled and had some drinks. Later they went to Emkopeni to drink and dance. They went home and chilled some more. Refiloe and Bonisile then wanted to go to bed. Bonisile said that they wanted to sleep on their own in a separate room as they were not comfortable to sleep with them in a room. They gave them Zitha’s room and Ndlovu and Zitha slept in Ndlovu’s room. He did not have sexual intercourse with them. He would never force himself on someone that is not sober. They allowed them to sleep where they wanted to.

93. On Saturday they drank some more. They then told the girls that they would take them home as they wanted to take the car to the carwash. On their way the girls asked them to swing by the School as they wanted to fetch items of clothing from their siblings which they had to take home to be washed. They dropped them at the parking area where they picked them up the previous day.

94. He never knew they were learners. They did not look like they were learners. They played them for fools. He blocked Bonisile and deleted her number. He has not seen her again until at the arbitration. He knew that an educator can be dismissed for engaging in a relationship with a learner. He would never have started a relationship with her if he knew she was a leaner.

95. During cross-examination Zitha testified that working on the shutdown means one is hustling. You work when there is work. Tembe was in his room when the girls were there. They left openly in Zitha’s car, there was no sneaking away. It was dark when they left, and he was focused on his driving. He had no desire to sleep with Bonisile when she was drunk. He would never sleep with a person who visited him for the first time while being drunk. He did not know why they lied to them about their status.

Summary of arguments

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

Analysis of evidence and argument

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

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

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

100. Tembe is charged with the following three allegations of misconduct:

101. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.9 of the SACE Code of Professional Ethics by failing to refrain from any form of sexual relationship with either Bonisile Tsotetsi (“Bonisile”) or Refiloe Makola (“Refiloe”), who were then learners in grade 12 in Sibongamandla Secondary School (“the School”).

102. Charge 2 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 7.2 of the SACE Code of Professional Ethics by behaving in a way that did not enhance the dignity and status of the teaching profession, and brought the profession into disrepute. He brought alcohol into the premises of the School and offered it to the learners to drink, inclusive of Bonisile Tsotetsi and Refiloe Makola who were then learners in grade 12.

103. Charge 3 – misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.12 of the SACE Code of Professional Ethics by failing to take reasonable steps to ensure the safety of the then grade 12 learners in the School, Bonisile Tsotetsi and Refiloe Makola whom he stole from the matric camp and took them to a place of booze where he bought them alcohol and caused them to sleep over around the same place when they were drunk.

104. Ndlovu is charged with the following two allegations of misconduct:

105. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.9 of the SACE Code of Professional Ethics by failing to refrain from any form of sexual relationship with either Bonisile Tsotetsi or Refiloe Makola, who were then learners in grade 12 in the School.

106. Charge 2 – misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.12 of the SACE Code of Professional Ethics by failing to take reasonable steps to ensure the safety of the then grade 12 learners in the School, Bonisile Tsotetsi and Refiloe Makola whom he chilled with at the place of booze, drank alcohol with them and ultimately caused them to sleep over around the same place when they were drunk.

107. Zitha is charged with the following three allegations of misconduct:

108. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.9 of the SACE Code of Professional Ethics by failing to refrain from any form of sexual relationship with either Bonisile Tsotetsi or Refiloe Makola, who were then learners in grade 12 in the School.

109. Charge 2 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 7.2 of the SACE Code of Professional Ethics by behaving in a way that did not enhance the dignity and status of the teaching profession, and brought the profession into disrepute. He brought alcohol into the premises of the School and offered it to the learners to drink, inclusive of Bonisile Tsotetsi and Refiloe Makola who were then learners in grade 12.

110. Charge 3 – misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that on or about 17 November 2023 he contravened section 3.12 of the SACE Code of Professional Ethics by failing to take reasonable steps to ensure the safety of the then grade 12 learners in the School, Bonisile Tsotetsi and Refiloe Makola whom he stole from the matric camp and took them in his car to a place of booze where he bought them alcohol and caused them to sleep over around the same place when they were drunk.

111. It is not disputed by the Employees that the actions that they had been charged with constitute misconduct. They denied committing the alleged misconduct as set out in the charges below. Tembe alleged that he did not know Refiloe and Bonisile, and that he was not involved with their activities at all. Ndlovu and Zitha alleged that they did not know that Refiloe and Bonisile were learners, as the girls deceived them and told them that they were working on the shutdown on the mine. They did not have sexual relationships with them. They did not bring alcohol into the School premises and did not offer it to learners. They did not steal the learners from the matric camp.

112. It is clear from all the evidence on behalf of both the Employer and Employees that Tembe was not involved with the two learners Refiloe and Bonisile at all. He was in his room with his girlfriend at all times while the girls were at their place of residence. He also did not have drinks with them, and he did not transport them anywhere.

113. It became evident during the testimony of all the witnesses that the control measures applied by the SGB and the educators in respect of the matric camp at the School left a lot to be desired. Learners were able to slip alcohol into the premises through or over the palisade fence without it being detected or prevented by the people in control. It led to a reluctance to answer questions in that regard because the matter was supposedly sub judice. It is also in this light that the so-called confession by Refiloe to Mahlalela should be considered. Although the Employer’s representative alluded that Refiloe and Bonisile changed their versions during the arbitration hearing, she did not continue with an attempt to have Refiloe declared a hostile witness because no statements were taken during the investigation that could be used to show deviation. Refiloe explicitly denied that she ever admitted to having a sexual relationship with Ndlovu. According to Refiloe such admission would have been made in front of her mother, if Mahlalela is to be believed, which would be highly improbable. She testified that even if it were true that she had sexual relations with Ndlovu, she never would have admitted it in front of her mother. She testified however that she never had any sexual relationship with Ndlovu at all.

114. The version of Ndlovu and Zitha that they were deceived by Refiloe and Bonisile into believing that they were not learners, but that they were working on the shutdown on the mine, is undisputed. Refiloe and Bonisile admitted as much. I find on a balance of probabilities that Ndlovu and Zitha did not know that they were grade 12 learners, and that they could not be expected to have known it. Refiloe was 19 years old, and Bonisile was 21 years old. Their appearances during the arbitration hearing also were that of adult young females. They did not obviously look young in a way that it could be argued that the accused Employees should have doubted their stories. The Employer’s first witness, Mahlalela, testified that when you looked at Bonisile and Refiloe you would never say that they were learners. They were grownups of 19 and 21 years old, respectively. The learners were not wearing uniforms on that Friday, and you could not tell they were learners.

115. I find no material discrepancies or inconsistencies in the evidence of the learners Refiloe and Bonisile, as well as the three accused Employees Complainants that would negatively affect their credibility. The witnesses of the Employer, Refiloe and Bonisile, as well as the three accused Employees corroborated the evidence that there were no sexual relationships between Ndlovu and Refiloe, and Zitha and Bonisile. In respect of charge 1, there is therefore no evidence upon which I can find on a balance of probabilities that Tembe, Ndlovu and Zitha failed to refrain from any form of sexual relationship with either Bonisile or Refiloe.

116. The witnesses of the Employer, Refiloe and Bonisile, as well as the three accused Employees corroborated the evidence that that Tembe and Zitha did not bring alcohol into the School premises and did not offer it to learners to drink. In respect of charge 2 against Tembe and Zitha, there is therefore no evidence upon which I can find on a balance of probabilities that Tembe and Zitha brought the profession into disrepute by bringing alcohol into the School premises and offering it to learners to drink.

117. The witnesses of the Employer, Refiloe and Bonisile, as well as the three accused Employees corroborated the evidence that they did not steal Refiloe and Bonisile from the matric camp, and they did not cause them to sleep over at a place of booze where they bought them alcohol. The undisputed evidence shows that they went back to the residence of the Employees where Refiloe and Bonisile slept alone in a separate bedroom in the house, not at a place of booze where they bought them alcohol as alleged in the chargesheet. In respect of charge 3 (charge 2 against Ndlovu), there is therefore no evidence upon which I can find on a balance of probabilities that Tembe, Ndlovu and Zitha failed to take reasonable steps to ensure the safety of grade 12 learners by stealing Refiloe and Bonisile from the matric camp, and causing them to sleep over at the same place of booze where they bought them alcohol.

118. Therefore, with consideration of all the relevant probable evidence, I find that the Employer did not provide evidence that proves on a balance of probabilities that Tembe, Ndlovu and Zitha committed the misconduct as contained in charges 1, 2 and 3. There is therefore no evidence before me that proves that the accused Employees contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding
119. The accused Employees, Mr Tembe, VT, Mr Ndlovu, MS and Mr Zitha, N, are found not guilty on all the charges.

Finding in respect of section 120 of the Children’s Act 38 of 2005
120. In the light of my finding above, I make no finding in terms of Section 120(1)(c) of the Children’s Act 38 of 2005.

COEN HAVENGA
Senior ELRC Arbitrator