Part Time Senior Panelist: M.A. HAWYES
Date of Award: 6TH of August 2024

In the ARBITRATION between

Free State Department of Education

(Employer)

And

Thelma Moeketsi

(Employee)

Union/Applicant’s representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Free State Department of Education offices in Bloemfontein and sat for hearing on the following days namely the 19th of January 2024, the 21st and 22nd of February 2024, the 8th, 9th and 10th of April 2024, the 15th and 16th of May 2024 and the 24th and 25th of June 2024. The case was later scheduled to the 24th, 25th and 26th of July 2024 and ended up being finalized on the 25th of July 2024.

2. After completion of the inquiry by arbitrator the parties were given 7 calendar days to submit their written closing arguments. Both parties for the most part submitted their arguments on time and my award now follows.

3. Mr. M.D. Mbhele, a union official from SADTU, represented the employee, Thelma Moeketsi.

4. Ms. L. Cweba, a labour relations official, represented the employer. Free State Department of Education.

5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.

6. The following bundles of documents were utilized namely employer bundle “A” which consisted of 86 pages of Whats App messages. Employee bundle “B1” consisting of 33 pages. Employer bundle “C” consisting of various photographs and Employer bundle “D” consisting of another batch of What’s Apps.

7. An intermediary (Ms. M.A Mphatane) assisted the complainant (NN) in this matter. NN was born on the 21st of November 2005 and at the time the arbitration commenced she was already 18 years old. NN bravely insisted that she wanted to testify in English in the presence of the employee, and she could not be persuaded otherwise.

8. A Zulu interpreter (Mr. L.L. Mpitsi) assisted the witnesses with interpretation services.

ISSUES IN DISPUTE
9. I omitted to have the charges read to the Applicant. It was clear, however, that the employee intended to plead not guilty, and the hearing proceeded on the basis that this was in fact her plea.

10. The employee was charged with a contravention of section 17 (1) (c) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA). It was alleged that between June 2022 and January 2023 the employee had a sexual relationship with NN, a learner at Rantsane Secondary School where she was employed.

11. It is common cause that the employer employs the employee as a PL 1 educator at Rantsane Secondary School.

BACKGROUND TO THE EVIDENCE AND ARGUMENT

12. Before commencing with a survey of the evidence and argument dealt with at this arbitration it is necessary to give some context as to how the allegations of misconduct arose.

13. It is also necessary to mention the events that occurred at the arbitration itself which will be useful in assessing the seriousness of the case in general.

14. It is common cause that the Hawks are investigating, criminal kidnapping and attempted murder charges against the employee flowing from the events that will be detailed in this award.

15. The cases that emanated from and were reported at Qwa Qwa police stations were later transferred to a dedicated unit in Bloemfontein to preserve the integrity of the investigations.

16. I was advised that threats had been made against the life of the complainant NN by various persons and I was further advised that NN had been removed from the custody of her grandmother (a witness at this arbitration) and Rantsane Secondary School and placed in witness protection and at another school.

17. During many days that NN testified and was cross examined three persons from the Hawks were present at the arbitration hearing. One person sat inside, and two persons patrolled the passages immediately outside the hearing room during the course of the various sittings.

18. I believe that this is the first labour law case that I have dealt with where a convergence of criminal law and labour law processes has been so evident.

SURVEY OF EVIDENCE AND ARGUMENT
19. The first witness to testify for the employer was the complainant N.N. who at the time of the alleged incidents was a grade 11 pupil at Rantsane Secondary School.

20. N.N commenced her testimony on the 21st of February 2024 and continued her evidence in chief and later cross-examination on the 22nd of February 8th, 9th and 10th of April and the 15th of May 2024.

21. N.N freely admitted to being a member of the LGBTQ+ community and expressed her preference for relationships with women.

22. NN testified that she knew the employee as an educator at the school although the employee never taught her any subjects.

23. She first bumped into the employee at a taxi stop where they both caught taxis home.

24. The employee took an interest in NN’s academic performance, offering her additional help and support with her schoolwork. The initial interaction was centered around academic mentoring, where the employee provided extra lessons and guidance.

25. NN testified that the employee’s support extended beyond school academia. The employee began to show personal interest in her well-being, inquiring about her personal life and offering emotional support.

26. Over time the employee started involving NN in extracurricular activities and invited her to spend more time with her outside of school. These activities included social gatherings and visits to the employee’s home.

27. NN described feeling special due to the attention and opportunities provided by Moeketsi, which strengthened their bond.

28. Over time, the relationship gradually escalated from a mentor-mentee dynamic to a more personal and inappropriate connection.

29. The sexual tension started when NN made a series of visits to the school staffroom where she met the employee who made came up behind her and touched her waist and said that she liked her. On another occasion at the staffroom the employee kissed her but later apologized when they met at the taxi rank.

30. NN described being nervous about what had happened because it is not normal for an educator to touch a learner but considered it a mistake because the employee had apologized to her.

31. However, they commenced speaking on What App and it was here that they engaged in many intimate conversations. The Whats App conversations between the two are purportedly captured at Bundle “A”.

32. NN testified that “she caught feelings for the employee” and they eventually commenced an intense sexual relationship.

33. After their relationship had escalated NN related an incident that occurred at the beginning of July 2022 shortly after the schools had closed for the holidays.

34. Her grandmother sent her to the shop together with a friend early in the morning (approximately 7h00).

35. Whilst on their way the employee stopped next to them in her silver Polo Vivo. She introduced her friend to the employee. The employee told her friend that she wanted NN to come with her. She then gave her friend money and told her to tell NN’s grandmother that she had left with another lady but not to say who she had left with.

36. NN testified that she did not know how the employee knew that she was on her way to the shops since she was still in her pajamas.

37. Because of their intimate relationship she agreed to go with the employee, and they departed for what she later discovered was Limpopo.

38. They later arrived in the dark at a small place of residence. Later that night a Nigerian lady by the name of Joyce Nkita arrived. The employee introduced her to Joyce and indicated that Joyce would be helping her with music and acting.

39. The employee told her that she was going to take her home, but she did not. NN testified that she trusted the employee because she had seen her innocent side.

40. NN testified that Joyce had asked for her cell phone number, but she refused that she did not give her cellphone number to strangers. She later gave Joyce her Facebook email address.

41. Later the employee gave her a Coke and a yoghurt. Shortly afterwards she started feeling dizzy and fell asleep. When she fell asleep she still had her pajamas on. When she woke up the next morning she found that she was naked and alone.

42. This happened over the next few days. NN testified that she thinks it was 10 days. She lived on Coke and yoghurt for 10 days went to be clothed and woke up naked.

43. NN testified that she had access to her phone which had been off most of the time. On the 10th day she sought help from a DJ (Rakometsi) from one of the local radio stations who eventually in boxed her. NN told Rakometsi of her predicament and indicated that she needed money to get home. Rakometsi eventually sent her R1500-00 via e-wallet.

44. NN testified that she made friends with a neighbor (male) who she sensed that she could trust because he showed concern. She asked him to draw the money for her which he did. She took his cell phone number and told him she would explain later. She then climbed over the fence and caught taxis home.

45. When she arrived home her grandmother told her that the police and social worker were looking for her. She testified that she was tired and went to bed full of anger.

46. NN testified that she later contacted the employee over Whats App to express how disappointed she was with her conduct. The employee did not respond.

47. NN testified further that when the schools re-opened she was nervous to go to school having heard nothing from the employee but as a strong girl she went to school.

48. She eventually bumped into the employee and the employee apologized.

49. NN testified that after a few days she Whats Apped the employee and told her that she accepts the apology and things between them went back to normal with no grudges held.

50. NN testified that in September 2022 she made an attempt to tell an educator at the school by the name of Monareng (being a member of the School Governing Body (SGB) what was going on. Monareng showed no interest in getting involved with NN’s relationship with other educators and stated that she was in the process of extending (renovating) her house.

51. NN testified that she was growing uncomfortable with the situation with the employee.

52. She was disappointed that Monareng had fobbed her concerns off and NN admitted to suicidal thoughts. She thought that if Monareng did not have an issue with her relationship with the employee it would be ok to continue it.

53. NN testified that time went on and the employee approached her to make a baby with her. She wanted to arrange for some random guy to impregnate her.

54. NN testified that she initially thought that the employee was joking but later told the employee that she was too young to have a baby.

55. NN testified that on the 26th of December 2022 she was at one of the shopping complexes with her grandmother and other family members.

56. The employee arrived with a guy and told her aunt that the principal was at the school, and they urgently needed NN to help them with something at school.

57. As her aunt began questioning the nature of the urgency and before her grandmother could return from the shops NN testified that she was whisked off in the car.

58. They went to a place called the Industrial Carwash where she was introduced to the guy who would be her partner in having the baby.

59. NN testified further that the employee gave her a coke and bought food for the guy and the employee.

60. The guy mentioned that he had been promised R50 000-00 if he was able impregnate her and she would receive money as well.

61. NN testified that she refused to have sex with some random guy because she was too young. The guy shouted at her, and she asked to be taken home. The employee took her home around 17h00. When she got home she experienced the same dizzy feeling as before.

62. Joyce shared a picture of a pile of money (see Bundle A “15”) and told NN that this was the money that they had made from four missing girls in Harrismith.

63. Later the employee gave her R5000-00 cash from the money at A15, but a short while later requested the money back.

64. NN admitted that she had not told her family of her intimate relationship with the employee, and they were growing increasingly suspicious and threatened to contact the employee and her family.

65. NN testified that she and the employee met many times after school. The employee would pick her up at the bus stop and take her home where they would get romantic and eventually engage in sexual intercourse.

66. NN testified that because of her feelings for the employee she would protect her from the growing anger of her family because of their relationship.

67. Because of her feelings for the employee and despite her reluctance to have a baby at such a young age she agreed to meet the employee and the guy on the 20th of January 2023. The employee had arranged everything, and she picked them both up and drove them to a house in Kester to consummate the deed.
68. She and the guy went inside while the employee waited outside in the car.

69. When inside the house the guy said he needed to be quick and if he managed to impregnate her he would be paid for the rest of his life. The guy was approximately 35 to 36 years old.

70. NN testified that she suffered a pang of conscious and refused to have sex with the guy.

71. When he became insistent she walked out of the room to the next room and rummaged in the cupboards. She discovered a handgun, picked it up and returned to the room. She then pointed the gun at him. The guy realized that she was serious in her refusal, but she shot him by mistake in the hand. They stopped the bleeding with towels. NN deposed that the gun had a silencer on it.

72. They agreed to wait 30 min before leaving the house. The employee appeared happy with what had transpired and took them home.

73. In February 2023 the relationship between the employee and NN began showing signs of breaking down because of the realization that the employee was manipulating her and not taking her feelings and wellbeing into account. They began to fight.

74. At one point the employee had phoned her grandmother and told her that if she loses her job NN would lose her life.

75. After a fight in the staffroom on the 17th of February 2023 NN testified that she realized that the relationship with the employee could not go on. It was at this stage that she reported the situation to the principal and various educators.

76. An appointment with a psychologist was arranged and the family reported a case at the police station on the 28th of February 2023.

77. Shortly after this whilst at school, NN received a message from a learner to meet someone at the school fence. There she met Joyce who gave her a coke. Joyce told her to collect a yoghurt from the employee which she did and which she consumed.

78. After that she did not know what happened and later woke up in hospital. She was placed on a drip and given medication and also found that she was being guarded by the police. The police contacted her grandmother. She remained in hospital for two days.

79. Two cases were reported to the police. The February case has reference number 41/03/23 and the second case (Kidnapping) has reference number 24/05/23.

80. The testimony of NN culminated on the 22nd of May 2023 when she stated that she was on her way to a friends house to do homework. She was carrying her favorite teddy bear with her.

81. She heard someone call her and as she turned around she saw a large silver car and felt someone placing a cloth over her nose and mouth. She passed out and awoke in a bathroom with Joyce present. NN asked about her teddy bear and Joyce assured her that the teddy bear was there and safe.

82. The employee then came into the bathroom with muffins and gave NN some. She did not want to eat the muffins fearing that they were drugged and spilled most of the contents on the floor.

83. During the course of the night both Joyce and the employee insisted that NN give them her password to her cell phone. NN consistently refused and told them that they could kill her, but she would not give them her password.

84. NN testified that her phone contained the photos of her and the employee together and screenshots of their Whats App conversations. Joyce and the employee wanted to delete this evidence.

85. At one point during the course of the evening the employee slapped her. The following morning, she was taken to a nearby river. The employee placed her at the edge of the river whilst Joyce was taking photographs. The employee proceeded to throw NN’s teddy bear into the river. The phone was carelessly thrown aside onto the riverbank near a tree.

86. NN then testified that the employee kicked her, and she fell unconscious into the river. She was later woken up by the coldness of the river water and rescued by local women who were collecting wood.

87. One of the ladies contacted her grandmother and the police and her family arrived shortly thereafter. NN testified that she was taken to Elizabeth Ross hospital in the Qwa Qwa area.

88. NN stated that after the second kidnapping she was sent to a psychologist in Bloemfontein after she experienced severe nightmares. NN also stated that she was currently on medication for Post Traumatic Stress Disorder (PTSD) and depression.

89. NN stated that after the cases were opened at the police station the employee harassed her and texted her on Whats App. The employee mocked her saying that no one would take her seriously.

90. In closing NN testified that things changed when she saw the manipulative side of the employee when the employee asked her to make a baby for her. She had loved the employee with all her heart. Her (NN’s) father had died under difficult circumstances and the employee had comforted her and given her advice.

91. Yet it was now apparent that the employee had taken advantage of her vulnerability, didn’t really care about her and had been grooming her for sexual pleasure all along.

92. Thereafter cross examination commenced and NN was subjected to intense cross examination. Cross examination commenced on the 22nd of February 2024 and continued on the next days of set down until the 16th of May 2024.

93. Although there were various breaks to accommodate NN as she struggled with illness and exhaustion during rigorous cross-examination, cross examination continued relentlessly for a period of five and a half days.

94. On the 16th of May 2024 I took a decision that the nature of the cross examination was unduly repetitious and designed to delay the process. I then ruled that cross examination would be suspended and the employer representative indicated that she was waiving her right to re-examination. I will return to this aspect in my evaluation of the evidence.

95. The second witness to testify was Mrs. SMS Monareng.

96. Monareng testified in her capacity as NN’s grandmother and legal guardian. She testified that she had a close relationship with NN in caring for her.

97. Monareng related the events in July 2022 when NN was kidnapped and only returned after 10 to 11 days.

98. When NN’s friend returned to say that NN had been taken by a lady in a car she went to the police station to open a missing person’s case and furnished the police with a photo of NN.

99. Monareng testified inter alia that she received a call from a radio presenter at a Qwa Qwa radio station who confirmed that NN had made contact with her, that she was in Limpopo and further that she had sent NN money to get transport to come home.

100. Monareng testified further that when NN arrived home she was not in a good state. NN later related the events of where she had been. NN also mentioned whilst sobbing the identity of Joyce, the drugs contained in Coke and yoghurt and the human trafficking allegations.

101. Monareng also described the events that occurred on the 26th of December 2022 whilst NN, her uncle and aunt and the witness were shopping at the mall.
102. Monareng testified that she was inside the mall shopping whilst NN and her aunt and uncle were waiting outside near the entrance to the mall. As she came out of the mall she saw a car driving away with NN. She was later advised that the employee had apparently taken NN to school because the principal needed her to assist them with something.

103. Monareng testified that NN arrived home with a yoghurt and a Coke, and her eyes were red.

104. The family demanded that NN give them the employees cell phone, but NN refused to give it to them.

105. Monareng also testified about the events that occurred in February 2023 when a motor vehicle arrived from Rantsane School, and the driver advised that NN had been poisoned and taken to hospital.

106. Monareng testified that blood and toxicology tests were done which the police later collected. She did not know the outcome of the reports. NN was hospitalized for a week.
107. A case was opened at one of the local police stations against the employee and the school.
108. Whilst the case was being investigated the employee, her mother and one other person arrived at their home. NN was not present at home at the time. Monareng testified that the employee was kind with her and indicated that she was there to apologize. If the family were prepared to drop the criminal charges she was prepared to compensate them.

109. Monareng deposed that the case was beyond hers to withdraw since it involved the school as well and the employee and her family departed.
110. Monareng then described the events of the 23rd of May 2023. NN arrived back from school and Monareng testified that she sent NN to the tuck-shop. She was still in her uniform and had her school project in her hand as she wanted to work with a friend and classmate.
111. At 18h00 NN was still not home They tried to phone NN’s cell phone all in vain.
112. Later that evening NN’s uncle and brother received Whats Apps from Joyce indicating that she was with the employee, and they had taken NN.
113. Monareng then contacted the police and NN’s friend who confirmed that NN had not arrived to do the homework together.
114. The police phoned the employee and she said that she was at a workshop and denied knowing NN.
115. The principal of the school knew nothing about a workshop. Monareng then laid a charge of kidnapping at the police station.

116. Later a female phoned to say to say that NN had been found in a river. The police went to fetch NN, and she was taken to hospital.
117. NN’s uncle later received Whats Apps from Joyce Nakita showing NN placed at a riverbank with the employee having a foot on her back, giving condolences and offering to pay for the burial costs. It was the same Joyce that NN had spoken about in the Limpopo kidnapping.
118. Monareng testified that NN had eventually admitted having a romantic and sexual relationship with the employee. NN would often arrive home late or only the following day. NN would tell her that she did not eat feeding scheme food anymore but rather the employee’s lunch. However, it was only when the matter was reported at the school that she gained full insight into the extent of NN’s involvement with the employee.
119. The police advised her that NN was not safe and a short while thereafter the cases were transferred to Bloemfontein.
120. Monareng testified that NN had mentioned the shooting event when the employee wanted her to have a baby for her with an unknown male.

121. Finally, Monareng testified that after the cases were opened in Qwa Qwa some of the police officials were threatened. The Hawks eventually took over the cases in Bloemfontein. The case is currently in the Bloemfontein High Court.
122. Monareng was cross examined at length.
123. The third witness to testify was Mr Thapelo Monareng (TM). He stated that the previous witness was his mother, and that he was the uncle of NN.
124. TM testified that he knew that NN was involved in a sexual relationship with the employee. In 2002 NN had not arrived home at 19h00 and he went looking for her. He found her in the employee’s car kissing. It was a silver car. He had also seen them together numerous times particularly at the bus stop between Katlehong and Slovo Park.
125. NN admitted to sleeping out at the employees home on several occasions.
126. NN had also related the incident where the employee had organized a Nigerian male to sleep with her so that they could make a child for the employee. TM testified that he was not sure whether NN had slept with the guy.

127. TM gave a detailed account of the events that led to NN being found in Limpopo and how she got back home.
128. TM testified that NN had told him that the employee had wanted her handwriting. He wasn’t sure why. A short while later he received Whats App’s from Joyce Nakhita (he did not know her) telling him to send her a sample of NN’s handwriting and that they would give him R100 000-00. TM testified that he refused to give them any handwriting of NN.

129. It was at this point that TM stated that he had a number of other Whats App messages from Joyce on his phone following this event.
130. Mbhele raised an objection that he was not aware that TM had messages from Joyce on his phone. I directed that the matter should stand down and that Ms Cweba should go through the witnesses phone, make copies of all the messages from Joyce and place them in a new bundle marked Bundle “D”.
131. Mbhele raised an objection that the messages had not been authenticated and that they should be rejected as forming part of the evidentiary material. This application was denied, and Bundle “D’ became part of the record of proceedings.

132. TM also testified that he observed the employee drive off with NN at the Makaka Mall whilst his mother was in the Mall shopping on the 26th of December 2022.
133. He also related the incident of the employee arriving at their home with her mother and one other person asking for forgiveness and requesting his mother to withdraw the first charges against the employee. TM testified that he was very much a part of the meeting. They offered to pay her R50 000-00. His mother refused to accept the bribe and they left the family home.

134. Finally, TM confirmed that NN had been on her way to a friend when someone sedated her by covering her mouth and nose.
135. After NN’s disappearance Joyce had Whats Apped him that the employee had brought NN to her. Joyce then began sending him regular messages and in some instances photos..
136. Joyce sent him a message and a photo showing her and the employee dragging NN to the river. The photo was later deleted but the message remained.
137. Joyce also asked for him to furnish them with NN’s cellphone pin number (See Bundle “D” page 6). TM testified that he refused to give Joyce NN’s pin number.

138. At Bundle “D”, page 3, Joyce admitted to having NN and her teddy bear. Other relevant messages from Joyce can be found at D 4 and D 11. Joyce admitted to helping the employee to tie NN up and mocks TM that she got what was hers without any help from him. TM testified that he showed the Whats App messages to his mother.

139. After the witness completed his evidence in chief on the 24th of July 2024 I stood the matter down until 9h00 on the 25th of July 2024 for Mbhele to acquaint himself with the contents of Bundle “D” and to consult with his member before commencing cross-examination.
140. On the 25th of July 2024 Mbhele brought a second application for my recusal. After hearing oral submissions, the application was refused.
141. I encouraged Mbhele to commence his cross examination of TM, but Mbhele showed no interest to do so and sat silently as if waiting to see what my next move would be. I stood the matter down and consulted with the Senior Manager at the ELRC, Mr Moela. Mr Moela contacted the General Secretary of the ELRC who was abroad at the time. It was eventually agreed that I would proceed in the employee and union officials absence if they refused to participate in the arbitration going forward.

142. Upon resumption the employee and Mr Mbhele did not return to the hearing room, and I recorded that the employee had waived her right to cross examine TM. The witness was excused, and the employer then closed her case. At this point the employee and Mbhele re-entered the hearing room and silently sat down. When I posed questions at Mbhele he just stared at me. It was impossible to proceed with this type of childish and insubordinate conduct. I deemed the employees case to be closed on the basis that a refusal to participate in the proceedings was tantamount to a walkout.
143. This concluded the arbitration on the 25th of July 2024 and the parties were directed to submit written closing arguments as alluded to in paragraph 2 above.

ANALYSIS OF EVIDENCE AND ARGUMENT

144. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.
145. The testimony of NN was a lengthy odyssey conducted over many days. NN was a brave and confident witness who would often scorn the quality of some of the questions put to her in cross examination by Mbhele.
146. Although brave she showed definite signs of fatigue and stress during the course of the relentless cross examination. The hearing had to stand down or be adjourned to deal with fatigue or illness. Progress was slow. NN was also ill on occasion necessitating adjournments.
147. The style of cross examination involved getting the witness to recount events in minute detail with the hope of drawing out contradictions and inconsistencies. NN did battle to remember certain detail and there were some inconsistencies from her evidence in chief and during the course of cross-examination.
148. However, it is important to focus on the big picture here and not get hung up on the little fox detail.

149. Mbhele understandably and perhaps predictably objected when I took the somewhat unprecedented step of unilaterally terminating his cross examination of NN. At the point of termination Mbhele had resorted to repeating cross examination that he had covered days before and was clearly trying to frustrate the witness and the process. I perceived that one of his strategies was to unduly prolong cross examination with repetitive questions, switching from cross examination in English to Zulu and making concerted efforts to irritate the Commissioner.
150. Mbhele objected when the employer representative objected to certain aspects of his line of questioning as if this was not permitted by the normal process of an arbitration. Mbhele kept referring to certain “breaches” of the ELRC rules. When I asked him what rules he was talking about he got angry and started accusing the Commissioner and the employer representative of conspiring to derail his cross examination. Mbhele was clearly dismayed when his attempts to gain an ally in Mrs. Cweba to discredit the Commissioner failed.

151. Mbhele disrupted the process by frequently phoning the ELRC directly and complaining of my conduct and raising spurious allegations designed to embarrass me in the eyes of the ELRC senior management, hoping that it would delay the continuation of the process unduly. Mbhele and his member without exception arrived late at all set downs of the hearing and then had the temerity to complain that I was delaying the process when I mero motu granted him a postponement to the 26th of July 2024 to consider and prepare for cross examination of witness Thapeng Monareng after the Bundle “D” messages came to light and I admitted them into evidence. It was apparent that Mbhele had been caught off guard by the witnesses reference to these messages and I deemed an adjournment to the next day for him to prepare for cross examination appropriate. He was also upset that I had rejected his argument that the authenticity of the messages had not been established. More about this when I evaluate the evidence in greater detail.

152. Instead of preparing for cross examination and then on the 26th of July commencing cross examination Mbhele resorted to disruptive tactics, refused to cross examine, became obstructive in the process and falsely and dishonestly lodged another complaint with the ELRC.
153. Mbhele’s conduct with the obvious approval of his member lead to the arbitration being finalized quicker than had been anticipated with both refusing to participate in the process any further.
154. Mbhele was warned twice for contempt during the course of the proceedings in terms of section 142 (8) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA). I did not find him in contempt purely as a means of showing restraint. I suspect that the record might reflect clearly contemptuous behaviour, however.
155. It is clear that Mbhele was trying to deflect attention away from the conduct of his member and shine the spotlight on the conduct of the Commissioner hoping to delay the finalization of the inquiry by arbitrator and mask his own inappropriate actions.
156. I will not be deterred in dealing with the substantive merits of this case and I do not wish to give too much attention to the diversionary antics of the trade union.

157. The Respondent is required to prove the existence of a sexual relationship between NN and the employee to prove the allegations on a balance of probabilities. No more, no less. This it may achieve by presenting all the evidence, direct oral or circumstantial including the documentary and real evidence which it did.

158. I found the evidence of NN to be brutally honest and ultimately reliable. Her evidence was not perfect, but it must be remembered that it has been a while since the events have occurred and on the many occasions that she was drugged this may have affected her ability to recall small detail. She is also suffering the debilitating effects of depression, post-traumatic stress and having to be involved in an upcoming criminal trial where the stress of this arbitration is likely to be repeated in the High Court. She has also been ripped away from her support structure with her grandmother and other close family and placed in witness protection for her own safety.

159. The evidence of NN’s grandmother and uncle corroborated NN on all the major aspects of her evidence. I also found them to be good reliable witnesses. Their evidence collectively demonstrated that intimacy and eventually an intense sexual relationship had developed between NN and the employee.
160. Mbhele, in cross examination, attempted to raise allegations that NN had initiated inappropriate conduct with educators at other schools that she had attended. This was intended to show that NN was prone to initiate inappropriate and unreciprocated acts of affections with other educators. The employee denied ever being involved with NN and denied knowing a person by the name of Joyce.

161. Mbhele indicated that he wanted to call a number of witnesses from NN’s previous schools to prove the veracity of these claims. The employee also sought to rely on various written statements ostensibly from NN herself where she apologized for her behaviour with other teachers at her previous schools. NN in her testimony denied inappropriate conduct with teachers from other schools or penning any statements apologizing to them. Her grandmother supported her testimony in this regard and stated that if this had been the case the incident(s) would have reported to her by the school as NN’s guardian. Nothing had ever been reported to her.

162. In light of the employee and Mbhele’s refusal to participate in the arbitration after the evidence in chief of NN’s uncle it is obvious that the allegations put in cross examination to NN are hearsay and hence unreliable. These allegations are rejected and will not be considered as part of the evidentiary material.
163. Perhaps the most convincing evidence and the major corroborating aspect of NN’s evidence are the two bundles of Whats App messages contained at Bundle “A” and “D. One could say that the legal maxim res ipsa loquitor (the facts speak for themselves) is applicable to this documentary and real evidence.
164. Mbhele attempted to discredit the Whats App messages in Bundle “A” by pointing to some variations of colour and other alleged aspects that he argued during the cross examination of NN, showed that the messages had been tampered with.
165. Unfortunately, no expert evidence was led on behalf of the employees case to provide motivation on how What’s App messages sent to NN’s phone could be manipulated. I find that the Whats App messages described are what they purport to be namely intimate conversations between NN and the employee over an extended period of time.

166. The messages were found on NN’s phone which was recovered from the same riverbank where NN was found. One can perhaps understand why the employee and Joyce were so desperate to secure the password of NN’s phone at the time of her second abduction knowing just how incriminating the messages were.
167. The messages provide proof beyond all doubt that NN and the employee knew each other, were intimate and involved in a sexual relationship.
168. I find that the unexpected testimony of NN’s uncle and the introduction of the Whats App messages contained in Bundle “D” was simply a bridge too far for the employee and Mbhele. They realized that the messages were unassailable and fully supported the oral evidence of the witnesses. They knew that no amount of cross examination would speak against the facts that speak for themselves hence their subsequent diversionary tactics. They also realized that it would be unduly risky to put the employee into the witness box to testify for fear that she would incriminate herself and probably not fare well under cross examination.

169. The messages in Bundle “D” prove convincingly that Joyce (a suspected Nigerian) exists and was an active accomplice with the employee in the two abductions of NN. They also prove the fact that NN was time and again drugged with substances probably placed into coke and/or yoghurt and/or muffins to facilitate the abductions and make controlling NN easier.
170. TP’s testimony that Joyce wanted a sample of NN’s handwriting from him raises interesting questions of whether the rejected statements of apology ostensibly made by NN and contained in the employees bundle do not constitute manufactured evidence. I hope this aspect together with others has been investigated properly in preparation for the criminal case to follow.

171. The general demeanor of the employee is quiet with an outwardly pleasant disposition, but she clearly possesses a narcistic and dark character and abused NN’s trust in her, created intimacy between NN and herself and then moved to her ultimate goal, that of the illicit rush of having sex with a minor.
172. Th depth of her depravity is demonstrated by the narcissistic demand that NN have a baby for her with an unknown male to prove the depth of her commitment to her. This eventually led to NN coming to her senses, discovering who the employee really was and ultimately the breakdown of the relationship and the laying of charges of misconduct.

FINDING ON THE MERITS
173. I find the employee, Thelma Moeketsi.is guilty of a breach of section 17 (1) (c) of the EEA as contained in the charge sheet.
174. Convictions for misconduct cited under section 17 of the EEA only attract one sanction and that is dismissal. Therefore, there is no need for submissions in aggravation and mitigation before I render my sanction.
175. The employee, Thelma Moeketsi.is dismissed with immediate effect.
176. The employee, Thelma Moeketsi is found to be unsuitable to work with children in terms of section 120 (4) of the Children’s Act no 38 of 2005.
177. I further find that the employee, Thelma Moeketsi as a consequence to the transgressions as referred to in paragraph 173 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
178. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall also send a copy of this award to the Director-General of the Department of Social Development.

MARK HAWYES
PART TIME SENIOR PANELIST
6th of August 2024