Arbitrator: J.D. Vedan
Case Reference No.: ELRC245-24/25 KZN
Date of Outcome: 02 October 2024

In the enquiry between:

Department of Education – KwaZulu-Natal Employer

And

Siphelele Ngcobo Employee

Employer’s representative: Mr M. Mtetwa
Tel: 083 983 6705
E-mail: monica.mtetwa@kzndoe.gov.za

Employee’s representative: Mr S. Ndimande
Tel: 082 304 1178
E-mail:
DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on 29 July 2024 and 18 September 2024, at 09:00 am, at the KZN Department of Education, 17 Margaret Mncadi Avenue, Durban.

2. The Employee, Mr Siphelele Ngcobo, attended the hearing and was represented by Mr S. Ndimande, an official of the trade union. The employer also attended the hearing and was represented by Ms M. Mtetwa an official of the employer. The intermediary, Ms H. Phakathi, was also present.

3. The enquiry by arbitrator proceeded on 29 July 2024 and 18 September 2024, as indicated above, in the presence of both parties.

4. The notice to attend the enquiry by arbitrator was properly drafted and served on the Employee, and the Employee attended the hearing, as indicated above. The Employee confirmed that the notice was served on him.

ISSUE TO BE DECIDED

5. I am required to determine whether, or not, the Employee, Mr Siphelele Ngcobo, is guilty of the charges levelled against him by the Employer, and if so, whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.

BACKGROUND TO THE DISPUTE

6. The Employee, Mr Siphelele Ngcobo, is employed by the employer as an Educator. At the time of the incident he was employed at Masakhaneni Secondary School in the Umalazi District.

7. He was charged by the Employer with the following two charges:

CHARGE 1
On or about 20th April 2024 you allegedly committed an act of sexual harassment on a minor female learner (Learner A) at your “School”. In that you instructed her to go with you in order to have sex. You thus committed an offence in terms of Section 17(1)(b) of the Act.

Alternatively
On or about 20th April 2024 you unjustifiably prejudiced the administration, discipline or efficiency of the “School”. In that you instructed a minor female learner (Learner A) a grade 11 learner at your school to go with you in order to have sex. You thus committed an offence in terms of Section 18(1)(f) of the Act

CHARGE 2
You allegedly on or about 20 April 2024 you unjustifiably prejudiced the administration, discipline or efficiency of the “School”. In that you offered a minor female learner (Learner B) at your school to buy her alcohol and cigarette if she gives you what you want. You thus committed an offence in terms of Section 18 (1)(f) of the Act.

8. The Employer stated that they had done an investigation. They had taken down statements from the two learners, the Employee, and also a statement from the Principal, and were satisfied that they could proceed with the case.

9. At first the Employee’s representative, Mr Ndimande, stated that the matter should be investigated further, and presented two letters from the parents of the learners stating that they did not know about the matter, and in effect were distancing themselves from the matter.

10. The Employer’s representative took instructions, and upon her return stated that Learner A said that the letter was not from her parent, and the signature was not the same as her mother’s. The learner was present and prepared to give evidence. The learner stood by her statement.

11. However the second learner, Learner B, was not present.

12. Despite the submission by the Employee’s representative that the matter should be held over for investigation by the Department of Education, my finding was that there had been an investigation, and that the matter must proceed.

13. Mr Ndimande, the representative of the Employee, stated that the charges against the Employee emanated from a grudge and post fixing. He stated that the Employee is a Maths Educator, and a seasoned Educator who conducted extra classes after school. He stated that because the Employee earned extra cash he was seen as a threat to some Senior Management Team members.

14. He stated that the Employee did not see the learners on the alleged date.
15. He also accused the Principal of coercing the learners to come to the hearing on the basis that they will fail Grade 11 if they did not appear at the hearing.

16. His plea was for the Employee to be transferred to another school because the trust relationship had broken down between the Senior Management Team and the Principal.

17. The Employee also happens to be the neighbour of the learners. He respects the minors like an uncle, and is also involved in NGOs.

18. Ms Mtetwa, for the Employer, stated that the Employee did the opposite of what was expected of him. Sexual harassment and sexual misconduct cases are taken very seriously by the Department.

19. Her request was that if the Employee is found guilty, the Employee must be dismissed.

SURVEY OF EVIDENCE AND ARGUMENTS:

SUBMISSIONS BY EMPLOYER

20. The first witness was Learner A.

21. Both letters were to be shown to the witness, as well as the other documents, as necessary.
22. She confirmed that she was in Grade 11 B. She confirmed that the Employee was her Educator.

23. She stated that on 20 April 2024, which was a Saturday, she was accompanying her friend, a minor female. It was about 6:30 pm. The Employee came to her when she was standing with her friend. He greeted them, and they greeted him back.

24. The Employee then asked her to go with him to another house that she had not seen previously. When she asked him why, he said they will sit, it will be nice, and they will do sex. She enquired how this would happen because she is a learner.

25. He then grabbed her hand, and her friend removed his hand. He then said he would penetrate her, and sort her out.

26. Then the Employee continued by saying he did not know where she will run because the thing he wanted he can get it even at school.

27. Nothing further happened on the Sunday.

28. On Monday she went to the Principal because she was afraid. The Principal then acted upon what she told him. The Principal told her he will be reporting the matter to the Department of Education.

29. She made a written report to the Principal. The report is the same as what the witness stated previously, expect she referred to the minor female as her best friend. This was in her handwriting, and Exhibit D of the Respondent’s bundle. Further she said in her statement that he referred to her mentality, and that she was telling herself she was smart.

30. She further made an Affidavit, which she signed at a local Police Station, before a Commissioner of Oaths, and handed the document over to the Police. The Affidavit also referred to the fact she thinks she is better than everybody, and corroborated what she said in her earlier statement.

31. Then she was referred to Exhibit I, allegedly written by her mother. She said that she did not have knowledge of the letter. This was not her mother’s handwriting, and further her mother did not instruct her to be absent from the hearing. She did not know how the Employee got hold of the letter, but it is not signed by her mother.

32. She stated that the Employee met with her mother during the June holiday. Ms Ngcobo, the Principal of Egugwini, who is the sister of the Employee, came and spoke to her mother. She did not know what they discussed, as she was not informed. The Principal of Egugwini came more than four times to her home, and thereafter the Employee and his representative, Mr Ndimande, also came to the house.

33. On 26 July 2024, a Friday, the Principal of Egugwini called again at her house. She did not know what was discussed.

34. The Employee previously came to her house in tears saying that she should not attend the case, as he will lose his certificates, which implied he will lose his job to teach.

35. Her mother had granted her permission to give evidence, and this was by way of the permission form her mother signed, which is Exhibit J. It is dated 29 July 2024, which was the first day of the hearing, and stated that a member of staff could be present.

36. It was put to the witness under cross-examination that the Employee did not see her on the date and time she had indicated, and that he is going to say that he was with Ms Mphume Mhlongo on that date and time. It was further put to her that the Employee will say that he never uttered any word to her pertaining to sex.

37. Learner A denied that, and said that she had a witness, which was her friend.

38. It was further put to her that Ms Mhlongo will come to give evidence as she belonged to the Shembe Church.

39. Mr Ndimande advised the hearing that Ms Mhlongo will give evidence that the Employee went to borrow money from her on that date and time, as she is a loan shark, and that the Employee went to her after 6:00 pm, because their fasting time is from 6:00 pm on Friday to 6:00 pm on Saturday.

40. Further, he stated that they would bring Ms Mhlongo and her loan shark records showing that the Employee borrowed money on that date and place.

41. In fact, his evidence was an alibi, and he had to prove his alibi.

42. The witness however did not have any knowledge about the acknowledgement of debt, or the questions put to her about Ms Mhlongo.

43. It was also put to her that the Employee lived elsewhere on that date, and not at his house, due to reconstruction that was in progress. He had slept at his friend’s place.

44. The witness stated that she informed her mother about what the Employee said on 22 April 2024, and also informed the Principal on the same date. She stated that her mother was very angry.
45. Mr Ndimande put it to her that her mother will come and say that the school did not inform her of what had happened. The witness denied this.

46. It was continuously put to the witness that she was telling lies, which she denied. The Employee stated that they will be bringing a member of the Senior Management Team to say that the learner is telling lies.

47. The letter allegedly written by Learner B’s mother was placed before the witness to comment on it. However, she was not in a position to do so, as it was not her letter.

48. Mr Ndimande said that Learner B will be subpoenaed to come and give evidence, and that she wanted to withdraw the case, but she was not allowed to do so, and furthermore that Learner B was charged by the school for trying to withdraw her letter.

49. The witness stated that the relationship between her family and the Ngcobos’ was that they greeted each other.

50. Furthermore it was put to her that the Principal actually made her come and give evidence in order for the Employee to be dismissed, and that if she gave evidence, she would be promoted from Grade 11 to Grade 12.

51. Mr Ndimande further said that Learner B was coerced by the Principal to write the letter. The witness denied this. She stated that Learner B and herself were together when they wrote the letters.

52. Mr Ndimande then said that they will be calling various witnesses, and requested the Department of Education to call Learner B to give evidence, the Deputy Principal, another person by the name of Mr Ndimande from the school, and Sanele from the Senior Management Team.

53. The Employee’s representative was advised by the Commissioner that they should approach the ELRC to subpoena witnesses.

54. The witness stated that it was not the first time the Employee had uttered words of a sexual nature to her. Once he had proposed to her, and she had turned him down. He was also hitting her at school, and when she asked why he as hitting her, he said that he had been waiting a long time to hit her.

55. The witness then stated the time the incident occurred was around 6:30 pm, which was an approximate time.

56. The witness stated to the Commissioner that she is eighteen years old, and that she only turned eighteen in July 2024, when this matter started. She said that at the time of the incident she was accompanying her friend, who was visiting her at home. This was the first time the Employee spoke to her at the “location”.

57. The second witness was Mr Reginald Makhanya, the Principal of the school. He confirmed the evidence given by the learner in respect of her Grade, and in respect of the Employee being an Educator at the school.

58. He stated that the learner approached him on 22 April 2024, and related to him the events that occurred to her. He confirmed what the previous witness had stated.

59. He decided to write a letter to the Educator in order for him to give his version of events. The Employee had just written one sentence stating that he did not know anything about what the learner said about him about an event that occurred on Saturday, 20 April 2024.

60. When he called Learner B, she said that the Employee did the same thing to her. He asked her to make a written statement. Learner B came herself to the office.

61. He then compiled a report as a preliminary investigation and submitted to the Department.

62. He was shown the letter from Learner B’s parent. He stated that he had no knowledge of it.

63. Learner A and Learner B’s parents had gone to see him. He was informed by Learner A’s parent that the Employee’s sister and Mr Ndimande came to beg them to withdraw the matter. He said that is why he arrived late for the hearing.

64. He knows Ms Mhlongo. However, he felt that this was a fabricated story by the Employee, and that he was just trying to look for people to support him.

65. He denied stating that they would pass Learner A from Grade 11 to Grade 12 if she testified. He was merely doing his duty. He denied any disciplinary charges against Learner B.

66. The Principal said that he had no agenda against the Employee, and that he did not tell the learners to lie.

67. He has been the Principal of the school for about ten years. He knew the employee for a long time because he lived at KwaMakhutha. The Employee had taught under the Principal from 2017/2018, and was a competent teacher.

68. There were many complaints against the Employee, but these were communication problems.

69. He was a mentor to the Employee, and had been interested in employing him, and inducted him in terms of ethics, and how to communicate with the learners. He has no reason to fabricate a story about the Employee.

70. The matter was then adjourned for the Employer to call Learner A’s friend. However, it transpired that Learner A’s friend was not willing to give evidence, and the Employer closed its case. Thereafter it was the Employee’s turn.

SUBMISSIONS BY EMPLOYEE

71. The Employee refused to give evidence.

72. The Employee stated that, as far as he is concerned, the Department did not have a case against him, and that the matter must be pursued by the Police. The basis for saying this is that the incident occurred outside school hours, and not in the school itself. He stated that it had nothing to do with the school and the Department of Education. He insisted on this.

73. The opportunity was presented to him continuously to give evidence, and challenge the version put before the Commissioner by the Employer. However, he flatly refused on the basis that the Department had no authority to deal with the matter, and that it was purely a Police matter.

74. After many attempts to ask if he was certain, his representative insisted that he will not be giving any evidence.

75. In closing the Employee’s representative stated that he was a novice Educator, and has been teaching for three years. He did not undergo any induction or workshop. He was a temporary Educator. He was educated at UNISA and has a B. Ed degree, and his specialty is Mathematics. He confirmed that the Employee is teaching Grades 10 to 12.

76. The Employee is not married, but has five children whom he supports and other family members as well. This is his first employment. Previously he worked temporarily at community schools.

77. The Employer stated that the dismissal must be upheld.

ANALYSIS OF EVIDENCE AND ARGUMENTS
78. The Employer had to prove on a balance of probabilities that the Employee, Mr Siphelele Ngcobo, is guilty of misconduct.

79. With regards to the second charge, the learner, Learner B, did not give any evidence besides the testimony of the Principal, which is hearsay. This charge cannot be sustained, and the Employee is found not guilty.

80. With regards to charge 1, the Employee did not give evidence despite being given an opportunity many times. As such, the version of the Employer is unchallenged, except in whatever questions were put under cross-examination.

81. The Employee’s evidence under oath carries weight in an assessment of the matter. Instead the Employee stated that what occurred was outside the purview of the Department of Education, as it occurred on a Saturday and outside the school premises, and should be dealt with by the Police.

82. The inference that can be drawn is that the incident did occur, and the version put forward by the Employer is probable.

83. The incident involves serious misconduct. The South African Schools Act (SASA) 84 of 1996 governs the conduct of Educators in the school environment. However, it also gives the school authority to take disciplinary action for acts that may fall outside normal school hours but still affect the professional standing of Educators and the safety of learners.

84. The Employment of Educators Act 76 of 1998 deals with the conduct of Educators, and includes misconduct provisions. Section 17 (a) of the Act specifies that serious misconduct includes any form of sexual misconduct with the learner. The conduct in question need not occur on the school premises or during school hours. The Act outlines sexual harassment, or any other misconduct of a sexual nature, as grounds for dismissal.

85. The South African Council for Educators (SACE) governs the ethical conduct of Educators. According to the SACE Conduct of Professional Ethics, the Educator should avoid any sexual misconduct regardless of when and where it has occurred. Educators are expected to uphold a high standard of conduct that does not bring the teaching reputation into disrepute.

86. Both the SACE Conduct of Professional Ethics and the Employment of Educators Act state that any sexual misconduct towards a learner is grounds for disciplinary action. The school has a responsibility to the learners to protect them from the staff, and therefore the Department has jurisdiction.

87. While criminal proceedings may indeed by necessary, disciplinary action within the system is separate from criminal proceedings.

88. The decision by the Employee to not give evidence does not help his case. The standard of proof in disciplinary hearings is on a balance of probabilities, which is lower than criminal proceedings.

89. According to Section 17 (1)(b) of the Employment of Educators Act, dismissal is mandatory for serious misconduct of this nature. In addition, SACE can also deregister the Educator preventing them from teaching elsewhere in South Africa.

90. The acts of misconduct committed by the Employee in the context of his employment renders the employment relationship between the parties intolerable. This type of misconduct is also expressly prohibited by the Employer in their disciplinary code / policies and the Employer is expected to apply discipline in a consistent manner.

91. I also refer to the case of Department of Health KZN v PSA and others (DA 4/15) (2018) 39 ILJ 1719 (LAC) (handed down on 20 March 2018) where the Commissioner was faced with two conflicting versions. The Court held that the determination of such disputes needs an assessment of the credibility of evidence and the decision arrived at on a balance of probabilities. Where the common cause facts and probabilities cast doubt on the Employees’ version, the version of Employer should be accepted.

92. The Employee did not give evidence, and the inference that can be drawn is that the incident did occur. Furthermore the learner’s evidence was clear and unambiguous. The learner was propositioned by the Educator, and an indecent request was made to her of a grossly inappropriate sexual nature.

93. I do not accept the version of the Employee under cross-examination. The veracity of the letters is in doubt. There were no witnesses called to support the case of the Employee. Neither was Ms Mphume Mhlongo, nor Learner B’s parent called, nor any other witnesses subpoenaed.

FINDINGS:

94. The Employee, Mr Siphelele Ngcobo, is found guilty of the allegation against him as contained in charge 1.

95. The Employee, Mr Siphelele Ngcobo, is found not guilty of the allegation against him as contained in charge 2.

96. The Employee, Mr Siphelele Ngcobo’s, employment is terminated with immediate effect, without notice. The Department of Education – KwaZulu-Natal must inform Mr Siphelele Ngcobo of his dismissal.

97. I further find that the Employee, Mr Siphelele Ngcobo, is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

98. The General Secretary of the Education Labour Relations Council must:

98.1. As the administrator of this Section 188A enquiry, in terms of section 122 (1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum that the Employee, Mr Siphelele Ngcobo, is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.

98.2. Send a copy of this enquiry outcome to the South African Council of Educators (SACE) for the revoking of Mr Siphelele Ngcobo’s SACE certificate.

99. The employee has the right to take this award on review to the Labour Court.

J.D. VEDAN
ELRC Panellist