Arbitrator: J.D. Vedan
Case Reference No.: ELRC218-24/25 KZN
Date of Outcome: 6 September 2024

In the inquiry between:

Department of Education – KwaZulu-Natal Employer/Applicant

And

Skhumbuzo Michael Mngomezulu Employee/Respondent

Employee’s representative: Mr S. Mthimkhulu
Tel: 067 598 8423
E-mail: yandamthimkhulu@gmail.com

Employer’s representative: Ms J. Dumisa
Tel: 033-846 5173
E-mail: jabu.dumisa@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION

1. The inquiry 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) (LRA). The hearing took place on 21 August 2024, at 09:00 am, at the Department of Education, KwaDukuza.

2. The Employee, Mr Skhumbuzo Michael Mngomezulu, attended the hearing and was represented by Mr S. Mthimkhulu, an official of the trade union SADTU. The employer also attended the hearing and was represented by Ms J. Dumisa an official of the employer. The intermediary, Ms H. Phakathi, was also present.

3. The inquiry by arbitrator proceeded on the on 21 August 2024, as indicated above, in the presence of both parties. The parties further requested an opportunity to file closing arguments in writing on this matter by not later than 28 August 2024. Both the Employer representative and the Employee representative filed their arguments with the ELRC.

4. The notice to attend the inquiry 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 Skhumbuzo Michael Mngomezulu, 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 is employed by the Employer as an Employee. At the time of the incident, he was employed at Lambothi Secondary School. He has been an Employee for twenty years. At the time of the incident, he was teaching History and Life Orientation, and he has also taught English and Computer Studies. He has taught learners from Grades 10 to 12.

7. The Employer preferred the following charges against the employee:

“Charge 1

In that or during the period 2024 or near Lambothi Secondary School you allegedly forced a learner in your school by the name of NPZ to have sex with you. In so doing you contravened Section 17(1)(c) of the Employment of Employees Act No 76 of 1998 as amended.

Charge 2

In that or during the period 2024 or near Lambothi Secondary School you allegedly told a learner in your school by the name of NPZ that you love her. In so doing you contravened Section 17(1)(c) of the Employment of Employees Act No 76 of 1998 as amended.”

8. The Employee denied these allegations and pleaded not guilty to the said allegations. Hence the matter was set down for a Section 188 (A) of the ELRC inquiry by arbitrator, as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE AND ARGUMENTS:

SUBMISSIONS BY EMPLOYER

9. The Employer called the learner, NPZ, to give evidence. She is small in stature and was childlike in appearance.

10. She testified that she is in Grade 11 at Lambothi Secondary School, and that the Employee, Mr Mngomezulu, was known to her.

11. In her statement, which she read into the record, she stated as follows:

11.1. That Mr Mngomezulu had given her a lift as she was on her way to school.

11.2. He wanted her cellphone number. She told him she did not have one, but that as soon as she has a cellphone she will give him the number. He agreed to that.

11.3. The next day she checked the cellphone for messages but could not find any. He wanted the number to add her to the class group.

11.4. She further went on to say that when she went to school the learners were saying that she was in a relationship with Mr Mngomezulu. She did not respond to this.

11.5. She became aware of a meeting held at the school concerning learners who had relationships with Employees. She was mentioned as one of the learners who had a relationship with Mr Mngomezulu.

11.6. She was very close to an Employee by the name of Ms Nondomiso Mthethwa, who was disgusted when she heard about her relationship with Mr Mngomezulu. Ms Mthethwa took her as a younger sister.

11.7. She stated that on another day, which later she said was a Saturday, she was on her way to the library, but before reaching the library, she saw Mr Mngomezulu approaching in his car. He told her to come with him to talk at his house.

11.8. She was under the impression that they were going to talk at the house.

11.9. She the used the following term, “The teacher then forced me to fall in love with him”, which can be regarded as a euphemism for “forced me to have sex with him”.

11.10. She stated that he led her inside the house, and asked her to take off all her clothes, which she refused to do. She stated that he did something very “hurtful”. He then forced her to sleep with him.

11.11. The news that she was in a relationship with Mr Mngomezulu reached her home via the Employee, Ms Mthethwa, who resides next to her house.

11.12. Her mother beat her and asked her what had happened, and she denied it. Her mother beat her until she spoke the truth.

11.13. She said that this was the “first time she was being touched by anyone”, and that she was “forced into the act”.

12. The witness mentioned that the occurrence occurred on Saturday, 14 April 2024. However, a look at the calendar for 2024 shows that 14 April 2024 was a Sunday. However, she was insistent that it was a Saturday, and in this regard she could have been mistaken about the date.

13. She stated that when she entered the Employee’s house, she sat in the dining room. Thereupon she was asked by the Employee to come to his room. She repeated that he asked her to take off all her clothes so that he could sleep with her.

14. In the room, the windows were closed, and the bed was messy. However, the curtains were tied. She did not see anyone in the house. However, there was an outbuilding, and someone was there.

15. It transpired that the witness wrote a later statement. However, this statement had not been furnished to the Employer and was part of the Employee’s bundle.

16. The learner admitted that she had written the further statement. She stated that she wrote the statement after the Employee had already heard that a case was lodged against him. She wrote the statement and gave it to her friend, whose name is AM. The statement was written at the request of the Employee, as he stated that he needed it to assist him, because he could go to jail.

17. She stated that her mother did not know about the statement, as she wrote the statement when she was at her school. She further stated that the Employee was close to AM, so she gave the statement to AM to give to him.

18. According to this later statement, she said that she and the Employee were very close “in such a way that even the community and the learners started to talk of something that was not there. The talk was that she and the Employee were in a love relationship.

19. In the statement she said that the Employee only assisted her when her lift, or the car that she had to take, had left her. It was not that he parked there and asked her to come with him. The Employee stayed just a bit further from her house. He helps a lot, but she told lies. She said she told “big lies”, because it was said she was in a relationship with him.

20. Her mother hit her to the point where she was crying, and her mother asked her about the relationship. At first she denied it, and then she said that she told lies. She stated that the police ended up being a part of the matter.

21. In the second statement she wrote that the first statement was false. Ms Mthethwa said that the news was circulating that she was sleeping with the Employee. The Employees and the learners started to dislike her, as they were under the impression that she was ruining their future, as the Employee is not there, and she blamed herself for that.

22. She further stated that her mother was not a good mother. Her mother should have made a phone call to the Employee, when she heard the news, and called him to the house and discussed the matter. Her mother was angry, and things turned out this way. All she wanted is for things to go back to normal, so she could continue to learn freely.

23. She stated that she was in a relationship with the Employee. She used the term “besizwana” in her statement. According to a translation of the term on Google Translate, “besizwana” means “we got along”.

24. The witness stated that the first statement was correct, and that the Employee slept with her.

25. She was then referred to WhatsApp messages, which were also produced by the Employee in his bundle. She admitted that she entered into WhatsApp messaging with the Employee. The messages were interchanged after the Employee heard that there were charges against him, and the messages were sent at the end of April 2024.

26. She stated that she wrote the first message in page 1 of Bundle “B”, and the Employee responded. In the first message she stated that she hoped the message would be deleted after it was received. In the message she stated that she was not okay, she cries every day and can’t even sleep.

27. She made the remark “about what you know that you did. I even mentioned it again to the people that came to the school”. She further said, “I am sorry there was no other way”, and sometimes she wished to take her life because of the pain, and that she could not see him lose his job. She asked for him to forgive her for what she had done.

28. In his response, the Employee asked her if there was any reason to repeat the story. He asked her to speak the truth, because that was the only thing that could set them free.

29. She then said that she had a way for this situation to stop and not carry on, and the Employee’s response was “What are you thinking?”. She responded that she would tell him once she made a decision, and the Employee told her not to do anything stupid, he would rather lose his job instead of her harming herself. She then said that “Harming herself is what I think is good for me”. The Employee replied that her mother is wrong, and he does not understand why her mother is putting harmful pressure on her. He further told her to argue with her mother and speak the truth. Her mother will be angry for a short while.

30. The witness stated that the Employee told her to change her statement to say that he did not sleep with her. She further stated that no one told her to say that the Employee slept with her.

31. Under cross-examination, it was put to her that there were ten rooms in the house, whereas in her evidence-in-chief she stated that there were five rooms. However, this did not have a material aspect on the case, as it would have been difficult for her to ascertain how many rooms there were, as she was seated in the dining room, and had then been taken to the bedroom.

32. Under cross-examination she denied that she was in a relationship with the Employee and stated that he asked for her cellphone number to add her to the WhatsApp group.

33. She further stated that this was the first time that the Employee picked her up on the way to the library. She also added that this was the first time she was touched intimately by a male person.

34. Saturday was her day for going to the library. It would appear that the date given was incorrect. 14 April 2024 was not a Saturday, but a Sunday. Furthermore, libraries are open on Saturdays and not Sundays, and invariably on Saturdays the working hours are restricted to the mornings.

35. She denied that her mother’s beating caused her to change her statement.

36. The Employee’s representative, Mr Mthimkhulu, then put to the witness that on that Sunday, the Employee was in Durban at Moses Mabhida Stadium, and that his car was parked at the Engen Garage in Mandeni, and after parking the car, he travelled with his friends to watch a soccer match. Although the Employee was taken into custody, and placed in a police cell, where he was kept overnight, the case was not enrolled the next day because of his alibi.

37. The witness disagreed that the people at Church told her to tell the truth. She stated that she did not request to withdraw the case with the police.

38. She confirmed that she wrote the second statement, as well, and was alone in her class at her desk when she wrote the statement, and further that no one threatened her to write the statement. She wrote it because the Employee said he did not want to lose his job.

39. The Respondent then closed its case.

SUBMISSIONS BY EMPLOYEE

40. The Employee stated that the first time that he heard about the “story” was on 25 April 2024. It was on a Thursday at about 7:00 in the evening when two police officers came to his house and told him he was being accused of raping a learner in the school by the name of NPZ.

41. He was shocked, and he tried to explain that he knew the learner but had nothing to do with the incident. They told him that a case had been opened, and they have a warrant to arrest him. He panicked and agreed to go to the police station with them.

42. The next day he had to appear before the Magistrate.

43. When they told him the date of the incident he realized that he was at a soccer match, and not at his home in Gingindlovu. He had arranged with his friends and two younger brothers to go during the weekend to a big soccer match at Moses Mabhida Stadium. They decided not to go with their own cars, but instead they would be transported by one of his friends, who is a taxi owner, and they will pay for the tickets.

44. In the morning, he went with his car to Gingindlovu, and parked outside the garage door in the customer parking, because he did not want to leave his car where it could not be seen. He then went in the Quantum taxi to Durban. After the game, he and his companions did not return home immediately. When he was dropped off at the garage it was about 11:30 pm, and when he went home it was 12:00 pm, and he went to sleep.

45. The next day, Monday, he went to work as it was a normal day. The Principal did not alert him to the incident until after the arrest. Nobody came to the school to report the incident, and the learner came to school every day from Monday.

46. In the Police cells he underwent severe depression. When he awoke the next morning he wanted to see a Doctor, but his brother had arranged a Lawyer for him. He explained to the Lawyer that he had an alibi. The Lawyer then went to the Senior Prosecutor and discussed the matter. The Senior Prosecutor went through the docket, and as a result of his alibi the case was not enrolled.

47. He was told to go home, but instead he went to the hospital, where he spent six days in the ICU for depression. His kidneys also troubled him, and he went for dialysis. He said that due to the shock his body shut down.

48. He was discharged on 3 May 2024, and had to go back to work on 13 May 2024, as per the Doctor’s certificate. The Doctor’s certificate stated that he had to go back on 10 May 2024, but 10 May 2024 was a Friday.

49. On 3 May 2024 or 4 May 2024, he received a call from a learner named AM. She told him that she was with NPZ, that they were concerned about him, and wanted to see whether he was okay. They were under the impression that he was still in prison.

50. AM said that NPZ felt sorry for what had happened. She told him she did not want to tell him everything over a telephone call but wanted to text. That explained the text messages. He felt that she did not want to answer his difficult questions.

51. NPZ started her message with a “broken heart” emoji and said that she was sorry. She sounded suicidal, and he tried to calm her down. He told her that only the truth would set her free from the stress. He also told her that he would rather lose his job than have her do something stupid to herself.

52. Later he communicated with AM, whom he was not close with.

53. He claimed that NPZ was beaten until she was blue. She was told by the doctor who treated her to open a case against her mother.

54. He did not hold any grudge against NPZ, as she was under pressure.

55. He later received a call from AM about the statement. She told NPZ that she was going to be a witness, because she occupied the desk next to her, and she knew what was going on. The statement was written and given to AM to keep safe for the date of the hearing, as they were fearful of Ms Mthethwa, as he claimed that Ms Mthethwa used to intimidate NPZ every time.

56. The Employee stated that Ms Mthethwa was a substitute Employee, and she had heard talk about their relationship, and went straight to NPZ’s mother. He denied having a relationship with NPZ. He said he used to give her a lift when she was without a lift. She was not the only learner he gave a lift to. He also gave another boy, by the name of Thabo, a lift.

57. He stated that he did not request NPZ to write the second statement.

58. It was put to him under cross-examination that the soccer match was on 13 April 2024 and not 14 April 2024. He then under cross-examination stated that the soccer match was on 13 April 2024, and the Police told him this is the date he was accused of raping NPZ.

59. However, the version put to NPZ was that the soccer match had taken place on Sunday.

60. It seems that both parties are in agreement that the incident took place on Saturday, and therefore the Employee used the soccer match as his alibi.

61. He stated that NPZ lied when she stated that the first statement is correct, and the second statement is incorrect. The original second statement is with AM, and he received a scanned copy of the statement.

62. He said he did not have anything to do with any of the statements. He only had the second statement because NPZ developed a conscience and wanted to clear the matter. He did not contact NPZ, but AM contacted him. Thereafter he was in contact with NPZ. He was accused of interfering with the Employer’s case while he was on suspension in that he had telephone contact with the witness.

63. The Employee stated that he could not add NPZ to the WhatsApp group, as he did not teach her class. There was no subject that they shared together.

64. He said if he was in a relationship with her then why would he rape her. He would not have forced her to do anything. If he was in a relationship with her he would not have forced her to undress.

65. After the incident she went on with life normally, and this was not an indication of a person who was raped.

66. He stated that he did not tell her he loved her. Sometimes girls have crushes, and while he was doing her favors she could have developed a liking for him, and because he did not return her feelings she may have followed it up by getting even with him as a form of revenge, as the changing statements show an element of hatred.

67. Under re-examination he stated that the soccer match started at 3:00 pm, and that they left at 9:00 am. It was a final, and there were musicians present. They left early to get parking. Mamelodi Sundowns and Orlando Pirates were playing on that day.

68. He asserted another motive for saying that he performed this act upon NPZ. He could speculate that the person who had the most to gain was Ms Mthethwa. This was the third time she was substituting at the school. Her contract was ending in April 2024. Maybe she heard that he was dating a learner, and if he got suspended, her contract would be extended. He did not think NPZ had a strong motive for hatred.

69. He then went on to state some personal issues. He had kidney problems and had to go for dialysis.

ANALYSIS OF EVIDENCE AND ARGUMENTS

70. Burden of Proof: The Employer bears the responsibility of proving the Employee’s guilt on a balance of probabilities regarding the charges of misconduct.

71. Common Cause Facts: It is undisputed that the Employee gave the learner, NPZ, a lift in his vehicle on more than one occasion. Furthermore, it was commonly discussed within the school that there were rumours about the Employee being involved in a relationship with NPZ.

72. Employment and Learner Details: The Employee has been an Employee for the Department of Education for approximately twenty years. NPZ is a Grade 11 learner at Lambothi Secondary School. Significantly, she was not taught by the Employee nor was she in any of his classes.

73. Nature of the Case: The core of the case rests on the credibility of the evidence provided by both NPZ and the Employee. As such, the case is largely dependent on assessing which party’s account is more credible.

74. Inconsistent Statements: NPZ’s initial statement was submitted to the Department of Education, which led to the investigation and subsequent charges. A second statement surfaced later, but it was not presented to the Department by NPZ, her mother, or anyone else. Only the Employee and a person named AM had copies of this second statement. However, AM was not called to testify at the hearing, leaving the circumstances of this second statement uncorroborated.

75. Content of First Statement: In her first statement, NPZ mentioned that the Employee was giving her lifts. She also indicated that her mother had physically assaulted her until she confessed, and there was also intervention by Ms. Mthethwa. This establishes a foundation for the case against the Employee.

76. Credibility of Library Visit: NPZ’s claim that she was heading to the library is credible, as libraries are open on Saturdays. She appeared to have mistakenly identified the date as 14 April 2024, when the incident occurred on 13 April 2024.

77. Employee’s Inconsistent Alibi: Despite the Employee’s representative claiming that he attended a soccer match on 14 April 2024, the Employee himself confirmed that he had attended a match on 13 April 2024. This discrepancy undermined his attempt to establish an alibi for the incident on 13 April.

78. Soccer Match Details: The soccer match on 13 April 2024 was a quarter-final Nedbank Cup match between Amazulu and Orlando Pirates, held at Moses Mabhida Stadium at 6:00 pm, not 3:00 pm as the Employee had stated. The Employee’s inaccurate details cast further doubt on his credibility. It is improbable that the Employee would have left for a soccer match at 9:00am when it was only due to start at 6:00 pm, even assuming that there were festivities to be held prior to the match. Moreover, it is conceivable that the Applicant could have committed the act upon the learner and thereafter went to the soccer match, as library hours were in the morning.

79. Verification of Fixtures: A review of the Premier Soccer League fixtures would confirm the correct details of the match.

80. House Description: NPZ’s description of the house as having five rooms, though possibly inaccurate, should not be held against her. Her testimony that the house was large is sufficient, given that a learner could be unfamiliar with the exact layout of every room.

81. Employee’s Suggested Motives: The Employee ascribed two possible motives for the charges. Initially, he suggested that NPZ had a crush on him and became vengeful when he did not reciprocate her feelings. Later, under questioning by the Commissioner, he stated that NPZ likely did not have strong personal motives but was influenced by Ms. Nondomiso Mthethwa.

82. Contradictory Motives: The Employee’s shifting explanations for the motive behind the allegations weaken his defense and raise questions about his reliability.

83. Context of the Second Statement: In the second statement, NPZ noted that the Employee was close to her and referenced rumours circulating in the community. This statement was written while she was in a vulnerable mental state, experiencing suicidal thoughts and guilt over the possibility of causing the Employee to lose his job. It is plausible that she was pressured by the Employee, which casts doubt on the validity of the second statement.

84. WhatsApp Messages: In a revealing WhatsApp message, NPZ wrote, “About what you know you did. I mentioned it again to the people that came to the school. I am sorry there was no other way.” This statement strongly suggests that the incident did occur, and the Employee was aware of his misconduct. The Employee’s response, “Is there any reason for you to repeat the story?” implies an acknowledgment of the truth in NPZ’s initial statement.

85. Confirmation of Incident: These messages corroborate NPZ’s account and further confirm that the Employee was aware of the incident in question, lending significant weight to her version of events.

86. Sequence of Events: The evidence leads to the conclusion that on the morning of 13 April 2024, NPZ was on her way to the library when the Employee picked her up, took her to his house, and committed the act for which he is charged.

87. Severity of Misconduct: The act committed by the Employee is egregious, and the nature of the relationship between a learner and an Employee, where the teacher is in loco parentis, prohibits such behavior. The Employer has no alternative but to dismiss the Employee for this gross violation of trust.

88. Duty of Care Beyond School Hours: An Employee’s duty of care extends beyond school hours. Learners are in a vulnerable position due to their immaturity and the inherent power imbalance between them and Employees. Educators are often respected and held in high esteem, and any abuse of this authority cannot be tolerated.

89. Lack of Consent: This case is particularly serious because the learner indicated that there was no consent on her part. The lack of consensus intensifies the gravity of the misconduct. In any event such conduct is strictly prohibited between Employee and learner in a school situation.

90. Second Statement Rejected: The second statement made by NPZ appears to have been made under duress. Even if it were considered, its substance does not exonerate the Employee from the act.

91. Not Guilty on Second Charge: Regarding the second charge—that the Employee told the learner that he loved her—no supporting evidence was provided. As a result, the Employee is found not guilty of this charge.

92. Guilty on First Charge: However, the Employee is found guilty of the first charge, which involves gross misconduct for engaging in a sexual relationship with a learner.

93. Mitigating Factors: I have considered the Employee’s personal circumstances, including his twenty years of service, lack of prior disciplinary issues, and his teaching record. He also has a sixteen-year-old son and has suffered from depression since the incident. However, these factors do not mitigate the seriousness of the charge.

94. Disciplinary Action: Despite the principle that discipline should be corrective and progressive, the gravity of the misconduct necessitates dismissal.

95. Trust Relationship Irreparably Damaged: The nature of the Employee’s transgression has destroyed the trust relationship. Allowing such misconduct to go unpunished would set a dangerous precedent, and the Employer has met its burden of proof in justifying dismissal under Section 192(2) of the Labour Relations Act.

96. Legal Consequence: The Employee’s conduct violates Section 17(1)(b) of the Employment of Employees Act 76 of 1998, which mandates dismissal for such transgressions.

97. Children’s Act Considerations: Section 120(2) of the Children’s Act No. 38 of 2005 allows for a finding that an individual is unsuitable to work with children. Such a finding can be initiated either by the forum itself or upon application by an organ of state or any other party with a vested interest in child protection.

98. Employer’s Right to Apply: The Department of Education, as the Employer, has the right to apply for a determination of the Employee’s suitability to work with children, given the serious nature of the misconduct. The Arbitrator also has the authority to make such a finding independently.

99. Final Determination: Based on the evidence and the gravity of the misconduct, it is my conclusion that the dismissal is warranted herein. The actions of the Employee breached the trust inherent in the Employee-learner relationship and violated legal and ethical obligations, particularly concerning child protection. Consequently, the dismissal is justified, and the Employer’s position is upheld.

100. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

101. 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.

102. 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.

FINDINGS:

103. The Employee, Mr Skhumbuzo Michael Mngomezulu, is found guilty of the allegation against him as contained in charge 1

104. The Employee, Mr Skhumbuzo Michael Mngomezulu, is found not guilty of the allegation against him as contained in charge 2.

105. The Employee, Mr Skhumbuzo Michael Mngomezulu’s, employment is terminated with immediate effect, without notice. The Department of Education – KwaZulu-Natal must inform Mr Skhumbuzo Michael Mngomezulu of his dismissal.

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

J.D. VEDAN
ELRC Panelist