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[2022] ZALAC 89
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Western Cape Education Department v Baatjies and Others (CA9/2020) [2022] ZALAC 89; [2022] 6 BLLR 537 (LAC); (2022) 43 ILJ 1353 (LAC) (12 January 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA9/2020
WESTERN
CAPE EDUCATION DEPARTMENT

Appellant
and
AJJ
BAATJES

First Respondent
EDUCATION
LABOUR RELATIONS
COUNCIL

Second Respondent
ADV
J P
HANEKOM

Third Respondent
Heard:
17 November 2021
Delivered:
12 January 2022
Coram:
Davis JA, Coppin JA and Kubushi AJA
JUDGMENT
Introduction
[1]
This appeal, opposed only by the first respondent, is against the
order of the court
a quo
. In the appeal, the appellant seeks
to overturn the court
a quo
’s order which set aside the
arbitration award of the third respondent in so far as it found the
dismissal of the first respondent
substantively fair, but substituted
the sanction of dismissal with a lesser sanction, which includes
reinstatement, a final warning
and three (3) month’s deemed
suspension.
[2]
The first respondent has not cross-appealed the finding of guilty in
respect of charges
2 and 3. Therefore, only the fairness of the
sanction is an issue before this court.
[3]
The appellant’s contention is that the lesser sanction is
inadequate in light
of the facts of this matter, whereas the first
respondent is satisfied with the sanction imposed by the court
a
quo.
For convenience, I shall, in this judgment, refer to the
first respondent as the respondent and the third respondent as the
arbitrator.
[4]
Before the commencement of argument, the appellant applied,
unopposed, and was granted
condonation to file the notice of appeal
and the supplementation of the record with the translations of the
Afrikaans portions
of the record, out of time. The appeal is with
leave of this court on petition.
Factual
background
[5]
The appeal is based on the following common cause facts: The
respondent was employed
by the appellant as a level 1 Educator at
Roodewaal Primary School in Worcester. At the time of the occurrence
of the incidence
in question, he had been so employed for a period of
twenty-seven (27) years. In 2016, the respondent appeared before a
disciplinary
hearing charged by the appellant, his employer, with
three counts of misconduct, namely: (i) assaulting a learner by
hitting him
with a pipe on his arm on 27 January 2016 at Roodewaal
Primary School, while school was in session; (ii) assaulting the same
learner
with the intention to do grievous bodily harm, the following
day on 28 January 2016 at the same school, by grabbing him by his
neck and throwing him to the ground, kicking him and threatening to
kill him; and (iii) assaulting the learner’s elderly
guardian/grandmother also on 28 January 2016 at the same school, by
throwing her against a gate, kicking her and hitting her on
the face
with his fist, as well as kneeling on her.
[6]
The respondent pleaded guilty to the first charge of assaulting the
learner with a
pipe on his arm, but pleaded not guilty to the other
two charges that occurred on 28 January 2016. He was, however, found
guilty
of common assault on each of the three charges and a sanction
of dismissal was imposed.
[7]
The respondent appealed this decision and the imposed sanction to the
Member of the
Executive Committee for Education, but the appeal was
dismissed. He, subsequently, referred the dismissal dispute to the
Education
Labour Relations Council, the second respondent herein,
disputing the findings of guilty on charges 2 and 3, as well as the
fairness
of the sanction of dismissal. The dispute was conciliated
without success and eventually referred to arbitration.
[8]
At arbitration, the pre-arbitration minute recorded the respondent’s
plea of
guilty to charge 1 of hitting the learner with a pipe, and
noted his plea of not guilty to charges 2 and 3 of the assault on the

learner and his grandmother that occurred on 28 January 2016.
[9]
The issues for determination at arbitration were whether the
respondent was guilty
of charges 2 and 3 and whether dismissal was
the appropriate sanction. The arbitrator found on the evidence
tendered that the respondent
was guilty of common assault in regard
to charges 2 and 3 and that the sanction of dismissal was appropriate
under the circumstances.
[10]
Aggrieved by the arbitration award, the respondent launched an
application with the court
a quo
, seeking an order to review
and set aside the arbitration award. The court
a quo
, after
consideration of the record of proceedings before the arbitrator
together with the arbitration award, save for the finding
that the
respondent was guilty of common assault on the learner and the
learner’s grandmother, reviewed and set aside the
arbitration
award, and substituted the findings of the arbitrator on the fairness
of the respondent’s dismissal, with a lesser
sanction.
[11]
The appellant is not satisfied with the decision of the court
a
quo
regarding the sanction it imposed, and is, as a result,
before this court to appeal against the court
a quo
’s
decision to impose a lesser sanction.
Arguments
[12]
The appellant’s argument is that on the facts of this case, it
was reasonable for the arbitrator
to conclude that dismissal was an
appropriate sanction that did not require the court
a quo
to
substitute it with a lesser sanction. In essence the appellant’s
case is that the court
a quo
’s judgment is incorrect on
the following grounds:
(a)
The nature and gravity of the misconduct which includes two assaults
on
a learner and another on the learner’s elderly grandmother
over two consecutive days justify dismissal on the grounds that
–
(i)
where the respondent had pleaded guilty in charge 1, in the face
of
an admitted assault of a twelve (12) year old learner, who at the
time of the assault appears to have done nothing wrong, coupled
with
the statutory injunction not to administer corporal punishment
against learners, exacerbated further by the respondent’s
lack
of remorse, dismissal on this charge alone, fell within the band of
reasonableness.
(ii)
where the evidence in charges 2 and 3 demonstrated that the
respondent
was unable to control his temper, the contention being
that the outburst of the respondent’s temper was the reason for
the
confrontational and violent outburst between himself, the learner
and the learner’s grandmother, coupled with the assault
of an
elderly fifty-six (56) years old petite woman and thus, cumulatively
considered with charge 1, dismissal was the appropriate
sanction to
mete out.
(b)
The respondent’s 27 years of unblemished record does not
sufficiently
mitigate the sanction of dismissal, given the serious
nature and gravity of the assaults, his position as an educator, his
lack
of remorse and heightened levels of aggression which
characterise his temperament; and
(c)
It was not for the arbitrator to request additional medical evidence
to
bolster the respondent’s case, in circumstances where he was
represented by a union representative who was familiar with
arbitration process and had indeed placed evidence of treatment
before the arbitrator. If the arbitrator had requested additional

information, it would have rendered his conduct improper and lent to
a perception of bias.
[13]
The appellant, thus, submitted that when all the evidence that was
before the arbitrator is considered
holistically and contextually, it
is apparent that the arbitrator formed the view that the nature and
gravity of the misconduct
clearly outweighed the respondent’s
clean record and length of service. It was for that reason that the
arbitrator found
that dismissal was the appropriate sanction.
[14]
The respondent’s case in opposition to the appeal is that the
court
a quo
’s judgment is correct because:
(a)
the arbitrator failed to apply his mind to matters which are material
to the fairness
of the sanction to such an extent that it cannot be
said that there was a fair trial. Such matters include respondent’s
successful
rehabilitation, 27 years’ service, additional post
graduate qualification acquired and a blemish free record;
(b)
the arbitrator ought to have looked at the nature and extent of the
respondent’s
conduct within the context of the surrounding
circumstances. The argument is that, if the arbitrator had done so,
he would have
realised that even if the three charges of misconduct
are taken together, absent anything else, dismissal was not a proper
sanction.
A reasonable arbitrator, according to respondent’s
counsel, would not have come to the decision the arbitrator in this
matter
reached.
(c)
even if the charges are taken cumulatively, the effect thereof does
not stand within
the ranking of a gross misconduct that justifies
dismissal, particularly when considered in the light of the
respondent’s
27 years of a clean record of service, and the
other surrounding circumstances where there was gross provocation
constituted by
a history of trouble with the learner, coupled with
his grandmother’s attitude in refusing to go wait for the
principal at
the office. In addition, counsel contended that even
though the evidence showed that the respondent has a short temper,
the arbitrator
ought to have taken into account the fact that for 27
years of his service as a teacher the respondent maintained an
unblemished
service record.
(d)
the arbitrator should have considered the provisions of section 18 of
the Employment
of Educators Act (“the Educators Act”).
[1]
which sets out sanctions in terms of the degree of misconduct.
According to the respondent’s counsel, the section has variable

sanctions depending on the degree of the misconduct, and dismissal
can only be imposed if the nature and extent of the conduct,
in this
case assault, justify it. The argument is that, in this instance,
though the respondent was charged with assault with intent
to do
grievous bodily harm, he was, in actual fact, only found guilty of
common assault on all the three charges, the degree of
which does not
justify a sanction of dismissal. Furthermore, the arbitrator, is said
to have imposed the sanction of dismissal
without even considering
whether other forms of sanctions might be appropriate; and that
(e)
the arbitrator was duty bound to request medical evidence to fairly
determine the
respondent’s case, in circumstances where the
arbitrator followed an inquisitorial approach and gave an indication
that he
was satisfied with the respondent’s evidence of his
anger treatment and the result thereof. The arbitrator was, in any
event,
in terms of the CCMA’s Guidelines duty bound to request
additional information in this regard.
[15]
This court has to determine whether the court
a quo
,
considering the evidence that was before the arbitrator, having,
also, come to the conclusion that the respondent was guilty as

charged, should have taken a view that an arbitrator acting
reasonably under such circumstances, could not have imposed a
sanction
of dismissal.
The
Applicable Law
[16]
In this matter, the court
a quo
reviewed and set aside the
arbitration award in so far as it relates to the sanction of
dismissal imposed by the arbitrator, on
the basis that it was
substantively unfair, and substituted it with a lesser sanction.
[17]
In terms of the Labour Relations Act (“LRA”),
[2]
it is the duty of an arbitrator to determine whether a dismissal is
fair or not. An arbitrator is said not to be given the power
to
consider afresh what she or he would do, but simply to decide whether
considering all relevant circumstances, the sanction of
dismissal as
imposed by the employer was fair.
[18]
It is, thus, trite that, on review, the test is whether the
arbitrator, in arriving at a conclusion
about the fairness of the
dismissal, arrived at one that a reasonable arbitrator could have
reached, given the evidence and the
questions of fact and law before
such arbitrator.
[3]
[19]
Therefore, the test that this court must apply in deciding whether
the arbitrator’s decision
is reviewable is whether the
conclusion reached by the arbitrator was so unreasonable that no
other arbitrator could have come
to the same conclusion.
[20]
It is my view that in this matter, based on the material that was
before the arbitrator, the
court
a quo
’s decision in
reviewing and setting aside the sanction of dismissal imposed by the
arbitrator and thus substituting it with
a lesser sentence, is not
correct. I say so based on the reasons that follow hereunder.
Analysis
Whether
the nature and gravity of the misconduct, in the circumstances of
this matter, justify a sanction of dismissal
[21]
Before this court, the parties are at odds as to whether the
arbitrator made evaluations of evidence
that was before him to the
extent that these were material to, and affected the outcome that he
eventually reached. For instance,
the appellant’s contention,
which in my view is correct, is that the evidence that was before the
arbitrator evinced the
nature and extent of the misconduct as
justifying the imposition of a sanction of dismissal; whereas it is
the respondent’s
submission that the evidence before the
arbitrator demonstrated the nature and extent of the misconduct as
not justifying dismissal
as an appropriate sanction. The cardinal
issue here, is whether the misconduct is serious enough to warrant
dismissal as an appropriate
sanction.
[22]
When considering this issue, the arbitrator concluded that dismissal
is appropriate under the
circumstances of this matter. In coming to
such a finding the arbitrator considered the following in the award:
“
24.   In
my view, it is a serious transgression for the Applicant to assault a
parent or guardian of a learner. The School
could not condone the
Applicant’s behaviour in that regard, as it needs to look after
its reputation. . . If it was only
charge one against the Applicant,
then one could have argued that dismissal was inappropriate. In this
instance, the Applicant
went overboard and made himself guilty of
assault on three charges that included an assault on a parent or
guardian. I cannot lightly
interfere with the sanction imposed by the
employer. I therefore could not find that the sanction of dismissal
imposed by the employer
was shockingly inappropriate that I as a
reasonable decision maker should intervene. I therefore find the
Applicant’s dismissal
substantively fair.”
[23]
It is, therefore, clear from the reading of the award that the
arbitrator considered the cumulative
effect of the three charges as
manifestly gross and the effect the said misconduct had on the
continued employment relationship
between the parties, to arrive at
the conclusion that dismissal was the appropriate sanction.
[24]
The nature and gravity of the misconduct is such that, in his own
version in respect of charge
1, the respondent pleaded guilty and
confirmed that he assaulted the learner with a pipe. It appears from
the evidence that the
respondent assaulted the learner for no
apparent reason but for his (the respondent) frustrations due to the
learner’s previous
behaviour that went unpunished. It was the
respondent’s case that the learner was inclined to making
remarks to and inappropriately
touching other learners. According to
the respondent’s evidence, on the day he assaulted the learner,
the learner had simply
walked past his classroom door, he called the
learner and gave him (the learner) “
just one blow
”
with a pipe. As a result of such assault by the respondent, the
learner sustained thick red marks (whorls) on his arm.
[25]
The second incident, charges 2 and 3, happened after the complainants
went to school to report
the first incident to the principal who they
found was not available and ended going to the respondent’s
classroom.
[26]
The evidence on record, in respect of charge 2, is that the learner
went into the classroom and
sat at his desk. The respondent is said
to have gone to the learner, pulled him out of his desk and removed
him from the classroom.
There is a dispute as to the manner in which
the respondent removed the learner from of the classroom, but the
arbitrator having
evaluated the evidence that was before him made a
finding that the learner’s version was more probable, and
accepted same
as the truth of what happened, that is, the respondent
removed the learner by the neck and threw him out of the classroom.
[27]
It is common cause that when they were outside, the respondent pushed
the learner away and he
fell against the gate and injured his arm.
The arbitrator’s finding in this regard is that the learner was
so pushed when
he tried to help his grandmother who was lying on the
ground with the respondent kneeling over her and pushing one of his
knees
into her. The learner as a result sustained injuries to his
left arm.
[28]
As regards charge 3, it is common cause that the learner’s
grandmother fell with her back
onto the cement slab outside the
classroom and sustained bruises as a result. It is also common cause
that after the respondent
fell on top of the learner’s
grandmother, he was on his knees with one knee pushing the learner’s
grandmother down,
whilst she was lying on the ground. There was a
dispute as to the manner in which the respondent and the grandmother
fell to the
ground, but the arbitrator accepted the grandmother’s
evidence as probable and as such made a finding that the grandmother

fell when she was pushed by the respondent.
[29]
The assault on the grandmother was aggravated further in that from
the observation of the arbitrator,
the learner’s grandmother
was a small slender person with a tiny body, whilst the respondent,
was a big and muscular man.
The arbitrator found it greatly
inappropriate for the respondent to have assaulted the learner’s
grandmother, a 56 years
old petite woman, in the manner that he did.
She was injured, as a result of the fall, the doctor who examined her
after the incident
diagnosed bruising and tenderness in the ribs and
“behind” area.
[30]
It is quite clear from the above evidence that both the learner and
his grandmother were left
traumatised by the assault which happened
on the school premises in full view of other learners as well as
teachers, in respect
of counts 2 and 3.
[31]
The respondent’s contention that if the arbitrator had taken
the degree of the misconduct,
which is common assault, against the
background of the provisions of section 18 of the Educators Act, he
would have, as a reasonable
arbitrator, not imposed a sanction of
dismissal, is without merit.
[32]
It is not in dispute that the provisions of section 18 of the
Educators Act has variable sanctions
depending on the degree of the
misconduct, and dismissal can only be imposed if the nature and
extent of the conduct justify it.
It is, also, not in dispute that
from the evidence that was before the arbitrator, although one of the
charges facing the respondent
was assault with intent to do grievous
bodily harm, which justifies dismissal, he was, in actual fact, only
found guilty of common
assault on all the three charges, the degree
of which, individually, does not justify a sanction of dismissal.
However, it is clear
from the award that the arbitrator took into
account the seriousness of the misconduct and its cumulative effect
as not warranting
the reinstatement of the respondent, from the
operational point of view.
[33]
Thus, the further contention that the arbitrator failed to consider
other sanctions that were
available and did not even refer to the
other sanctions, is enough to set the award aside, is unmeritorious
and not correct. This
contention, in my view, is not supported by the
reading of the award, which shows that the arbitrator considered the
appropriateness
of the sanction and found the applicant’s
dismissal to be fair on the basis of the seriousness of the
misconduct.
[34]
The findings of the arbitrator are, furthermore, fortified by the
statutory injunctions on educators
not to administer corporal
punishment against learners, which injunctions on their own justify
dismissal on charges 1 and 2.
[35]
The Constitutional Court has in
Christian
Education South Africa v Minister of Education
,
[4]
when providing interpretative content to section 10(1)
[5]
of the South African Schools Act,
[6]
held, amongst others, that the State was under a constitutional duty
to take steps to help diminish the amount of public and private

violence in society, generally to protect all people, and especially
children, from maltreatment, abuse or degradation.
[36]
The Constitutional Court’s reasoning continued along the lines
that the outlawing of physical
punishment in the school represented
more than a pragmatic attempt to deal with disciplinary problems in a
new way. It had a principled
and symbolic function manifestly
intended to promote respect for the dignity and physical and
emotional integrity of all children.
Thus, any violence against a
child justifies a sanction of dismissal. Regrettably, the court
a
quo
failed to engage meaningfully with the best interest of the
child, particularly as contained in section 28(2) of the
Constitution,
which enshrines the principle of the best interests of
the child. The fact that an educator, however, frustrated he or she
may
be with a learner or however troubled the learner may be, should
administer punishment in a form of an assault to a learner, as

occurred in this case, is so flagrantly a breach of the
constitutional rights of the child, renders the decision of the court
a quo
totally inexplicable.
[37]
In addition, in terms of section 18(1)(r) of the Educators Act, it is
a misconduct for an educator
to assault or attempt to assault or
threaten to assault another employee or another person. Section
17(1)(d) of the Educators Act,
on the other hand, provides that an
educator must be dismissed if he or she is found guilty of seriously
assaulting, with the intention
to cause grievous bodily harm to, a
learner, a student or other employee. In addition, section 18(3)(i)
of the Educators Act directs
that the employer may impose a sanction
of dismissal if the nature or extent of the misconduct warrants
dismissal.
Whether
the respondent showed remorse
[38]
The argument by the respondent’s counsel that the arbitrator
failed to consider the fact
that the respondent was remorseful and
had rehabilitated himself and that he was provoked, as factors in
mitigation of sanction,
militates against the finding of dismissal as
appropriate, is similarly without any merit.
[39]
The arbitrator, having assessed all the material before him,
concluded reasonably so, that the
respondent has shown no remorse.
The following remarks are made by the arbitrator in paragraph 24 of
the award:
‘
24.
As to the appropriateness of the sanction, I have to decide each
case
on its own merits. I took into account that the Applicant
[respondent] blamed Ismail [the learner’s grandmother] and

Joseph [the learner] for the situation on 28 January 2016. Further,
the Applicant wanted to justify his actions in respect of the
charge
one that occurred on 27 January 2016 when he hit Joseph with a pipe.
The Applicant during his testimony claimed that he
did so, because
Joseph was fond of touching other learners in the class. That might
be so, but lately there are other more human
ways to punish learners
for wrongdoing. The Applicant never raised this issue with Joseph
during cross-examination. Accordingly,
I find that the Applicant did
not show remorse.’
[40]
Effectively, when the arbitrator came to the conclusion that the
respondent showed no remorse,
he, correctly, took into account the
fact that, in the first place, though the respondent had pleaded
guilty in respect of the
charge that occurred on 27 January 2016 when
he hit the learner with a pipe, he, however, wanted to justify his
actions by claiming
that he hit the learner because the learner was
fond of touching other learners in class. Although the arbitrator
accepted that
perhaps, it might had been so, but, he rejected the
respondent’s explanation on the basis that lately there are
other more
humane ways to punish learners for wrongdoing. The
respondent’s explanation was, also, rejected on the basis that
such justification
remained merely an allegation because the
respondent never raised it with the learner during cross-examination.
In the second place,
the arbitrator took into account the fact that,
instead of taking responsibility, the respondent continued to place
blame on the
learner and his grandmother for the events that occurred
on 28 January 2016.
[41]
In oral argument before this court, counsel for the respondent sought
to argue that he had showed
remorse when he acknowledged that he had
anger management issues and that immediately after the incident, he
tried ‘to repair’
(meaning to rehabilitate) himself as an
educator and went on his own to a clinic where for three weeks he
received specialist treatment
for anger management.
[42]
It was not in dispute that the respondent was a person with anger
management issues. It is, also,
not in dispute that a person with
anger management issues cannot be employed to deal with children,
particularly in a school environment.
Both Mr Van der Merwe and Mr
Jones, who testified at the arbitration, confirmed that the
respondent was short-tempered and that
on 28 January 2016, he was
very upset. The respondent, also, conceded that he has anger
management issues and that on the day in
question he was very upset
and could not control his temper. And, that was the reason why he,
immediately after the incident, sought
the assistance of experts to
help him with his uncontrollable temper. It is on that basis that it
was argued on his behalf that
his having attended the treatment to
deal with this challenge, on his own volition, should be regarded as
an indication of remorse.
[43]
The arbitration award deals with this issue of the respondent’s
attempt to deal with his
anger issues, at length. However, based on
the material that was before him, the arbitrator could not find,
reasonably so in my
view, that the respondent could in future control
his short temper and, thus, correctly so, could not make a finding
that the respondent
showed meaningful remorse. In paragraph 24 of the
award he stated as follows:
‘
24.
I further could not find that the Applicant was over his short
temper,
I only have his word for it. The letter of Claro Clinic,
submitted as documentary evidence merely confirmed the Applicant’s

admission for a period of three weeks in March 2016. No detailed
medical evidence supported the Applicant’s claim as to the

prognosis, treatment, and his response to such treatment. Jones and
Van der Merwe as witnesses confirmed that the Applicant had
a short
temper. Jones knew the Applicant for his short temper from the past.
The Applicant did not contest this evidence.’
[44]
It is apparent from the arbitration award that only a letter of Claro
Clinic, was placed in evidence
in support of the respondent’s
claim that he received treatment there and has been rehabilitated.
However, from reading the
award, it is clear that the letter
submitted, only confirmed that the respondent was admitted there for
a period of three weeks
to receive treatment. The medical evidence
required in support of the respondent’s claim as to the
prognosis, treatment,
and the respondent’s response to such
treatment was not detailed in the letter, hence no informed decision
could be made
that the respondent has overcome his short temper.
[45]
Moreover, the evidence on record does not give an indication of any
actual genuine self-reflection
by the respondent. There is no
indication that he knows that what he did, in assaulting the learner
and his grandmother, was wrong,
which, in my view, would be an
indication that he was remorseful. The fact that during the
arbitration hearing he sought to justify
his conduct of hitting the
learner with a pipe and also instead of accepting responsibility for
the events of 28 January 2018,
he continued to put blame on the
learner and his grandmother, aggravates his situation.
[46]
Essentially, the challenge for the respondent is that, from the
evidence tendered at the arbitration,
even if it can be accepted that
the respondent received treatment from specialists in relation to his
anger management issues,
and was assisted and/or ‘remedied’
as contended for by his counsel, but his demeanour shows otherwise.
In my view,
in order for the respondent to have shown genuine
remorse, he would have, after undergoing treatment, asked for
forgiveness from
the learner and his grandmother. This he would have
done by going to them directly and asked for forgiveness or
apologised to them
when giving evidence at the arbitration as an
indication of remorse. Such conduct, would have shown that, through
the treatment,
the respondent realised and accepted that what he did
was wrong.
[47]
To the contrary, his counsel sought to argue that the arbitrator
ought to have considered the
work of the several specialists who had
worked on the respondent, who would have verbalised the respondent’s
feelings because
as a person who has anger problems the respondent is
not able to express himself, but the specialists’ view of what
was going
on in his mind, could have assisted the arbitrator in
reaching a different conclusion. I do not agree.
[48]
In my view, for the respondent to have shown genuine contrition, it
would not have been expected
of the specialists to inform the
arbitrator what was going on in the respondent’s mind. But,
what ought to have happened,
was for the respondent to show the
arbitrator what was going on in his mind. The respondent should have,
during the treatment,
been assisted by the specialists to realise
that what he did was wrong and to accept that it was wrong. It is not
a question of
what the specialists had to say, but it is a question
of self-reflection. The respondent ought, on his own, to know that he
has
done wrong, irrespective of whether he was provoked or not, and
go back to the person he offended and ask for forgiveness. There

being no such evidence on record, the only inference that can be
drawn is that the specialists failed to adequately deal with the

respondent’s anger issues and the respondent still requires
further treatment. Not only was there no evidence to justify
that
there was remorse but the manner in which the respondent prosecuted
his case was, clearly the opposite of that expected of
a
self-reflective, remorseful teacher. Consequently, it would be safe
to conclude that the respondent has not been rehabilitated,
and is,
as such, not suitable to continue to work in a school environment.
[49]
It is my view that the respondent’s 27 years of unblemished
record, which the respondent’s
counsel contended for, does not
sufficiently mitigate the sanction of dismissal, given the serious
nature and gravity of the assaults,
the respondent’s position
as an educator, his lack of remorse and heightened levels of
aggression which characterise his
temperament, which it has been
shown he has not overcome. Therefore, when all the evidence that was
before the arbitrator, is considered
holistically and contextually,
it is apparent that the arbitrator formed the view that the nature
and gravity of the misconduct
clearly outweighed the respondent’s
clean record and length of service and for those reasons he found
that dismissal was
the appropriate sanction.
[50]
The further submission by the respondent’s counsel that the
arbitrator ought to have taken
the respondent’s plea of guilty
on charge 1 and his thinking that on charges 2 and 3 he was acting in
self-defence, as showing
remorse, is also without merit.
[51]
On his version, the respondent states that, even though he did not
plead guilty in respect of
charges 2 and 3, he eventually did
apologise because when he was advised to abide by the decision of the
arbitrator, he followed
suite and did not appeal the finding. This,
in my view, does not show any contrition on the part of the
respondent. Contrition,
as I have said, is a self-reflection and must
come from the respondent.
[52]
The arbitrator further accepted the evidence of Mr Van der Merwe, the
principal of the school,
that he expected educators to control
themselves and to respect others and that he would not appoint
educators that lose their
temper. It is on this basis that the
arbitrator found it understandable that though educators have to work
under difficult circumstances
and sometimes have to deal with tense
situations, they still have to be able to control themselves and
respect the learners, regardless
of the circumstances. The
arbitrator, consequently, could not find any guarantees that the
respondent would not commit the same
transgression when and if
provoked.
Whether
there was provocation
[53]
There can never have been provocation on the part of the learner and
his grandmother. The arbitrator
when rejecting this evidence, made a
finding that, as regards charge 1 the respondent assaulted the
learner for no apparent reason
as he called him whilst passing his
classroom and hit him on the arm. The arbitrator, as well, rejected
the explanation the respondent
sought to make, as mere allegations
which were unproven and that there were other ways of disciplining
learners rather than hitting
them with a pipe.
[54]
In regard to counts 2 and 3, there is no evidence on record of the
gross provocation alleged
by the respondent. The findings of the
arbitrator, in this regard, is that the learner and his grandmother
had gone to the school
to report the incident that had happened the
previous day. The learner and his grandmother were attacked by the
respondent, who
conceded that he could not control his anger on that
day. The learner had gone into the classroom and sat at his desk when
the
respondent pulled him by the neck to remove him from his
classroom, he then pushed the learner’s grandmother who was
standing
at the door enquiring about the manner the respondent was
handling his grandson. The grandmother fell outside the classroom on
the cement slab. The respondent further pushed the learner when the
learner tried to assist his grandmother whilst she was lying
on the
ground with the respondent pushing her down with his knee.
Whether
the arbitrator was duty bound to request medical evidence
[55]
It is my view that the argument on behalf of the respondent that the
process followed by the
arbitrator when considering the evidence in
regard to the treatment of the respondent for anger management, had a
lot of shortcoming,
has no basis.
[56]
The shortcomings, as I understand, were as a result of the arbitrator
failing to request more
information about the treatment the
respondent received for his rehabilitation. The submission by
respondent’s counsel was
that the respondent having referred to
his treatment for anger management during his testimony, it was for
the arbitrator, in exercising
‘the helping hand principle’
and in terms of the CCMA’s Guidelines, to have requested more
information instead
of holding it against the respondent that the
evidence was lacking.
[57]
It is my view that, the proposition by the respondent that the
arbitrator was duty bound to request
medical evidence to fairly
determine the respondent’s case, is in similar vein, without
merit. I am more inclined to agree
with the argument by the
appellant’s counsel that it was not for the arbitrator to
request additional medical evidence since
it would be tantamount to
bolstering the respondent’s case.
[58]
The evidence of treatment was placed before the arbitrator by the
respondent’s union representative
who further confirmed that
such evidence was relevant and sufficient in support of his argument
that the respondent has been rehabilitated.
[59]
Even if it can be accepted that the arbitrator did give an indication
that he was satisfied with
the respondent’s evidence of his
anger management treatment and the result thereof, it, however, does
not detract from the
fact that there was inadequate evidence before
him in support of the respondent’s claim that he was
rehabilitated. The letter
as earlier indicated, only confirmed the
respondent’s admission to the clinic for three weeks. There was
no mention of the
prognosis, treatment, and the respondent’s
response to such treatment to support the respondent’s claim in
this regard.
[60]
Additionally, the respondent was represented by a union
representative who had, before the hearing
commenced, assured the
arbitrator that he was knowledgeable about arbitration proceedings.
The union representative must have,
therefore, been fairly familiar
with the arbitration process to have given such assurances.
Furthermore, the arbitrator took it
upon himself to explain the rules
of evidence and the manner in which he would apply the rules to the
evidence adduced, if the
union representative did not understand this
explanation, he should have indicated as such.
[61]
It is, also, worthy to note that the specialist report referred to in
the court
a quo
’s judgment, did not serve before the
arbitrator and can, therefore, not be of any assistance to the
respondent’s case.
[62]
Effectively, the arbitrator acted reasonably in making a finding that
the respondent was not
rehabilitated and showed no remorse at all.
Conclusion
[63]
It is trite that adjudging the severity of misconduct in context, is
a power conferred on an
arbitrator. The law is clear: the choice of
sanction made by the arbitrator must stand unless it is demonstrable
that no reasonable
arbitrator could have reached that conclusion.
[7]
In this matter, there is no demonstrable evidence that no reasonable
arbitrator could have reached the conclusion reached by the

arbitrator in this instance. The result is that there is no
irregularity in how the arbitrator assessed the appropriateness of

the sanction and/or fairness of the dismissal.
[64]
To the contrary, the nature of the misconduct, which includes two
assaults on a 12 year old learner
and another on the learner’s
56 year old elderly petite grandmother over two consecutive days,
exacerbated further by the
gravity of the misconduct which includes
the unprovoked manner in which the respondent hit the learner and his
grandmother and
the injuries sustained, coupled with the statutory
injunction not to administer corporal punishment against learners,
the overriding
constitutional principle of the best interests of the
child, as well as, the respondent’s lack of remorse, manifestly
justify
dismissal as an appropriate sanction. As such, the dismissal
stands to be confirmed.
Costs
[65]
No order for costs is warranted in the circumstances of this matter.
I, in that regard, am not
making an order for costs.
Order
[66]
In the circumstances the following order is made:
1.
Condonation is granted for the late
filing of the Notice of Appeal
and the supplementation of the record with the translations of the
Afrikaans portions of the record.
2.
The appeal is upheld.
3.
The judgment and order of the court
a quo
is set aside and is
substituted with the following order: “The review application
is dismissed”.
4.
There is no costs order.
Kubushi
AJA
Davis
JA and Coppin JA concur.
APPEARANCES:
FOR
THE APPELLANT:

B Joseph
Instructed by Office of
the State Attorney
FOR
THE FIRST RESPONDENT:

D C Le Roux
Instructed by the Murray
Fourie & Le Roux Inc
[1]
Act 76 of 1998.
[2]
Act 66 of 1995.
[3]
See
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
2008
(2) SA 24
(CC); [2007] 28 ILJ 2405 (CC).
[4]
2000 (4) SA 757 (CC).
[5]
10.
Prohibition
of corporal punishment
– (1) No person may administer corporal punishment at a school
to a learner.
[6]
Act 84 of 1996.
[7]
See
TMT
Services & Supplies (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration and Others
2019 (40) ILJ 150 (LAC) at para 21; and
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
2000 (2) SA 24
(CC) at 178 and 179.