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[2008] ZALAC 20
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MEC for Education Department: Limpopo v Sebetha (JA39/2006) [2008] ZALAC 20 (28 February 2008)
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IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: JA39/2006
2008-02-28
In the matter between
MEC FOR EDUCATION DEPARTMENT: LIMPOPO Appellant
And
MOKGADI EVAH SEBETHA Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
DAVIS JA
:
[1]
From 14 June 2001, first respondent applied corporal
punishment to a minor pupil aged 6. In the first respondent’s
statement,
she indicated that she had applied corporal punishment
because the minor child had been absent from school on 13 June 2001.
Her
statement insofar as it is relevant reads thus:
“I gave him lashes on head only and he had bruice (sic) on the
right hand side of his eye. The child was sitting on
the chair,
I used plastic pipe. I immediately reported the matter to the
principal and principal confirmed the bruice (sic) as
the only injury
on the child body (sic). The principal took the child home during
break. After break the father came to school
and he was very angry
as the mother of Thabang phoned him. He promised to report the
matter to the police and the media …
The police came to
school, they asked me to report at Gakgapane Police Station on
15 June 2001, the case was postponed
to 11 July 2001.
On that date I was fined R300 for pleading guilty. During the
reopening, the child was withdrawn from
my class, the father’s
decision.”
[2] As a result, appellant instituted disciplinary proceedings
against first respondent in consequence of which she was dismissed.
She referred the matter to the Education Labour Relations Council.
Second respondent was appointed as an arbitrator. In his
award, he
recorded the only issue before him was whether or not the dismissal
of first respondent was fair and had been justifiable.
He found that
a clear rule existed in the workplace prohibiting educators from
assaulting learners and that the first respondent
knew or should have
known such a rule.
[3] Second respondent however, went on to find that the sanction of
the dismissal was too severe. He interfered with the sanction
of
dismissal and considered certain mitigating factors in favour of
first respondent. In short, he took into account the remorse
she has
shown, her length of service and the bruise which in his view was of
a minor nature. Accordingly the first respondent
was reinstated.
[4] Appellant then applied to review and set aside the arbitration
award issued on 17 November 2004 in terms of which the second
respondent had found that the first respondent be unfairly dismissed
by the appellant: “As the sanction given to her was
excessive
and not befitting of the offence she committed.”
[5] The review application was instituted approximately ten and a
half months late; it was accompanied by an application for
condonation.
The application for condonation was dealt with by the
court
a quo
and was in effect dismissed. As noted, this
review application was approximately ten and a half months out of
time. Appellant
received the award on 18 November 2004.
The mandatory period expired on 29 December 2004; the review was only
instituted
on 17 October 2005.
[6] Second respondent obtained an order from the Labour Court
making the arbitration award an order of court. This award
had first
to be rescinded before the review could be processed. An application
for rescission was pursued and the judge in making
the arbitration an
order of court was rescinded on 16 September 2005.
[7] Ms Cassiem, who appeared together with Mr Skoskana on behalf of
the appellant, sought to make much of the dates and that the
date
insofar as condonation was concerned, should have begun from the time
of rescission. The point however, was that the rescission
of the
award of the court, that is the decision of the court which had made
the arbitration award an order of court, was not the
crucial date.
The crucial date was the award which had been granted on
18 November 2004 and the six week period expired
on
29 December 2004.
[8] In the explanation provided by appellant, no reasons were given
as to why there had been a delay, particularly between January 2005
and 28 April 2005. It was this particular unexplained
delay which the court
a quo
emphasised its decision to refuse
condonation.
[9] In the heads of argument which were prepared on behalf of
appellant by Mr Boda, the concession is made that it is difficult
to
fault the court
a quo’s
analysis of this explanation for
delay, and no criticism is made of the court’s finding with
regard to this particular aspect
of the case.
[10] Before us this morning, Ms Cassiem emphasised that the real
basis for the appellants approaching this court for condonation
of
the delays, was that the case was of paramount importance to
appellants and further that there were clear prospects of success
which flowed on the merits thereof. It is to this particular issue
that I now turn.
[11] Appellant essentially argues that it is in interest of justice
for the court to grant the appellant condonation, particularly
because of the strong prospects of success and the fact that this
dispute concerns the interest of a child. In particular, the
argument was raised by appellant that the court
a quo
had
failed to deal with the merits of the case in the proper legal
manner.
[12] In this connection, reference must be made to two critical
sections of the
Employment of Educators Act 76 of 1998
.
Section
17(1)(d)
of that Act provides that “an educator must be
dismissed if he or she is found guilty of serious assaulting, with
the intention
to cause grievous bodily harm to a learner, student or
other employee.
Section 18(1)(r)
of Act provides that it is
misconduct for an educator to assault or attempt to assault or
threaten to assault another employee
or another person. In terms of
Section 18(2)(i)
the employer may impose a sanction of dismissal if
the nature or extent of the misconduct, warrants dismissal.”
[13] In my view, the court
a quo
erred in its approach to
these sections. In a case where assault with intent to commit
grievous bodily harm is proved, it is clear
that a dismissal is
mandatory.
Non constat
that if there is an assault, absent
grievous bodily harm, that a dismissal cannot take place. In this
particular case, the minor
child was six years old. She suffered an
injury above the eye. I am not impressed by first respondent’s
hermeneutic arguments
regarding the nature of the weapon. In this
case, the fact that it was a plastic pipe is irrelevant. What is
relevant is that
a serious violation of the child’s rights, was
in fact caused by the assault administered by first respondent.
These rights
are now protected by our constitution and even more than
previously would have been a case, courts have to take extremely
seriously
any violation of children’s rights. Remorse after
the fact in a case such as the present cannot surely be a sufficient
basis for a employer never to dismiss an assaulter such as the first
respondent particularly where it has a clear policy regarding
corporal punishment and when the victim is a six year old child.
[14] The employer in these cases, is certainly entitled to say, that
notwithstanding any remorse, notwithstanding an impeccable
record,
given the violence perpetrated upon a minor child, dismissal may well
be justified in such a case.
[15] The fact is; the court
a quo
erred in its evaluation of
the prospects of success. It emphasised wrongly that dismissal can
only take place in the case of an
assault with the intent to do
grievous bodily harm. As I have already mentioned, that becomes a
mandatory case of dismissal.
In a case such as the present, a
dismissal would certainly have been justified on the facts. Were
there not to have been a delay,
unquestionably on the basis of the
powers of review which are granted to the Labour Courts to review
decisions of an arbitrator,
a different result may have ensued from
that which took place in this case. Most certainly this court wants
to emphasise again
that an appellant in a situation of this case,
applying its mind properly to the case, is entitled to dismiss a
teacher who assaults
a minor child.
See
insofar as the powers
of review are concerned;
Sidumo v
The
Rustenburg Platinum Mines Limited
,
[2007] ZACC 22
;
2008 (2) BCLR
158
(CC);
particularly at paragraphs 61, 110 and 119 of the
judgment of Navsa AJ.
[16] Having concluded that the court
a quo
erred on the law
and that a dismissal of first respondent was certainly a justifiable
option, given the facts of the case, the
question arises as to
whether on this basis alone, condonation should be granted? The
facts are, that the events which gave raise
to this dispute occurred
almost seven years ago. More than four years have transpired since
the legal proceedings commenced which
followed that incident. There
have been inordinate delays in this case for at least four months.
The appellant (Ms Cassiem sought
to place the fault at the door of
the State Attorney rather than the Department), clearly delayed.
Whoever is directly at fault,
appellant cannot be excused. Appellant
is no ordinary litigant. It is part of the government of this
country. It needs to act
fastidiously insofar as these cases are
concerned, precisely because if long delays occur as occurred in this
case, it is a case
of justice delayed being justice denied. It would
be inappropriate to recommence proceedings which took place so long
ago, particularly
in circumstances where the explanation for
condonation is as skeletal as it is in this case.
[17] For these reasons and only for these reasons, the appeal is
dismissed. There is no order as to costs.
JAPPIE & LEEUW JJA
: Concurs.
COURT
: It is so ordered.
On behalf of Appellant: Ms Cassiem/Mr Skoskana
On behalf of Respondent: Mr Maklasi