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[2015] ZALCJHB 51
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Sekobo v MEC Department of Basic Education (Gauteng) and Others (JR 409/13) [2015] ZALCJHB 51 (24 February 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Johannesburg
Case
no: JR 409/13
DATE:
24 FEBRUARY 2015
Not
Reportable
In
the matter between:Nelson
Sekobo
............................................................................
First
Applicant
And
MEC:
Department of Basic Education
(GAUTENG)
...............................................
First
Respondent
Commissioner
Pearl N Mbekwa
(N.O.)
..................................................................
Second
Respondent
Commission
for Conciliation, Mediation And
Arbitration
.....................................
Third
Respondent
Heard:
17 June 2014
Delivered:
24 February 2015
Summary:
(Review – dismissal).
Judgment
LAGRANGE
J
Introduction
[1]
This matter is an unopposed review
application. At the time the matter was heard, I was somewhat
surprised that it was unopposed
even though the first respondent had
succeeded in the arbitration proceedings. Nonetheless, the
application must stand or fall
on its merits, irrespective of whether
it is opposed.
[2]
The applicant also applied for condonation
for the late filing of his review application, which was only filed
in early March 2013
when it should have been filed in mid-December
2012. Even though the delay is significant, in the absence of
opposition from the
first respondent, there is no indication of any
prejudice the latter suffered. I am also mindful of the fact that the
six week
period expired at an awkward time of the year and that part
of the reasons, though one that can only be a partial and limited
justification
for the lateness, was lack of funding to instruct
attorneys. Although the merits are poor for the reasons set out
below, I believe
that it would be better, in the context of an
unopposed matter, to deal with them finally than by way of
condonation. Accordingly,
somewhat reluctantly, condonation should be
granted.
[3]
The applicant was dismissed following an
alleged incident which took place at his house following a farewell
function for matric
learners. Teachers and a group of learners had
gone to his house after the farewell lunch. He was accused of sexual
assault on
one of the learners who came to his house involving
touching her breasts and having sexual intercourse with her. The
applicant
was an administrator at the school.
[4]
The evidence of the principal, Ms Molefe
(‘Molefe’), was that she only learnt of the incident the
following Monday when
parents of some of the learners came to
complain about incidents which had taken place at the applicant’s
home the previous
Friday. The other complaint related to an assault
on a male pupil by someone else who was at the applicant’s
house but was
not connected in any way with the school.
[5]
At the disciplinary enquiry, the alleged
victim of the sexual assault testified against the applicant. A
complaint of alleged rape
had also been lodged with the police by the
learner. On 17 June 2011, the learner signed an affidavit to the
effect that she had
been “forced” to open the case
against the applicant by the principal and her deputy. The coercive
measure they had
allegedly used was to threaten to withhold her
matric results. She then recanted her previous version and claimed
that she had
not even had consensual sex with the applicant, let
alone forced sex. At the arbitration hearing she then appeared as a
witness
for the applicant.
[6]
Despite the complainant’s
recantation, two of her fellow pupils testified in lurid detail about
what they had observed peering
through a bedroom window at the
applicant’s house. If their testimony is to be believed, it
would have been difficult for
an arbitrator not to have concluded
that indeed the applicant had sexual relations with the complainant
at his house on that occasion.
They also testified to the effect that
when the complainant emerged from the room in question she appeared
visibly shaken.
[7]
The principal had testified that a person
she referred to as the complainant’s “mother”, but
who appears to have
been her grandmother, had brought her in. In the
complainant’s presence, the grandmother was crying hysterically
because
she did not know how she must go to face her relatives in the
North-West because she had brought her to attend school in Gauteng.
The complainant had also raised the alleged sexual assault on this
occasion. The details of the complaint were not related to her.
She
denied withholding any results and explained the process by which
matric results are published. She was unaware that the complainant
had made an affidavit retracting her allegations and claiming she had
been forced to make them. She denied that any results have
been
withheld but agreed that someone from the Congress of South African
Students (‘
COSAS’)
had come to collect the
complainant’s matric results, but she did not know why the
complainant herself had not come. It is
noteworthy that the
applicant’s counsel at the arbitration did not put to the
principal when the complainant’s results
had allegedly been
withheld despite the arbitrator pointing out that this was necessary.
[8]
It was also put to the principal that she
had personally accompanied the complainant to the police station to
lay the charge against
the applicant, but the complainant never
confirmed this in her testimony. The principal denied any knowledge
of the criminal matter
which had been initiated. At no stage during
her cross-examination was it put to her why she would have falsely
sought to implicate
the applicant in such a serious act of misconduct
or criminal behaviour of the kind alleged.
[9]
The applicant denied any contact with the
complainant at his house or any prior dealings with her. He also
called as his witness
Ms T Manenzhe (‘Manenzhe’) an
educator who had also returned to the applicant’s house after
the lunch. Her version
was that she retired to a room at his house to
rest and that later the complainant came to the room and lay beside
her. She could
not remember if the complainant was still in the room
when she woke up. In her testimony, the complainant agreed that she
went
to sleep in the same room as Manenzhe and left at approximately
01H00. She said she only went inside the house when it started
pouring with rain because she was not wearing warm clothing. She
claimed she had sent an SMS to the applicant apologising for the
accusation she had made against him. The applicant also said he had
received such an SMS but unfortunately had lost the phone on
which
the SMS was recorded. Regarding the complaint being made to the
principal on the Monday, the complainant agreed that she
had gone to
the school with her grandmother that day and that the principal had
said she must write a letter. The principal had
told her what to
write. She also claimed that she had been forced by the principal to
go to the police station and lay a charge
of the rape against the
applicant. She said that she had obtained her results through
COSAS
,
the student’s organisation. She did not offer any reason why
the principal would have wanted to implicate the applicant
in such a
serious offence. She also did not explain why she had gone with her
grandmother to the school the following Monday.
[10]
The arbitrator related and analysed the
evidence in copious detail. In finding against the applicant, the
arbitrator found the following
evidence significant in concluding
that the complainant was not coerced to lay charge against the
applicant:
10.1
There was no evidence to contradict the
principal’s version that she only became aware of the complaint
against the applicant
because of the visit by the complainant and her
grandmother following the year end function.
10.2
The complainant did not testify that the
principal had accompanied her to the police station, which suggests
she did so of her own
volition.
10.3
No reason was advanced in the evidence why
the principal would have maliciously reported the complaint of sexual
assault, nor why
she would have coerced the complainant to make such
a claim. Moreover the principal’s claim is that she had a good
relationship
with the applicant was not disputed.
10.4
The statement of the complainant attached
to the arbitration bundled differs from the statement she made to the
police which demonstrated
her truthfulness. I note in this regard
that the first statement was not included in the record filed by the
applicant, but he
does not take issue with the arbitrator’s
finding that the statements differ.
[11]
The arbitrator also felt that the evidence
of Manenzhe and the applicant were contradictory in a number of
respects about the applicant’s
whereabouts at his house on the
Friday evening. She further noted that Manenzhe could not remember a
number of aspects of events
of that day. By contrast, she found that
the evidence of the two learners who claimed to have witnessed the
sexual conduct of the
complainant and the applicant was by and large
not disputed and there was no reason why they should have falsely
implicated the
applicant.
Grounds
of review
[12]
The applicant contended that the issues to
be decided by the court are:
12.1
Whether he was subject to the relevant
portions of the
Employment of Educators Act 76 of 1998
or the
Education Laws Amendment Act, 53 of 2000
.
12.2
Whether there was any evidence of sexual
assault or harassment placed before the arbitrator.
[13]
In regard to the first issue, he contends
that he was merely an administrative clerk and not an educator and
therefore not subject
to the code of conduct governing educators
which forbids sexual relationships between educators and learners.
The first issue was
raised in written argument at the arbitration.
The second ground is essentially a ground which contends that there
was no evidence
of sexual assault before the commissioner and that
sexual intercourse with the complainant could not amount to sexual
assault.
The applicant did not supplement his grounds of review in
his supplementary affidavit. The applicant cannot rely on any further
grounds raised in his heads of argument which were not set out in his
founding papers and I have confined myself to those grounds
which are
properly before the court. The Labour Appeal Court has made it clear
in the unreported case of
Comtech (Pty)
Ltd v Commisioner Shaun Molony N.O. and Others
(Case no DA 12/05, dated 21 December 2007) that it is not sufficient
for a party to simply relate conclusions of law in the founding
papers for a review application. A party must set out the factual
grounds on which it seeks to base its review. While it may be
excusable in a founding affidavit to state limited grounds of review
and in less detail, by the time an applicant has the record
of
proceedings it must then make up for the deficiencies in the founding
affidavit and set out the factual basis for its grounds
of review in
full. When it came to his supplementary affidavit, the applicant did
not supplement or amend the grounds of review
set out in the founding
affidavit. Accordingly, I have confined myself to the ones summarised
above.
Evaluation
[14]
Firstly, there is nothing to indicate that
the applicant was charged or found guilty in terms of legislation
specifically applicable
to educators. The notice of his disciplinary
enquiry was couched in terms of clause 6 and 7 of the Disciplinary
Code and Procedures
of the Public Service Act as encapsulated in
PSCBC Resolution 2 of 1999. Moreover, this point was only raised in
argument and was
not raised as part of the applicant’s case of
unfair dismissal during the hearing of evidence. It was also not
mentioned
at the outset of the arbitration proceedings that this was
a point which the applicant intended to argue.
[15]
As it appears to be incorrect that he was
disciplined in terms of any statute specifically relating to
educators and that, it was
not raised in any event in the course of
challenging the employer’s witnesses, this ground must fail.
[16]
In relation to the second ground, the issue
is whether there was any basis on the evidence for finding the
applicant guilty of sexual
assault in the sense of having
non-consensual sexual relations with the complainant. The arbitrator
clearly disbelieved that the
complainant’s retraction of her
complaint was genuine because there was no evidence advanced why the
principal would have
behaved so vindictively towards the applicant.
Secondly, the arbitrator disbelieved her claim that the principal
threatened to
withhold her marks. It is noteworthy in this regard
that there was no evidence led to support a claim that the
complainant had
attempted to obtain her marks but had been thwarted
and had to resort to using a third party to obtain them.
[17]
The arbitrator also accepted the evidence
of the complainant’s fellow learners’ evidence of
witnessing the applicant
and complainant engaged in a sexual act and
that the complainant appeared shaken when she emerged. On her
version, it was the principal
who had drew up the complaint and
forced her to initiate it. But nowhere in the complainant’s
evidence does she explain why
she went with her grandmother to the
principal in the first place, on the first working day following the
events at the applicant’s
house. It is apparent that it was
these factors which led the arbitrator to conclude that he was guilty
of the misconduct as charged.
[18]
There
may be some criticism made of the arbitrator’s reasoning such
as when she misconstrued the evidence of the complainant
in saying in
her testimony that she drafted her complaint in her own hand. But the
arbitrator’s reasoning is secondary in
deciding if her finding
is reasonable. When the substantive findings of an arbitration award
are attacked on account of the arbitrator’s
reasoning, the only
standard for assessing the reasoning is with reference to the test
enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
,
[1]
namely, was the decision reached by the commissioner one that a
reasonable decision-maker could not reach?.
[2]
Importantly, this test focuses less on the reasoning of the
arbitrator as such and more on whether the arbitrator’s
findings
are ones that no reasonable arbitrator could arrive at on
the evidence before the arbitrator. This has been reaffirmed in the
SCA
judgment in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[3]
in which, it was held that an arbitrator’s own reasoning is
merely indicative of whether it might be unreasonable. The award
will
still stand if the outcome arrived at by the arbitrator is one that
could reasonably be reached on the evidence before the
arbitrator.
[4]
[19]
I cannot say that the arbitrator’s
findings about the respective credibility of the witnesses was one
that could not be reached
on the evidence, nor can I say that her
effective finding that the complainant had been subjected to
non-consensual sexual activity
by the applicant is one that no
reasonable arbitrator could have reached.
Order
[20]
In the circumstances,
20.1
The applicant’s late filing of the
review application is condoned.
20.2
The application is dismissed.
20.3
No order is made as to costs.
R
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT: G J Lidovho
Instructed
by Sisa Nhlabathi Attorneys
FOR
THE FIRST RESPONDENT: No Appearance
[1]
(2007) 28
ILJ
2405 (CC).
[2]
At 2349,para [110].
[3]
(2013) 34 ILJ 2795 (SCA).
[4]
Herholdt
at 2802, para [12], where the SCA characterised the reasonableness
standard of review of arbitration awards in the following
way: “The
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in
the light of the issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that
could reasonably be reached on the
evidence and other material properly before the arbitrator. 17 On
this approach the reasoning
of the arbitrator assumes less
importance than it does on the SCA test, where a flaw in the reasons
results in the award being
set aside. The reasons are still
considered in order to see how the arbitrator reached the result.
That assists the court to
determine whether that result can
reasonably be reached by that route. If not, however, the court must
still consider whether,
apart from those reasons, the result is one
a reasonable decision maker could reach in the light of the issues
and the evidence.
”