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[2017] ZALCJHB 129
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Department of Education: Free State v ELRC and Others (JR2278/12, J2935/12) [2017] ZALCJHB 129 (20 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no:
JR2278-12 and J2935-12
In
the matter between:
DEPARTMENT
OF EDUCTION: FREE STATE
Applicant
and
ELRC
First Respondent
DINEO
PALESA SELELANE
N.O.
Second Respondent
M
S
LEETO
Third Respondent
Heard:
23 November 2016
Delivered:
20 April 2017
JUDGMENT
WHITCHER
J
I
ntroduction
[1] The third respondent
was a school principal in the employ of the applicant. He was charged
with sexual assault of a learner,
who I shall refer to as the
complainant. The main charge alleged that in July 2010 the third
respondent had sexual intercourse
with the complainant in his car. An
alternative charge alleged that he touched the complainant’s
breasts and penetrated her
private parts with his fingers when she
was at school. He was found guilty of only the main charge and
dismissed on 11 March 2011.
He referred a dispute to the bargaining
council claiming that he was not guilty of the offence, and,
accordingly, his dismissal
was substantively unfair. The second
respondent (the arbitrator) found in favour of the third respondent
and ordered his retrospective
reinstatement. The arbitrator
essentially found that the complainant’s testimony could not be
safely relied on because her
version was unclear, inconsistent and
contradictory. The applicant seeks to review and set aside the
arbitrator’s award.
The grounds of review
Incomplete record
[2] The review
application was filed on 26 September 2012. An incomplete record was
filed on 20 March 2015. The applicant’s
excuse is that it
discovered in August 2013 that the record was incomplete and, on
enquiry, was advised by the council on 14 October
2013 that the
remaining record was lost and the arbitrator was not in a position to
assist in the reconstruction of the record
as she was no longer an
arbitrator with the council. On 30 October 2013, they informed the
third respondent’s attorney about
the problem. They received no
response until 20 March 2015 when the third respondent’s
attorneys provided them with parts
of the missing record. The
applicant contends that the record is incomplete because it does not
contain the full evidence of D
W Ramedupe who testified on behalf of
the third respondent and the written notes of the arbitrator relating
to the inspection
in loco
. The applicant contends that the
arbitration proceedings should be reviewed and set aside because
material evidence is missing
and it was thereby prejudiced in
prosecuting the review. This ground of review is rejected for the
following reasons.
[3] The applicant failed
to attempt a reconstruction of the missing record with the third
respondent’s attorneys and/or apply
to this Court for a
directive on the issue.
[1]
The
contents of the applicant’s application demonstrate that it
intended instead to use the incomplete record as a strategy
to get
the proceedings set aside.
[4] Other than a bald
allegation, the applicant has failed to explain why the missing parts
of the record are crucial to the review.
The record appears to be
adequate in that it includes the full evidence of the complainant and
the third respondent, the cross-examination
of the other witnesses
called by the parties and notes taken by the third respondent’s
attorney at the inspection
in loco
. It is common cause that
there were no direct witnesses to the main incident in question.
Moreover, the grounds of review as set
out in the affidavits focus on
the evidence of the complainant.
[5] The applicant’s
failure to assertively sort out the record led to the record being
filed more than 2 years after the filing
of the review and thus the
late setting down of this review. The arbitration was a lengthy
process – stretching from January
to May 2012 and involved the
testimony of 6 witnesses. It would be unfair to subject the third
respondent, who has remained unemployed
since 2011 – and, I
should add the complainant herself, to a rehearing of the matter more
than 6 years later in the above
circumstances.
[6] In any event, at a
pre-enrolment hearing of this review on 2 August 2016, Van Niekerk J
ordered that the review application
is to proceed on the basis of the
existing transcript of the proceedings under review.
Misconstruction of the
evidence and mishandling the inspection in loco
[7] The applicant alleges
in broad terms that the arbitrator misconstrued the evidence of the
complainant and unreasonably found
that the complainant was not a
reliable witness and that her version was materially contradictory.
The applicant also challenges
the arbitrator’s findings and
handling of the inspection
in loco
. The applicant contends
that the arbitrator irregularly relied on the evidence of the people
she called while at the inspection
in loco
in circumstances
where the applicant was not given an opportunity to cross examine
these witnesses and thereby challenge their
evidence.
[8] I carefully perused
the record of the proceedings. This was done with no direction from
the applicant who failed to make reference
to any part of the record
in its supplementary affidavit or heads of argument, despite the fact
that the record runs to some 800
pages and contains long tracts of
material irrelevant to the review. My examination of the record
reveals the following.
[9] It was common cause
that during the course of 2010 the third respondent had with his
private vehicle provided after school transport
to a group of seven
learners, who included the complainant and one Dingilizwe Ramedupe,
and he would drop groups of them off at
various points.
[10] The complainant was
17 years old when she testified at the arbitration and 15 years old
when the alleged sexual abuse took
place. She testified through an
interpreter and intermediary.
[11] The full extent of
her evidence in chief was communicated as follows:
It was a Friday and
the school was out, and we went to ride with Mr Leeto. Then the first
group alighted. Then the second group
alighted. Then the third group
was ours. Then the other children alighted. When I was supposed to
alight, he pulled me at the door.
Then he just went in and started
the car, and we left. Then he went to the trees of Mooigenoeg.
Then he went out of
the car and locked it. Then he went to relieve himself and then he
came back to me. Then he took my underwear
out, and then he just put
his penis in front of me. Then after he had slept with me, he pulled
me over then
pushed
me out of the car
and he was laughing and then he started the car and left.
[2]
[12] When the
Commissioner asked for the last part to be repeated, the following
was communicated:
He pulled me aside and
went
into the car
and laughed at me and then he left me there.
[3]
[13] In re-examination,
the complainant was merely asked again to tell the arbitrator what
had occurred on the Friday when she was
in the principal’s car,
and the following was communicated:
When she tried to get
out the car with the other learners, he closed the door and then he
drove off. He then went to Mooigenoeng,
he stopped to pee. When he
finished he came back to the car and opened the side she was sitting.
He then pulled down her skirt,
moved her panty and penetrated her.
Afterwards, he pushed her out the car and left.
[14] The third
respondent’s counsel corrected submitted that the evidence
communicates two versions regarding where the alleged
rape took place
– in one it took place in the vehicle and in the other it took
place outside the vehicle. My impression was
that there was some
problem with the interpretation, but this was not clearly asserted
and clarified.
[15] An inspection
in
loco
was conducted. It is significant that the arbitrator’s
observations in the award on the inspection
in loco
coincide
substantially with the handwritten notes of the third respondent’s
attorney. The third respondent in its notes and
in the opposing
affidavit recorded that the complainant pointed out the scene of the
offence as being inside the premises of the
Ribblersdale Farm at
Mooigeneog. However, it was observed that entry to the farm is barred
by a first and second locked gate. At
the inspection
in loco
,
the arbitrator interviewed a tenant of the farm, a Mrs Buchel and
both parties were allowed to ask her questions. Mrs Burchel
said that
both gates are always locked and the second gate has remained
permanently locked since 1988. According to the third respondent’s
opposing affidavit to this review, it is stated that the applicant’s
counsel did not indicate to the arbitrator that he wished
to
challenge Mrs Burchell’s report and cross-examine her at the
arbitration. The applicant in its replying affidavit merely
responded
thereto with a bare denial and did not meaningfully challenge these
averments.
[16] In light of the
above, the arbitrator’s conclusion that the complainant’s
version as to how, where and when the
alleged rape occurred is vague
and inconsistent. According to the full transcription of the
complainant’s testimony, no attempt
was made to clear up or
explain away these inconsistencies during her re-examination.
[17] It was demonstrated
during the arbitration that the complainant had previously made
inconsistent statements about matters which
had a bearing on the main
charge and her interactions with the third respondent.
[18] When asked if she
had reported the rape at Mooigenoeg to anyone, the complainant said
she had reported it to Mrs Skoboto and
Mrs Mokgema, teachers at the
school. She said she did not tell her stepmother with whom she lived
because she was not used to her,
which is understandable.
[19] When it was put to
the complainant that both teachers in their written statements made
on 19 August 2011 and testimony on behalf
of the applicant had denied
she had reported the rape to them, the complaint conceded that she
had not reported the matter to them.
She said she had only told them
about the third respondent “touching her and penetrating her
with his finger” at school.
[20] Mrs Skoboto also
confirmed in her testimony that at some stage a learner, Seseko had
reported to her that the complainant had
told her that the third
respondent is a rapist. When she tried to confirm same, the
complainant denied telling Seseko that the
third respondent is a
rapist. The complainant confirmed this during her cross examination.
[21] The complainant
further conceded that she had lied to her mother when she told her
that the third respondent had taken her
to the clinic when she had
heavy menstrual pains. Skoboto and Mokhoto both testified that at
some stage in 2010 the complainant’s
stepmother had attended
the school to complain that the third respondent had taken her
daughter to a clinic without her knowledge
and consent. According to
the mother, when she once questioned the complainant about her
whereabouts, the complainant told her
she had gone to the clinic with
the third respondent. Both Mrs Skoboto and Mokhoto testified that it
was Mrs Skoboto who had in
fact taken the complainant to the clinic
on the day in question, and that they informed the mother of this.
[22] It was pointed out
to the complainant that she had made several sworn statements to the
police - on 5 August and 19 August
2011- and in none of them did she
mention the alleged rape at Mooigenoeg [she only mentions the
allegations made in the alternative
charge]. When asked why, she said
because the rape happened
after 19 August 2010.
This response
further negatively impacts on the reliability of the complaint’s
evidence for three reasons.
[23] Firstly, she had up
this this point consistently refused to be drawn on the date, month
or year the rape had occurred –
her repeated response was that
she did not know - only that it was a Friday and after school.
Secondly, it was pointed out
to her that the allegations that a
rape occurred and that it occurred after 19 August 2010 is in direct
conflict with her sworn
statement made on 5 August 2010 that the
third respondent had in effect prior to 5 August 2010 stopped giving
her and the other
learners lifts because she had reported his alleged
touching of her. In her statement made on 5 August 2011, she said:
“now
he said to us that he doesn’t want us anymore inside
his car because I told others that he touched my body all over.”
The complainant’s response to these discrepancies was then to
deny making the statements and say the statements were not
read back
and explained to her. Thirdly, the charge sheet alleges that the rape
took place in July 2010.
[24] Here again, no
attempt was made by the applicant in its re-examination of the
complainant to enable the complainant to explain
away all the
inconsistencies discussed above – which are numerous and
directly relevant to the probabilities of whether the
offence in
issue was committed.
[25] It transpired in the
record that the school had interviewed the learners who had travelled
with the complainant in the third
respondent’s vehicle. There
is no explanation on record as to why the applicant did not secure
their assistance and bring
at least one of them as a witness to
corroborate the complainant’s version that the third respondent
had one Friday forced
the complainant back into his car and drove off
alone with her. In these circumstances, one may presume that they did
not corroborate
the complainant’s version.
[26] One of the learners,
Dingilizwe Ramedupe, who travelled with the complainant and was thus
in a position to testify as to whether
the third respondent had
indeed driven off alone with the complainant one Friday, was called
as a witness by the third respondent.
I agree with the applicant that
he was not a good witness and the arbitrator had no reasonable
grounds to find that his evidence
corroborated that of the third
respondent. This, however, does not assist the complainant’s
version because the rejection
of the testimony of a witness does not
necessarily establish the truth of the contrary.
[27] In light of my
findings, the ultimate conclusion reached by the arbitrator that she
could not safely rely on the evidence of
the complainant and that the
applicant failed to discharge its burden of proof against the third
respondent is one that could be
reached by a reasonable
decision-maker using the same material that was before the
arbitrator.
[28] In my view, the
evidence gives rise to a strong suspicion that the complainant was
sexually abused in some manner, but the
applicant’s case
against the third respondent faltered badly because it was not
competently prepared and prosecuted. It cannot
now on review complain
about the outcome.
Condonation and
section 158 (1)(c) application
[29] In light of the
above findings, the application for the condonation of the late
filing of the review application and the review
is dismissed. It then
follows that the application in terms of section 158(1)(c) of the LRA
should be granted.
Order
[30]
The review application is dismissed.
[31]
The arbitration award made by the second respondent dated 16 July
2012 is made an order of this Court in terms of section 158
(1)(c) of
the LRA.
[32]
There is no order as to
costs.
________________________________
Whitcher J
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicant: Adv B S Mene, instructed by State Attorney,
Bloemfontein
For the Third Respondent:
Adv S J Mushet, instructed by Lebea & Associates
[1]
The Practice Manual permitting same came into
effect on 1 April 2013.
[2]
My emphasis.
[3]
My emphasis