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[2018] ZALCJHB 98
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Motshoane v Education Labour Relations Council and Others (JR1808/13) [2018] ZALCJHB 98 (9 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR1808/13
In the matter between:
JIMSON GALEBODIWE
MOTSHOANE
Applicant
and
EDUCATION LABOUR
RELATIONS COUNCIL
First
Respondent
COEN HAVENGA
N.O
.
Second Respondent
DEPARTMENT OF
EDUCATION: GAUTENG
PROVINCE
Third Respondent
Heard:
13 July 2016
Delivered:
9
March 2018
Summary:
Approach to review of an arbitration award not to be conflated with
approach in appeals. Arbitrator’s findings connected
to the
evidence and findings that a decision maker acting reasonably could
have made.
JUDGMENT
GOOSEN,
AJ
Introduction
[1]
This
is an application for the review and setting aside of an arbitration
award (‘the award) in terms of section 145 of the
Labour
Relations Act
[1]
(the LRA).
[2]
At
the time of termination of his services, the Applicant was employed
by the Third Respondent for a period of approximately 16
years; three
years thereof as principal at the Soshanguve South Secondary School.
[3]
After
a disciplinary hearing which was held on 19 March 2012; the Applicant
was dismissed upon being found guilty of the following
allegations:
“
Allegation
2:
It is alleged that in or around 2010,
you committed and act of sexual assault on a girl learner of
Soshanguve South Secondary School,
i.e. “Complainant No. 1”
at or around the Mabopane Cemetery.
Allegation 3:
It is alleged that during or around
January 2011, you committed an act of fraud in regard to examinations
and/or promotional reports
in that you promoted learners in
contravention with the prescribed policy.
Allegation 4:
It is alleged in and around the period
2010 to 2011, you conducted yourself in an improper, disgraceful or
unacceptable manner in
that you questioned girl learners of
Soshanguve South Secondary School, i.e. “Complainant 2”
and/or “Complainant
3”, on their virginity.
Allegation 5:
It is alleged that in and around the
period 2010 to 2011, you assaulted several girl learners of
Soshanguve South Secondary School,
i.e. “Complainant 2”,
“Complainant 4”, “Complainant 5” and/or
“Complainant 6”,
in that you hit them on their hands.”
[4]
On
1 August 2012, the Applicant referred an unfair dismissal dispute to
the First Respondent. He challenged both the procedural
and
substantive fairness of his dismissal.
[5]
The
Applicant duly got notice of the award on or about 15 July 2013; and
delivered an application for the review and setting aside
of the
award on 22 August 2013.
[6]
On
or about 24 June 2014, the Applicant filed the transcribed records in
terms of rule 7(A)(6) of the rules of the Labour Court.
[2]
[7]
In
its heads of argument; the Third Respondent
inter
alia
submitted that:
[3]
“
6.1
The Applicant has impermissibly attempted to expand his grounds of
review to include grounds canvassed
for the first time in the
‘supplementary affidavit’ which was only filed on 18
September 2014, about 15 days after
the Third Respondent has filed
the answering affidavit.
6.2
The Applicant’s so-called “supplementary affidavit’
was filed after the
Applicant had already delivered a notice to in
terms of rule 7A(8)(b) of the Labour Court Rules. It will be
submitted that after
delivery of the notice in terms of rule 7A(8)(b)
the Applicant could not supplement his founding affidavit by
introducing new grounds
of review not canvassed in the founding
affidavit.”
[8]
Upon
the perusal of the court file; the Court was not able to find the
7A(8)(b) notice referred to in the Third Respondent’s
heads of
argument.
[9]
However,
on 6 September 2014; the Third Respondent duly delivered its
answering affidavit. After that; on 18 September 2014, the
Applicant
delivered a “supplementary affidavit”. Prudent to mention
is paragraph 2 of the Applicant’s supplementary
affidavit which
reads as follows:
“
I am the
Applicant herein and I deposed to my founding affidavit on the 3
rd
of August 2013, and it is in that affidavit that I made an allegation
that I reserve my right to supplement the aforesaid founding
affidavit upon receiving the transcribed record of the arbitration
proceeding. I may mention that the transcript was only made
available
to us during the month of June 2014 after an application was made by
my legal representatives for a transcribed record
and same was
forwarded to the Respondents and receipt on the 24
th
of June 2014.”
[10]
The
rules of the Labour Court relating to supplementary affidavits are
clear. It reads as follows:
“
7A(8)
The Applicant must within 10 days after the Registrar has made the
record available either –
(a)
by delivery of a notice and the accompanying affidavit, amend, add to
or very the
terms of the notice of motion and supplement the
supporting affidavit; or
(b)
deliver a notice that the Applicant stands by its notice of motion.”
[11]
In
this matter; the Applicant delivered his supplementary affidavit,
approximately three months after he was in a position to serve
and
deliver same in terms of rule 7A(6).
[12]
Apart
from what is quoted from the Applicant’s supplementary
affidavit above; it contains no further explanation for the late
filing of the supplementary affidavit. Particularly; no application
for the condonation of the substantive non-compliance with
the Labour
Court’s rules in this regard; was made in the papers placed
before the Court.
[13]
The
Applicant raises various grounds of review in his founding affidavit.
In summary; they are:
13.1 The
Second Respondent did not act “fairly” in making the
award; and did not consider and apply his
mind to the issues before
him. He deliberately ignored the material placed before him;
resulting in him committing a gross irregularity
and made an award
which a reasonable decision-maker “may have not made”;
13.2 The
Second Respondent misdirected himself in finding that the dismissal
of the Applicant was procedurally and substantively
fair; ignoring
the fact that the disciplinary hearing of the Applicant was finalised
in his absence whereas he had an explanation
for his absence;
13.3 The
Second Respondent ignored the contents of exhibit “D” to
the bundles presented (record of sms’es
between the Applicant
and Mr Kotsokoane; the ‘investigating officer ‘in the
matter; informing him about the Applicant’s
absence;
13.4 The
Second Respondent made wrong conclusions; not based on evidence
presented; that a medical certificate of the
Applicant explaining his
absence was sent to a wrong fax number;
13.5 The
Second Respondent ignored the letter by one of the complainants,
Lebogang Mbasa; in which she apologised to
the Applicant and alleged
that she was used by teachers who wanted to ‘’score’’
their battles with the
Applicant;
13.6 The
Second Respondent failed to take into consideration that although the
allegations against the Applicant; being
sexual assault alleged to
have been committed in 2010; the incidents were never reported
immediately; but only in 2011. In this
regard the Second Respondent
ignored that there was no evidence that the complainants were
threatened not to report the transgressions;
13.7 The
Second Respondent failed to take into consideration that such
allegations ‘’only came after’’
the demotion
of Ms Matsimela from grade 12;
13.8 The
Second Respondent failed to take into consideration that the
virginity test allegation was finalised in the
absence of the
complainant Keketso Kgomo;
13.9 The
Second Respondent ignored the “fact” that it was conceded
by Mr Maotoe, the then Deputy Principal
at the school; that the
decision to promote the learners was agreed ‘’at School
Assessment Team’’ level
and not by the Applicant;
13.10 The Second
Respondent further ignored the evidence of Ms Dora Kgatle; who was
the Head of Department at the school; dealing
with the ‘’promotion
policing’’ adopted at SMT levels. In particular; Mrs
Kgatle confirmed that she signed
certain “letters”;
13.11 The Second
Respondent failed to take into account that no fraud was proved
against the Applicant in his individual capacity;
13.12 The Second
Respondent exceeded his powers in that he did not act in accordance
with the terms of the Act; when he proceeded
to adjudicate upon the
arbitration proceedings; despite the fact that he was informed by the
Applicant that he is still awaiting
the outcome of the appeal of the
internal disciplinary hearing;
13.13 The Commissioner
misdirected himself in ruling that the complainants were minors at
the time of the alleged offence whereas
they were above age;
13.14 The Commissioner
further committed an error in that he ruled that intermediaries and
CCTV be used in “their testimony”;
13.15 The Second
Respondent did not properly and justifiably apply his mind to the
facts or the law in this instance;
13.16 The Second
Respondent failed to afford the Applicant a fair and proper hearing
in the circumstances by his conduct in the
arbitration proceedings;
thus, rendering his award irrational.
Test for review:
[14]
The
Labour Courts consistently warn about applying principles associated
with appeals in applications for the review of arbitration
awards.
The Court holds the view that this application is another example of
an application for review; advanced on principles
typically
associated with appeals. For this reason, the test for review of
arbitration awards under the LRA; as formulated by our
Courts; is
quoted hereunder:
[15]
In the case of
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd v Legobate;
[4]
the Labour Appeal Court held that:
“
[12]
The
test that the Labour Court is required to apply in a review of an
arbitrator’s award is this:
“
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?” Our courts have repeatedly
stated that in order to maintain the distinction between review and
appeal, an award of an arbitrator will only be set aside if
both the
reasons and the result are unreasonable. In determining whether the
result of an arbitrator’s award is unreasonable,
the Labour
Court must broadly evaluate the merits of the dispute and consider
whether, if the arbitrator’s reasoning is found
to be
unreasonable, the result is, nevertheless, capable of justification
for reasons other than those given by the arbitrator.
The result
will, however, be unreasonable if it is entirely disconnected with
the evidence, unsupported by any evidence and involves
speculation by
the
arbitrator
.”
[13]
An award will no doubt be considered to be reasonable when there is a
material connection between
the evidence and the result or, put
differently, when the result is reasonably supported by some
evidence. Unreasonableness is,
thus, the threshold for interference
with an arbitrator’s award on review. However, a survey of the
judgment of the Labour
Court reveals that it reviewed and set aside
the Commissioner’s award without finding that the result of the
award was unreasonable.
Nowhere in its reasons did the Labour Court
find expressly or by implication that the decision is one that could
not reasonably
be reached;
[15]
However, having identified the misdirection committed by the
Commissioner, namely his failure
to consider and apply his mind to
the totality of the facts and circumstances of the case, the Labour
Court failed to progress
to the second stage of the enquiry by asking
whether, despite the failure to consider and apply his mind to the
totality of the
facts and circumstances of the case, the result of
the award was one which a reasonable Commissioner could reach. In so
doing,
the Labour Court adopted a piecemeal approach to the review
test which is fundamentally at odds with
Sidumo
as
endorsed in both
Herholdt
and
Gold
Fields
.
[16]
In
Gold Fields
, this Court rejected the piecemeal or
fragmented approach to reviews, where each factor that the
commissioner failed to consider
is analysed individually and
independently, for principally two reasons. The first is that it
“assumes the form of an appeal”
and not a review, and the
second is that it is mandatory for the reviewing court to consider
the totality of the evidence and then
decide whether the decision
made by the arbitrator is one that a reasonable decision-maker could
have made. To evaluate every factor
individually and independently,
it observed, is to defeat the requirements in s 138 of the LRA in
terms of which the arbitrator
is required to deal with the
substantial merits of the dispute between the parties with the
minimum of legal formalities, albeit
expeditiously and fairly. On
this approach, therefore, the failure of a commissioner “to
mention a material fact in
his or her award”, or “to deal
in his/her award in some way with an issue which has some material
bearing on the issue
in dispute”, or “commits an error in
respect of the evaluation or consideration of facts presented at the
arbitration” would
not, in itself, render the award
reviewable; and
[18]
Similarly, instead of asking if the award is one that a reasonable
decision-maker in the position
of the Commissioner could not reach,
the Labour Court asked whether the sanction imposed by the employer
the appropriate sanction.
In doing so, it effectively enquired into
the correctness of the commissioner’s decision on the fairness
of the sanction,
thus elevating the enquiry from a review to an
appeal. Even if the Labour Court was of the view that the sanction
was inappropriate,
it failed to appreciate the very circumscribed
basis upon which it was entitled to interfere with the commissioner’s
award. This,
in the context of a review of an award of a
Commissioner under the LRA, is a significant error, which constitutes
a valid ground
for setting aside the decision on appeal.”
[16]
In
Head
of the Department of Education v Mofokeng and Others
[5]
the Labour Appeal Court held that:
[6]
“
[30]
The failure by an arbitrator to apply his or her mind to
issues which are material to the determination of a case
will usually
be an irregularity. However, the Supreme Court of Appeal (“the
SCA”) in
Herholdt
v Nedbank Ltd
and
this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and others have held that before such an irregularity will
result in the setting aside of the award, it must in addition reveal
a misconception of the true enquiry or result in an unreasonable
outcome.
[31]
The determination of whether a decision is
unreasonable in its result is an exercise inherently dependant
on
variable considerations and circumstantial factors. A finding of
unreasonableness usually implies that some other ground is
present,
either latently or comprising manifest unlawfulness. Accordingly, the
process of judicial review on grounds of unreasonableness
often
entails examination of inter-related questions of rationality,
lawfulness and proportionality, pertaining to the purpose,
basis,
reasoning or effect of the decision, corresponding to the scrutiny
envisioned in the distinctive review grounds developed
casuistically
at common law, now codified and mostly specified in section 6 of the
Promotion of Administrative Justice Act (“PAJA”);
such as failing to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for
an
ulterior purpose, in bad faith, arbitrarily or capriciously etc. The
court must nonetheless still consider whether, apart from
the flawed
reasons of or any irregularity by the arbitrator, the result could be
reasonably reached in light of the issues and
the evidence. Moreover,
judges of the Labour Court should keep in mind that it is not only
the reasonableness of the outcome
which is subject to scrutiny. As
the SCA held in
Herholdt
, the arbitrator must not
misconceive the inquiry or undertake the inquiry in a misconceived
manner. There must be a fair trial
of the issues; and
[33]
Irregularities or errors in relation to the
facts or issues, therefore, may or may not produce an
unreasonable
outcome or provide a compelling indication that the arbitrator
misconceived the inquiry. In the final analysis,
it will depend
on the materiality of the error or irregularity and its relation to
the result. Whether the irregularity or error
is material must be
assessed and determined with reference to the distorting effect it
may or may not have had upon the arbitrator’s
conception of the
inquiry, the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity
a different
outcome would have resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of
relevant factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether
a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked
and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error
material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair
trial of the issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must be shown
to have diverted from the
correct path in the conduct of the arbitration and as a result failed
to address the question raised
for determination.”
[17]
Recently; the Labour Appeal Court in
Moen
v Qube Systems (Pty) Ltd and Others
[7]
inter
alia
held
that:
[8]
“
[14]
Central
to the appeal was the argument that the court a quo had
applied the wrong test for review. It is now trite law
that the test
for review is whether the commissioner’s decision is one that a
reasonable decision-maker could not reach in
the circumstances of the
case...
…
.
[17]
This dictum emphasises
that the significance of the arbitrator’s reasons is less
important than a careful examination
by the reviewing court of the
result arrived at by the arbitrator, after a consideration of all the
materials placed before the
arbitrator. This exercise does not
entirely exclude an examination of how the arbitrator might have
arrived at his or her conclusion,
in that a review will still succeed
if the conclusion reached is unsupported by or in conflict with the
evidence read as a whole.”
Procedural fairness:
[18] As stated; the
Applicant challenges both the findings of procedural and substantive
fairness herein. In relation to the issue
of the procedural fairness
(or not) of his dismissal, the Applicant’s heads of argument
mainly focus on the events of 19
and 20 March 2012; particularly with
reference to the “message” that Mr Kotsokoane was
requested to convey to the presiding
officer; on behalf of the
Applicant.
[19] The nub of the
Applicant’s argument in this regard is detailed in paragraphs
6.1 to 6.9 of his heads of argument. Paragraphs
6.2.5 and 6.2.6 read
as follows:
“
6.2.5
Also the evidence of Ms Mookeletsi when she was explaining as to what
was the valid reason for being absent, which
he explained as such
“Let us say that we have disciplinary hearing today, we are
supposed to sit down in a disciplinary hearing,
and then may be
before we start, there is a communicate between yourself and the
Departmental rep to say, I am not available, let
us say I am sick,
and then there is documentary evidence to that effect, or you
are saying: “I am consulting with the
doctor and will give
documents to indicate that really I was sick on that day. Then the
fact that you are ill, I will regard that
as a valid reason for not
being at the disciplinary hearing”. That was completely ignored
by the Second Respondent;
6.2.6
That is exactly what the Applicant did, on the 19
th
March 2012 having contacted Mr Kotsokoane that he is attending to a
doctor and Mr Kotsokoane promising to convey the message to
the
presiding officer. On the 20
th
of March 2012 the Applicant faxing a letter to the number which was
given to him by MR Kotsokoane.”
[20]
The Second Respondent; in the award, under the heading “Procedural
Fairness of the Dismissal”
[9]
inter
alia
held that:
“
I find no
substance in the allegations of procedural unfairness. It was ruled
that the hearing proceed in the absence of the Applicant.
There were
three sittings of the disciplinary hearing, and the Applicant was
afforded ample opportunity to prepare and consult.
He was allowed
access to witnesses, but failed to respond to arrangements to
facilitate this. The Applicant did not attend the
hearing on 19
March. His medical certificate only reached the employer on the
afternoon of the second scheduled day. When he failed
to attend, the
presiding officer attempted to call him on his mobile phone as well
without success. The presiding officer also
previously gave him her
contact number and asked him to communicate with her. He chose not to
do so. It is unacceptable that he
made himself unavailable knowing
that he is absent, and might be contacted to enquire about his
whereabouts. He only faxed the
medical certificate on the second
scheduled date, which demonstrate a lack of urgency. Irrespective of
whether he informed the
prosecutor per text message, he had to submit
proof, which he failed to do in time.
[21] From the aforesaid
it follows that the Second Respondent did give consideration to the
Applicant’s communication with
Mr Kotsokoane, during the
morning of 19 March 2012.
[22] The Commissioner;
effectively held that even if it is accepted that the Applicant
informed the said prosecutor per text message
of his alleged illness
on the morning of 19 March 2012; he was still required to submit
proof of his absence for medical reasons.
As stated; the Commissioner
concluded that the Applicant failed to submit the necessary proof on
19 March 2012.
[23] Factually; the
findings made by the Commissioner on this issue cannot be said to be
findings that a decision-maker; acting
reasonably; could not have
made.
[24] On the Applicant’s
own version; the relevant medical certificate was only sent to his
employer on 20 March 2012. It is
common cause that 20 March 2012 was
the second day of the hearing. It is further common cause that the
hearing commenced on 19
March 2012.
[25] Having considered
the history of the disciplinary action against the Applicant;
together with previous “sittings”;
and the fact that the
presiding officer on a previous occasion specifically gave the
Applicant her contact number and asked him
to contact her on that
number; it cannot be said that the finding as to procedural fairness
to continue with the hearing on 19
March 2012; against the said
background facts; was unreasonable.
Substantive
fairness:
[26] The Applicant raised
various grounds for the review of the award in relation to the said
allegations 2, 3, 4 and 5.
[27] From a perusal of
the said grounds; it is apparent that to a large extent; they are
premised on the Commissioner’s alleged
failure to consider
parts of the evidence; that according to the Applicant, ought to have
swayed the general probabilities in his
favour.
[28] As stated above; the
approach adopted by the Applicant herein; conflates the principles
pertaining to a typical appeal and
review of an arbitration award in
terms of the LRA. Ultimately, the question is not whether the
Commissioner’s decision was
right or wrong. The question is
whether the decision rendered by the Commissioner is a decision that
a decision-maker, acting reasonably,
could have made. The emphasis is
not on a singular correct conclusion on the facts; but rather on an
outcome that reasonably falls
within a radius of conclusions that
could be made from the evidence presented. As long as the
Commissioner’s findings could
be considered to fall within a
radius of reasonable conclusions; and is connected to some of the
evidence placed before the Commissioner;
such findings cannot be
reviewed.
[29] As stated;
allegation two was that, in or around 2010, the Applicant committed
an act of sexual assault on a girl learner of
Soshanguve South
Secondary School “Complainant No 1.” (Thokozile Kubheka);
at or around the Mabopane Cemetery.
[30] The Applicant’s
complaints regarding the Commissioner’s findings on allegation
two can be summarised as follows:
30.1
The Arbitrator failed to consider the fact that complainant number
one alleged that the incident took place
in 2010; and that the matter
was only reported in 2011. The complaint was not voluntary as it was
only reported after a separate
incident that took place involving the
said complainant and another learner.
30.2
There is no evidence before the Arbitrator that the said complainant
was threatened by the Applicant; in
the event that she reported the
incident to the authorities.
30.3
The Arbitrator failed to consider the evidence of Ms Matsemela
regarding the reasons the said complainant
left the Soshanguve South
Secondary School. The said Ms Matsemela is on record stating that
“
the Applicant taught the complainant physical science; and
she (the complainant) informed her (Ms Matsemela) that she cannot
concentrate
in class because of the things the Applicant has done to
her.”
Her evidence however demonstrated that the Applicant
was not the complainant’s teacher; but only her principal;
30.4
The Arbitrator failed to consider complainant number one’s
version as improbable for the following
reasons:
30.4.1 After the alleged
“incident” the said complainant continued to ask for
lifts from the Applicant on several occasions;
30.4.2 That during one of
the said lifts offered to the complainant, her drink was “spiked”
by the Applicant; but the
complainant failed to report such incident.
The complainant was “always” in the company of the
Applicant;
30.4.3 According to the
complainant there was an adult male at the cemetery who saw the said
complainant. The male person enquired
from the complainant as to
whether the Applicant was troubling her. The said male further
informed the complainant that he will
keep guard; in case the
Applicant “troubles” her. If the complainant’s
evidence is credible; she would have “made
a report” to
the said male; if she was touched “uncomfortably” as the
male was willing to assist her.
30.4.4 The Commissioner
failed to consider the fact that the said complainant left the school
due to her pregnancy. This evidence
was corroborated by the witnesses
of the Applicant; Brenda and Tiisetso.
30.4.5 Despite the fact
that the complainant’s uncle was a member of the school’s
governing body; she failed to report
the Applicant’s alleged
conduct to him.
30.4.6 Despite the fact
that the complainant reported the incident to Mr Mollik; she never
informed Mr Mollik about the spiking
incident, because Mr Mollik
never testified about that incident.
[31] The Commissioner
provided a summary of the evidence of each witness that testified
during the arbitration proceedings. The
summaries of the evidence
recorded in the award, are detailed to the extent that the Court is
satisfied that the Commissioner reasonably
considered the evidence
presented at the arbitration. The Arbitrator summarised his findings
in respect of allegations 2, 4 and
5 as follows:
“
In respect
to the allegations 2, 4 and 5 the Applicant merely denied any
knowledge of the alleged misconduct. His allegation that
Ms Matsimele
became his enemy when he removed her from grade 12 classes, does not
have any substance. I found no evidence of animosity
fuelled by such
sense of revenge in her evidence. His allegations of fabrication of
evidence is improbable. The Complainant 1 provided
such detail that
one would not expect a fabricated evidence. Why would she make up a
story of going to the cemetery while it would
be easier to merely say
it happened in his office, for instance? The detail about scratching
the candles with money, and that his
phone rang, seems improbable to
be part of a fabricated story. The Applicant’s version that she
left the school because she
was pregnant, is refuted by the
uncontested evidence that she delivered her baby in December. That
would substantiate her version
that she only fell pregnant after she
left the school, in April, actually 9 months prior to delivery. The
witnesses called by the
Applicant could not refute this. The witness
Makgabo contradicted himself on this and other issues. The other
witness for the Applicant,
Brenda Ngwenya, was by her own admission
prepared to lie on behalf Complainant 1, a fact that surely taints
her credibility. I
find it improbable that the complainants
fabricated the evidence of the virginity tests, or the assault by
hitting them on their
hands;
And;
I can find no substance in the
allegation that the Complainants’ version is a fabrication and
a lie. I can find no probable
motive for the witnesses to fabricate
evidence and lie at the arbitration hearing. The Applicant could not
provide any probable
evidence that would support such notion. I
therefore find the evidence of the Complainants given at the
arbitration hearing credible
and probable. I find that it was proven
on balance of probabilities that the Applicant committed an act of
sexual assault on the
Complainant 1 as defined in the Criminal Law
(Sexual Offences and related matters) Amendment Act, no 32 of 2007.
He unlawfully
and intentionally without the consent of the
Complainant forced himself on her in a sexually motivated manner as
described in her
evidence. I further find on the balance of
probabilities that the Applicant committed fraud, conducted himself
in an improper,
disgraceful or unacceptable manner by questioning the
Complainants on their virginity, and committed assault by hitting the
Complainants
on their hands;
And;
With consideration
of all the relevant cautionary rules I find that the Respondent
provided evidence that proves on a balance of
probabilities that Mr
Motshoane committed the alleged misconduct he was charged with. There
is therefore evidence before me that
proves that Mr Motshoane
contravened a rule or standard regulating conduct in that, or of
relevance to, the workplace.”
[32] The Commissioner
clearly considered the evidence placed before him in relation to
allegation 2. The abovementioned issues raised
by the Applicant in
relation to the Commissioner’s findings on this allegation;
effectively amounts to criticism of the Commissioner’s
approach
in his analysis of the evidence, in determining whether the
allegation was proved on a balance of probabilities. Considering
the
case law referred to above, it cannot be concluded that the
Commissioner misconceived the nature of the enquiry before him;
alternatively, that there was no fair determination of the issues
placed before him. The Commissioner’s conclusions on this
allegation are connected to the evidence presented; to such an extent
that his findings fall within a radius of reasonable outcomes
on the
evidence presented. On this basis alone; the Court finds that the
arguments presented on behalf of the Applicant failed
to persuade the
Court that the Commissioner’s findings on this allegation, are
not findings that a decision-maker, acting
reasonably could not have
made.
[33] From a perusal of
the record of the arbitration proceedings it follows that the
Applicant did little to cast serious doubt
on the credibility and
reliability of complainant number one’s evidence. In the main;
the Applicant argued that the said
complainant’s version of the
events was fabricated.
[34]
The Commissioner took a reasonable approach to the analysis of the
evidence presented; in that he considered the credibility
of the
various witnesses as well as the general probabilities of the
evidence presented. The approach adopted by the Commissioner
in this
regard, cannot be faulted. In addition; the Commissioner’s
approach in determining what appears to be mutually destructive
versions of fact; was in general compliance with established law in
this regard.
[10]
[35]
According to allegation 3, the Applicant, during in or around
January
2011, committed an act of fraud in regard to examinations and/or
promotional reports, in that he promoted learners in contravention
with the prescribed policy.
[36] In the main; the
arguments presented on behalf of the Applicant on this allegation can
be summarised as follows:
36.1
The Commissioner ignored the fact that the decision to promote or
condone the learners was not the
sole decision of the Applicant. In
this regard Mr Maote; the Deputy Principal at the school; and Ms
Dorah Kgatle, the Head of Department;
also made contributions on the
promotion of the learners. These individuals also signed
documentation confirming their participation
in the said process; and
to confirm their approval of the criteria which was adopted by the
school;
36.2
The Commissioner ignored the evidence placed before him that a
District Traversal team assessed the
schedules every January of the
new year and that the said team visited the school in the beginning
of 2011. The team was allegedly
“happy” with the criteria
used by the school;
36.3
The Arbitrator ignored the evidence that the Applicant telephonically
discussed criteria which was adopted
by the schools on promotions;
with Mr Lehobye.
[37] On this allegation
the Commissioner
inter alia
held that:
“
I accept the
evidence of the Respondent that learners were promoted in
contravention with the prescribed policy. The Applicant remains
responsible and accountable for the actions of the SAT. The amendment
of the promotional schedules that came back from the district
according to their own authorised requirements, is a
misrepresentation of the actual result and fraudulent. The Applicant
cannot
escape liability for the unlawful actions.”
[38] Again, the arguments
presented on behalf of the Applicant on this allegation; appear to
conflate the principles pertaining
to an appeal; as opposed to the
principles in relation to the review of an arbitration award. In the
main; the Applicant criticises
the finding of the Commissioner on the
basis that the Commissioner “ignored” certain evidence.
[39] In general; the
Court does not find that the Commissioner ignored relevant evidence
to the extent that it had an unfair distorting
effect on the outcome
of the arbitration proceedings; and particularly; that the findings
made by the Commissioner on this allegation;
are not connected to the
evidence. Again, the Commissioner correctly conceived the nature of
the issue placed before him; and rendered
a result that falls within
a radius of reasonable outcomes on the evidence presented.
[40] The Commissioner did
not find that it was the Applicant by himself; that decided to
promote the learners, without the participation
and/or intervention
of the SAT. On a proper construction of the award on this allegation;
it again follows that the Commissioner
was alive to the fact that a
decision to promote the relevant learners was indeed made at SAT
level. The nub of the Commissioner’s
decision on this
allegation was that ultimately the Applicant is responsible; and
should be held accountable, for unlawful; and
unauthorised
promotional requirements. In this regard Ms Kgatle
inter alia
testified that:
“
After going
through the learners’ appeals, we indicated on the relevant
learners’ applications, which we handed over
to the principal
and then the principal had promised that he would take these appeals,
forward such appeals to the District for
enlistment. And then when I
saw Tsofolofelo listed in Grade 12, I am not entirely surprised
because another thing is, I personally,
I am not very much in liking
of promoting learners because I generally motivate them to repeat so
as for them to pass their matric
satisfactory. So, when I saw that
she was not in this class of Grade 12. I see that no, the principal
had submitted the appeals
letters for endorsement and then I assumed
that well, she could very well be in that list as well.”
[11]
[41] In the premises
thus, the said witnesses testified that after the learners’
appeals; that the relevant learners’
marks were adjusted in
accordance with criteria determined by the Applicant. It was the
Applicant that undertook to refer the appeals
to the District Office
for enlistment. The evidence reveals that it was not disputed that
the relevant learners were subsequently
promoted to the next grades;
and that the said learners were promoted without the intervention of
the District Office. Importantly
it was not disputed that the
learners were promoted in contravention of the prescribed promotion
policy of the Department.
[42] The evidence
dictates on a balance of probabilities, that ultimately the decision
to promote the said learners was made by
the Applicant. Consequently;
to the extent that the Commissioner held the Applicant responsible
for the promotion of the learners
in question; such conclusion was
reasonable.
[43] Allegation 4 relates
to in and around the period 2010 to 2011; when the Applicant
allegedly conducted himself in an improper,
disgraceful or
unacceptable manner in that he questioned learners of Soshanguve
South Secondary School; namely Keketso Kgomo and
Maria Makua, on
their virginity.
[44] The Applicant
criticises the Commissioner’s findings on this allegation on
the following basis:
44.1 Ms
Matsemela and Ms Motene gave conflicting accounts of how the
Applicant wanted to conduct virginity tests
on the complainant. The
contradiction in the evidence of the two said witnesses exist,
notwithstanding them being informed by the
complainant of what
happened to her at the hands of the Applicant;
44.2
According to the complainant the Applicant asked her about her
virginity on several occasions. She however
failed to inform teachers
Ms Matsemela and Ms Motene. No mention was made during her evidence
that the Applicant at any stage wanted
to insert a finger in her
vagina.
44.3
Despite the fact that the “incident” was in 2010; it was
never reported to her parents and only
“friends” were
informed. No formal complaint was made until 2011.
44.4
Allegation 4 relates to two complainants; but only one complainant
testified; and there was no amendment
to the allegation against the
Applicant. Notwithstanding same; the Arbitrator found the Applicant
guilty as charged. The Arbitrator’s
findings on this allegation
are detailed above. The Applicant’s defence to this allegation
is premised on a denial that the
alleged conduct ever occurred.
[45] During the
arbitration proceedings the evidence of one of the complainants,
Maria Makua, was led. Ms Makua
inter alia
testified as
follows:
“
That is me.
He called me during school. I was summons…… and upon my
arrival at his office he placed his feet on top
of the table and he
could enquire about my virginity, whether I am still one or not. Then
I respond by saying: “yes”.
And as he used to call me
(indistinct) he called me after office hours to go to his office and
he will enquire about my virginity
and I will say: “Yes”
and asked if he could set an appointment. That there is a certain
lady at school, that we can
go and check the lady and if I am still a
virgin, the lady will confirm same also. And one other day when I was
in the sick room
whilst I was sick, Mr Motshoane did enter the sick
room, Your Worship, he did enter the sick room and enquired as to
what the problem
is; and
“
I informed
him that I am feeling a little bit dizzy as I do not know what is
wrong and he brought two tablets. He said I must take
the two
tablets, but I did not do so. I just left them on top of the drawer
which was in the sick room, and he enquired again whether
indeed am I
still a virgin and I said: “Yes”. He asked if he could
put his hands, Your Worship, on my private parts,
my vagina
specifically. I refused and he got angry and then since then
(indistinct), Your Worship, when we make noise in his classroom
he
would call us, the first time he reprimanded us nicely so and the
second time when we went there or upon him summoning us to
his office
he gave us 16 lashes on the hand and he told us that we are going to
fail and indeed, we did fail.”
[46] The aforesaid
evidence was not seriously challenged under cross-examination. In
addition; Ms Makua explained her failure to
report the said incidents
earlier; by stating that she was scared to do so. This aspect was not
seriously contested.
[47] Considering all the
evidence placed before the Commissioner; the Court concludes that the
Commissioner’s findings regarding
this allegation, are
connected to the evidence; and fall within a radius of reasonable
outcomes.
[48] Uncontroverted
direct evidence was presented about the fact that the Applicant
repeatedly questioned the said complainant on
her virginity. The
evidence further demonstrates that the circumstances under which the
Applicant conducted himself in the manner
aforementioned; was indeed
improper, disgraceful and unacceptable. In this regard specific
reference is made to the evidence of
Ms Makua that the Applicant
expressed the intention to touch her vagina.
[49] The Applicant’s
argument to the extent that it should be taken into account that
there was no evidence that the Applicant
inserted a finger in any of
the complainant’s vaginas, is nothing less than staggering. If
the said argument aims to suggest
that the Applicant’s
behaviour could only have been improper, disgraceful or unacceptable
in circumstances that he inserted
a finger in the said complainant’s
vagina, such argument is rejected in the strongest possible terms.
The notion that improper
and unacceptable behaviour could only follow
a physical violation of a female learner’s bodily integrity and
security; falls
short of an appreciation of the gravity of the
Applicant’s misconduct herein.
[50] The balance of the
arguments presented on behalf of the Applicant on this allegation;
amounts to no less than a critique of
the manner in which the
Commissioner evaluated the probabilities herein. The fact of the
matter is that the Commissioner, as evidenced
in the award;
demonstrated that the evidence was indeed considered; and that the
evidence of Mr Ms Makua was held to be credible.
[51] All told; the Court
concludes that an argument to the extent that the Commissioner’s
conclusions herein are not conclusions
that a reasonable
decision-maker could have made; stands to be rejected.
[52] Allegation 5 is that
the Applicant; in and around the period 2010 to 2011; assaulted
several girl learners of Soshanguve South
Secondary School
(complainants 2, 4, 5 and 6); in that he hit them on their hands.
[53] According to the
Applicant the findings of the Commissioner in relation to this
allegation; stands to be reviewed because;
53.1 Although this
incident allegedly happened in 2010, it was only reported in 2011.
There were material contradictions in
the testimonies of the
following witnesses; despite the fact that the “incident”
was witnessed by all of them:
53.2 Ms
Makua stated that the Applicant only punished her once; but referred
to two separate incidents. Ms Makua
failed to mention what
“instrument” the Applicant used to lash her;
53.3 Ms
L Ndlovu testified that they were lashed for making noise. No mention
was made of the Applicant calling
them “Shangaans”; and
that they were assaulted with a belt;
53.4 Ms
L Phobola testified that the Applicant called them “Shangaans”;
and that she was not assaulted
twice as indicated by Ms M Makua. She
did not mention the manner in which she was assaulted by the
Applicant; initially she testified
that she was never assaulted; and
later on, changed her version. Not all the learners who were
allegedly assaulted by the Applicant
were called to testify; although
Ms Makua stated that they were present when the assault took place.
[54] The Third
Respondent; in its heads of argument argues that the Applicant did
not challenge the Arbitrator’s finding on
this allegation in
his founding affidavit. Therefore, according to the Third Respondent,
this finding effectively remains unchallenged.
According to the Third
Respondent, the Applicant only saw to challenge this finding in his
heads of argument; which is impermissible.
[55] Considering the
Court’s remarks and findings pertaining to the Applicant’s
founding affidavit and supplementary
affidavit above; the Applicant’s
grounds of review are only to be considered with reference to the
said founding affidavit.
It is indeed, correct that the Applicant
failed to rely on any reviewable irregularity and/or unreasonable
outcome in relation
to this allegation.
[56] If however, the
Court is wrong in this regard; the Court makes the findings, detailed
hereafter. The transcribed record of
the evidence presented on behalf
of the Third Respondent on this allegation; demonstrates that some of
the contradictions in the
evidence alluded to by the Applicant in his
heads of argument; were indeed present. However; notwithstanding
same, all the complainants
that testified on this allegation
consistently remained adamant that the Applicant subjected them to
physical punishment. Mere
contradictions
per se
; do not render
a finding such as the one made by the Commissioner on this
allegation; to be unreasonable. Considering the evidence
as a whole;
and the fact that the Applicant was the principal of the said
complainants; it is to be expected that their evidence
would differ
on some issues as to the events in question. In fact; considering the
number of complainants that testified on this
issue; it could even be
said that consistent testimony; on all aspects of the allegation by
all the complainants; could have raised
questions of reliability
and/or veracity of their evidence.
[57] As stated above; the
question before the Court is not whether the Commissioner’s
finding was correct. The question is
rather whether the
Commissioner’s conclusion is connected to the evidence; and was
an outcome that a decision-maker, acting
reasonably, could have made.
[58] The Commissioner
explained the reasons for his findings in this regard in the award.
The Court is satisfied that the Commissioner
did consider the
evidence; and further did make the necessary credibility findings in
relation to the witnesses that testified.
All the evidence
considered; the Court concludes that it cannot be said that the
Commissioner’s conclusions on this allegation,
were not
connected to the evidence and a decision that a reasonable
decision-maker could not have made.
[59] The allegations
against the Applicant were extremely serious. This case is an example
where a long service record cannot compensate
for the serious
misconduct of which the Applicant was found guilty of. Misconduct of
this nature cries foul of the rights of female
members of society to
be treated with dignity, respect and without abuse; whether emotional
and/or physical.
[60] Ultimately the
Applicant was the principal of the said school. He was employed in a
position of trust. In fact; it could be
said that the Third
Respondent; by appointing the Applicant in that capacity, entrusted
the Applicant to take all reasonable steps
to ensure that learners at
the school; in this instance with specific reference to the female
learners; would not be subjected
to the type of conduct which the
Applicant ultimately subjected them to.
[61] The Court is unable
to find any reason to conclude that all the witnesses that testified
against the Applicant; with particular
reference to the allegations
relating to “sexual offences”; conspired against the
Applicant. There is absolutely no
reason; based on the evidence; to
find that all the said complainants had a motive to lie and in doing
so, to ensure the dismissal
of the Applicant. Considering the above;
the Court finds that the Applicant has failed to advance persuasive
grounds for the review
of the arbitration award issued herein.
[62] After consideration
of the factors recorded in section 162 of the LRA; the Court
concludes that this is not a matter in which
a cost order would be
appropriate. In particular; it cannot be said that the Applicant
conducted himself in a manner; both prior,
during and/or after the
arbitration proceedings; and during the review proceedings; that
would justify a cost order against him.
Order:
[63] The following order
is made:
1.
The
application is dismissed.
2.
There
is no order as to costs.
__________________
C Goosen
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant:
Advocate M Mosopa
Instructed
by:
Leballo Attorneys
For the Respondent:
Advocate MJ Ramaepadi
Instructed by:
State Attorney: Johannesburg
[1]
Act 66 of 1995 as
amended.
[2]
The Applicant’s
notice in this regard is headed “NOTICE IN TERMS OF RULE
7(a)”. The Courtaccepts that this constitutes
a mere error on
the part of the Applicant; and that considering the purpose and
attachments to the notice; it almost certainly
was intended to be a
notice in terms of rule 7(A)(6) of the rules of the Labour Court.
[3]
Atparas 6.1, 6.2.
[4]
[2015] 36 ILJ 968
(LAC).
[5]
[2015] 36 ILJ 2802
(LAC).
[6]
At paras [30],
[31] and [33].
[7]
[2017] 38 ILJ 2712
(LAC).
[8]
At paras [14] and
[17].
[9]
Atpara 6.2 of the
award.
[10]
See:
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et CEE and
Others
2003
(1) SA 11
(SCA).
[11]
See also the
evidence of Mr Maotoe: “
Yes,
we sat down at the SAT, but it was not a full compliment because
after completion we had to take such to the District to
say that
insofar as we are concerned this is how these children or learners
could be assisted; and
“
We
gave the list to the principal for submission, forwarding to the
District and then what would happen the learners and the parents
would come to the principal to check on the progress, as to how was
it coming as per the appeals; and
“
As
I said that, look the final results were given to the principal for
submission to the District and the parents and the learners
would
(indistinct) to the principal for progress reports.”