Malepang v Member of Executive Council Department of Education: Gauteng and Others (JR 2275/15) [2020] ZALCJHB 133 (24 July 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2275/15

In the matter between:

CHUENE FRANS MALEPENG

Applicant

and

THE MEMBER OF THE EXECUTIVE COUNCIL

DEPARTMENT OF EDUCATION: GAUTENG First

Respondent

EDUCATION LABOUR RELATIONS COUNCIL Second

Respondent

A N MAFA N.O

Third Respondent

Enrolled: 30 June 2020

Decided on the papers

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 24 July 2020.

Summary: Review application – the award reasonable and thus unassailable.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] This is a review application in terms of section 145(1)(a) of the Labour Relations Act[1] (LRA). The applicant, Mr Chuene Frans Malepeng (Mr Malepeng), is challenging the arbitration award issued by the second respondent (arbitrator) with case number PSES122-15/16 GP, dated 24 August 2015, issued under the auspices of the second respondent, Education Labour Relations Council (ELRC). The arbitrator found that the dismissal of the applicant was substantively fair.

[2] The application is only opposed by the first respondent, the Member of the Executive Council Department of Education: Gauteng (MEC).

Factual background

[3] Mr Malepeng had been in the employ of the Gauteng Department of Education (GDE) as an educator since 1 August 1995 until the time of his dismissal. He was the Head of Department at Lebogang Primary school in Tshwane West District.

[4] It is common cause that on 21 June 2013, Mr Malepeng was involved in an altercation with Mr Joseph Lekume Mokadi (Mr Mokadi), who is also in the employ of the GDE. Mr Malepeng was charged for assaulting Mr Mokadi in terms of section 18(1)(r) of the Employment of Educators Act[2] (the Act). The charge sheet stated that ‘…on or around 21 June 2013, while you were at Tshwane West District Office, you assaulted Mr Mokadi, an employee at TW District, in that you kicked him, hit him with your fists and attempted to spray him with a fire extinguisher’.

[5] The disciplinary hearing was held on 28 May 2014 and Mr Malepeng pleaded guilty to the charge of assault. On 5 December 2014, the then Head of Department, Mr Boy Ngobeni (Mr Ngobeni) communicated the outcome of the disciplinary hearing to Mr Malepeng wherein he was found guilty as charged and the following sanction was rendered:

5.1. One-month suspension without salary in terms of section 18(3)(f) the Act;

5.2. Final written warning in terms of section 18(3)(d) of the Act; and

5.3. Anger Management Council through Employee Assistance Programme (EAP).

[6] On 10 December 2014, Mr Ngobeni appealed the sanction in terms of section 25 read with item 9 of Schedule 2 of the Act. On 20 March 2015, the MEC upheld the appeal and replaced the sanctions rendered by the chairperson of the disciplinary enquiry with one of dismissal with immediate effect in terms of section 18(3)(i) of the Act. On 26 May 2015, Mr Malepeng appealed the sanction of dismissal to the Minister of Basic Education but there was no reply.

[7] Discontented with the outcome of the appeal, Mr Malepeng referred a dispute to the ELRC, challenging the procedural and substantive fairness of his dismissal. The arbitrator, seized with the matter after a failed conciliation, rendered the impugned award where he found that the dismissal of Mr Malepeng to be procedurally and substantively fair.

[8] Mr Malepeng’s case at the arbitration was that he was not guilty as charged despite having pleaded guilty during the disciplinary enquiry. It was his evidence that he was suffering from cultural and mental illness when he pleaded guilty and as such, his plea was involuntarily. In support of this contention, Mr Malepeng submitted a medical certificate from his traditional doctor which described his medical condition as being ‘mental illness because his wife was having an affair with a colleague at work’.

[9] Despite conceding that his representative from the South African Democratic Teachers Union (SATDU) acted on his instruction, he was adamant that he was not feeling well and could not recall what was happening during the disciplinary enquiry.

[10] The arbitrator was not convinced that Mr Malepeng’s plea of guilty was involuntarily.

The review application

[11] In these proceedings, Mr Malepeng accuses the arbitrator of committing a gross irregularity by finding that he voluntarily pleaded guilty at the disciplinary enquiry. He contends that the arbitrator ought to have conducted an enquiry de novo. The MEC, on the other hand, contends that the arbitrator correctly rejected Mr Malepeng’s evidence that he entered a plea of guilty against his will. However, the arbitrator did consider evidence led in the arbitration hearing pertaining to whether Mr Malepeng was guilty as charged.

[12] The arbitrator, indeed, did consider the evidence before him de novo, despite having rejected Mr Malepeng’s claim that he pleaded guilty without his will, and stated the following:

‘In any event, even if the applicant was not well, there is no evidence to justify his conduct based on any medical evidence. I find that he was guilty of assault without a justifiable reason for his conduct.’

[13] The above finding is based on the evidence led during the arbitration. Mr Mokadi testified on 21 June 2013 that he went to Ms Letlhogonolo Essy Komane’s (Ms Komane) office and found her and Mr Malepeng arguing. He informed Ms Komane that he was there to complete PMDS forms. As he was leaving the office, Mr Malepeng called him back and accused him of having an affair with his wife, Ms Komane. The applicant locked the door and started assaulting him, punching and kicking him.

[14] Mr Malepeng accused Mr Mokadi of driving with Ms Komane to Makapanstad where they had sex and another incident where he allegedly had sex with Ms Komane at some party. Mr Mokadi denied all the allegations. Mr Malepeng dismantled the fire extinguisher and tried to pour it on him but he grabbed him. He also tried to hit him with the fire extinguisher but it fell on the floor. Mr Mokadi was rescued by the people from the Wellness Programme who came after hearing the noise and it was only then that Mr Malepeng opened the door. He sustained serious injuries that left him with deformed fingers and lost teeth. Following the incident, he laid criminal charges against Mr Malepeng.

[15] During cross-examination, Mr Mokadi conceded that in terms of his job description at that time, there was no reason to interact with Ms Komane. However, he used to drop by just to greet her. He was adamant that he never had an affair with Ms Komane.

[16] Mr Malepeng testified that on the day of the incident he was visiting the District Office where Ms Komane is working, to drop off some documents. He had informed Ms Komane that he would drop by her office. As he was approaching Ms Komane’s office, he saw Mr Mokadi, the compliant, coming out of her office. He then confronted Ms Komane about Mr Mokadi. Mr Mokadi came back to see

Ms Komane, who in turn requested him to leave. It was then that Mr Mokadi informed him that he had an affair with Ms Komane. Mr Malepeng locked the door so that they could address the issue. As he was turning, Mr Mokadi grabbed him from his back. He asked him to leave but Mr Mokadi grabbed him. He then tried to use the fire extinguisher to release himself from Mr Mokadi’s grip but it fell on the floor. He then used his hands to get off.

[17] Ms Komane testified that she had an affair with Mr Mokadi in 2008 until 2012 when Mr Malepeng betrothed her by paying lobolo. On the day in question, Mr Mokadi came to her office and enquired as to whether Mr Malepeng would be coming because he wanted cause trouble for her. Mr Mokadi came back after the arrival of Mr Malepeng and refused to leave because he came to see his girlfriend. Mr Malepeng locoked the door and as he was turning Mr Mokadi grabbed him. Mr Malepeng took the fire extinguisher and tried to hit Mr Mokadi but it fell on the ground. Mr Malepeng was all the time pleading with Mr Mokadi to leave. Ultimately, Mr Malepeng grabbed his fingers to free himself.

[18] Ms Komane conceded that the statement she made immediately after the incident implicates Mr Malepeng. However, she said it was made at the instruction of Mr Mokadi, an allegation denied by Mr Mokadi. Strangely, when she was interviewed by the official from the Department’s Labour Relations, she related the same version of events as the one appearing in her statement. The version of events recorded in Ms Komane’s statement corroborates Mr Mokadi’s evidence in all material respects. Ms Komane conceded further that she would not testify against her husband, a fact that dented the weight of her evidence.

[19] There is no plausible explanation offered by Mr Malepeng and Ms Komane as to how they expected Mr Mokadi to leave the office to avoid being assaulted when he (Mr Malepeng) had locked the door. Mr Malepeng failed to explain how he escaped uninjured if it was Mr Mokadi who was fighting him, according to his evidence. Conversely, Mr Mokadi’s medical records support his evidence that his fingers are deformed and also lost his teeth during the assault, both are consistent with injuries suffered from being kicked and punched.

[20] It is also instructive that Mr Malepeng confessed to assaulting Mr Mokadi in the statement of mitigation of sanction dated 2 June 2014, addressed to the Presiding Officer of the disciplinary enquiry. He stated that:

‘I would like express my deep regrets for fighting with Mr Mokadi on 21 June 2014 at Tshwane District Office. I fully understand that what I did was wrong. While I cannot alter what has transpired, I will ensure that similar incidents and misunderstanding will never occur in future for as long as I am GDE employee.

I got into altercation with Mr Mokadi that manipulated me to take physical action. Even though I pleaded guilty but I must say it was not deliberate as Mr Mokadi provoked me. It was coincidence, it was not planned, I was at the District Office for submissions as schools were closing. I was in my wife’s office as I normally via her office every time when I am at the District Office and then Mr Mokadi came to visit my wife. I then told him that I will close the door so that the three of us can talk without interruption from other employees. After closing the door, the situation went out of hand and we fought. Conversely, had he left the situation would not have escalated to that level. Anyone who could have found himself/herself in that situation would have acted the same way as I did as I was trying to protect myself from the situation.’[3]

[21] It is obvious that the evidence of Mr Malepeng and Ms Komane is inconsistent with the statements made soon after the incident and which patently collaborates Mr Mokadi’s evidence on what transpired on the day in question. In my view, the arbitrator correctly rejected their evidence. The findings of the arbitrator in this regard cannot be faulted.

[22] Mr Malepeng criticised the arbitrator for failing to consider the appropriateness of the sanction of dismissal. He submits that even if he was found guilty of assaulting Mr Mokadi, the sanction rendered by the Presiding Officer of the disciplinary enquiry should not be found to fair and be confirmed.

[23] The mitigating circumstances that were placed before Presiding Officer, include, that he was remorseful, he had been in the employ of the GDE for 19 years, he acted both as a Principal and Deputy Principal; he was very helpful in the school governing structures and; had personal financial commitments.[4] On the other hand, the MEC contends that in terms of section 17(1)(r) of the Act, an educator must be dismissed if he or she is found guilty of ‘assault, or attempts to or threatens to assault, another employee or another person’.

[24] The arbitrator found, in this regard, that ‘…I am convinced that in arriving at the findings the respondent [MEC] took into account all the relevant material factors and correctly found that the dismissal of the applicant [Mr Malepeng] was fair and the sanction of dismissal was appropriate particularly considering the applicant’s position that he held and the level of responsibility’. In my view, the arbitrator’s finding is reasonable in the circumstances.

[25] Furthermore, Mr Malepeng’s claim that the GDE inconsistently applied the sanction of dismissal was disputed. In fact, he conceded during cross-examination that he could not produce any proof that Mr William Myeki (Mr Myeki), the comparator, had been charged with a similar offence other than alleging that he told him so. However, according to the GDE, Mr Myeki had an altercation with his colleague but there was no assault.

[26] Turning to the issue of the procedural fairness, there is no merit in Mr Malepeng’s contention that the procedure that led to his dismissal was unfair solely because the Minister of Education did not respond to his appeal. He made an election to refer the dispute to the ELRC instead of following up on the appeal. Also, the issue of the procedural fairness was downplayed by his counsel at the arbitration, Mr P Kristein, who submitted, during his opening address, that:

‘There are few procedural issues that we will raise but it may not be that important Mr Arbitrator’[5]

[27] In any event, Item 9 of schedule 2 of the Act provides as follows:

‘9. Appeals. —

(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.

(2) The educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be.

(3) On receipt of the application referred to in subitem (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation.

(4) If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, or his or her representative or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representations must be made.

(5) The Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may —

(a) uphold the appeal;

(b) in cases of misconduct contemplated in section 18, amend the sanction; or

(c) dismiss the appeal.

(6) The employer must immediately implement the decision of the Member of the Executive Council or the Minister, as the case may be.’

[28] Item 9 refers to the outcome of the disciplinary enquiry, not an appeal. Clearly, the MEC is the final step of the appeal in this instance. Mr Malepeng correctly availed himself to the external dispute resolution mechanism in terms of the LRA by referring the dispute to the ELRC. It is obvious that the procedure that led to Mr Malepeng’s dismissal was fair as he was afforded an opportunity to be heard in both the disciplinary enquiry and the appeal.

[29] Overall, in my opinion, the ordinary errors of fact or law in the present instance are not of such a magnitude so as to result in a distorting effect on the outcome and accordingly to vitiate the award.[6] Otherwise stated, the award is the one that a reasonable decision-maker could have arrived at within the perspective contemplated by Sidumo and another v Rustenburg Platinum Mines Ltd and Others.[7]

Conclusion

[30] In all the circumstances, I am satisfied that the award is unassailable.

Costs

[31] I am not persuaded that Mr Malepeng should be saddled with costs as it would offend the principles of fairness and equity to do so.

[32] In the premises, I make the following order:

Order

1. The review application is dismissed.

2. There is no order as to costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] Act 76 of 1998, as amended.

[3] See: The applicant’s bundle at arbitration, Page 12.

[4] Ibid page 13.

[5] See: Transcribed record, page 7, lines 14-15.

[6] Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at para 32 to 33; see also: Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC); (2015) 36 ILJ 1511 (LAC) at paras 15 to 16.

[7] (2007) 28 ILJ 2405 (CC).