The relocation of an allegedly s.e.xually abused primary school learner to Zimbabwe has saved a teacher from facing the music.
The minor girl’s father expressed reluctance to bring her back to South Africa to testify, saying he feared her testimony could result in his being ostracised by the community.
The Gauteng Department of Education had charged V Mahima, a male teacher at Vezulwazi Primary School in Zithobeni, Bronkhorstspruit, with two counts of s.e.xual misconduct.
Mahima took the case to arbitration at the Education Labour Relations Council (ELRC), where arbitrator Mark Hawyes delivered his ruling this week. He dismissed the department’s case on grounds that its evidence against Mahima were hearsay.
This finding was based on the unavailability of both DS, as the child is named in the ruling, and all other key witnesses who were minors.
“The matter was adjourned on two occasions to secure the attendance of the minor witnesses at the inquiry. It became apparent that DS was no longer a learner at Vezulwazi Primary School and in fact had been relocated to Zimbabwe,” Hawyes said in the ruling.
“The (girl’s) father had expressed reluctance in a letter, which was handed in, to allow (her) to testify due to fears of him being ostracised by the community.”
The parents of learner witnesses also refused to permit them to testify, Hawyes said.
“It was suggested to the employer that they should make use of subpoenas to secure the attendance of parents and witnesses at the hearing. No attempt was made.”
Hawyes shot down the department’s application to have the evidence of all the learners submitted as written statements. These would be tendered by DS and the other learner witnesses.
“I refused the application and declared that it would be highly prejudicial to the employee to admit hearsay in this form, since it would be impossible to cross-examine a piece of paper to establish the veracity of the allegations,” Hawyes said.
The department only managed to lead the evidence of the school’s principal and deputy principal.
“Both witnesses gave hearsay evidence of a report made by a number of friends and fellow pupils of DS of an alleged event involving the employee and DS.
“DS was at no stage involved in the reporting of the incident,” Hawyes said.
The teacher’s guilt could not be proven through the hearsay evidence of the principal and deputy principal.
Said Hawyes: “The entire case of the employer rests on hearsay evidence. It is trite that hearsay evidence may be unreliable and should only be admitted and accepted if there is other direct or circumstantial evidence to back it up. In this case there is no other such reliable evidence.
“The employer has failed to discharge the onus of proving sexual misconduct against the employee.
“The employee is found not guilty on both charges of misconduct.”
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