A principal who was fired for indecently assaulting a schoolboy has been re-employed after the KwaZulu-Natal education department had an unexplained change of mind over his fitness to return to teaching.
Msawenkosi Tshazi, principal of Mfulamhle Junior Secondary School in Umzimkhulu, was initially fired in December 2004, after he was convicted in the Umzimkhulu magistrate’s court of indecent assault for forcing a pupil to have sex with him.
At the time, Umzimkhulu was part of the Eastern Cape, but it was incorporated into KwaZulu-Natal in 2007.
Tshazi’s attempts to be rehired reached the labour court, which issued a judgment in 2011 affirming his dismissal as correct.
The labour court noted that Tshazi had been sentenced to a fine of R6,000 or 12 months’ imprisonment, half of which was suspended for two years, for the indecent assault, which took place late in 2002.
The court judgment says that in 2007, Tshazi went to the Education Labour Relations Council (ELRC), a bargaining chamber for teachers, which found that his dismissal by the Eastern Cape education department had been unfair.
Because Umzimkhulu had since become part of KwaZulu-Natal, the council ordered that province’s education department to reinstate Tshazi and pay him R170,409, equivalent to 12 months’ salary, within 30 days.
But the KwaZulu-Natal department objected to the ELRC order, and in June 2011 it went to the labour court, which set it aside. The court dismissed a simultaneous application by Tshazi that the council ruling be made an order of court.
Despite its initial objection and the court’s ruling, the KwaZulu-Natal education department in 2019 appointed Tshazi as principal of Ibisi Primary School, also in Umzimkhulu.
Asked this week about the decision, KwaZulu-Natal education department spokesperson Muzi Mahlambi said: “There was another development which was favourable to the educator.”
“The department would not be in conflict with the court’s decision.”
He declined to elaborate on what the new development was, or say for what period the department intended to give Tshazi back-pay.
KwaZulu-Natal head of department for education Nkosinathi Ngcobo and education MEC Mbali Frazer did not respond to requests for comment.
The message being sent is that you can do whatever you like and no matter what happens to you, your right to employment trumps the rights of children’s wellbeing and protection.
— Luke Lamprecht, head of advocacy at Women and Men Against Child Abuse
In the labour court case, the department had argued that the ELRC arbitrator “misdirected himself in not considering the finding of guilt made by the Umzimkhulu magistrate’s court” and had made a decision based on the balance of probabilities. The department had noted that the Employment of Educators’ Act stipulates an educator must be dismissed if found guilty of having a sexual relationship with a pupil.
According to the labour court judgment, the department had contended “that it is absurd for the arbitrator to make a finding based on the balance of probabilities while knowing that Mr Tshazi had contravened a common law offence which was proved beyond a reasonable doubt in a court of law”.
The judgment cited the ELRC arbitrator as having found that Tshazi’s version of events was more likely to be true than the victim’s.
The labour court judge said: “In my view, the arbitrator failed to exercise common sense ... he ignored the seriousness of the allegations against Tshazi, an educator and principal of a school in whose care parents had entrusted their children.”
Approached this week, Tshazi told TimesLIVE Premium it was news to him that the ELRC decision had been taken on review to the labour court. “I am just confused. I got shocked. I never knew there was a review [of the ELRC order]. It was something that took me by surprise.”
He said education department officials were still calculating how much he was owed in back pay from the time of his dismissal in 2004. “They said before releasing the funds, they needed legal advice, which they outsourced to a certain advocate.”
He insisted that his reappointment had been justified. “Conspiracies, blue lies, bribes were all ingredients of the magistrate’s court decision. Do you really trust court magistrates?”
Luke Lamprecht, head of advocacy at Women and Men Against Child Abuse, said Tshazi’s name should have been recorded in the sex offenders’ register as he was “found guilty of a sex offence against a child”.
“It’s not only the education department. It is reliant on [the departments of] justice and social development and the police to make sure these checks and balances are in place. If he has been re-employed, it means none of the checks and balances have worked.
“The message being sent is that you can do whatever you like, and no matter what happens to you, your right to employment trumps the rights of children’s wellbeing and protection.”
Ella Mokgalane, CEO of the South African Council for Educators (SACE), said Tshazi’s case had not been brought to the council’s attention. “Details surrounding the educator are unknown to SACE. We are, therefore, in no position to comment on the decision by the KwaZulu-Natal education department.”
After the enactment of the Sexual Offences and Related Matters Act of 2007, indecent assault, previously regarded as a common law crime, became a crime of rape or sexual assault.
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