Alleged sexual violation orders by a teacher were fabricated, ELRC finds

A high schoolteacher who was fired in May last year for encouraging a male pupil to commit an act of sexual assault on a girl learner and for allegedly disrespecting another teacher by shouting at her in front of children and pushing her on the stairway in 2019 has been reinstated. 

The Education Labour Relations Council (ELRC) has found in favour of Mavis Zwane, teacher at Osizweni High School in Newcastle, who challenged her dismissal. The ELRC has ordered that she return to duty next Monday and has instructed the KwaZulu-Natal (KZN) education department to deposit R553,298.57 into her bank account before the end of the month as back pay to cover the period in which she was dismissed. 

The case was heard by commissioner Potas Cele in Newcastle last month, when the evidence of nine witnesses was considered. Zwane was represented by a lawyer as she claimed to have lost faith and confidence in the National Teachers Union ( that represented her at her disciplinary hearing. 

The ELRC heard that Zwane had been employed as a teacher at Osizweni High School in the Amajuba District since March 1995. In May last year, she was dismissed for misconduct after a 2022 disciplinary hearing. She lodged an appeal, but this was dismissed in April last year, and she was fired in May. 

According to the charge sheet, the first allegation against her was set out as: “It is alleged that on February 25 2019 or July 18 2019 and July 24 2019 at Osizweni High School you displayed disrespect towards Mrs BB Mthiyane in that you shouted at her in front of the learners or called her an informer for Ms Jele and pushed her on the staircases.”

Charge 2 stated: “It is alleged that in August 2019 at Osizweni High School, you conducted yourself in an improper, disgraceful or unacceptable manner in that you encouraged a boy learner to commit an act of sexual assault to a girl learner.”

It was explained that the first charge emanated from an investigation into a letter sent to the district education offices by a fellow teacher who claimed that Zwane had been bullying her. Zwane denied the allegations. 

During the disciplinary proceedings and after a caucus with her union representative, she changed her plea to guilty. 

The education department admitted that this plea bargain had been agreed upon, but that it had fallen away when Zwane pleaded not guilty at the start of the hearing. 

The girl learner cited in the sexual assault allegation testified that she was in grade 9 in 2019 at Osizweni High School, and her boyfriend was in her class when they were caught kissing in a spare classroom by Zwane. 

The girl said Zwane had ordered her and the boy to wait for her at the admin block as she wanted to speak to them after class. She said she assumed they would be taken to the staffroom to be punished. 

She said Zwane instead took them both to the female staff toilet, where she ordered the girl to lift her right leg onto the basin and instructed the boy to touch her private parts. 

The girl said her boyfriend refused to comply. 

The girl testified that Zwane ordered her and her boyfriend to come back to school the after day with their parents. The boy’s parents discussed the incident with Zwane, and it was resolved. The girl said she had been afraid to tell her mother, but Zwane insisted she bring her mother the next day — which she did. She said that after meeting with her mother, Zwane told her to go home because she was not ready to attend school. 

The girl stayed home until the principal called her mother and told her the girl had to come back to write exams.

The girl said she had been left traumatised by the toilet incident, as Zwane had apparently told others that she was a girl who plays “touch” with boys, that she had not been wearing tights — only her underwear — on the day of the incident. She said she had been 14 when it happened and too frightened to tell anyone about what had occurred.

However, when school inspectors arrived to speak to her, her mother had got to hear about the incident. This prompted her to beat the girl and tell her she didn’t believe her. 

The boy testified that he was also a learner at Osizweni High School and corroborated the girl’s story. He said that Zwane had reprimanded him for touching girls who are HIV positive and who have abortions. He also confirmed that other teachers had entered the bathrooms during the incident. He said he received no punishment for being caught kissing his girlfriend in class. However, after the toilet incident, he did not feel comfortable and safe at the school any more, and he decided to carry a knife. Other male learners were threatening to beat him up because of the circulating rumours about him touching the girl’s private parts. 

The teacher who had entered the bathroom testified that she had heard Zwane shouting in isiZulu: “Ntombazane ngithi beka umlenze nenze lento enginifice niyenza [girl, I say put your leg and do what I found you doing].”

She said she was shocked to see the girl had her leg on the basin, so Zwane had explained that she had found the learners in this position in an empty classroom. The teacher said she had gone to the learner support teacher to report Zwane for instructing learners to violate each other. 

She reported the case to school inspectors and admitted that she did not have a good relationship with Zwane. She claimed that in the past Zwane had caused a disturbance during a parents’ meeting and referred to another incident in which Zwane had allegedly kicked over a box of Tippex. She said she was aware that Zwane was not on good terms with some of the other teachers, and when the acting principal offered to intervene, she told him she preferred to leave the matter to God. She could not remember whether the girl’s leg had been on the basin when she entered the toilets. 

An English teacher told the hearing that the first charge against Zwane had been levelled by her after Zwane had shouted at her in front of pupils and called her an informer. She said Zwane had pushed her on the stairs. 

Zwane had been formally charged after the complaint was laid, citing several incidents — the first having taken place in March 2013. 

She said she had been a new teacher at the school in 2013 when Zwane had shouted at her for warming food in the microwave before old staff members could use it. 

The second incident — in April 2019 — had come about over miscommunication that had prompted Zwane to put her hands on her hips and yell: “Hey you, why are you disrespecting us?”

I find it to be highly improbable that the applicant [Zwane] would give such an instruction to the learners in a place which is used by other educators including educators who were not on good terms with her.

—  Potas Cele, commissioner 

On another occasion, she said Zwane had mocked her for eating lunch with another teacher and also testified that in July 2019, Zwane had intentionally bumped her while she was talking to another teacher in the stairway, causing her to stagger and reach out to balance herself. 

She said she had not mentioned the toilet incident because it was not her complaint to make. Busisiwe Tricia Jele, HOD for languages isiZulu and English at Osizweni High School, testified that she was Zwane’s supervisor. She said she did not have a good relationship with her and that Zwane disrespected and humiliated her regularly. 

She cited several minor incidents, including one in which Zwane had refused to do the work of a teacher who was on sick leave and another of her having pushed a box full of paper with her feet. 

She said she had been disgusted by news of the toilet incident and had laid a complaint, which was investigated. She admitted that Zwane was one of four teachers in a faction against her, and that the other three had also been shifted out of their positions. 

She denied allegations that the incidents in the spare classroom and in the toilet were a fabrication spearheaded by herself another teacher with the motive of getting Zwane dismissed. 

Zwane told the council that at the time of her dismissal, she had served at the school for 28 years and had a clean disciplinary record. 

She said she had caught the girl and boy kissing in the empty classroom next to her class. She said she told them to wait for her at the admin block, then asked the girl to come with her to the female staff toiled for a private chat about what had happened in the classroom. She said the girl wouldn’t tell her anything and that another teacher had come in. She then interrogated the boy, who had also refused to tell her anything. Zwane claimed the toilet allegations had been concocted against her by teachers who were on bad terms with her. 

She testified that on the morning of the disciplinary hearing, her union official told her that the charges were serious. He advised her to plead guilty to save her job. He said if she pleaded guilty, she would be suspended for one month without pay, but if she pleaded not guilty, she would be dismissed. 

Zwane said she asked to hear the testimony of the pupils before pleading guilty, but was informed that the law would favour the pupil. 

She only became aware of her dismissal when she stopped receiving her salary, and immediately applied to be reinstated or transferred to another school near the Osizweni township.

She said the toilet incident was a complete fabrication and denied ever referring to the girl’s HIV status or accusing her of having had abortions.

She said she had never accused the boy of touching the wrong girls on treatment for HIV and explained that she had been on the interview and scoring panel of teachers who had applied for HOD posts and not got them. She denied ever taking the pupils to the toilet and instructing them to violate each other, having purposely bumped a teacher with her shoulder and calling her a snitch. 

Another teacher testified that when she encountered the boy waiting in the admin block, he had told her Zwane had caught him in an empty classroom with his girlfriend and that his hand had been in her panties. 

She testified to being present when Zwane was alleged to have shouted and pushed a colleague on the stairs, but said Zwane had not raised her voice. 

Zwane’s lawyer claimed that the KZN education department had failed to prove Zwane guilty of misconduct and there was “more than sufficient evidence that the toilet incident was fabricated”. 

Commissioner Cele pointed out that the events that gave rise to the dispute happened in 2019 — more than five years before the arbitration proceedings — and that the memory of witnesses had likely faded. The pupils were five years older than when the alleged assault happened, and it was common cause that there were factions and divisions among staff at the school. 

He said he believed that Zwane had caught the pupils bunking class and hanging out in a spare classroom, and that the female staff toilet featured in the chain of events “albeit for different reasons”. 

He said the question to be answered was if both the boy and girl had been in the staff bathrooms and if they had been instructed by Zwane to sexually violate each other. 

Cele found that Zwane had caught the boy and girl alone in the classroom and accepted that they had been kissing. He rejected the version that Zwane had seen the boy touching the girl inappropriately, as there would have been no reason for her to question them if she knew what they had been doing. 

The boy and the girl both claimed they had been taken into the staff bathroom together and noted that four other teachers had been present — only one of which testified at the arbitration hearing. 

“Her version is consistent with the learners’ version, but the issue is whether it is probable,” Cele said. He said the teacher claimed not to have told anyone about the incident and the pupils had also never told their parents about being instructed to sexually violate each other. 

“I find it to be highly improbable that the applicant (Zwane) would give such an instruction to the learners in a place which is used by other educators including educators who were not on good terms with her.” 

There were discrepancies in the stories about the leg on the basin. 

“It is my finding therefore that there is insufficient credible evidence to prove that both learners were taken into the toilet by the applicant and instructed to sexually violate each other.” 

He said Zwane’s explanation of why she had changed her plea at the disciplinary hearing was reasonable and acceptable, and she was therefore entitled to be reinstated to her position and awarded her back pay.