PSES809 -19/20GP
Award  Date:
  21  June 2022
Case Number: PSES809 -19/20GP
Commissioner: Luyanda Dumisa
Date of Award: 21 June 2022

In the ARBITRATION between

SAOU obo Beeslaar Beeslaar


Department of Education -Gauteng Province


1. The arbitration proceedings were initially set down for hearing on 23 November 2020 and 03 March 2022 at Gauteng West District offices. It was again set down on 25 & 26 April 2022 and they were finalized on 01, 02 & 3 June 2022 at Wonderfontein High School in Carletonville. The Applicant, Dannie Beeslaar (Beeslaar) was present and he was initially represented by Charmaine Trent (Trent) an official from SAOU whereas, the Respondent, Department of Education: -Gauteng Province was initially represented by Mvuleni Tshitshiba (Tshitshiba) its Labour Relations Officer who passed away.

2. On 03 March 2022, the late Tshitshiba was substituted by Themba Shiphemele (Shiphemele) who is a Labour Relations Officer in the Respondent. On 25 April 2022, the Applicant party was not present and only on 26 April 2022 that the Applicant party has replaced Trent with Andre Pretorius (Pretorius) who is also an official at SAOU.

3. The previous representatives of the parties had requested to supplement their pre-arbitration minutes with the information to be obtained from the inspection in loco. Then it was suggested that they would meet as the parties at the Wonderfontein High School as it was far from the venue where the arbitration proceedings were held. The inspection in loco was finally done on 01 June 2022 and the matter proceeded for consecutive days until completion on 03 June 2022.

4. The bundle of documents were submitted by both parties. The Applicant's bundle is marked A and the Respondent's bundle is marked B. The parties requested to submit their closing arguments on 10 June 2022, seven days from the date of the conclusion of the arbitration proceedings.

5. The arbitration was held under the auspices of the ELRC in terms of its Constitution. The proceedings were both digitally and manually recorded. The interpretation services were provided by Musa Myeza (Myeza)


6. I am required to determine whether there was an unfair labour practice in the conduct of the Respondent to the Applicant short of dismissal. If yes, I must decide on the appropriate remedy.


7. The Respondent's mandate is to provide compulsory basic education to learners in Gauteng Province, Carletonville Wnderfontein. The Applicant is employed as an Educator in terms of the Employment of Educators Act 76 of 1998. He held the position of Deputy Principal at the time of the incident which led to his suspension without pay for two months.

8. He was charged with two allegations but he was only found guilty of the following allegation:

Allegation 1
It is alleged that on 18 May 2018 you assaulted Kagiso Moeketsi, a Grade 8 learner by pushing him and hitting him with your head on his face. In view of the above, you are thus charged in terms of section 18(r) of the Employment of Educators Act 76 of 1998 as amended.

9. The Applicant sought the removal of suspension and to be reimbursed for the two months of docked salary.

Applicant's case
10. The Applicant is challenging the fairness of his suspension without pay. He relied on his testimony and that of Tshiamo Nkatho (Nkatho) to substantiate his claim.

11. The Applicant testified under oath that he is now the Principal of Wonderfontein High School and that at the time of the allegations he was the Deputy Principal. He was informed of the assault allegations against him by the leaner Kagiso Moeketsi (Moeketsi) who was doing grade 8 at the time.

12. He explained that he was going to attend his class when he went to the boys' toilets where he found the complainant learner and other learners. The other learners left the toilets running but the complainant ermined behind a smoking cigarette. He then had a word with the complainant learner wherein he reprimanded the complainant about his behaviour as the complainant learner was in trouble for assaulting his wife, Mrs Beeslaar and the learner’s father had appealed the sanction of the disciplinary outcome.

13. He said he turned his back and told the learner to him as he had done to his wife. The learner dared to say he only tapped her on her shoulder. That he told the learner to stop his shit because he was already in trouble and the learner did not respond to him.

14. He said he did not invite the learner to his office because it was a spontaneous thing that he should speak and guide the complainant learner. He conceded that the words he used were not appropriate and that he should have addressed the learner regarding the matter of his wife.

15. During cross-examination, he stated that he did not assault the complainant learner because he assaulted his wife. He did not think that remaining with the learner in the toilet alone was going to turn out to the allegations of assault.

16. Nkatho testifies under oath that he was the complainant learner's classmate in Grade 8. That the complainant learner was a troublesome individual and he did not like him. That the complainant learner on the day of the alleged assault did not have any blood flowing on his face, he was not injured and he was not crying to show that he was assaulted. He also did not tell anyone. He knew the character of the Applicant as his rugby coach he was a fine person.

17. He explained that the procedure when a learner has been assaulted at school, he/ she should report to the head of the discipline.

18. During cross-examine, he conceded that the complainant learner did not have to tell him that he was assaulted.

19. The Applicant representative argued that the complainant learner was found to have not been credible in the disciplinary hearing, he contradicted himself on crucial elements during the arbitration, combined with his motive to deceive and his single witness testimony should be treated with caution and this leads to the Applicant asking for the relief sought.

20. Nowhere in any code of conduct, is it provides that conversation with learners should take place only in the office.

Respondent's case:

21. The Respondent contended that the Applicant's sanction was appropriate and fair. The Respondent relied on the evidence of Kagiso Ashely Moeketsi (Moeketsi), Kenny Itumeleng Moeketsi (Moeketsi SNR) Nombeko Manda (Manda) to substantiate its case.

22. Moeketsi testified under oath that he was a learner at Wonderfontein High School in 2018. That he was in the toilets with other learners when the Applicant arrived. The other learners ran away and when he tried to run away as well the Applicant blocked him. That was when he realized that the Applicant was after him. When he tried to leave the Applicant closed the door and started telling him that he had assaulted his wife and that he should hit him too. The Applicant then pushed him and head-butted him in the face. He then opened the door they both left.

23. He told his friend Koos what happened to him after school and he also told his father. His father came to the school and reported the assault to the then Principal, Van Wyk.

24. During cross-examination, he denied that he was found smoking and that had he (Applicant) been found smoking, the Applicant ought to have followed the procedure of suspending him. That the reason he was left with the applicant in the toilet alone was for the Applicant to assault him without anyone seeing or without the cameras capturing it.

25. He did not report the Applicant to the principal on the same day of the incident because he feared that the Principal might side with his Deputy Principal, hence he told his father.

26. Moeketsi SNR testified under oath and said that he is the father of the complainant leaner. That his son when he arrived home was sad and he told him that he was assaulted by the Applicant. That the Applicant had told his son that he had hit his wife now he must him too. His son told him that the Applicant remained with him in the toilets and assaulted him.

27. Had the Applicant found the son smoking he was aware of the procedure that he was supposed to follow and not to remain with him in closed toilets without any witness. If the Applicant had wanted to speak to his son regarding his behaviour, he should have called him into the office. He had a motive to assault his son by the mere fact that he remained with him in the toilet without witnesses.

28. During cross-examination, he stated that the Applicant had a motive of vengeance hence, he isolated his son and remained with him in the toilets. That this was a vengeance for the assault of his wife by his son which he had appealed. The applicant was aware that there was an appeal on the matter concerning his wife and he should not have spoken to his son about it or remained alone with his son in the toilets.

29. Manda testified under oath that she is the Labour Relations Officer and the allegation that the Applicant assaulted the complainant learner was brought to her and she investigated it.
30. The investigation found that the Applicant chased away other learners and he remained alone with the complainant learner. He told the learner to do what he did to his wife. The Applicant was wrong to remain with the learner alone in the toilets and to speak to the learner about the pending case on appeal.

31. That the Applicant might have assaulted the complainant leaner based on the facts found by the investigation. The Applicant as the Deputy Principal was the head of the discipline, he should have called the learner into his office and he was aware of the procedures to follow when the learners misconduct themselves.

32. During cross-examination, she stated that the Applicant appeared to be having a motive of vengeance toward the learner since he had assaulted his wife. Because he remained with the leaner alone in the toilets, this had nothing to do with him smoking but that the complainant learner assaulted his wife and that he shouldered the learner. That he will show the learner what tapping is.

33. The Respondent argued that it was inappropriate for the Applicant to isolate and thereafter close the door whilst he was with the complainant learner. This was to make sure that no one witnesses the assault. It would have been appropriate for the Applicant to take the complaint leaner to the office and in the company of one of his colleagues and reprimand the learner and record the incident. In essence, the Applicant should have avoided being alone with the learner since the latter was having a case against his wife.

34. Section 28(2) of the Constitution states that a child’s interest is of paramount importance in every matter concerning the child.

35. The South African Council of Educators Act 31 of 2000 clearly states that ‘an educator: (a) should avoid any form of humiliation, and refrain from any form of abuse, physical or psychological’; (b)’ take reasonable steps to ensure the safety of the learners’ and (c)’ behave in a way that enhances the dignity and status of the teaching profession and does not bring the profession into disrepute. The applicant did not only threaten the learner but he went on to assault him, first by the word of mouth, second by pushing him against the wall and thirdly by head-butting him on his face. That the Applicant was supposed to act in loco parentis but instead he manhandled the learner.

36. Section 185 provides that every employee has a right not to be subjected to unfair labour practices.
37. Section 186(2)(a) of the LRA describes an unfair labour practice as an act or omission that arises between an employer and an employee amongst other things involving unfair conduct by the employer relating to promotion, demotion, or training of an employee or relating to the provisions of benefits to an employee.

38. The ELRC through the Collective Agreement extended its jurisdiction to allow it to deal with the enforcement of matters dealt with in the Basic Conditions of Employment Act 75 of 1997.

39. Section 138 of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings.

40. The Applicant's version was that he did not assault the complainant learner when he was alone with him in the toilets. That he wanted to speak to the complainant learner alone regarding his behaviour.

41. The Respondent's version was that the Applicant had assaulted the learner whilst he remained with him in the toilets alone. The Applicant was not supposed to speak to the complainant learner regarding the matter of his wife as it was still on appeal. The Applicant ought to have taken the complaint learner to his office for an open talk and that his language was not appropriate.

42. The most probable version is that the Respondent that its conduct did not amount to unfair labour practice for the following reasons:

43. The Applicant had no justifiable reason to remain with the complaint learner in the toilets alone. This is so when one considers the things that the Applicant said to the learner which were characterized by ostensible violence.

44. The Applicant confronted the complainant learner unprovoked and started to talk about a matter that was still pending. If the learner was indeed caught smoking, the Applicant ought to have followed the established procedure to deal with the misconduct. There is no record that the complaint learner was caught smoking by the Applicant as the second in charge of the school.

45. The inference that could be drawn from the proven facts is that the Applicant isolated the complainant learner to assault him and that he knew there will be no witnesses to his horrible head-butting of a learner. This kind of assault on a learner was wrong, inhumane, and traumatizing within the democratic dispensation that provides for the paramount interests of learners in a safe learning environment. The complaint learner was met with a vengeance for what he did to the Applicant's wife hence he was confronted with this issue unprovoked.

46. The applicant party's arguments are without merit in that the complainant learner was credible in his testimony on what transpired when he remained with the Applicant in the toilets alone. On this charge, the disciplinary hearing found the Applicant guilty. In as much as there might be nowhere in the code where the Applicant was required to have a conversation with learners in the office. The circumstances of this case required him to exercise some caution but he failed to do so in light of the content of the conversation he had with the complainant learner. The conversation he had was under dubious circumstances in the toilets, the complainant learner was isolated and he had a conflict of interest. In essence, the Applicant's defence, in this case, amounts to the grasping of straws.

47. The Respondent through its evidence has shown that the Applicant failed to act according to his loco parentis status and to observe the paramount interests of the children (in this case, the complainant learner).

48. Although corporal punishment has been banned from South African schools since 1996, teachers are still tragically using corporal punishment as means to discipline learners, thereby perpetuating the culture of violence and abuse that characterises many South African Communities. Many reports of learners being hit, thrown with objects or verbally abused on school premises indicate that the ban on corporal punishment is not being properly enforced in schools, and teachers are not being properly held accountable when they physically abuse a learner. The Applicant’s conduct was an abuse of the complainant learner and the department should uproot this conduct from our schools to ensure the best interests of the learners and to protect the educators’ profession.

49. In light of the above reasons, the Applicant's version that he wanted to speak to the learner regarding his behaviour is not supported by anything in light of the merits of this case. The Respondent's conduct to suspend the Applicant for two months without pay was justifiable and it did not amount to unfair labour practice


50. The Applicant's (Dannie Beeslaar) claim of unfair labour practice by the Respondent (Gauteng-Department of Education) is hereby dismissed.

Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry:Public Education

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