188A: ENQUIRY BY AN
ARBITRATOR

Panellist/s: Seretse Masete

Case No: ELRC217-26/27MP

Date of Award: 30/09/2026

In the ARBITRATION between:

Education Department of Mpumalanga

(Union / Applicant)

And

Sindane Jabulane Peter

(Respondent)

Union/Applicant’s representative: Pierre Els (Attorney)

Respondent’s representative: George Nkane

Particulars of the proceedings and representation

1. The matter was held on 16 September 2026 at the employer’s premises in Middleburg.
2. The Education Department of Mpumalanga (employer) was represented by George Nkane, while Jabulane Peter Sindane(employee), was represented by Pierre Els, an Attorney from CR Attorneys.
3. The employee confirmed to have received the allegations well in time and understood them.
4. The proceedings were in English interpreted into I siSwati by Skhumbuzo Luthuli, and digitally voice recorded.
5. The names of the two learners will not be written on the award but they will be named learner A and learner B.
6. The employer was at liberty to start with any learner not necessarily in the sequence as indicated above.
7. The employer called in 2 witnesses (learner A and learner B) and submitted no bundle of documents (except the charge sheet), and the employee testified and called one more witness and submitted no bundle of documents.
8. Ground rules and procedure were explained to the parties.

Issues to be decided

9. To determine whether or not the employee committed allegations of sexual misconduct in terms of s17(1)(b) and ( c) of the employment of educators Act 76 of 1998 as amended (the Act).

Pre-liminary issues

10. None.

Reading of the allegations and pleading.

11. The employer representative, George Nkane read the allegations as they appear on the charge sheet, and the employee pleaded not guilty on both the allegations.

Opening statement by the parties.

12. The employer opened its statement by indicating that they received allegations about sexual harassment by the employee. The case would be proved by leading evidence through the Learners.
13. Employee opened by presenting that he was charged of sexual misconduct in terms of section 17 of the Act. He would deny the allegations because it was the first time for him to see the learner on the day he sent her to go and warm his food. He never interacted with her before, and he did not know her. He denied having touched the learner. The allegations were false. There were also some procedural flaws because the investigation report was not given to them. The commissioner should determine the matter on the balance of probabilities and dismiss the employer’s case.

1st witness, learner A , testified under affirmation as follows.

14. She was currently in grade 10. In February 2025, during period 5, she went with her friend(learner B) to the office in order to fix the school fees slip. When arriving at the office, they found the employee and Mogane (educator). Learner B asked “Sir” (employee) as to whether he has dropped her as a friend, and he (employee) said no. Then the employee requested her (learner A) to go and warm his food in the kitchen. She went to the kitchen to warm the food and returned it. However, the employee told her that it was not warm enough and wanted her to warm it again. She went back to the kitchen and the employee followed her. He asked her if she was not interested to “jonjana” with him, meaning to have an affair together. She asked why did he say that to her, and he replied by saying they would keep it a secret. He then went closer to her and pulled up her pull over. She tried to stop him, and during that time, one boy, a learner, was passing on the stoep. He (employee) then removed his hand and she then ran away. She told learner B about the incident who said she should have not been worried because the employee was used to do such things. She also told one of the school boys in their class who told her to report the incident . She reported to Mathibela who in turn indicated that she would report the matter to the principal the following day because he ( principal) was not present on that day.
15. During cross questioning, she testified that she knew the employee because he previously taught her Isizulu in grade 9, but he was currently not teaching her. It was put to her that he (employee) did not know her and was seeing her for the first time during the time of warming the food. She answered that she may not deny because there were many learners at the school and she normally kept away from teachers, but he taught her. She understood relationship as being in love with each other. The incident took place in the kitchen when she was standing near the microwave next to the window where one could see through the staff room. The employee was standing near her. It was put to her that she was standing on the door when he(employee) himself was warming the food. She disagreed because she was the one who was warming the food. It could have taken 15 minutes to warm the food as she was warming it for the second time because the employee indicated that the food was not warm. There was a window at the left side of the kitchen door. Opposite the door, there was a window as well. The microwave was near the window which faced the staff room. They both lasted about five minutes because the incident was disturbed by the passing boy.
16. It was put to her that the food was warmed for 30 seconds by the employee after which he left. She denied and added that after entering the office, the educators had some conversation with learner B. The employee arrived in the kitchen while the microwave was on. The incident happened in February 2025, but she could not remember the date, though it was on a Thursday during period five. Break time was 10h30 and period 5 came before. It was put to her that the warming took place during break. She denied and insisted that it was period five and there was no teacher in their class by that time, hence they(learners) were free. She was in class, but after realising that she was free, she thought of going to fix up her slip at the office because her mom wanted it. She assumed that “ukujonjana”, meant to sleep together. It was put to her that the employee did not ask for a relationship. She denied and cited that he did. Her mother did go to the school to enquire about the incident but the employee denied the allegations.
17. The employee once had a relationship with one girl in grade 9 and they used to wear their skirts. One girl used to tell her that the employee promised to buy burger for her and that the girl, “wa mo galaledisa” (making him to lust her) as well as that she had big bumps. Although she did not witness the relationship between them, the employee’s action spoke louder. It was her believe however, that, that girl had a relationship with the employee. The girl would go to the office of the employee during the free period. When she returned, she would tell her that the employee promised to buy her a burger. The employee once came to her class and gave them more work, but when he went to that girl, he was soft and told her that she had big breast “mabele a makhulu” He also told her that she must come see him in his office. She heard those words because she was present, but she did not go to the office. She denied that she was misleading the commissioner because she was answering what she was asked. She also denied that, what she said was a hearsay evidence.
18. The employee touched her from her curves, laps, up to the breast on the same Thursday when she was warming his food. His first move was by talking about “ukujonjana”. She told him to stop and she shifted to the other side, though he stretched his hand and touched her. She got the opportunity to run away when the boy was passing on the passage. The employee told her not to tell anyone about the incident. She never screamed, though she was scared and that passing boy saved her, because she got an opportunity to run away. It was put to her that he did not touch her at all, just that he warmed his food and go. She flatly denied and added that learner B saw the employee when he followed her to the kitchen.
19. Re-exam. The microwave had a clock and it was still running and warming during the incident. The passing boy saw her when she came out of the kitchen.

2nd witness, learner B, testified under affirmation as follows.

20. She affirmed to tell the truth and proceeded that she was currently in grade 10. In February 2026, she was in class when learner A requested her to go and change the receipt in the office. When entering the office, the employee sent learner A to the kitchen. The employee was easy to chat with. He (employee) went out after learner A, but she did not know whether he was going to the kitchen or he went to the staff room, but they used the same direction. She did not believe the employee would follow learner A, since the kitchen was next to the staff room. She stayed about three minutes at the staff room, after which she saw learner A running. She followed learner A who told her that she could not believe that the employee touched her private parts. Learner A was in a shock condition. They then went to their different seats in the classroom.
21. Cross-questioning. She was not sure of the date, but it was after break. He (employee) was alone when he came to them. The employee requested learner A to go and warm his food in the kitchen. She was not sure as to how many times she came to the office, but it could be two times. Learner A might have taken 2 to 3 minutes in the kitchen. The employee followed her after she (learner A) left, maybe five minutes after. It was her (learner B), who was in good terms with the employee, though he never taught her. One day, while going to the toilet, the employee called her and asked her about her parents and she told him that they divorced. The kitchen was near the reception, and one could see the staff room when in the kitchen.
22. Learner A told her that she could not believe that the employee could touch her private parts. She did not remember exactly word by word, but she (learner A) said he touched her bumps and said something. She did not remember a lot, but she told her that the employee asked her not to tell anyone about the incident. It was put to her that he asked learner A to go and warm the food, and when she came back, the food was not warm and he told her to go back and warm it again. She only witnessed the sending off to the kitchen and that she joined learner A when they went to the office. Many learners used to say the employee was a naughty teacher.
23. Re-exam. She was shocked as to what could have happened to learner A. Learner A did not run straight to the classroom after the incident. She (Learner A) was shocked, and that made her to be shocked as well.

Evidence by the employee.

The employee, Peter Jabulani Sindane, testified under oath as follows;

24. He was the departmental head (DH) at the school and did not know the learner before he met her in the staff room when he sent her to warm food for him. He was not sure as to whether the learner was in his grade 9 class last year. He was also not sure if his class was grade 9 (a) or (b). Amongst other subjects, he was teaching Isizulu and life orientation. He was 61 years and was never subjected to any disciplinary hearing before. The incident happened on Thursday February 2025, but he could not remember the exact date. There was an opening (window like) near the microwave in the kitchen. When one was at the window, one could see the staff room. He sent the learner to go and warm the food in the kitchen, but she came back with it not warm enough. She took the food back and he followed her. From the back of his mind, he wanted to show her how the microwave was operated. He touched the button she touched before, and the food was warmed. There were teachers in the staff room because it was a break time, but they were not in the kitchen. The investigation was done, but by that time, the building structure had changed.
25. The unemployment structure (association like) chairperson , could not believe the story about him because he (chairperson) knew him (employee) as a pastor. He was not suspended and no money was deducted from him in the interim. He was initially informed by the principal about the incident and thereafter by the employer representative. He never asked the learner to have a relationship with him. He never touched the learner. He was a senior teacher and used to reprimand teachers that learners were a no-go area. One of his subject was about life orientation and he would talk about safety, rape and violence, and that did not mean he was naughty.
26. Cross-questioning. He conceded that it was probable that he taught learner A. He also confirmed the date of the incident to have been Thursday February 2025. He met the learner at the reception with learner B. He started asking learner B’s whereabouts of her parents. He told learner A to go and warm up his food in the kitchen. When she came back, the food was not warm and he sent her back. When she went to the kitchen, he followed her. On arrival in the kitchen, he took the food and warm it himself. He followed her because he wanted to go and show her how to do it. He, however, agreed that the learner knew how to operate the microwave. It was put to him that his reason that learner A did not know how to operate the microwave was not true. He denied and added that the food was not warm enough, which showed that she (learner A) did not know how to operate it. It was put to him that he could have just informed the learner to increase the temperature rather than following her. He answered that, he did not have that thinking in his mind and that it was the employer’s thinking. It was put to him that he saw it as an opportunity to speak to the learner in isolation. He denied. In the kitchen, it was only him and the learner. He took the food while they were entering the kitchen, and the learner did not leave while he was busy warming the food. He agreed that he could have given the instruction while they were at the reception, but that was not his thinking at the time. He went with her (learner A) because he wanted to do remedial work practically. After warming the food, the learner left and he also went to the staff room.
27. The story of the learner having run and learner B going to her (learner A), was a well-prepared story (fabrications). He believed there were people behind the incident. He could not do such things because he was an elder and a father, his child was doing grade 12 the previous year. He used to read papers about elderly people taking advantage of young ones, but he was not sure about it. He believed the brother to learner A, was the one who was pushing the issue. He was with learners all the time, more than 30 years as a teacher. He went out with learners several times but he never slept with a learner. He agreed with learner B that he was approachable and friendly, but he would not say he believed learner B when she said learner A came running and that she was shocked. It was put to him that he chose the evidence which was in his favour but did not accept those which were not favourable to him. He answered that people would tell the truth and sometimes not. People are not always honest and that included him.

2nd witness, Mokone Tebogo Piet, testified under oath as follows;

28. He was working at LD Moetanalo sec school as a principal. He found the employee at the school when he joined it and never heard of any disciplinary issues against the employee. He was aware of the allegations against the employee. He, however, was not at the school on the day of the alleged incident.

Analysis of the evidence

29. Section 17(1) of the Employment of Educators Act 76 of 1998 provides that an educator must be dismissed if found guilty of, among other things: section 17(1)(b): committing an act of sexual assault on a learner, student or other employee; and section 17(1)(c): having a sexual relationship with a learner of the school where the educator is employed. The two charges are therefore distinct. Section 17(1)(b) requires proof of an act of sexual assault, whereas section 17(1)(c) requires proof that the educator had a sexual relationship with a learner.
30. The evidence of Learner A was direct evidence of the alleged incident. She testified that she and Learner B went to the office during period five. The employee sent her to the kitchen to warm his food, and that was common cause. When she returned, he said that the food was not warm enough and she went back to the kitchen, that was common cause as well. The employee followed her to the kitchen (common cause). He then asked whether she was not interested in “ukujonjana” with him, which she understood to mean having an affair/relationship. He allegedly said that they could keep it secret. He moved closer to her, pulled up her pullover and touched her. She resisted and obtained an opportunity to leave when another learner passed the passage. She subsequently elaborated that the touching extended from her curves/lap towards her breast. She testified that she told him (employee) to stop, moved away, but that he stretched his hand and touched her. She did not scream because she was scared and ran away when the passing learner created an opportunity for her to leave. She expressly placed the incident in February 2025, on a Thursday. The employee independently testified and corroborated learner A, that the alleged incident occurred on Thursday in February 2025 and confirmed that date during cross-examination. That actually provided an important point of commonality between the versions. The employee denied the sexual conduct. However, his evidence confirmed several important components of Learner A’s account. He admitted that:
    • he encountered Learner A and Learner B;
    • he sent Learner A to warm his food;
    • she returned to the kitchen because the food was allegedly not warm enough;
    • he followed her to the kitchen;
    • he entered the kitchen with her;
    • they were alone there; and
    • he himself operated the microwave.
    Thus, the material dispute is not whether the employee followed the learner into the kitchen. He expressly admitted that he did. The real dispute is what happened once they were alone.
31. He testified that he followed her because he wanted to show her how to operate the microwave. There is, however, a difficulty with that explanation. Under cross-examination he conceded that the learner knew how to operate the microwave. He nevertheless, maintained that the food not being sufficiently warm demonstrated that she did not know how to operate it. He further conceded that he could have given her instructions while they were at the reception, but added that he did not think that way at that time. The question is whether, when his explanation is weighed against the learner’s evidence and the surrounding circumstances, it is reasonably probable. Learner B did not witness the actual touching. Her evidence should therefore on the balance of probabilities, not be treated as direct corroboration of the sexual assault itself although it is important. She confirmed that Learner A was sent to the kitchen. She saw the employee leave after Learner A, although she was initially uncertain whether he was going to the kitchen or staff room. Shortly afterwards, she saw Learner A running. Learner A then told her that she could not believe that the employee had touched her private parts. Learner B described Learner A as having been in a state of shock. Her (Learner B’s) evidence was therefore relevant to the events immediately surrounding the alleged assault and the learner’s contemporaneous reaction. She also testified that Learner A told her that the employee had touched her “bumps” and said something to her, although she could not remember the exact words. The fact that Learner A made a complaint shortly after the incident does not, by itself, prove that the allegation is true. However, it is a circumstance which can properly be considered when assessing the probabilities and credibility of the competing versions.
32. I agree with the employee especially in his closing arguments that there were certain imperfections (contradictions as he viewed them) in Learner A’s evidence. She could not remember the exact date, but so was the employee himself. There were also differences concerning whether the incident occurred during period five or around break time and the estimated duration of the episode etc. I have carefully considered those matters. We cannot expect the learner to remember everything, I mean even an educator cannot be expected to remember everything, see CS and another v Swanepoel and others, case no19027/13. It was further illustrated in Abrahams v Education Labour Relations Council and Others [2026] ZALCCT 11 that; where the evidence concerning an alleged assault is contradictory and inadequately corroborated, a finding of guilt may be unsustainable. That distinction is important here. In my assessment, the present case is not one based on a single uncorroborated allegation. There were sufficient mutually corroborative evidence and circumstantial evidence to establish the sexual misconduct against the educator on the balance of probabilities. The employee himself testified that he did not remember the actual date of the incident but remembered that it was on a Thursday in 2025. The principles here, are credibility of the witness, reliability of the evidence and probabilities of each version, see Stellenbosch Farmers’ winery Group Ltd v Martell CIE (2003) which the employee rightfully made reference to in his closing arguments as well.
33. The core of learner A’s evidence remained consistent, for instance;
    • she was sent to warm the employee’s food;
    • the food was allegedly sent back because it was not sufficiently warm;
    • the employee followed her into the kitchen;
    • they were alone;
    • he made a sexual proposition;
    • he allegedly told her to keep it secret;
    • he touched her;
    • she resisted;
    • she left when the opportunity arose; and
    • she shortly thereafter told Learner B what had happened.
34. Significantly, the employee independently confirmed the central physical circumstances: he followed her into the kitchen and was alone with her there. The approach to inconsistencies should not be that every discrepancy destroys the witness’s evidence. In Diholo v Gauteng Department of Education and Others [2023] ZALCJHB 117, the Labour Court dealt with a section 17(1)(b) allegation and emphasised the importance of assessing the evidence as a whole. The Court also recognised that section 17(1)(b) and (c) are directed specifically at sexual conduct involving learners. The employee categorically denied asking Learner A to enter into a relationship and denied touching her. He suggested that the allegation was fabricated and that there were people behind it. He particularly suggested that Learner A’s brother was driving the matter. Ironically, he testified that the brother was pushing the matter after the incident had already occurred. My take on the balance of probabilities is that the alleged brother could not have conspired and or fabricated the incident because he became involved after it had occurred. There was therefore, no evidence before me establishing why Learner A would have fabricated the allegation, or demonstrating the alleged involvement of her brother. The employee’s evidence also contained an unusual feature on the balance of probabilities. He acknowledged that he was alone with Learner A in the kitchen, yet his explanation for being there was that he wanted to demonstrate how to operate the microwave even though he accepted that she knew how to operate it. Although I do not necessarily find that the admission proves the assault, it does, however, on the balance of probabilities, make the employer’s version of the surrounding circumstances more probable. The applicable test is not whether the evidence established the allegation beyond reasonable doubt. This is an employment disciplinary matter, and the question is whether, on the balance of probabilities, the employer has established the misconduct, and on the totality of the evidence, I find that the employer has on the balance of probabilities discharged that onus. Learner A gave direct evidence of the sexual touching. Her evidence concerning the material circumstances was corroborated by the employee himself when he admitted sending her to the kitchen, following her there and being alone with her. Learner B’s evidence provided further support regarding the immediate aftermath.
35. She observed Learner A shortly after the incident and received the complaint from her. The employee’s explanation for following the learner to the kitchen is also weakened by his concession that the learner knew how to operate the microwave. The food was warm for the first time when leaner A brought it back, just, by the employee’s own testimony, that it was not as warm as he would have liked. That corroborated the fact that Learner a knew how to operate the microwave, the employee could have just instead of following her, told her to increase the temperature. It is very unlikely that today’s learner would not know how to operate a microwave on the balance of probabilities. I therefore find Learner A’s version more probable than the employee’s denial. The conduct of intentionally touching the learner in the manner described, in the context of an alleged sexual proposition, constitutes an act of a sexual nature that violates the learner’s bodily and sexual integrity. That kind of conduct is aligned with Section 17(1)(b) which provides for sexual assault of a learner. I therefore on the balance of probabilities find the employee guilty for contravening Section 17(1)(b) of the Act. The position is different with Section 17(1)(c) which requires proof that the educator was “having a sexual relationship with a learner of the school where he or she is employed.”
    The evidence before me does not establish a sexual relationship between the employee and Learner A. What the evidence established, on the employer’s version, was a single incident in which the employee allegedly made a sexual advance and sexually touched the learner. The fact that he allegedly asked her whether she was interested in “ukujonjana” does not establish that a relationship actually existed. On the contrary, Learner A’s evidence was that she rejected the advance, resisted the touching and left. There was also no evidence of:
    • an ongoing relationship;
    • repeated sexual encounters;
    • dating;
    • sexual communications over a period of time;
    • an established sexual relationship; or
    • any other facts from which an existing sexual relationship between the employee and Learner A can reasonably be inferred.
36. The evidence about another Grade 9 learner cannot properly be used to prove this charge against Learner A. Learner A did not personally witness the alleged relationship with that other learner, and her evidence was substantially based on what that learner allegedly told her. The distinction between the two subsections is important. The Labour Court in Diholo expressly recognised that sections 17(1)(b) and (c) address sexual assault and having a sexual relationship with a learner, respectively. Accordingly, I would not infer a sexual relationship merely because I have found that a sexual assault occurred.
37. The employee nevertheless, failed to live up to the principle of “in loco parentis” as an educator. The Constitution of the Republic of South Africa, s28(2) provides that, a child’s best interests are of paramount importance in every matter concerning the child. This was emphasised in the matter between the Governing Body of the Juma Musjid primary school v Essay NO and Others(2021) where a private property owner evicted the school on their property(land), which cited that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interest of children.
38. As for the procedural claim by the employee that the employer failed to disclose the investigation report to him, there was no substantiation thereof. The employee himself conceded that he never requested such documents from the employer. Nevertheless, there is no need to request for the disclosure of documents which would not be used in a process. Documents required for disclosure should be relevant to the dispute, see Mthini v CCMA and others, case no.2026-049354.

Findings

39. I find on the balance of probabilities that the employee contravened the provisions of section 18(1)(q) of the Act, in that his conduct was improper disgraceful and unacceptable. I also find him guilty on charge 2, contravening Section 17(1)(b) of the Act, but not guilty on charge 1, having sexual relationship with a learner in terms of section 17(1)( c) of the Act. .

Sanction

40. The employee as seen above, breached the rule in terms of paragraph 7 in the LRA’s code of good practice. He contravened s17(1)( b) of the Employment of Educators Act, 76 of 1998 (the Act), which provides that, an educator must be dismissed if he is found guilty of committing an act of sexual assault on a learner, student or other employee. The sanction of dismissal is therefore peremptory when one is found guilty. The offences of the employee should be regarded in the same serious light. He knew or expected to have known the rule as an educator and a parent. The rule was valid as it was meant to protect the interest of the learners, including his(employee) children, as intrenched in the Constitution. That rule is consistent with the Constitution, the views and outcomes of the courts mentioned above as well as the provisions of the Act. The employee did not show any remorse during the hearing. I however, did consider that he did not have any previous offenses before, he is 61 years of age, he is a pastor and a father. He has an unblemished record of 33 years as an educator with no complaint against him pertaining to unwanted conduct against children. I also considered that he was not suspended but continued doing his duties including interaction with children, which according to him meant that no trust relationship has been broken. However, it was held in Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) that there are cases which are so serious to an extent that mitigatory factors like length of service and lack of previous offences may not safe the employee from being dismissed. The trust relationship is assessed in light of the proven misconduct, not merely by looking at what the employer did administratively immediately after the allegation. Section 17(1)(b) makes dismissal the mandatory sanction for sexual assault. It is not evidence that the trust relationship remained intact, and it certainly does not negate a proven charge under section 17(1)(b). The relevant question after a finding of guilt is whether the misconduct itself, viewed in its employment context, is incompatible with the continuation of the employment relationship. In an educator/learner relationship, that is particularly important because the educator occupies a position of authority and trust over the learner and he is in loco parentis. The Labour Court in MEC for Education, KwaZulu-Natal v ELRC and Others [2011] ZALCD has recognised the special trust relationship between educators and learners and the higher standards applicable to educators. Guided by the above, it’s my believe on the balance of probabilities that, the sanction of dismissal would be commensurate with the offence committed by the employee. By contravening section 17(1)(b) of the Act, his conduct was improper disgraceful and unacceptable as further provided for in terms of section 18(1)(q) of the Act. The employee must therefore be effectively and immediately dismissed from the employment on receipt of this outcome.
41. I further find that the employee is unsuitable to work with children in terms of s120(1)(c) of the Childrens Act 38 of 2005.
42. This findings must also be referred to the South African Council for Educators (SACE) to determine whether or not the employee has breached its code of ethics.
43. Should the employee not be satisfied with this outcome he may choose to file a review application in the Labour court.
44. There is no order as to costs.

Panellist/s: Seretse Masete