IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MBUZINI (MPUMALANGA PROVINCE)

Case No ELRC 314-26/27MP

In the matter between

MPUMALANGA DEPT OF EDUCATION EMPLOYER

and

TJ MBEBE EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 01 September 2026

CLOSING ARGUMENTS: 08 September 2026

DATE OF AWARD: 01 October 2026

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This is an inquiry scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry proceeded at the Lubombo Circuit offices at Mbuzini on 01 and 02 September 2026. The matter was however concluded on 01 September 2026 and thus did not proceed on 02 September 2026. Both parties attended the inquiry with Mr KP Shongwe, a trade union official from SADTU representing the employee while Mr S Mashego, the Labour Relations Practitioner in the department, represented the employer.

[2] At the conclusion of the inquiry, parties requested to make written closing arguments, and I duly granted the request with the agreement that parties would file their written closing arguments on 08 September 2026. I received written closing arguments from the employer on 08 September 2026, but, as at my writing this award, the employee had not filed written closing arguments. I followed up with the ELRC’s case management on 21 September 2026 and was advised that the employee had still not filed the written closing arguments, and I proceeded to render the award.

[3] An ELRC appointed intermediary assisted the learner witnesses during the proceedings while an interpreter was also arranged to assist with interpretation. The proceedings were digitally recorded and typed notes were also taken. The employer submitted a 7 paged bundle of documents while the employee did not submit a bundle. I must mention that included in the bundle submitted by the employer was an affidavit deposed by learner A, and which affidavit the employer made an application to have admitted as it was hearsay evidence as learner A could not attend. I granted the application after hearing oral submissions and directed that parties also argue its relevance and the weight to be attached to the hearsay evidence during and, at the conclusion of the inquiry.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the employee, Mr Thokozani Jerome Mbebe, is guilty of the charges preferred against him by the employer, the Mpumalanga Department of Education (the department), and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[5] Mr Mbebe is an educator employed by the department at MC Zitha Secondary School under the Lubombo Circuit office. The employer preferred the following charges against the employee:

Allegation 1.

It is alleged that during the period of December 2025, you had a sexual relationship with a learner, learner A from MC Zitha Secondary School where you are currently working. In view of your actions, you are thus charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act No 76 of 1998 as amended.

Allegation 2

It is alleged that your conduct was improper, unethical and unbecoming of an educator in that you engaged in conduct which brought the teaching profession, the school and the Department into disrepute by engaging in inappropriate communication, meetings and/or intimate conduct with the learner, learner A from MC Zitha Secondary School. In view of your actions, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act No 76 of 1998 as amended.

[6] Mr Mbebe pleaded NOT GUILTY to both charges.

SURVEY OF EVIDENCE AND ARGUMENT:

The Employer’s Evidence

[7] The employer’s first witness was Ms Ntombi Rita Khumalo. She testified that she is employed as the deputy principal at the MC Zitha Primary School. One of her responsibilities at the school is that of reporting serious misconduct against educators. She knows learner A who reported an incident involving the employee, Mr Mbebe. On 08 April 2026, learner A came and reported to her that she was pregnant and that she had been impregnated by the employee. Learner A then wanted advice on what to do because she had told the employee about the pregnancy and did not know what to do. Learner A was upset when she reported the incident and was crying a lot. On receiving the report, she went to report what she was told by the learner to the principal on the same day she received the report. She was not aware that learner A was unwilling to testify at the inquiry.

[8]	The employee did not cross examine this witness.

[9] Mr Lisanang Petros Mashego was called as the employer second witness. He testified that he is employed by the employer as the Deputy Director: Labour Relations at the Enhlanzeni District office. He investigated an incident relating to allegations of a sexual relationship between a learner, learner A and the educator, Mr Mbebe. The scope of the investigation was to establish existence of the allegation. Mr Mbebe was suspended, and he visited the school where he interviewed Mr Mbebe about the allegations and further interviewed the learner. When he interviewed the employee, Mr Mbebe, the employee confirmed knowing the learner and having exchanged contact numbers with her but disputed having a romantic relationship with her. On interviewing the learner, the learner confirmed having a romantic relationship with the employee and that she had visited the employee’s home and that the employee’s mother knew about their relationship. The learner told him that the relationship between her and the educator soured when she told him that she was pregnant. The learner decided to report the incident to the deputy principal and sought advice from her on what to do and intending the deputy principal to talk to the employee as she no longer knew what to do.

[10] He requested permission to take the learner to the police station where the learner deposed to an affidavit stating that she had a romantic relationship with the employee and that the employee gave her R5, 000.00 to terminate the pregnancy. He requested the learner to show him where she terminated the pregnancy, the learner told him that she terminated the pregnancy in Malalane but stated that she did not have the receipt.

[11] From the police station, he took the learner to her home and on arrival at her home, the learner took out her other cellphone and showed him pictures on the phones gallery where she was with the educator. The learner showed her the pictures contained on pages 3 to 6 of the bundle. He asked the learner to send the pictures to his cellphone. The learner also sent him WhatsApp chats between her and the educator. He had taken the number of the educator when interviewing him, and when he received the WhatsApp chats from the learner, he went to his own WhatsApp contacts and checked the educator’s profile picture and established that the name appearing on the learner’s profile picture, ‘U Wrecked Me’ was that of Mr Mbebe.

[12] After the learner reported the pregnancy to the school, the educator wrote to the learner saying “You wanna kill my career. If you want our baby to starve. But I know you kidding”. He was present when the learner wrote and signed the affidavit where she stated that she had a sexual relationship with the educator and that the educator impregnated her. She further stated in the affidavit that she reported her pregnancy after the educator ignored and rejected her calls.

[13] He had a WhatsApp conversation with the learner where the learner sent him a WhatsApp message with the learner threatening to take her life. He wrote back to the learner telling her not to do that and that he was going to visit the school. The learner responded that she was no longer coping and wrote “Angisa khoni (meaning ‘I am not coping’). I thank you for being there when I needed your help I’m done I did this because bengingasa khoni I’m now counting minutes to rest”. He advised the learner to call a social worker and promised to come and take the learner to the station commander after the learner reported to him that she was receiving threatening calls. When he arrived at the school, she could not find the learner and tried several times to call the learner but could not reach her.

[14] He later received a WhatsApp message where the learner wrote “Sorry sir I’m really scared cause even my family is in danger because of me I don’t know what to do and I can’t continue with this case”. He later tried to make arrangements for the learner to attend at a boarding school. But when he went to the learner’s home, he found the house locked with no one at the house.

[15] Ms. Avelile Memory Sibiya was called as the employer’s third witness. She testified that she is employed by a non-governmental organisation (NPO) NICRO as a social worker. Learner A was referred to her, and she met her through a referral from the school. She had an assessment session with learner A on 25 May 2026 at her offices. During the assessment with the learner, she told her that she had a sexual relationship with the educator and that she met the educator outside school premises and only discovered later that the educator was teaching at the same school she was attending. On discovering her pregnancy, she told the educator who was not supportive of her. According to her, she felt that Mr Mbebe was no longer in love with or supporting her. She then decided to terminate the pregnancy. She further referred the learner to the Thuthuzela Care Centre. She had four to five counselling sessions with the learner, but the learner came the other day informing her that she wanted to withdraw the case. On asking the learner the reasons, the learner told her that she did not want the educator to lose his job.

[16] She had a conversation with the leaner where she was checking up on her. The learner told her that she had dropped out of school and that she was receiving threats and was afraid. When she tried to call the learner again, she could not reach the learner, but the learner later called her back and told her that she was ok and was at home.

The Employee’s Evidence

[17] Mr Thokozani Jerome Mbebe testified that he met learner A in December 2025 when they exchanged contact numbers. He did not have a sexual relationship with the learner, but he exchanged contact numbers with the learner because he wanted to know her better, but there was nothing that happened between him and the learner. After realising that the learner was a learner at the same school he is teaching at, he cut ties with the leaner and had no further communication with her. He did not send any cash back to the learner to terminate pregnancy. He disputed having proposed to the learner or threatening her through phone calls. The investigator should have asked the learner who threatened her. The deputy principal did not call him to ask him about the allegations.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[18] In terms of section 138(1) of the Labour Relations Act 66 of 1995 as amended (the “LRA”) provides that:
“The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities” (own emphasis).

[19] Mindful of the above provision, I do not intend burdening this award with legal formalities as it is enough to just give brief reasons explaining my finding as enjoined by the LRA. Also, parties in these inquiries are mostly lay persons not trained in law, and an award must be written in a manner that will be easily understood by the parties. I deal with the one question of law relating to hearsay evidence to the extent it is necessary to provide reasons why I granted the application made and briefly set out the applicable legal principles I considered in granting the application.

[20] Section 3 of the Law of Evidence Amendment Act 45 of 1998 defines hearsay evidence as:

“Evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”.

[21] Section 3(1) then provides that:

“Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence in criminal or civil proceedings unless –
(a) Each party against whom the evidence is to be adduced agrees to the admission thereof as evidence of such proceedings;
(b) The person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
(c) The Court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of the evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which in the opinion of the court should be taken into account,
is of the opinion that such evidence should be taken into account in the interests of justice.

[22] The hearsay evidence that the employer sought to have admitted is a sworn affidavit of the learner whose complaint gave rise to the charges preferred against the educator. In the sworn affidavit, the learner sets out the nature and the history of her relationship with the educator. But for the threats made against the leaner, an issue I shall be dealing with in the next paragraphs, the learner would herself have availed herself and testified during the proceedings. The Constitution of the Republic of South Africa provides that ‘a child’s best interests are of paramount importance in every matter concerning a child ’. Thus, not admitting the learner’s sworn affidavit would not serve the best interests of the child as envisaged in the Constitution. I further concluded that not admitting the sworn affidavit would defeat the interests of justice, a point made by the Labour Appeal Court in Southern Sun Hotels . Also, in Matsokoleng v Shoprite Checkers , the court held that the commissioner’s refusal to admit an affidavit into evidence constituted a material mistake in law.

[23] The nature of the allegations is also such that not admitting the affidavit would not serve the interests of justice. The allegations against the educator centre around his having had a relationship with learner A, a learner at the school the educator is teaching at. Having heard evidence, I conclude, on a preponderance of probabilities, that the employer has proven the allegations against the employee. Firstly, the educator, on his own version, met learner A In December 2025, and they exchanged contact numbers. Also, on the educator’s own version, he maintained contact and communicated with learner A because he wanted to know her better.

[24] Secondly, that the learner and the educator had a romantic relationship is evidenced by the WhatsApp photos the learner forwarded to the investigator, Mr Mashego. The employee did not deny that the photos were photos of him. In one picture, the educator can be seen lying on his back facing the learner who also appeared to be sitting facing the educator with the educator’s body between her legs. The tattoo on the learner’s thigh is clearly visible on the photo, and Mr Mashigo did state that the learner had told him of the tattoo on her thigh. The educator, on being shown these photos, did not provide a cogent explanation on why he is sitting in such a compromising position with the learner, let alone having his photos on the learner’s phone. The only conclusion I reach is that the educator’s photos on the learner’s phone was evidence of the sexual relationship that they had.

[25] Thirdly, the WhatsApp chats between the learner and the educator strongly point to a sexual relationship between the two where they discuss learner A’s pregnancy and the unborn child. That the WhatsApp chats were between the educator and the learner is evidenced by the educator’s moniker: ‘U Wrecked Me’ saved on the learner’s phone and the WhatsApp status of the educator seen by Mr Mashigo when he checked the educator’s contact number which he had earlier saved and saw ‘U Wrecked Me’ as the educator’s profile name on his (educator) status.

[26] Fourthly, the social worker gave a detailed account of what learner A told her during the sessions she had with the learner where the learner confirmed having had a romantic relationship with the educator and that she fell pregnant, and which pregnancy she terminated after the learner gave her R5, 000.00 to terminate the pregnancy, the social worker’s version corroborates the version given by learner A in her sworn affidavit. While learner A may not have given oral evidence, the balance of probabilities favours a version to the effect that she had a sexual relationship with the educator.

[27] Trite to also mention is that while the educator denied the allegation, he failed to negate the allegations by way of presenting evidence that would substantiate his denial. The educator, for an example, did not cross question the deputy principal, Ms Khumalo, who gave evidence on how she came to report the allegations made by the learner to the principal. The educator could only have done so because he did not take issue with the version presented by the deputy principal. Regarding learner A’s sworn affidavit, the educator, except for denying that he had a sexual relationship with the learner, denying that he gave her R5, 000.00 to terminate the pregnancy, did little to, in any substantive form, deal with the claims made by the learner in the affidavit.

[28] As I often state, an educator faced with serious allegations of sexual impropriety can never escape sanction by merely denying the allegations. He needs to negate the allegations by presenting his own version that at least, on a balance of probabilities, stands up against a version presented by a learner. This is so because learners most often do not wake and make serious allegations against an educator where they lack substance. This is especially so where claims made by a learner are in one way or another, or rather through evidence, corroborated in substantive form by independent witnesses.

[29] In the present hearing, the deputy principal was not shown, by way of evidence, to have been motivated by ill-feelings or malice when testifying that the allegations were reported to her by the learner. No history of animosity was shown to exist that would cause the deputy principal to falsely state that the allegations of sexual impropriety were reported to her by the learner. The investigation by Mr Mashego, in large parts, confirmed that a relationship of a sexual nature existed between the educator and learner A and that the educator did impregnate the learner, and which pregnancy was later terminated when the educator gave her money to terminate the pregnancy. Even if the educator were to want me not to believe the learner’s version, the WhatsApp chats between him and the learner strongly indicate that he did impregnate the learner. The conversation between him and the learner goes as follows:
Educator: You wanna kill my career (an emoji with a crying face). If you want our baby to starve. But I know you kidding.
Learner: I’m not. Kuyafana nanyalo uyalamba, uyatsetsiswa futsi nje (a broken heart and crying emojis). Awum check (meaning ‘it doesn’t matter, as things stand, the baby is starving anyway, issues are raised about the baby and you do not not check up on the baby’)
Educator: Nam ngilambile (five broken heart emojis) (meaning ‘I am also hungry’)

[30] On the learner’s WhatsApp status as can be gleaned on the chats, the learner has “Matriculation” that’s my daughter’s name (with a red heart emoji) as her WhatsApp status. Mr Mashigo suggested that the learner put this status because the baby would have been conceived during her matriculation year. I agree because the learner is doing Grade 12 and probably suggested the name of her unborn baby as “Matriculation” as she is currently doing Grade 12.

[31] Having considered evidence in its totality, it is my finding, on a balance of probabilities, that the educator had a sexual relationship with learner A, and conduct that is very serious. I need mention, and at the risk of repeating myself that, except for merely denying the allegations, the applicant placed nothing tangible to negate the allegations. The educator presented no cogent explanation on why the witnesses called by the employer would falsely implicate him in having had a sexual relationship and impregnating the learner if this was not the case. If the allegations were not true, the educator dismally failed in putting up a version that would prove the contrary. The educator’s conduct did bring the teaching profession, the school and the Mpumalanga Department of Education into disrepute as alleged.

Sanction

[32] Section 17 of the EEA categorises having a sexual relationship with a learner as serious misconduct. This is because an educator, in the absence of a parent, is in loco parentis and takes up the role of a parent to learners. An educator is required to behave, around learners, in such a manner that he sets an example and must never engage in any conduct that is unbecoming and that has the result of impeding learners’ academic development and growth. That includes never having any sexual relationship with learners and never engaging in any acts of impropriety towards learners they are supposed or obligated to protect. The educator’s conduct is one that section 18(1)(q) of the EEA categorises as improper, disgraceful or unacceptable conduct.

[33] The SACE Code of Professional Ethics provides that educators must ‘respect the dignity, beliefs and constitutional rights of learners and in particular children’ and that they (educators) must: ‘refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school’. Section 17 of the EEA and the SACE Code of Ethics by extension, prohibits sexual relationships between educators and learners because learners, owing to their age and naivety, are vulnerable. Because of their positions, it becomes easy for truant educators to prey on such naivety. Such unbecoming conduct can only be prevented and perhaps stopped in its entirety by ensuring that educators who engage in conduct that is improper and unbecoming of their positions, and on being found guilty, are held to account, taken out of the education system and placed in no position to ever deal or work with children in the future. If their conduct is not harshly dealt with, a wrong message may be sent to other truant educators that preying on learners is acceptable and condoned.

[34] Mr Mbebe’s conduct is very serious. The learner he had a sexual relationship with has since stopped attending school, and this during the year that she is doing her Grade 12, and all because, after reporting the incident, she received threats that not only made her fear for her life but that of her family. Not only was the learner fearful, but she also threatened to commit suicide, a threat that made the investigator, Mr Mashego, plead with her not to take her life but rather talk to a social worker. The learner also abandoned the counselling sessions she was having with the social worker after four sessions all because of the threats she received after having reported the educator’s conduct, and because she did not want the educator to loose his job. While the educator would want me to believe that he had nothing to do with such threats, I do not find it be coincidence that the learner only started receiving the threatening phone calls after reporting the educator. If the learner did not receive the threats as she claimed, I do not believe that she would have abandoned the counselling sessions, abandoned school and not avail herself to testify in the inquiry.

[35] Just to show the extent and seriousness that the learner took the threats, she, in one of the messages she sent to the investigator, Mr Mashigo, wrote as follows: ‘Sorry sir I’m really scared cause even my family is in danger because of me I don’t know what to do and I can’t continue with this case’. The learner ended up not only not abandoning the counselling sessions but abandoning school. I was not made aware that she had returned to school at the time the inquiry was concluded. The result is that the learner, who would probably progress to tertiary education in 2027, would loose out on her academic year, not complete her Grade 12 and loosing out on any prospects of pursuing a tertiary qualification, all because an educator who was fully aware of his obligations in terms of the SACE Code of Ethics, deliberately preyed on a naïve learner with complete disregard of the devastating consequences his conduct may have. Even if section 17 of the EEA did not obligate arbitrators to impose a dismissal sanction, any sanction short of dismissal in the circumstances would be inappropriate and would send a very wrong message.

[36] As regards the question of whether the applicant should be declared unsuitable to work with children in terms of section 120(4) of the Children’s Act, he made no submissions in this regard and further did not avail himself of the opportunity to argue same in the written closing arguments as he did not file and written closing arguments as agreed. In that regard, I can see no impediment in making the declaration on unsuitability of the educator to work with children in terms of the Children’s Act.

[37] Accordingly, the following award is made:

AWARD

[38] The educator, Mr Thokozani Jerome Mbebe, is found guilty of serious misconduct in terms of section 17(1)(c) of the Employment of Educators Act for having a sexual relationship with a learner and impregnating her. The educator is further found guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act by engaging in inappropriate conduct by having inappropriate communication and intimate relationship with learner A as alleged.

[39] The sanction of dismissal is imposed effective immediately.

[40] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[41] The educator, Mr Thokozani Jerome Mbebe, is found unsuitable to work with children in terms of Section 120 (4) of the Children’s Act 38 of 2005.

[42] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Thokozani Jerome Mbebe, is unsuitable to work with children, for the Director General to enter his name as contemplated in Section 120 in Part B of the register.

[43] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Senior Panelist: ELRC