IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON

Case No: ELRC843-21/22NW

In the matter between

DEPARTMENT OF EDUCATION – NORTH WEST Applicant – Employer

and

WILLIAM PUNIKI MMUSI Respondent – Employee

ARBITRATOR: Adv. S Fourie
HEARD: 11 January 2023, 22 March 2023; 6, 7 & 8 May 2025; 3 & 4 July 2025; 1 & 2 September 2025.
FINALISED: (Closing statements 19 September 2025)
DELIVERED: 29 September 2025

INQUIRY BY ARBITRATOR – ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The Inquiry by Arbitrator, was heard at different venues which varied between Phokeng Magistrates Court, Rustenburg District Office, Brits Magistrates Court and Soshanguwe Education Centre. The Employee, Mr. William Muse (“Mmusi”), was present and represented by Advocate Lloyd Matseembi instructed by Ramokoka-Mokoena Attorneys. The Employer was initially represented by Mr. Mashudu Mudau (“Mudau”), its ELRS practitioner but later by Advocate O D Tshitlho (“Tshitlho”). It was compulsory for an intermediary service due to two minor witnesses although the witness’s identity is known to the parties. Ms. Mule Padi served as intermediary and Mr. Herbert Matsenene as interpreter and also Mr. Sebastian Khuzwayo. The proceedings were conducted in English and Setswana. I kept handwritten notes and was also digitally recorded.

POINTS IN LIMINE

2. The Respondent’s representative challenged the jurisdiction of the Collective Agreement under case number ELRC365-21/22NW as well as an unfair suspension dispute under ELRC276-21/22NW at the commencement of the proceedings. It was directed upon that the unfair suspension case would be consolidated under ELRC843-21/22NW and parties agreed to submit heads of argument in relation thereof. The Respondent abandoned the jurisdiction issue under ELRC365-21/22NW on record at the end of the proceedings.

THE ISSUES TO BE DETERMINED

3. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with Clause 3.2 of the ELRC Dispute Resolution Procedure with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Mr. William Mmusi, pleaded not guilty to the allegation listed hereunder. I am required to determine whether the employee is guilty of the charge levelled against him and if so, to determine the appropriate sanction.
4. Under procedural fairness, I am also required to decide if Mr. Mmusi was unfairly suspended under ELRC276-21/22NW in an application submitted to the ELRC on 19 August 2022.
5. Whether a costs order should be made for failure to follow the prescribed procedure.

BACKGROUND TO THE DISPUTE

6. The Employee, Mr W P Mmusi (Persal no: 90897781) is employed by North West Department of Education at Majakaneng Primary School as a PL1 educator. The charge against the Employee reads: During 2021 academic year, you were alleged to be involved in sexual relationship with Learner A (13 years old grade 07 learner) at Majakaneng primary school and as such you are alleged to have committed an act of misconduct in that you contravened Section 17 (1) (c) of the Employment of Educators Act,76 of 1998.

SUMMARY OF THE EVIDENCE

7. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 38 pages). The Employee submitted bundle of documents (Bundle ‘EE’ 1 – 18 pages) and also relied on the Respondent’s bundle.

The Employer’s case

8. Learner A, testified under a solemn affirmation and could distinguish between right and wrong. In 2021 she was in grade 7 at Majakaneng primary school with her Principal as Ms. Matlhasedi. Mmusi taught them the subject Life Orientation. Her friends name is Learner B which is in the same class. She recalls Mudau who came to interview them at the Principal’s office with her aunt also present. The issue was about Mmusi touching her on her lap. She did not tell her parents but told them at a later stage. She stated that Mmusi assigned her to deal with the registers to determine absence and to submit it to him at the staff room where he would be with other educators and sometimes alone. She would normally go with her friend Learner B to submit the registers until Mmusi told her not to bring Learner B with her although he gave no reason for it.
9. On the next occasion when she went alone, Mmusi told her to come closer to him and he touched her leg. She felt afraid and Mmusi told her not to tell anyone because it would bring his name in disrepute, which she did not, but later she told her parents after which they went to see the Principal who was not happy. Other than this touching, Mmusi did nothing else.
10. She was referred to a WhatsApp group relating to school work and agreed that Mmusi communicated outside the group calling her if she was fine and with whom she was. This happened with Learner B, whom could hear Mmusi talking.
11. She referred to another day when Mmusi came to a party held at the neighbor with his wife and three children. They were busy playing (Ludo) also with Mmusi’s children who indicated Mmusi to be their father. She was afraid what his wife would say if she would become aware, not being aware Mmusi had a wife and children and that she would be treated “otherwise”. At this party Mmusi did not say anything to her and she also not to Mmusi.
12. [Examination by Tshitlho – Learner A explained that she always delivered the registers with Learner B but one day Mmusi asked her to do it alone. On a day she found Mmusi alone in the office. He told her to come closer and touched her thigh with his hand saying she must not tell anyone. She stated that Mmusi took her number from a group and he phoned her on a day she was with Learner B at home when Mmusi phoned her. Mmusi asked her if she was okay and with whom she was to which she responded that she was alone although she was with Learner B and she put the phone on loudspeaker. She stated that every time she spoke to Mmusi he would say he loves her and she would remain quiet with Mmusi then asking her why she remains quiet when he says he loves her.
13. On a day there was a party at the neighbor where she found Mmusi not knowing he was a relative to those people. Mmusi raised his hand to greet her but she did not respond.
14. On another day Mmusi asked her to go with her to put in petrol where after she went to Learner B where she was initially going to.
15. On another day, Mmusi did not sign her book and when she went to fetch her book at the office, a R20 note fell from the book.
16. She read her statement into the record: [translated]. he started by telling me to complete the register for him. I was always with Learner B completing the register. Someday Mmusi telling me not to come with Learner B and must come alone and I went always alone. The last time Mmusi called me closer to him and touched my thigh saying not to tell anyone. He took my number and always phone me around 14;00 asking how I am doing. I said okay and he asked if he can trust me. On the day of the party he came not knowing he was family and greeted me. He found me on my way and asked to go with him to pour petrol she went and he took me back. He gave me R20 and said I must buy airtime which I did not do and used it with Learner B. He phoned me every day. He told me when there is people I must not answer and not tell my mother. I told the Principal before the issue reached home.
17. She was referred to the Principal’s report on ER (2) which she does not agree with to have come to the school on Saturdays. She agreed with paragraph 4 of the Principal’s report, of what Learner B told the Principal that Mmusi always phoned her and longed for her lips and that Mmusi said: “I love you” with her not responding and Mmusi would ask why she is not responding so she would say to him: “I love you”. She agreed with paragraph 5 but denied to have met at school. Referring to Modisakeng section, she stated that they never met only on the day she went to Learner B’s place. Paragraph 6 she agreed with.
18. During cross examination, she stated that she told her parents on a Friday evening which was prompted by her not feeling well and to put an end to keep quiet of Mmusi touching her leg. When she told her parents, they kept quiet and looked at her saying they would attend to it after which they went to the school the next day. Her mother went to the school who went inside whilst she waited on a bench outside until Mudau came who spoke to her and Learner B. She stated that Mudau came on another day when they were together and the Principal told her not to be worried and that she would put an end to it of Mmusi touching her lap.
19. On the day when she waited on the bench, the Principal called her in and asked her mother to wait outside. The Principal asked questions and the deputy Principal made notes. She explained to her about the register she needed to take to Mmusi and that he touched her thighs. She explained all to the Principal and that she could not concentrate in class. She stated that they met three times of which the first time was herself, her mother, the deputy and the Principal. The second time was herself the Principal and Learner B. The third time it was herself, Learner B, the social worker and the deputy Principal. She stated that Mmusi was at the second meeting.
20. During the second meeting which was led by the Principal, she was asked to say everything and not to be afraid which was about the register when touching her and the calling her. She stated that Mmusi asked her if what she said was the truth. She stated that she explained all to the Principal with Mmusi entering the office later and the Principal explaining all to Mmusi who did not respond. She stated that Learner B explained other issues about Mmusi calling Learner A saying that he misses her.
21. She stated that she collected the register many times during Mmusi’s period during the Covid period and when she was not at school another learner would submit the register. This happened around three times a week. Sometimes Mmusi would not be there when she submitted the register. She stated that Mmusi toughed her many times but cannot remember which thigh, but Mmusi touched her many times every time she submitted the register. The table was directed to the door on the left side. She stated that when entering the office there are shelves, then Mmusi’s table at the front then the other educators. Mmusi would tell her to come closer and then touch her thigh with an open hand and every time it was when they would be alone.
22. [Cross examination after Tshitlho leading – She responded that she was not in a sexual relationship with Mmusi. To the notion that if there was not a sexual relationship then there could not have been love, Learner A responded that she does not know how to answer, she was not in a relationship with Mmusi and does not know how it got here on what she told the Principal. She stated that the Principal never asked her if she and Mmusi was in a relationship. She did not know whether Learner B said that she, Learner A told Learner B that she and Mmusi were in a relationship.
23. She agreed that she stated that she sent Mmusi a call-back where after Mmusi called her. She denied to have discussed the case with Learner B the previous day with reference to the Principal’s report stating that Mmusi told her “I love You”. To the notion that she said that Mmusi picked her up to drive somewhere, she responded that she never kissed him but she got into his car however she could not recall the color of the car seats thinking it was blue.
24. Referring to the R20, she stated she received it inside her book given to her by Mmusi because he had her book. She agreed that Mmusi was not in a habit to give her money, but for her it came from Mmusi. Referring to her statement where she wrote that Mmusi gave her R20 saying she must buy airtime, she stated that this R20 fell out from her book and not given by hand. To her earlier answer that Mmusi was not in a habit of given her money, she responded that she wrote the statement combining all. To the notion that she agreed that she stated that the R20 fell from her book when she collect it at Mmusi’s office and in her statement that it was when she was on the road, she responded that she did state it on her statement but Mmusi did not give it when they went to the station but fell from her book. Learner A did not respond further to the different versions. Referring to the Principal’s statement paragraph 6 quoting – that one day he took me to the station and told me he loves me…she agreed that she did not mention the R20. She denied to be a liar but tells what happened to her.
25. She agreed to have said she did not tell her parents because she was afraid. She told the Principal before she told her parents. She was referred to what she testified with Mmusi at the party when Mmusi raised his hand to greet and she did not respond. Learner A could not remember that she told Learner B referencing Learner B’s statement (on ER11/42), on what Learner A Told Learner B about the party is that Mmusi called Learner A and stayed in front of his car which was very nice and she wanted to tell him he is senior to her. This Learner A could not remember and did not happen. Learner A agreed to see the lie. Referring to Learner A’ statement, that she did not state that she did not greet Mmusi at the party, and the Principal’s report (ER (2) 1-2) that at the party Mmusi told her not to leave, she responded not to know it. She denied to be a liar because it is what happened to her].
26. Eunice Matlhasedi (Matlhasedi) testified under oath. She spoke out against the department delaying the matter for such a long time. She was informed by the Head of Department (HOD) of a parent who complained at school about her child, Learner B at one of the educators. The complaint was that the child was no longer eating or speaking and just slept. The HOD tried to speak to Learner B where after she also spoke to Learner B who kept being quiet. Matlhasedi then called for her friend, Learner A asking her to speak about Learner B’s silence. Learner A said Learner B’s mother also spoke to her about Learner B’s silence. She then called Learner B back ordering her to speak out about the truth saying to her he knew the truth although it was not so deliberately so. Learner B then said the Mmusi had an affair with Learner A and in love. She then spoke to Learner A who kept quiet.
27. She was advised then she called Mmusi and confronted him about them being lovers but Mmusi kept quiet. On the Friday, she attended to a SGB meeting and informed the SGB about the situation where after she called the SMT members and advised to call Mmusi. They struggled to get hold of the Learner A’s mother but was assisted by one of the SGB members and the brother. At the meeting it was Learner A and her mother, the HOD, the SMT and Mmusi with the brother of Learner A. It was explained to Mmusi that Learner A said they having a love relationship using the word “Rajola” to which the Applicant said nothing but just shook his head. She told Mmusi about what Learner A said about the register submitted at the office and for her to bring it alone and when she did, he touched her thigh and under. She also said on a day she went with the Applicant in his car to pour petrol. The mother to Learner A said that around Covid, the Applicant came and collect Learner A from home. She also spoke about the party at the neighbor when the Applicant invited her where she played with other children also saying that Mmusi wanted her but that his own child is older than her.
28. The Monday whilst she wrote a report to the Department, a group of people from the community came to the school wanting answers and looked for Mmusi. She dealt with the situation explaining to them that the Department would handle the matter. She also assisted Mmusi with another educator to get out from the school premises for his own safety.
29. She stated that the Applicant has done a lot to her children. She spoke out about the blankets he took from the grade R children which was told to her by one of the cleaners. The same blankets she asked to be washed but the cleaner refused because the blankets looked like carcasses. Another instance is where Mmusi took children to athletics but left them alone without their birth certificates and food. She needed to drive from Mooinooi to Rustenburg to take them food. The Applicant would also invite children to school on a Saturday and then just go missing. The Applicant at a time did not report for a period of 10 days and when she checked on him, she found him chopping wood saying people were busy building his house. Matlhasedi continued to state that Mmusi’ is befriended with High Schools girls and his colleagues complained about the Applicant having the girls at his place. There is no file for the Applicant and the Applicant is always late for work. Another Principal from another school told her that Mmusi is not a teacher. In respect of Learner A, Matlhasedi stated that Learner A told her that Mmusi did not mark her work sending the marks out on WhatsApp on which she confronted Mmusi who did not respond. She also stated that the Applicant send money to Learner A in her book but also to another learner who is not at the school anymore.
30. During cross examination, she agreed that she submitted her report on the 23rd of August 2023 but stated that not all the important things are in her report. Other things like children who said they were not the only ones called by Mmusi. Another child was given lunch money by Mmusi who is not at the school anymore. Matlhasedi spoke her mind about the time it took for the case to be dealt with stating that the children have mentally changed and would be more reserved now as when all took place. She is also scared of the mother of Learner A. She denied the allegation that she spoke to the children whilst she was under oath. Referring to the charge, she agreed that sex or a sexual relationship has not accrued between Learner A and Mmusi but did not agree to the notion that the charge was not correct stating that Mmusi asked the Learner about her lips and touched her.
31. She investigated Learner B’s situation which was reported to her and went to her place where she stays which is very sad because they are 4 children and Learner B is staying with her grandfather where the circumstances are not good. She agreed that when Learner B did not answer and cried, she decided to call her friend, Learner A separately who could not explain Learner B’s problem. She then spoke to Learner B again telling her she knows the story, which she did not, who then told her about what happened with Learner A that she and Mmusi are lovers.
32. She agreed that Learner B said that Mmusi would call Learner A and they put the call on loudspeaker. She denied that she said that Mmusi would tell Learner A “I love you” with Learner A to keep quiet until Mmusi would ask why she keep quiet and then Learner A would say to him “I love you too.”
33. She agreed to have informed the SGB before she spoke to Mmusi. She explained that the SGB represents the parent of the school and the community which can be cruel being an informal settlement. She did not know how to approach all and was seriously disturbed. The SMT and the SGB was informed and then Mmusi was called. She stated that the mother of Learner A, attacked her at the meeting who accused her of protecting Mmusi and to report her.
34. Matlhasedi denied the notion that the Mmusi was a problem for her and took the chance to deal with Mmusi and to punish him. She agreed not to have heard Mmusi’s version but only the allegations. She stated that she is not cruel and want to develop people and saved Mmusi a lot of times. This situation was difficult because of the community. She stated that Mmusi was problematic and went too far dodging by putting off his phone. She was worried because one day Pakistanis looked for Mmusi who brought phones to him and found him through another person’s phone. The one deputy took the phone thing up with Mmusi who would never answer when he did something wrong. She always looked out for Mmusi and when they (Pakistanis) took Mmusi, she said Mmusi would never steal it and bought it. She stated that she did not have anything against Mmusi and he was passed on to the school
35. She denied to make up things not said by Learner A. To the notion that she said Mmusi shook his head responding to the allegation of Learner A, Matlhasedi responded that she said Learner A agreed to be in a relationship with Mmusi. To the notion that she said Mmusi provoked Learner A to say “Rajola le Meneer”, Matlhasedi responded that as Mmusi shook his head, Learner A answered looking Mmusi in the eyes and said the words: “Na le Rajola meneer”. She agreed when Mmusi was shaking his head, he meant he denied the allegations made against him.
36. Referring to Matlhasedi’s statement where she stated that Learner A went alone and the thing that irritated her, was that the Mmusi would touch her thighs and put his hand underneath to which Matlhasedi responded that it is what Leaner A told them that Mmusi touched her thighs and private area.
37. In relation to the party next to the Learner A’s residence, Matlhasedi stated that Mmusi invited Learner A their which is not in her statement because she was tired and omitted it. She agreed that she did not wrote that Mmusi invited Learner A to the party, but it is what Learner A said.
38. Matlhasedi agreed to her statement that on the Monday a group of people came to her office when she was with the SGB member Levy after a discussion with Mmusi, when the child reported about the lips and being a virgin, the people wanted to see Mmusi. She stated that she did not report it to the SAPS because she managed to have Mmusi leaving the premises for all’s safety. She denied that she and Levy called the community to create chaos. To the notion that Matlhasedi said that it was not a surprise to her when she heard about the accusation, and that Mmusi has done a lot to her children, she stated that she aimed to build Mmusi and not to destroy him but Mmusi needed to stop girl-visitors from the High School. Referring to her version of Mmusi taking the blankets of the grade R learners, Matlhasedi responded that Mmusi stayed in the Library and the blankets disappeared and it was found there. She also stated that the HOD had problems with Mmusi’s lesson plans having no preparation files for lessons. Also when Mmusi called children to school on a Saturday leaving them unattended and taking children to athletics with no identity documents all of which the relevance of it that they tried to improve Mmusi and never reported Mmusi. She also stated that Mmusi was she never checked Mmusi’s file but he moved between different schools. Mathlasedi denied to have aggravated the allegation made unto Mmusi.
39. Francina Shadi Letlape (Letlape) testified under oath. She was the HOD at Majakaneng Primary School. What she could recall is that Mmusi was in a relationship with Learner A and that Mmusi called her on Learner B’s phone. The Learners told them (herself and the Matlhasedi), Mmusi called Learner A and Learner B’s phoned and put it on loudspeaker. Mmusi asked Learner A when she was going to give him her sweet lips. Learner A also said that Mmusi took her from the village to pour petrol at a garage. Also at the school, Mmusi gave her the duty of attending to the attendance register with Learner B which he later asked Learner A to bring it alone. On a day when he called her, he touched her thighs. Letlape stated with all this, she thinks they had a relationship because Learner A used the words: “Na le Mnr Rajola.”. Letlape also stated that she showed her the call list from her phone that Mmusi called her and Learner B could recall the call from Mmusi about the sweet lips.
40. During cross-examination, she stated that Learner B’s mother came to the class teacher who told her about the mother’s complaint about her child not eating and being quiet. Letlape then called Learner B who told her she was fine but kept quiet. The mother mentioned Learner A so she decided to call Learner A and asked Learner A what was wrong with Learner B being her friend who did not know what was wrong. She went to the Principal and they decided to speak to both the Learners. They then called Learner B who said she was fine and nothing was wrong. They then called Learner A in the absence of Learner B. They asked Learner A what was wrong with Learner B who said Learner B was fine that she also spoke to her. They then called Learner B for a second time and the Principal told Learner B that Learner A told them what was wrong and why she (Learner B) is not sharing the problem. It is when Learner B told them a lot of things to it such as the calls on loudspeaker when Mmusi asked when she (Learner A) is going to give him her sweet lips and that they would go away even though she did not know where to.
41. They then called Learner A for a second time. The Principal told her that Learner B told them all about Learner A and Mmusi. Learner A acted surprised and told them what Learner B told them that Mmusi called and they put him on loudspeaker and he asked her when she is going to give him her sweet lips and that Mmusi would collect her at the garage not knowing where to. Learner A told them that they had a relationship and showed them the call list from her phone. Learner A also said that she used to have WhatsApp and Messenger also talking to Mmusi but that it was deleted. She stated that she did see a call-log but no messages. She could not recall how many calls but it was the call-log of Learner A’s phone. They also said that sometimes they would use Learner B’s phone to make a please-call-me to Mmusi. They also mentioned the period register that they took it together to Mmusi who wanted Learner A to bring it alone.
42. Learner A said that on the day Mmusi called her to his office where she found Mmusi alone and it was when Mmusi touched her thighs. She was referred to the charge of a sexual relationship and that Learner A told the Principal that they did not sleep with each other. Letlape stated that it has stages and got to it whilst having sexual talks and touching but not intercourse. For her toughing thighs and talks about sweet lips is sexually related. She could not answer whether the allegations made was touching inappropriately or that of sexual relationship. She stated that Learner A cried but cannot recall when or whether she was scared or not of Mmusi.
43. To the Applicant’s version that he never toughed Learner A and was never alone with her in the staff room (office) and Learner A would always come with another learner whether it was Learner B or not and which created a problem with the teachers not attending their classes to which Letlape responded that the teachers are not always together in the staff room attending to their classes and could have been alone. Whether Learner A went with other learners, she would not know but they said they did go together Learner A and B. For her, it came as a shock what the learners told them but she never responded it to be wrong but just listened.
44. She stated that’s since Covid, Mmusi used to stay in the Library but not sure at that time. They had mobile classes at the back as storage space where the Library was which Mmusi used.
45. Letlape denied to have tricked the Learners in what they said when they told Learner B they know the truth that Learner A had a relationship with Mmusi being the reason Learner B denied having a relationship. Letlape responded that it was her duty to monitor Mmusi’s work and some fellow teachers was worried Mmusi having relationships or his way with girl learners so she discussed it with Mmusi to balance his relationships out with boys and girls and not only girls. It never crossed her mind that Mmusi would have a relationship with a learner.
46. Learner B testified under a solemn affirmation. She stated that her mother was worried about her because she was always sleeping and she told her mother that noting bothered her. She agreed to have told the Principal about Learner A and Mmusi having an affair because Learner A told her all what happened between her and Mmusi. She always went with Learner A to submit the register to Mmusi but Mmusi told Learner A not to bring Learner B along anymore. On a day she went to Learner A place when her mother sends them to the shop. Learner A made a call-back to Mmusi and Mmusi phoned her. When they returned back to the house, Mmusi called again and told Learner A that he lusts for her lips for which they laughed. Mmusi told her not to laugh loud and not to speak to people about it. She left with Learner A still talking to Mmusi being the reason she said they had a love affair.
47. Referring to Learner B’s statement, she mentioned that Learner A invited her along to have an injection to which she responded it was for family planning. Referring to ER2 paragraph 3 she agreed that she told the Principal about the words: “I love you” and that the Principal wanted to make sure. She denied to have been disturbed and her behavior never changed as per her parents. She stated that she never changed and when she went back to school she just wanted to sleep. Her statement reads: [translated] – [We had gone to Learner A’s place then Learner A made a call-back telling Mr. Mmusi she was going to the shop to buy a quarter and said she will make a call-back again and we went back to her place to take back the quarter and we eat. She made a call-back again and he said he misses her lips. Learner A told me to keep quiet because it is their secret. They met a Modisakeng secondary school kissed and he brought her a chocolate. Learner A always went to Mr Mmusi’s office and then came to my place telling me how they met and how they kissed. He called her at the party then they chilled in front of his car and she also came to me telling it was nice. I also wanted to tell her Mr Mmusi is an elder person but I kept quiet. Not long she said I must go with her she wanted to have an injection. I said let’s go and she never gave me chocolate again and she said I must put on shorts. Learner put on shorts she borrowed from me and a dress and I borrowed her short]
48. During cross-examination, she stated that she is 17 years of age now and was 13 when all happened. She can recall a little of what happened but she heard that Learner A and Mmusi had an affair. She stated that Mmusi told Learner A that she must not bring her friend (Learner B) along anymore to the office. Referring to her statement, she agreed that it was her who told the Principal about the relationship. She stated that her mother went to school that there was something which she hides after which the Principal asked her what it was about she said nothing but the Principal kept on asking until she spoke about it. To the notion that if something was wrong with her, how she was telling about a relationship, she responded that because she was forced to tell what bothered her, she could recall the affair between Learner A and Mmusi. She denied that it bothered her but they forced her so she spoke revealing issues she was not supposed to reveal. She however denied to have lied about it and that there was nothing that bothered her. She agreed that she has a child which is 2 years old. She denied however to have been pregnant at that time being the reason her mother was suspicious and only got pregnant in when she was 15 years old. To the notion that it would have made no difference because her parents experienced the same issues with her being busy with boys, she denied it and responded that she was not busy with boys. She denied the notion that the issues were about her having an affair but about Learner A. She agreed that they asked her if she had an affair. She agreed that she wanted all to believe that she was not asked about an affair but admitted that she was asked about having an affair.
49. She stated that after the meeting at the school, a dark gentleman came and took their sim cards wanting to check the numbers but failed to return it which was on a day after her mother came to the school.
50. She stated that Letlape never interviewed her. Referring to the Principal’s report on ER (2) paragraph 2, she responded that she could not recall Letlape. She stated that Letlape never asked her what was wrong. To the Principal’s version that Letlape (the HOD), complained to her about Learner B after her mother came to complain she not eating, Learner B responded that she did eat. Learner B denied the Principal’s version that Letlape tried her best to speak to her stating that Letlape never spoke to her. Referring to who was present at the meeting, she stated that it was Learner A and her brother, Mmusi, herself, her mother and the Principal. The Principal asked her the same as her mother did.
51. She agreed that she told the Principal that Mmusi and Learner A had an affair and that she overheard two calls. With the first call, Learner A made a call-back to Mmusi on her (Learner B’s) phone, who then called and Learner A told him they were on their way to the shop and Mmusi said he will call when they are done. Learner A’s phone was at home. This she heard because Learner A made her to listen to snippets. She could hear Mmusi saying “shap” that he would call when they back from the shop. Mmusi did not say she must make a call-back but Learner A told Mmusi she would make a call-back when she is at home. Learner B agreed that Mmusi just phoned not knowing whose number it was.
52. When they returned were back they gave her mother the quarter (bread) where after Learner A made a call-back with her phone to Mmusi. She answered and said it is me Learner A and continued talking. She (Learner B) heard Mmusi said he lusts for her lips. She laughed and Learner A told her not to be loud because it is a secret and they must not tell other people.
53. Referring to what the Principal said about the calls of what was reported to her – that Mmusi always called Learner A which Learner B did not agree with because it was a specific time when it happened. The Principal’s version of what she heard about was when will you give me your lips which Learner B differ with saying that she heard Mmusi say he lusts for her lips. She agreed with the Principal that the call ended with “I love you” which she forgot to say. She agreed that Learner A would say – “I love you too” which she also forgot to say.
54. Referring to ER (2) page 2 where it is stated that Learner A and Mmusi usually met on Wednesdays at Modisakeng section, Learner B responded that Learner A told her so but she did not say a lot of times. She cannot recall what else Learner A told her. She denied that Learner A told her that she would make a call-back to Mmusi for a meeting. She did not hear that on a call or Learner A to have told her that Mmusi asked her if she was still a virgin. For her she could not say if the Principal made the stories up or was told by Learner A by she did not tell it to the Principal.
55. Referring to her statement on EE11(43) – line 7 where she wrote that they normally meet at Modisakeng section, but that she wrote it as if it was her speaking making a mistake, but Learner A told her they met at Modisakeng section but not how many times. She also wrote at Modisakeng section they kiss and Mmusi bought Learner A chocolates, which is what Learner A told her. To her statement about the injection, and Learner A not giving her chocolates, Learner B responded that Learner A brought it to school but did not share it with her.
56. She was referred to her statement that she stated that Learner A kept on going to Mmusi’s office, to which she responded that it was to submit the registers from the classes every day. She did not mention the register portion because she might have forgot. She agreed that she created the impression that they had a relationship.
57. Referring to the party she wrote that Mmusi called Learner A and they sat in front of his car to which Learner B responded that it is what Learner A told her. Learner A told her Mmusi was very very nice. She agreed that she never saw Learner A and Mmusi together at Modisakeng section. She agreed that she never saw any kissing. She was never present where Learner a Mmusi called without a call back from Learner A. She knew it was Mmusi who called because she recognized his voice and Learner A told her it was Mmusi.

The Employee’s case

57. William Mmusi (Mmusi), testified under oath. He stated that during August 2021 a person came to the staff room informing them about a teacher having a sexual relationship with a learner and he was advised not to leave and realized it involved him and remained in the staff room. He was called around 14:00 and went to attend a kangaroo court at the Principal’s office with two deputies, the whole SMT, SGB members, the two learners, a brother and the parents present. The Respondent alleged him to have a sexual relationship with Learner A as alleged by the parents. They said that Mmusi left with Learner A from school to N4 towards Brits to pour fuel. He stated that it was the statement he signed for on the day with the SGB and the Principal. On the day he asked if he could aske Learner A one question which was what was the color of the seat covers or the carpet inside, but before she could answer, the Principal interjected for the child not to respond and could not be heard. Mmusi stated that Learner A was never inside his vehicle. He stated that the Principal refused him to question Learner A and he decided to stop.
58. On Monday the 23rd of August 2021, he saw the SGB going to the Principal’s office. Because of what happened on the Friday, he could not concentrate having sleepless nights. On the 24th of August 2021, people came to gather at the school gate asking Mmusi to be taken out of the school which resulted in him to go home.
59. The issue about the registers is that during the COVID period, he had four classes and because of the separation, it was made eight classes. He had a learner who assisted him to check absenteeism but that Learner got ill and he looked for another learner. He asked a class and Learner A volunteered who started to assist and was neat and always on time. At the beginning they were three or four bringing the register with teachers starting to complain that they escape the period not attending to classes and play around also going to the vendors outside. He then stopped them from coming in a group and told Learner A not to come with anyone else and to put the registers on the table if he was not there. Mmusi stated that Learner A never came to the staff room when he was alone and deny to have touched her thigh or to have kissed her.
60. He stated that it is a classroom turned into a staffroom with big windows and ladies cooking outside and able to see from the outside. He also stated that at no time there is a teacher alone in the staffroom.
61. Mmusi stated that when he receives a please-call-me he would return it due to the fact that he has a side hustle repairing cell phones and can be a client. When Learner A made a please-call from her friend, Learner B’s phone, he was in a taxi on his way to Brits. He returned the call and spoke shortly and heard stories about a quarter. He asked to whom he was speaking and she answered her name saying she was on her way to buy a quarter. It was when he realised the call was not about his side hustle. He stated that the second call was from Learner A’s phone. He denied that they talked a lot of things with her and that he told her he loves her.
62. At the party, the neighbours to Learner A, he was assigned to braai and did not move from the fire. Learner A played with his children and the children of the family they were at. Since he knew her being the child who assisted him at school, he waved at her and she waved back.
63. Mmusi denied to have driven anywhere with Learner A. He only saw Learner A at school and with a friend at the staffroom. He stated that Learner A knew his car’s outside but not the inside and he denied to have been at the Modisakeng section ever with his vehicle.
64. Mmusi denied the allegations of being at school on Saturdays, asking whether she is a virgin and not marking her book. He stated that Learner A herself disagreed with the statement about her virginity. In relation to her book, he stated that there was a workload for teachers to mark and for Learner A not to have made it an issue if she did not bring her book to be marked and if she did she took it in his absence. Any R20 from her book did not come from him with her also mentioning R20 in the vehicle which is not true.
65. For Mmusi the confusion that created the impression of a relationship was when he asked Learner A to assist him with the registers and stopped her to come as a group to the staffroom because of teacher complaints. The children used his name when teachers looked for them whilst thy were playing and visiting the vendor outside. The agreement with Learner A was to submit the registers on top of the table and leave.
66. His colleagues failed to assist him because he never had a good relationship with the Principal and told him various times to look for a post at another school which he refused to do. This might be because he worn two caps being on the SGB and a SADTU shops steward at the time being in a responsible position not agreeing with the Principal on many things which caused misunderstandings between them. He was never disciplined or warned about learners although there were rumours which was not nice. He received verbal warnings for not submitting work on time.
67. During cross-examination, he agreed that the registers were brought to him at the staff room. He denied to have a list of number for learners and responded to a please-call not realizing it was Learner A. He agreed that she talked about buying a quarter which was not a normal discussion or thing to say. His response was to say “okay”. For Mmusi, he was not surprised to receive a call-back because of his side-hustle for repairing phones and could not speak harshly to a child when he heard it was a learner. To the notion how a 12-year-old could find his cell number, Mmusi stated that he wrote his cell number on the chalk board to create a WhatsApp group to distribute work but ended up not creating a WhatsApp group because of the phones used by parents and learners not having WhatsApp.
68. Mmusi responded to the question why he instructed Learner A not to bring Learner B along with the register that, in the beginning when they were two it was okay but they started to come in a group and used his name to evade lessons to play or purchase at the vendor outside with teachers complaining.
69. He agreed to have said: “shap” after he made the call-back. He agreed to have been at the party and greeted Learner A at the party knowing her when she played with his children.
70. He denied to have refused to mark Learner A’s book. He stated that there was a lot of books he did not mark at the time and she brought her book alone, he took it but was unable to mark all including her book. He stated that the workload during COVID was heavy and they talked about controlling it. Mmusi stated that a R20 in Learner A’s book is a lie and also the R20 given to her in the vehicle.
71. Mmusi responded that Learner A was not chosen but volunteered when the other learner who assisted was ill. To the notion that Learner A was neat and clean, Mmusi responded that she was like other children and conducted herself responsible in what she did.

SUBMISSIONS IN ARGUMENT

72. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) within agreed dates considering the submission for the unfair suspension dispute under ELRC276-21/22 as well. The submissions were received and carefully considered It will however not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.

ANALYSIS OF EVIDENCE AND ARGUMENT

73. Written arguments inclusive of aggravating and mitigating evidence were submitted. I do not intend to summarise it here in detail. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. The onus is on the Employer to prove the allegations levelled against the Employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee is guilty of the allegation levelled against him. The charge reads: During 2021 academic year, you were alleged to be involved in sexual relationship with Learner A (13 years old grade 07 learner) at Majakaneng primary school and as such you are alleged to have committed an act of misconduct in that you contravened Section 17 (1) (c) of the Employment of Educators Act,76 of 1998.
74. It is common cause that Learner A and Learner B submitted registers to Mmusi’s office, initially together but later only Learner A. The parties agree that a sexual relationship (intercourse) between Mmusi and Learner A did not occur or is not admitted. There was a community reaction and concern over the situation, prompting distress and protective action by the school.

Substantive Fairness – whether the alleged incident(s) took place –

75. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as “the Code”) which requires me to consider whether or not the employee contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms of section 17(1)(c) of the Employment of Educators, Act 76 of 1998 as amended
    ;
76. Mmusi pleaded not guilty to the allegation levelled against him. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the employee beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities – see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, – see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
77. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail ” (at 14I – 15E par 5 per Nienaber JA)
78. The charges against the Mmusi involve some form of sexual misconduct in relation to Learner A being the ages of 13 at the time during 2021. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognized that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence – see Woji v Santam Insurance Co Limited (A) at 1028B – D. I have indeed approached both learners’ s evidence with caution especially considering the time it took to finalize this Inquiry.
79. The Employer’s bone of contention as referred to in their closing arguments is:
    • His relationship with a learner;
    • Giving a learner a lift to petrol station and giving her R20;
    • Phoning the learner and ending calls by saying “love you”;
    • Instructing a learner to mark her class register and refused her to bring the register with a friend;
    • Putting his hand under the learner’s skirt and touch her thighs;
    • Asking a learner whether a learner is a virgin;
    • Asking a learner when is she going to give him,” her sweet lips”

The Principal’s report and interview with Learners A & B –

80. The Head of Department (HOD) informed the Principal of a parent’s complaint regarding their child, Learner B, who was showing signs of distress by not eating, not speaking, and mostly sleeping. She stated that Letlhape, the HOD attempted to speak with Learner B, but she remained silent. Matlhasedi then called on Learner A, a friend of Learner B, to shed light on Learner B’s silence. Learner A revealed that Learner B’s mother had also confided in her about Learner B’s withdrawn behavior. Subsequently, Matlhasedi summoned Learner B again, urging her firmly to speak the truth, asserting that she already knew the facts even if Learner B was reluctant to admit them. Under this “pressure”, Learner B disclosed that Mmusi was involved in an love affair with Learner A. Learner B said they are lovers and Mmusi would call Learner A and put the phone on loudspeaker and he told Learner A he loves her with Learner A keeping quiet. Matlhasedi then later spoke to Learner A, who initially remained silent. The concern is what Learner A and Learner B respectively told the Principal (with Letlhape). The Principal lead no evidence on what Learner A said when she was called after Learner B told them.
81. During cross-examination, Learner B stated that her mother went to school that there was something which she hides after which the Principal asked her what it was about she said nothing but the Principal kept on asking until she spoke about it. To the notion that if something was wrong with her, how she was telling about a relationship, Learner B responded that because she was forced to tell what bothered her, she could recall the affair between Learner A and Mmusi. She denied that it bothered her but they (meaning the Principal) forced her so she spoke revealing issues she was not supposed to reveal. She however denied to have lied about it and that there was nothing that bothered her.
82. The accounts of the Principal and Letlhape (during cross-examination) generally corroborate each other regarding the process of obtaining information from Learners A and B however, the contradiction between Learner B’s testimony and the Principal’s account regarding Letlhape (the HOD) and Letlhape’s evidence is significant. Learner B denied ever being interviewed by Letlhape and claimed she could not recall Letlhape at all. She explicitly stated that Letlhape never asked her what was wrong. Conversely, the Principal’s report (ER (2) paragraph 2, asserts that Letlhape did attempt to engage with Learner B, particularly after the mother’s complaint about Learner B’s behaviour (not eating). According to the Principal, Letlhape made efforts to speak to Learner B to understand the issues.
83. The discussion with Learner A when she was told what Learner B told the Principal and Letlhape, the Principal did not testify about except for what is contained in her report (ER2). Letlhape on the other hand stated during cross-examination that they then called Learner A for a second time and when the Principal told her that Learner B told them all about Learner A and Mmusi, Learner A acted surprised and told them what Learner B told them that Mmusi called and they put him on loudspeaker and Mmusi asked Learner A when she is going to give him her sweet lips and that Mmusi would collect her at the garage not knowing where to. In essence the versions contradict each other to the extent to what Learner B told the Principal and what Learner A told them save to say the portion of the loudspeaker corroborate each other but not the respective statements of Learner B as stated by the Principal: (they are lovers and Mmusi would call Learner A and put the phone on loudspeaker and he told Learner A he loves her with Learner A keeping quiet) and Learner A as stated by Letlhape (Mmusi asked Learner A when she is going to give him her sweet lips and that Mmusi would collect her at the garage not knowing where to). During cross-examination, the Principal denied that she said that Mmusi would tell Learner A “I love you” with Learner A to keep quiet until Mmusi would ask why she keep quiet and then Learner A would say to him “I love you too.”
84. The Principal and Head of Department (HOD) undertook a responsible investigatory process to elicit disclosures from the learners, aimed at uncovering potential educator misconduct, consistent with their duty to protect learners and maintain a safe school environment under the Employment of Educators Act. However, Learner B’s testimony that she was pressured or “forced” to disclose certain information under persistent questioning raises concerns about voluntariness and potential undue influence. This impacts the reliability and weight of her evidence, an important consideration in adjudicating the credibility of Learner’s A and B. The Principal did not testify to what Learner A said after being informed of Learner B’s disclosure, on critical aspects in her report which was conveyed to her by Learner B limiting direct evidence from Learner A during the investigation.

The telephone calls and the loudspeaker –

84. The first call – Learner A only stated that Mmusi called her and only during cross-examination responded that she made a call-back to Mmusi. Learner B stated that there were two calls on a day which she overheard. She did not say that she overheard the calls over the loudspeaker but heard snippets. With the first call, Learner A made a call-back to Mmusi on her (Learner B’s) phone, who then called and Learner A told him it is Learner A and continued talking saying they were on their way to the shop and Mmusi said she must call when they are from the shops. Learner A’s phone was at home. Learner B could not recall if Mmusi said anything else because Learner A made her to listen to snippets here and there. She could only hear Mmusi saying “shap”. Learner B told Mmusi she would make a call-back when she arrives a back from the shops. Considering this I am of the view that a loudspeaker was not utilized as stated by Learner A and B when interviewed by the Principal and raises concerns. Learner B contradicted herself in this instance even though her testimony was heard just short of two years from the date of the Principal’s report. Both Learner A and Learner B gave conflicting accounts about the use of a loudspeaker during calls with Mmusi. Learner B later described only hearing snippets without clear loudspeaker confirmation, raising doubts about the accuracy of this detail.
85. Learner B agreed that Mmusi did not say she must make a call-back but Learner A told Mmusi she would make a call-back when she arrives at home contradicting her earlier statement above. Learner A also told Mmusi not to use Learner B’s number any longer to phone. Learner B also agreed that Mmusi just phoned not knowing whose number it was he received a call-back from. It is a concern what the motive of the two Learners was when they decided to make the call-back to Mmusi on the respective phones. The inconsistency in who initiated the call-backs and the use of Learner B’s phone number introduces questions about motive and reliability, directs to possible coordination or influence between the learners.
86. The second call – Learner A made a call-back from her phone at her home when they give the quarter bread to her mother. In the first instance, Learner A in her evidence in main did not testify that Mmusi told her he “loves her” of mentioning “sweet lips” but stated that Mmusi communicated outside a WhatsApp group calling her if she was fine and with whom she was. In her statement Learner A stated: He took my number and always phone me around 14;00 asking how I am doing. I said okay and he asked if he can trust me – which contradicts her version not mentioning the words- “he loves her or sweet lips”. This she stated emphasizing was heard by Learner B whom failed to mention it in her testimony and only referred to her lips in her statement and not “sweet lips” not mentioning the word “loves her”. During cross examination, Learner B agreed when referred to the Principal’s version that the call ended with “I love you” she forgot to say it. She also agreed that Learner A would say – “I love you too” which she also forgot to say. This, Learner B, who was the one conveying the information to the Principal who recorded the report Learner A did not mention in her statement or to the Principal herself. Later in Learner A’s evidence when Tshitlho took over and afforded an opportunity to examine the witness, she stated that every time she spoke to Mmusi he would say he “loves her” and she would remain quiet with Mmusi then asking her why she remains quiet when he says he “loves her”. Learner A’s initial failure to mention key phrases such as “I love you” or “sweet lips” contrasts with other statements attributed to her in cross-examination and in the Principal’s report, indicating evolving or unclear recollections. Considering the time period from when the learners spoke to the Principal and when Learner B testified an unclear recollection is likely, however it remained omitted from Learner B’s statement which created doubt and the likelihood that it was not said.
87. During cross-examination, to the Principal’s version of what she heard about was “when will you give me your lips”, Learner B differ with saying that she heard Mmusi say that he “he lusts for her lips”. She laughed and Learner A told her not to laugh being their secret. Referring to what the Principal said about the calls of what was reported to her – that Mmusi always called Learner A, Learner B did not agree with because it was a specific time when it happened.
88. Learner A Contradicted Learner B in that she was referred to a WhatsApp group relating to school work and stated that Mmusi communicated outside the group calling her if she was fine and with whom she was with this happening with Learner B, whom could hear Mmusi talking. She stated that Mmusi took her number from a group which is a lie contradicting Learner B clear evidence. Her statement reads further that Mmusi phoned her on a day she was with Learner B at home which materially contradicted Learner B to the extent that Learner B stated that they made call-backs from their respective phones to Mmusi which means the calls were not initiated by Mmusi. Learner A stated that Mmusi asked her if she was okay and with whom she was to which she responded that she was alone although she was with Learner B and she put the phone on loudspeaker which was unlikely to have occurred in relation to Learner B’s version to have heard only snippets and only the word “shap”. It could be asked what the motive of Learner A and B would have been to make the call-backs to Mmusi being together.
89. Learner A stated that every time (meaning many times) she spoke to Mmusi, he would say he loves her and she would remain quiet with Mmusi then asking her why she remains quiet when he says he loves her which contradicts Learner B who forgot to mention this that Mmusi said he loves her and only remembered Mmusi saying he lusts for her lips which contradicts her statement stating he misses her lips and in contradiction with the Principals report. It directs to a contradiction and a likelihood of coercion. Learner A’s notion to say every time meaning Mmusi phoned her a lot of times, in my view is to exaggerate a scenario but failed to do so in respect of contradiction versions from Learner B.
90. Learner A’s testimony materially contradicts Learner B’s on key points, questioning the reliability of both Learners. Learner A claimed Mmusi obtained her number from a WhatsApp group, a statement contradicted by Learner B’s clear evidence. Furthermore, Learner A said Mmusi phoned her when she was at home with Learner B, while Learner B testified that they initiated call-backs themselves, meaning calls were not initiated by Mmusi. The alleged use of loudspeaker by Learner A contradicts Learner B’s version that she only heard snippets, raising doubts about the extent of Learner B’s awareness. Learner B’s version that when she laughed and Learner A told her that is their secret directs to coercion. The motivation behind the learners making call-backs while together is unclear, suggesting possible coordination. Learner A also claimed Mmusi frequently said “I love you,” while Learner B omitted this and instead recalled phrases about “lusting for lips,” contradicting both Learner A and the Principal’s report. These contradictions point to a likelihood of coercion and exaggeration, reducing the overall credibility and suggesting caution in relying on these versions.

The call list –

91. Letlape stated that Learner A showed her the call list from her phone that Mmusi called her. This was done in the presence of the Principal who failed to testify about it in corroboration. Such evidence was important to secure. During cross-examination Letlhape stated that Learner A also said that she used to have WhatsApp and Messenger also talking to Mmusi but that it was deleted which raises a concern about its existence. Letlhape stated that she did see a call-log but no messages. She could not recall how many calls but it was the call-log of Learner A’s phone. The Learners also said that sometimes they would use Learner B’s phone to make a please-call-me to Mmusi which raises a further concern contradicting their own versions and what the reason was for them to do it when they were together.
92. Mmusi stated that when he receives a please-call-me he would return it due to the fact that he has a side hustle repairing cell phones and can be a client which is likely to be true with no evidence to the contrary having a side-hustle. He stated that when Learner A made a please-call from her friend, Learner B’s phone, corroborating Learner B’s version of the first call made, whilst he was in a taxi on his way to Brits. Mmusi could not have known from who the call-back was from also corroborating Learner B’s version so he returned the call most likely having a client in mind and spoke shortly and heard stories about a quarter also corroborating Learner B’s version. He asked to whom he was speaking and she answered her name which corroborate Learner B’s version as well when she stated that Learner A said it was her talking, and saying she was on her way to buy a quarter. It was when he realised the call was not about his side hustle. He stated that the second call was from Learner A’s phone also corroborating Learner B. Mmusi’s explanation that he returned “please-call-me” calls because of his side business repairing cell phones is plausible and backed by no contradictory evidence, enhancing his credibility on this point. This explanation aligns with Learner B’s account of calls made from Learner B’s phone and Mmusi’s lack of knowledge regarding the caller’s identity, suggesting innocent reasons for the communication.
93. Letlhape’s testimony that Learner A showed her a call list evidencing calls from Mmusi is important corroborative evidence linking Mmusi to communications with the learner. Evidence directs that two call-backs from two numbers would have shown Mmusi on a call log with the likelihood that it was what Letlhape saw. The Principal failed to corroborate seeing this call log, which weakens the evidentiary value due to lack of multiple witness confirmation of the exhibit’s existence and content. Letlhape’s statement that Learner A previously used WhatsApp and Messenger to communicate with Mmusi, but deleted these messages, raises a serious evidential gap. The learners’ admission that they used Learner B’s phone to send a “please-call-me” to Mmusi contradicts Learner A’s initial version of direct calls from Learner A’s phone and raises questions about the motive Learner A and B had when they decided to coordination the communication.

The class registers & In the staff room –

94. In this instance, the allegations direct to the staff room. Learner A’s version is that Mmusi assigned her to deal with the registers to determine absence and to submit it to him at the staff room where he would be with other educators and sometimes alone. She would normally go with her friend Learner B to submit the registers until Mmusi told her not to bring Learner B with her although he gave no reason for it. This suggests that Learner B was not present when Mmusi allegedly told Learner A not to bring Learner B along. Learner B’s version is that she always went with Learner A to submit the register to Mmusi but Mmusi told Learner A, suggesting that she was not with Learner A when Mmusi told Learner A not to bring Learner B along anymore. Even though Learner B testified about the register, she failed to mention the register in her statement stating that she forgot to mention it. The register is the pivoting point for the Applicant herein wanting to show Mmusi’s intention to isolate Learner A from Learner B to enable him to find Learner A alone. This happened around three times a week according to Learner A. Sometimes Mmusi would not be there when she submitted the register. Evidence directs that the two Learners were not together when Mmusi gave such instruction to Learner A.
95. Mmusi’s evidence to the issue about the registers is that during the Covid-period, he had four classes and because of the separation, it was made eight classes. The Covid-period was confirmed by Learner A and Letlhape stated that Mmusi stay in the Library during the Covid-period. Mmusi stated there was a learner who assisted him to check absenteeism but that learner got ill and he looked for another learner. During cross – examination, Learner A stated that she collected the register many times during Mmusi’s period during the Covid period and when she was not at school, another learner would submit the register. This directs to different learners assisted Mmusi with the register during the Covid period.
96. Mmusi version is that when the learner who assisted him got ill, he asked a class and Learner A volunteered who started to assist and was neat and always on time. At the beginning, they were three or four bringing the register with teachers starting to complain that they escape the period not attending to classes and play around also going to the vendors outside. He then stopped them from coming in a group and told Learner A not to come with anyone else and to put the registers in the table if he was not there. Evidence directs that Mmusi instructed Learner A in the absence of others. Even though this version was not presented to Learner A that she volunteered it is most likely what have occurred, the Applicant’s version to Letlhape was that he never toughed Learner A and was never alone with her in the staff room (office) and Learner A would always come with another learner whether it was Learner B or not which created a problem with the teachers not attending their classes to which Letlape responded that the teachers are not always together in the staff room attending to their classes and could have been alone. Whether Learner A went with other learners, Letlhape did not know but could confirm Learner A and B to have been together. Evidence directs to the likelihood that three or four learners and not only Learner B accompanied Learner A in her task resulting in teachers complaining that they were not attending classes. The learners would most likely have used Mmusi’s name to explain their absence from class when asked by teachers.
97. The evidence shows that the staff room was used by multiple teachers. Learner A stated that Mmusi assigned her to manage the registers to check attendance and submit them to him in the staff room, where he would sometimes be with other educators and sometimes alone. She also mentioned that there were occasions when Mmusi was not present in the staff room. Mmusi testified that Learner A never came to the staff room when he was alone, although he admitted to being alone there at times. He described the staff room as a converted classroom with large windows and women cooking outside, making it visible from outside. Learner A maintained that register submissions occurred about three times a week and sometimes Mmusi was absent. She also claimed that Mmusi touched her multiple times during these visits but could not recall which thigh. Considering that the staff room was often occupied by others and visible, it seems unlikely that Mmusi touched her repeatedly, suggesting Learner A may have exaggerated this aspect of her testimony.

Touching the thigh –

98. Learner A stated when she went alone, Mmusi told her to come closer to him and he touched her leg. She felt afraid and Mmusi told her not to tell anyone because it would bring his name in disrepute, which she did not, but later she told her parents after which they went to see the Principal who was not happy. Other than this touching, Mmusi did nothing else. This version corroborates Learner A’s statement which directs to one instance of touching her thigh, however during cross examination, Learner A contradicted herself by stating that Mmusi touched her many times but cannot remember which thigh, but Mmusi touched her many times every time she submitted the register.
99. The Principal’s version of what Learner A told her, which is not recorded in her report, is that she told Mmusi about what Learner A said about the register submitted at the office and for her to bring it alone and when she did, he touched her thigh and under, which contradicts Learner A’s version of only her thigh. During cross-examination, referring to the Principal’s statement where she stated that Learner A went alone and the thing that irritated her, was that the Mmusi would touch her thighs and put his hand underneath, the Principal responded that it is what Leaner A told them that Mmusi touched her thighs and private area. A thigh and private parts are much different and a very important version the Principal omitted from her report and denied by Learner A. This version was not presented to Letlhape however if that was said by Learner A in her presence with the Principal which she stated she was, Letlhape would have mention the private area, but did not. The Principal’s account adds a conflicting dimension by stating that Learner A told her Mmusi touched not only the thigh, but also under, implying contact with private parts. This version is absent from the Principal’s formal report and denied by Learner A herself, which directs to an important inconsistency.
100. The Applicant (Employer) submitted in their closing arguments as their bone of contention that Mmusi asked a learner whether the learner is a virgin. This, the Principal agreed to that on the Monday a group of people came to her office when she was with the SGB member Levy after a discussion with Mmusi, when the child (Learner A) reported about the lips and being a virgin, the people wanted to see Mmusi. This, Learner B did not hear that on a call or Learner A to have told her that Mmusi asked her if she was still a virgin contradicting the Principal’s version.
101. Learner A’s primary testimony indicates that Mmusi touched her leg once when she attended alone to submit the register. She described fear and was instructed by Mmusi not to disclose the incident, which she initially obeyed but later told her parents, prompting involvement of the Principal. However, Learner A’s cross-examination introduced contradictions when she asserted that Mmusi touched her many times every time she submitted the register but could not specify which thigh. The shift from a single incident to repeated touching without details weakens the certainty and reliability of her evidence. These inconsistencies around the nature, extent, and wording of the alleged touching and questioning affect the credibility and weight of the evidence.

Other incidents (the R20 & At the party & the Modisakeng section)

102. Learner A stated that on another day, Mmusi did not sign her book and when she went to fetch her book at the office, a R20 note fell from the book. Learner A contradicted herself in her statement that Mmusi gave me R20 and said she must buy airtime which she did not do and used it with Learner B. During cross-examination, referring to her statement where she wrote that Mmusi gave her R20 saying she must buy airtime, she stated that this R20 fell out from her book and not given by hand. Whichever way, Learner A suggested that Mmusi gave her R20 suggesting it to be purposeful which could imply an improper relationship. This contradiction undermines the probative value of the money-related evidence, whether a direct gift or accidental occurrence, it has materially different implications for assessing the allegation.
103. Learner A referred to another day when Mmusi came to a party held at the neighbour with his wife and three children. They were busy playing (Ludo) also with Mmusi’s children who indicated Mmusi to be their father. She was afraid what his wife would say if she would become aware, not being aware Mmusi had a wife and children and that she would be treated “otherwise”. At this party Mmusi did not say anything to her and she also not to Mmusi. Learner A could not remember that she told Learner B referencing Learner B’s statement (on ER11/42), on what Learner A told Learner B about the party is that Mmusi called Learner A and stayed in front of his car which was very nice and she wanted to tell him he is senior to her. Learner B confirmed what she wrote in her statement that Mmusi called Learner A and they sat in front of his car to which is what Learner A told her. Learner A told her that Mmusi was very very nice. Referring to Learner A’s statement, that she did not state that she did not greet Mmusi at the party, and the Principal’s report (ER (2) 1-2) that at the party Mmusi told her not to leave, Learner A responded not to know it.
104. In relation to the party next to the Learner A’s residence, the Principal stated that Mmusi invited Learner A their which is not in her statement because she was tired and omitted it. This claim that Mmusi invited Learner A to the party, is not recorded in the Principal’s statement, which she attributes to tiredness and omission. She agreed that she did not write that Mmusi invited Learner A to the party, but it is what Learner A said although it is not Learner A’s version. Learner A’s account indicates she was at a party next door with Mmusi, and that neither she nor Mmusi spoke to each other during the party, suggesting no overt inappropriate conduct on that occasion. There is inconsistency about whether Learner A greeted Mmusi at the party or what was said. Learner B’s statement confirms that Mmusi called Learner A, and they were together briefly in front of Mmusi’s car where positive remarks were exchanged which Learner A could not recall. While the Principal insists this was said, the absence of this detail in Learner A’s formal statement raises questions about the accuracy and completeness of the report and possible embellishment. The party incident’s probative value must be carefully weighed against the broader allegations, as it neither clearly supports nor disproves the alleged misconduct but raises concerns about inconsistent narration.
105. Referring to ER (2) page 2 where it is stated that Learner A and Mmusi usually met on Wednesdays at Modisakeng section, Learner B responded that Learner A told her so but she did not say a lot of times contradiction her statement. Learner B agreed that she never saw Learner A and Mmusi together at Modisakeng section and that she never saw any kissing. Learner A when referred to the Modisakeng section, she stated that they never met there only on the day she went to Learner B’s place which contradicts what the Principal capture in her report.

Procedural Fairness – Whether Mmusi was unfairly suspended under ELRC276-21/22NW –

106. An ex-tempore ruling was made to consolidate ELRC276-21/22NW with ELRC843-21/22NW. The Respondent his rights as directed by the ELRC Guidelines in respect of section 188A of the LRA also explaining clause 32 of the ELRC Dispute Resolution Procedures referencing section 3.8.1 of the Collective Agreement 3 of 2018. The charge sheet was signed by the Respondent as well as the E12 Form seeing no reason not to proceed with the Inquiry. ELRC guidelines require that suspension, particularly precautionary suspension pending disciplinary hearings, must be based on fair reason and conducted in accordance with fair process. This includes:
     • Reasonable grounds or prima facie evidence of serious misconduct;
     • Proper notice and explanation of charges and consequences;
     • Opportunity for the employee to make representations against suspension;
     • Written consent or formal procedural compliance as required;
     • Suspension on full pay with clear terms and reasons stated.
107. The Respondent (Mr. Mmusi) contends that the Applicant (the Department in the arbitration) failed to comply with key procedural requirements under the Collective Agreement No. 3 of 2018 and the ELRC Dispute Resolution Procedures. Specifically, the Respondent alleges that he was not properly advised of the misconduct charges against him nor the mandatory sanction of dismissal in the prescribed form as required by clause 3.3.2.3 and 3.3 of the Collective Agreement. Proof of service of the charge sheet and related documents was not provided as per clause 3.3.3. Due to these failures, clause 3.4 dictates that the Council’s Dispute Resolution Procedures did not apply, thus depriving the Council of jurisdiction. The Respondent also argues that the Council did not secure his written consent to deal with the matter under clause 32.1 read with section 188A of the Labour Relations Act, 1995. The Respondent asserts the Council lacked authority to appoint a panellist and proceed with the hearing, rendering the process procedurally flawed and the suspension unfair.
108. Mr Mudau, the Applicant’s representative submitted that the charge came after the investigation by ELRS informed by the received correspondence dated 24 August 2021 from the Circuit Manager Mr Thema (“Annexed A”). The correspondence was a report on an allegation of misconduct against Mr P.W Mmusi. In the submission the Circuit Manager recommended suspension of Mr W.P Mmusi and investigation on the allegation by the ELRS. Attached to the submission by the Circuit Manager was the report from the school on allegation of sexual misconduct by Mr W.P Mmusi dated 23 August2021 (“Annexed B”) and report and from the SGB of Majakaneng Primary School (“Annexed C”) requesting suspension of the educator and investigation on possible case of sexual relationship between the educator and the learner. The request was informed by the fact that the mother of a learner visited the school complaining about change of behaviour of her daughter.
109. Based on the submissions indicated above, the ELRS made a submission to the Head of Department requesting that the educator, Mr W.P Mmusi be put on precautionary suspension pending the investigation on the alleged sexual relationship (attached the approved submission on suspension of Mr W.P Mmusi – “Annexed D”) of which the copy was given to the school. Mr Mudau (ELRS official) visited the school on 06 September 2021 to consult with the school Principal, the SGB and the learner who was with her mother. The educator could not be reached as he was not at the school on the date of the visit by ELRS. The Principal indicated that the educator was released to go home after the SGB and the community come to school protesting against the alleged behaviour of the educator Mr Mmusi. The Principal further indicated that they decided to release the educator for his own safety. In a meeting with the Mr Mudau, SGB and the SMT, the SGB indicated that Mr Mmusi should not come back to the school despite the outcome of the matter reported to the Department. Since the date, Mr Mmusi was released from the school and never reported back to school for work however he continued to receive the salary. Mr W.P Mmusi was never suspended by the school Principal as he it is alleged. The Principal allowed Mr Mmusi to leave the school premises as the school could not guarantee his safety. Conclusion. Mr Mmusi, was never suspended by the school Principal as the powers to suspend lies with the Head of Department. Mr WP Mmusi cannot show any proof of his suspension by the school Principal.
110. Mr. Mudau also submitted that he attempted consultation with Mr. Mmusi on 6 September 2021, although Mr. Mmusi was absent that day. Mr. Mudau contacted Mr. Mmusi on 1 February 2022, arranged a meeting, and formally presented the sexual misconduct charge sheet to Mr. Mmusi at a neutral venue. The charge sheet clearly stated the relevant statutory provision (Section 17(1)(c) of the Employment of Educators Act 76 of 1998). Mr. Mmusi was given an opportunity to respond and was informed of his rights, including the right to be represented. A completed Form E12 requesting adjudication by an arbitrator was signed by both parties and submitted to the ELRC.
111. The Applicant’s representative (Adv Tshitlho) who finalised the Inquiry, submitted that on Friday 19 August 2021 the Principal two deputies DH, SGB members, Learner A, the mother to Learner B and the brother to Learner A attendant a serious meeting. The aim of the meeting was to inform Mr. Mmusi about the allegation levelled against him by Learner A. Notwithstanding the understanding of suspension, one need to highlight the necessity thereof. In the said meeting the Principal inform the parents that she will inform the Department as the procedure dictates. Tshitlho submitted that a person is suspended if his life is in danger or he will interfere with the investigation or interfere/threaten the witnesses. On Monday, the SGB, community members storm into the principal’s office looking for Mr. Mmusi. Even during Mr. Mmusi testimony, he indicated that such mob was at the gate showing the seriousness of the situation was at the time. The Principal tried to convince the mob that the Department will decide because the matter is with them, and that Mr. Mmusi is employed by Department of Education. The mob wanted Mr. Mmusi. The Principal with his two Deputies and Maponyane accompanied Mr. Mmusi to his car protecting him against the shouting community members and hurling strong words to Mr. Mmusi. The Principal had never suspended Mr. Mmusi but protected Mr. Mmusi against violent community members. It is true that Mr. Mmusi was not furnished with suspension letter, the reason being that after the commotion at school when mob wanted him dead or alive, he left Majakaneng to an unknown place and his known telephone was not existing too. It was difficult for the Department to locate him to serve him with the necessary documents
112. The presence of community unrest and safety threats justified the removal of Mr. Mmusi pending investigation, supporting the fairness of the suspension. Evidence directs that the Principal did not suspend Mmusi but acted in the circumstances the Monday morning when the community came to the school. In perusing the annexures specifically annexure “D” submitted by Mudau at the time which is the suspension notice, it is dated 25 August 2021 with the recommendation signatories ranging from 26 August 2021 up to the last signatory on 3 November 2021. The fact that the charge sheet was clearly presented, rights explained, and signed consent obtained weigh strongly in favour of procedural fairness and the requisite jurisdiction to proceed. I am of the view the Principal did not suspend Mmusi. The suspension of Mmusi, considering the cause of events involving the community at the school, appears procedurally fair, assuming verification of notice, service, and consent documentation.

The final analysis –

113. The question to be determined is not whether Learners A and B is wholly truthful in all they say, but whether the Arbitrator in this instance, can be satisfied that the story which the witnesses tells, are a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). In this instance, Learners A and B could not corroborate their testimonies in relation to their statements and also not what they testified during cross-examination for a true version of what they allege in bearing the onus. Taken together, these inconsistencies and contradictions impair the cogency and credibility of the Applicant’s (Employer’s) case. The Employer’s case centers on allegations including an intimate relationship, inappropriate touching, suggestive communications, and misuse of authority which derives substantially from Learners A and B’s testimony and the Principal’s investigative report.
114. The evidence fails to establish misconduct with the necessary certainty on a balance of probabilities. Substantive fairness under the Labour Relations Act requires the Employer to prove misconduct on a balance of probabilities with credible, consistent, and corroborated evidence. Here, the evidence falls short, especially given the serious nature of allegations and the need to protect the dignity and rights of all parties.
115. I find Learner A and B not to have been credible in their evidence. Learner A also contradicted herself in instances to be unreliable and not trustworthy. Both learners provided serious allegations implicating Mmusi in inappropriate conduct. However, their testimonies contain notable contradictions and inconsistencies regarding key details such as the use of loudspeaker during calls, specific phrases uttered by Mmusi, the initiation of calls, and the context of the communications. Learner B admitted during cross-examination that she was pressured by the Principal to disclose certain information, which raises concerns about the voluntariness and reliability of her evidence. Learner A’s testimony evolved over time. She initially omitted some critical details (e.g., exact phrases, the nature of touching) but later added or emphasized them during cross-examination. The Principal’s report documented attempts to obtain truthful disclosures but has gaps, such as the absence of direct testimony on what Learner A said after Learner B’s statements, which limits independent evidence from Learner A. Corroboration exists to some extent between the learners on certain themes (contact with Mmusi, phone calls, separation from peers) but differs materially on crucial evidential details, weakening overall credibility.
116. Complainants of alleged abuse who are minors are treated with special care; however, contradictions and indications of pressured testimony directs to weigh their evidence cautiously, distinguishing genuine disclosure from possible exaggeration or fabrication. The Learners admitted that they used each other’s phones to contact Mmusi, and the motive for why they did so when together is unclear, indicating possible pre-arranged tactics affecting credibility. Other than Learner A’s exaggeration of many calls, evidence directs only to the two calls the learners were together. The evidence points to a strong possibility that Learners A and B coordinated or influenced their testimony, raising reasonable suspicion of collusion. The Employer failed to prove its case on a balance of probabilities that Mmusi failed to refrain from improper physical contact with Learner A. It therefore flows that the Respondent’s case is less probable. I find Mmusi not guilty to the allegations levelled against him and that he did not contravene an offence in terms of Section 17(1)(c) of the Employment of Educators Act 76 of 1998.
117. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). I am satisfied that Employer (the Applicant herein) failed to proof on a balance of probabilities that Mmusi has irreparably destroyed the relationship of trust with the finding of not guilty to the allegation levelled against Mmusi.

AWARD

118. In the premises, I find Mmusi not guilty of the charges levelled against him.
119. No order of costs.

Adv. S Fourie
ELRC Arbitrator
North West