IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – FREE STATE PROVINCE “the Employer”

AND

L MASILI “the Employee”

SECTION 188A INQUIRY BY ARBITRATOR RULING

CASE NUMBER: ELRC670 – 25/26FS
DATE AWARD SUBMITTED: 01 September 2026
NAME OF COMMISSIONER: Coen Havenga

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days and the last day of the inquiry took place on 14 July 2026 at the offices of the Employer in Bloemfontein. The parties requested opportunity to submit written closing arguments which were duly received and form part of the record. Extension for rendering the award was granted.
2. The Employer is the Free State Department of Education, represented by Ms Cweba, L. The accused Employee is Mr Masili, L, (“Masili”), represented by Mr Frans, M, an official of SADTU.
3. Mr Mogayane, H, acted as interpreter, and the intermediary was Ms Mokgwamme, T.

Issue to be decided

4. I am required to determine whether Masili is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Masili is unsuitable to work with children or not.

Background

5. The Employee’s representative raised a point in limine that the HOD allegedly gave a directive that the Employee’s precautionary suspension be uplifted so that he could return to teaching pending the finalization of the inquiry. However, despite this directive, the district director imposed a continuation of his suspension, which now amounts to a punitive suspension. Continuing with the inquiry would therefore have meant that the Employee would be sanctioned twice, should he be found guilty. The Employee referred to the case of Sappi Forests v CCMA and others DA12/08 (2008) ZALAC. It was argued that the commissioner should have exercised his discretion and dismiss the case against the Employee, alternatively ordered the Employer to withdraw the charges.
6. The Employer argued that the points in limine raised by the Employee and his union representative all related to allegations of procedural unfairness. The Employee should have addressed these issues by means of pursuing an unfair labour practice dispute related to suspension. The commissioner did not have powers to dismiss the case against the Employee or order the Employer to withdraw the charges.
7. I considered the application to dismiss the matter or order withdrawal, and issued a ruling based on the considerations below.
8. This was an Inquiry by Arbitrator conducted in terms of the provisions of the Collective Agreement 3 of 2018 (the CA), and in accordance with the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners. It was imperative to keep in mind that Section 28(2) of the Constitution of the Republic of South Africa, 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child.
9. Clause 5 of the CA provides for the arbitrator to consider the evidence presented, make a finding in respect of the guilt of the educator and direct what sanction must be imposed. The judgement of an arbitrator in terms of the CA shall be final and binding and has the same status as an arbitration award under the Labour Relations Act, no. 66 of 1995. There shall be no appeal against such an award, provided that any party to the dispute may exercise the right to have the award reviewed by the Labour Court on grounds of both substantive and procedural fairness, should he be found guilty and be sanctioned. The Employee has the right to raise the issues again at the review stage. There is no authority that would allow the commissioner at that stage to deny the Employer the prerogative to continue with the disciplinary action against the Employee. See in this regard also the principles set out by the Court in Stokwe v MEC: Department of Education, Eastern Cape and others (CCT 33/18) [2019] ZACC 3; (2019) 40 ILJ 773 (CC); 2019 (4) BCLR 506 (CC); [2019] 6 BLLR 524 (CC). The inquiry by arbitrator process does not make provision for the arbitrator to make findings in respect of the procedural fairness of the inquiry prior to the start of the inquiry, including the issue of cautionary or punitive suspension. The Employee had recourse in the provisions of section 186(2)(b) of the LRA in respect of an alleged unfair labour practice relating to suspension dispute. The arbitrator does not have powers in an Inquiry by Arbitrator process to order a case to be dismissed prior to the start of the process, or to order the Employer to withdraw the misconduct charges against the Employee.
10. The Employee’s application for dismissal or withdrawal of the inquiry by arbitrator at the start of the proceedings was denied.
11. Mr Frans thereafter accused the Council and its commissioners of bias and of predetermining the allegations against the members of SADTU. He went as far as accusing the presiding commissioner of fraud, amongst other unfounded accusations. He also contacted the Council to request the removal of the commissioner, which did not happen.
12. Mr Frans then applied for my recusal. The parties were afforded the opportunity on record to argue the application, whereafter I considered the application and issued a ruling on record with reasons, as reflected in the record of the proceedings. The application for my recusal was dismissed.

Charge

13. Masili, an educator employed at Bergmans Secondary School (“the School”), was charged with one allegation of misconduct.
14. Charge 1 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”) in that during the 2nd term of 2025 while on duty he conducted himself in an improper, disgraceful or unacceptable manner when he had an inappropriate relationship with a grade 8 learner (“the Complainant”).

Plea

15. Masili pleaded not guilty to charge 1 and denied all the allegations against him.
16. He disputed the admissibility of the Whatsapp messages contained in the Employer’s Bundle A.

Summary of evidence

17. The parties submitted the documents contained in Bundle A, B, and C.
18. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of the evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses. The fact that I have not captured all of it herein should not be misconstrued that I have not taken all the evidence presented into account. My findings are, accordingly, within the context of all the evidence provided by the parties during the arbitration hearing.
19. The matter relates to, inter alia, allegations of improper, disgraceful or unacceptable conduct towards a learner who was a minor at the time of the alleged incidents. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the minor witness for the Employer as the Complainant in this award. The witnesses testified from a room with a one-way glass, which was separate from where the Employee was seated, with the assistance of an interpreter and an intermediary.

Employer’s case

20. The Complainant, currently a 15-year-old female learner who was in grade 8 in the School in 2025, testified under oath with the assistance of an intermediary that Bundle A reflected the messages of communication between her and Masili on the social media platform Whatsapp (hereinafter referred to as “WA”). She referred to him and saved his number under the name “Mi Amor”. The number was Masili’s number. It happened during the 2nd term of 2025. Masili knew she and her friend, A, loved reading and chess and he lent them books to read. During break at school, he played chess with them outside the tuck shop. After school they met to discuss the books they read. Masili suggested that they write their own book. They did not know how to write a book.
21. The witness created a Whatsapp group on her mother’s phone. Masili gave her his number, and she added him to the group. He also talked to her directly in WA. He would ask how she was and how her day was going. A told her that he talked to her only on the WA group, and not personally.
22. The Complainant was 14 years old and in grade 8 at the time. She asked Ms Bandla in her neighbourhood whether it was appropriate for a teacher to ask her such questions, and she said it was not. She told her to tell her mother, but she foolishly did not.
23. She continued to talk with Masili on WA. He called her “my wife and my queen”. She responded by calling him her “husband and her king”, as reflected in Bundle A5. She also wrote “okay my love” in a message. She called him that because they used to call each other “my love”. It was no longer a teacher and learner conversation.
24. She told her mother about it and the woman in the kitchen also asked her what was going on between her and Masili. Her mother told her to leave them alone. She did not go to him during break anymore. He then texted her and asked why she did not go to him during break. She said that she felt down, and he asked to meet her after school, to which she agreed.
25. Masili gave her R100 for taxi fare so that she could meet him at Naval Hill. She told her mother that she was going to her grandmother and then told her grandmother that she was going to Naval Hill with a friend’s family. She never told her mother about Naval Hill. On the Saturday she then went to Naval Hill with Masili. She met him at the Jansen taxi rank in town on his request. She went with him because she felt she could talk to him about issues and that he understood her. They walked around and she told him why she was down. He hugged her. They were there for about one hour. After that they went to McDonald’s in town opposite the Mall. They ate and then parted ways.
26. In A9 he wrote that he missed her, and she responded by saying she missed him like never before. Those conversations were at the time that they started to date after the Naval Hill visit.
27. Her mother saw the pictures Masili took of her at Naval Hill. He sent it on her mother’s phone, and she saved it in the gallery, where her mother saw it. Her mother asked why it was only the two of them in the pictures as she went there with a friend’s family. She said they only took pictures of the two of them.
28. After that Masili asked her if they were officially dating, and she said yes. They called each other wife, husband, queen and king.
29. They were in a relationship. A10 reflected that he called her “my love” and “I love you”. She responded by “I love you more”. In A17 he called her “majesty”. He said that she did things to his body. He referred to being alone in a dark room, but she did not understand what he meant by that.
30. Rumours were starting to spread extensively at school, so she eventually told her mother about it. Her mother went to the School. The principal and deputy-principal, Mr Lesakwani and Ms Hlohlolo, told her to stop talking to and meeting Masili during break time. They then stopped meeting at break time and after school.
31. She did however continue to communicate with him, as reflected in A26. Her mother found out and went to the School again. The principal then informed the Department. They then stopped.
32. “Mi amor” meant “my love”. That is how she saved his number on her phone. A35 reflected the bible script she sent to Masili. She sent it to him as it talked about wife and husband like they used to call each other. She did not understand the meaning of the script, she just saw it referred to husband and wife. On A37 she declared her love.
33. The relationship ended after her mom went to the School for the 2nd time. Bundle C reflected the marks of leaners. Masili promised to buy flowers for the ones that performed well. He did not take her to Naval Hill as part of the motivation.
34. During cross-examination the Complainant testified that the number in the WA messages is the one used by Masili to communicate with her. She locked their chats on her mother’s phone after they started to date, that is why her mother did not notice it. The WA messages in Bundle A are screen shots her mother took of the actual conversation between her and Masili.
35. They chose the name of Supernova for the book they were going to write.
36. They never kissed or had sex. He only hugged her. They were dating through their chats on WA. She did go to Naval Hill with Masili. The taxi driver could confirm it.
37. She deleted the pictures on her mother’s phone after her mother found out. She discussed her life issues with Masili because she was in a relationship with him. She trusted him and felt comfortable with him. The relationship started after their visit to Naval Hill in May. She went with him because she trusted him. They did go to McDonald’s.
38. Masili called her his wife. They took it as if they were husband and wife, that is why they called each other that. She denied that she only fancied Masili as a teenager who could not control her hormones. She never loved him and did not have a romantic or sexual interest in him. She denied that she fabricated everything because she fancied him.
39. Puleng Tladi (“Tladi”) testified under oath that she was the mother of the Complainant. They made a WA group on her phone to discuss books. She found out that sometimes Masili and her daughter talked late at night in private WA. Her daughter did not talk to her when the lady told her to. She asked her about her closeness with the teacher.
40. The Complainant informed her that they were going to Naval Hill. She said that she did not have a problem as long as it was with friends. Afterwards she saw the photos and noticed it was only of Masili and the Complainant. The Complainant said the friends did not want to be in the pictures. She later confessed she went with Masili. She went to the School and addressed the matter. Masili denied that he went to Naval Hill with the Complainant. She asked Masili to stop talking to her child outside of school time, and to stop giving her books to read.
41. Itumeleng later screen shot the messages on her phone, and she took it to the School. Masili was called in and he agreed that he was speaking to the Complainant. The matter was then referred to the Department. Masili confirmed the messages in Bundle A which came from her phone was between him and the Complainant. He sent her an apology text as reflected in exhibit B.
42. During cross-examination Tladi testified that she gave Masili the chance to stop doing to her child what he did. She clicked on Mi Amor, and it reflected the number of Masili. The Complainant lied to her and her grandmother to protect Masili. When she went to the School the first time because her child was in danger. She asked him to stop but he did not. He did say he was sorry but did not stop. It stopped after she went to the School for the second time. He denied he did it but eventually agreed that he did.
43. Dibuseng Hlohlolo (“Hlohlolo”) testified under oath that she is the deputy-principal of the School. On 29 May 2025 she was called in by the principal. Tladi came to report Masili’s conduct. They called the Complainant in, and she confirmed the conversations and visit to Naval Hill. Masili was called in and he denied all. Tladi asked him to stop spending time with her daughter outside school time.
44. On 25 June 2025 Tladi came to the School again. She was very angry. She said she asked Masili to stop but he did not. She presented the WA messages between Masili and the Complainant. Masili denied it. The principal then referred the matter to the Department.
45. During cross-examination Hlohlolo testified that she confirmed Masili’s number in his personal particulars on file. She opened her phone and again confirmed the number appearing in A6 was that of Masili. She denied that there was foul play and that she was enjoying the destruction of Masili.
46. After the first meeting Masili started to ignore her. They had a good relationship; he called her mammy. She did not spread any rumours about him. She has not experienced learners who had sexual interest in educators. She heard about the inappropriate relationship when Tladi came to complain.
47. Kagiso Leserwane (“Leserwane”) testified under oath that he is the principal of the School. When Tladi came to the School he called Masili in. He advised him to stop spending time with the Complainant and to stop messaging her at night. Masili agreed to stop.
48. On 25 June 2025 Tladi came to the School again and reported the matter. She said that he continued his behaviour. He then decided to refer the matter to the Department. A printout from the School records showed that Masili’s number was the same number as in his CV, which is the number saved as Mi Amor.
49. It was not normal for Masili to go on a field trip to Naval Hill without the school and the parent consenting in writing.
50. During cross-examination Leserwane testified that the apology in B came after he referred the matter. He believed the Complainant’s version. He denied the allegation by Mr Frans that he committed fraud and corruption by changing Masili’s number in the SASAMS records.

Employee’s case

51. Lehlohonolo Masili, the Employee, testified under oath that he has been an educator at the School since 2021. He had a teacher and learner relationship with the Complainant. He did not have an inappropriate relationship. He did play chess with her and with A and R during break. They also liked reading books.
52. Rumours began to circulate that he dated learners. A student teacher in Grade R, Katlego, came to play chess with him so that he could teach her. She told him via WA about the rumours of him dating learners. He told her that they did not have the balls to confront him, so let them talk.
53. The kitchen lady asked the Complainant whether she was dating Masili. He told the Complainant to inform her mother about the rumours of him dating the Complainant. She said she did inform her mother and that her mother would come to the School. The receptionist also asked him about dating the Complainant.
54. On 29 May 2025 he was called in. He thought in his mind that the Complainant told her mother about the rumours, and he was happy to clear it up with the parent. He was caught by surprise and was ambushed in the meeting. The principal told him that the parent said that he had a deep relationship with the Complainant. He responded by saying he had no comment. He was asked to stop playing chess with the learners. He did stop playing chess with the Complainant during break.
55. He was part of the WA group created for the book reading and writing. The Complainant used her mother’s phone and A used her brother’s phone. They talked in the group. He never sent private messages.
56. A6 is not his name. He indicated his number. It is the number he used for WA. He had no idea how the name Mi Amor came there. It was not his messages in A1.
57. He did WA the Complainant late at night on the group. It was related to the book they were reviewing.
58. Note: Mr Frans requested opportunity to print out the chats and voice notes on the WA group in order to present it as evidence. Ms Cweba did not object as it would be fair towards the Employee. The matter was adjourned for two months to allow for the printing of the messages and to disclose it to the Employer. Mr Frans then informed the commissioner that he went through the WA group chats and decided not to submit it anymore as it would not assist the Employee’s case.
59. Masili then testified further that the Complainant confirmed she was not in a sexual relationship with him and was not interested in one. He had no inappropriate relationship with her. He had no sexual feelings towards her.
60. He did offer incentives for all the learners who achieved above 80% average. He did not award marks to the Complainant for an inappropriate relationship. He did not write the text in exhibit B. He would not have used terms like husband and wife.
61. He has always been close to learners. He was aware that an inappropriate relationship could result in dismissal. He was made aware of the SACE Code of Ethics when he applied. The principal also made him aware.
62. During cross-examination Masili testified that he had no conflict with anyone before the allegations started. He could not explain why the Complainant would fabricate her evidence. He did not inform the parents about the WA group. It was for the book review. He would have engaged the parents later. The Complainant agreed to be the administrator of the WA group. He did give her his number to add him to the group.
63. He did give learners books to read. He only spoke on the group with them. He did meet her mother twice at the School. He did not admit guilt. The Masili in A34 did not refer to him. He was the only Masili at the School. He did not call the Complainant wife and queen. He did not take her to Naval Hill. He never took her to McDonalds.

Summary of arguments

64. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

65. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
    a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) If the rule or standard was contravened, whether or not –
    i. The rule was a valid or reasonable rule or standard;
    ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    iii. The employer has consistently applied the rule or standard.

iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

66. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
67. All the allegations in the charges against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, and the evidence deduced by the Employee in defence, were considered and weighed against the abovementioned standard of proof.
68. It is not disputed by the Employee that the actions he had been charged with constitute misconduct. He confirmed that he was aware that an inappropriate relationship with a learner could lead to dismissal. He merely denied committing the alleged misconduct as set out in the charge below.
69. Charge 1 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”) in that during the 2nd term of 2025 while on duty he conducted himself in an improper, disgraceful or unacceptable manner when he had an inappropriate relationship with a grade 8 learner (“the Complainant”).
70. I am mindful of the fact that the Employee is charged with having an inappropriate relationship with a grade 8 learner. The evidence of the learner was that there was love declaration and physical hugging involved. It is a natural response in matters relating to the such behaviour that the reasonable person might view such conduct by an educator with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
71. In respect of the all the allegations the Employee disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
72. The Employee’s defence in respect of the alleged inappropriate relationship and improper, disgraceful, and unacceptable conduct is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies, instigated by the Complainant because she fancied and loved him and could not control her hormones.
73. I take cognisance of the fact that the Complainant is a single witness in respect of what allegedly transpired in the presence of the Employee. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. Even if the rule is not applicable in civil proceedings or arbitration proceedings, I must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
74. It must be remembered that the Complainant was only fourteen years old at the time of the alleged relationship.
75. I find no material discrepancies or inconsistencies in the evidence of the Complainant that would negatively affect her credibility. The Employee disputed the WA screenshots. However, the Complainant was one of the authors of those texts and testified to the authenticity and veracity thereof. I find the Employee’s allegation that it she could have created or falsified it improbable. The Employee confirmed that it was his number that appeared in the texts. The Complainant testified that she saved his number under the name “Mi Amor”, which explained why it appeared in that manner.
76. I find the WA messages to be credible, and it is admitted as evidence. The content of those messages corroborates the version of the Complainant in all material aspects. Despite her young age, the Complainant stood steadfast by her version. She described the inappropriate relationship and words used in detail, as well as the private excursion to Naval Hill, the hugging and the visit to McDonalds afterwards.
77. The Employee’s version is that the Complainant was fabricating evidence against the Employee because she was secretly in love with him and could not control her hormones. I find it highly improbable that the Complainant, a 14-year-old child, fabricated such a version and that her mother agreed to be used as a pawn to accuse the Employee of inappropriate misconduct. It would have been an elaborate fabrication involving educators, young learners, and parents with the intent to punish the Employee, which I find highly improbable.
78. I find it improbable that the Complainant’s mother would risk her credibility with supporting a false version to satisfy her daughter’s alleged hormonal love fantasies.
79. I find the Employee’s version that the Complainant decided to falsely accuse him highly improbable. It is the duty and responsibility of educators to not take advantage of young, vulnerable learners. The Employee failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. The Employee could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him. When afforded the opportunity to print out WA messages that he claimed would exonerate him, he decided not to do so. The inappropriate relationship only became known after the mother found the pictures of them at Naval Hill.
80. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainant’s version has been materially the same throughout the inquiry. I find it improbable that she would make up such a detailed version of events without any reason. The Employee’s version that it is a fabrication is not plausible.
81. The Complainant testified that the Employee declared love to her, called her his wife and queen and that she responded by calling him husband and king. She testified that they were dating, although no sexual intercourse took place. The Employee engaged in a highly inappropriate relationship with a 14-year-old learner.
82. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the employee committed the misconduct as contained in charge 1. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding
83. The accused employee, Mr Masili, L, is found guilty of the following misconduct:

84. Charge 1 – contravention of section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”) in that during the 2nd term of 2025 while on duty he conducted himself in an improper, disgraceful or unacceptable manner when he had an inappropriate relationship with a grade 8 learner (“the Complainant”).

Sanction

85. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
86. Masili’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and appropriate way by entering into such relationship with a vulnerable, 14-year-old female learner. The Code places emphasis on educators refraining from any form of inappropriate relationship with learners at a school and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a minor female learner to be groomed and lured into an inappropriate relationship by an educator.
87. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of summary dismissal is fair and appropriate in the circumstances.
    Sanction
88. In terms of section 188A(9) of the LRA I direct that the employee, Mr Masili, L, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005
89. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.

90. The parties were given the opportunity to submit arguments in this respect. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Masili’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In fact, despite being told to stop with his inappropriate conduct by the mother of the Complainant and the principal, he continued. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.
91. Mr Masili, L, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Masili, L, is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

COEN HAVENGA
Senior ELRC Arbitrator
01 September 2026