03 December 2025 -ELRC299-25/26NC

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE HEAD OF DEPARTMENT:
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR WILLEM BAARTMAN EMPLOYEE

Case No: ELRC299-25/26NC
Dates: 30 July, 03-04 November 2025
Venue: Douglas Primary School, Douglas

AWARD

DETAILS OF HEARING AND REPRESENTATION

This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Head of Department: Northern Cape Department of Education (hereinafter ‘the employer’), and Mr Willem Baartman, ‘the employee’.
The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was scheduled for 30 July and 03 to 04 November 2025, at Douglas Primary School in Douglas. Both parties attended the Inquiry. The employer was represented by Mr CN Dombo, its Labour Relations Officer. Pupil V Sebotsa from Adv. MMA Mafaro Chambers represented the employee.
The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with Section 138(7) of the LRA.
The proceedings were digitally recorded, and Mr Robert Kwayi was the Interpreter. Ms Thiti Mokgwamme was the Intermediary. At the end of the inquiry, the parties’ representatives requested to submit their closing arguments in writing by 11 November 2025, whereafter the award shall follow. This was granted.

ISSUE TO BE DECIDED

I am called upon to decide whether the employee misconducted himself, per the allegations levelled against him. If I find that he did commit the misconduct(s), I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

It is common cause that the employer has re-employed the employee as an Educator as from 01 July 2014, and has been teaching Mathematics and Science at Bongani Primary School, Bongani in Douglas. Following alleged acts of sexual misconduct January and May 2025, and has been on suspension since 04 June 2025.
The allegations levelled against the employee are as follows:

Count One (1)
During the first quarter (January-March 2025) and the second quarter (April-May 2025) near (Bongani Primary School) you committed misconduct in terms of section 17 (1) (b of the Employment of Educators Act 76 of 1998 in that you inter alia, committed an act of sexual assault on two learners (DC and KS) in the storeroom adjacent to your classroom, whilst you knew or ought to have known that you were not allowed to do so.

Alternative count one (1)
During the first quarter (January-March 2025) and the second quarter (April-May 2025) near (Bongani Primary School) you committed misconduct in terms of section 18 (1) (dd) of the Employment of Educators Act 76 of 1998 in that you inter alia, committed a common law offence by sexually assaulting learner DC and learner KS in the storeroom adjacent to your classroom, whilst you knew or ought to have known that you were not allowed to do so.

Count two (2)
During the first quarter (January-March 2025) and the second quarter (April-May 2025) near (Bongani Primary School) you committed misconduct in terms of section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that you inter alia, while on duty, you conducted yourself in an improper, disgraceful manner towards learner DC and learner KS in the storeroom adjacent to your classroom, whilst you knew or ought to have known that you were not allowed to do so.

Alternative to count two (2)
During the first quarter (January-March 2025) and the second quarter (April-May 2025) near (Bongani Primary School) you committed misconduct in terms of section 18 (1) (dd) of the Employment of Educators Act 76 of 1998 in that you inter alia, committed a common law offence by touching learners DC and KS inappropriately the storeroom adjacent to your classroom, whilst you knew or ought to have known that you were not allowed to do so.

Count three (3)
During the first quarter (January-March 2025) and the second quarter (April-May 2025) near (Bongani Primary School) you committed misconduct in terms of section 18 (1) (u) of the Employment of Educators Act 76 of 1998 in that you inter alia, you victimize learner DC and learner KS by sexually harassed them in the storeroom adjacent to your classroom, whilst you knew or ought to have known that you were not allowed to do so.

The employee (hereinafter the teacher) pleaded not guilty to the charges. He was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. His rights and obligations were also correctly explained to him at the commencement of the Inquiry.
For this award, the learners’ names shall be kept confidential. The female learners against whom the alleged misconduct was committed were in Grade 5 and aged 12 and 13, respectively, at the time of the alleged incidents. It appears the alleged incident occurred in the employee’s office (departmental head).
The teacher denied the allegations against him. No common cause factors were recorded. Preliminary issues, such as postponement applications, request for legal representation, etc, were dealt with as and when they were raised. Consent was granted for legal representation.

SURVEY OF EVIDENCE AND ARGUMENT

This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all the submissions in arriving at my conclusions.

Documentary Evidence

The parties handed in the following bundles of documents:
Employer: Bundle A
Employee: Bundle R

Employer’s Case

Ms DC, a 12-year-old female learner who was in Grade 5A in 2025, testified as the employer’s first witness. She testified that the teacher was teaching Mathematics and that the teacher would administer corporal punishment in a storeroom next to the classroom to learners who did not do their homework. Ms DC testified that the teacher would exempt her and a friend, and Ms KS, from corporal punishment by touching their breasts and kissing them after the rest of the class had been given their corporal punishment. She stated that this happened in March 2025, until she decided to report it to their principal, Ms Swartz, on 26 May 2025, because she started becoming scared of the teacher.
In cross-examination, Ms DC stood by her testimony and admitted to having been troublesome at some point, but not to the extent described by the teacher.
Ms KS, also a Grade 5 learner and 12 years old at the time, testified as the second witness for the employer. She basically confirmed Ms DC’s version of the events that the teacher would threaten to administer corporal punishment on them and would rather touch her breasts and buttocks in the storeroom and tell them to leave thereafter. Ms KS stated that it upset her so much that she would go back to her desk, sit, and cry.
Ms KS stated that these incidents only took place in the teacher’s classroom store during Mathematics periods during the first and second terms. She stated that it was then that she and Ms DC decided on 26 May 2025 to report it to Ms Swartz. Ms KS stated that she reported the incidents to her parents the following day, on 27 May 2025. Whilst emotional, Ms KS described the teacher as dangerous and engaging in funny behaviour.
In cross-examination, Ms KS stood by her testimony and statement. She reiterated that she was telling the truth and denied having been part of a problematic group of children who gossiped about other teachers. She described the teacher as a liar and insisted that the teacher was guilty of the allegations. Ms KS testified that there are similarities between her statement and those of Ms DC and Ms R, because the teacher did similar things to them in private, yet separately.
Mrs Sophie S, the mother of KS, testified as the third witness for the employer. She testified that it was on 27 May 2025 when KS brought a letter from school, in which she (Sophie S) was asked to visit the school to discuss allegations of sexual offences committed against KS. Mrs Sophie S stated that she noticed a change in KS’s behaviour since March: KS would always be moody after school, not eat her lunch, and would go straight to bed. She stated that she thought that KS was bullied, until KS told her that she was tired of the teacher who kept on touching her breasts and buttocks and called her his sweetheart.
Mrs Sophie S stated that KS would become angry every time KS looked at her timetable, and would moan, ‘not that teacher again’. She said that she would ask KS what was wrong with the teacher and who the teacher was, and KS replied, ‘It is the Maths teacher. Mrs Sophie S stated that she realised the Maths teacher was the one causing all the frustration, and that she even considered removing KS from that school at some point.
In cross-examination, Mrs Sophie S admitted that she was not an eyewitness, but stated that KS was not making up stories, in that KS’s behaviour changed, and she blamed it on her Maths teacher. She stated that KS was never poor in Mathematics, but she saw KS throwing her Maths books away and not wanting to do that particular subject’s homework.
Ms Lachme Swartz ‘Ms Swartz’, the Principal of Bongani Primary School, testified as the fourth witness for the employer. She stated that she remembered how DC and KS came together to her office around 26 May 2025 to report how the teacher was touching their breasts and buttocks, and how DC was kissed by the teacher as well. Ms Swartz testified that she was so shocked that she asked the learners to excuse her for a moment while she processed the news. She stated that she then called the Secretary of the School Management Team, Mrs Mallat, and shared the news with her.
Ms Swartz stated that she recalled the learners from class and asked them to narrate the story again in the presence of her colleagues. She stated that the learners narrated everything about the touching of breasts and buttocks and kisses to DC. The learners apparently told them they (the learners) also informed Ms R about this, and that Ms R was called in, who confirmed the same. Ms Swartz stated that the Deputy Principal, Mrs Koopman, had a one-on-one talk with the teacher about these allegations, and that the teacher admitted to the corporal punishment administered, but denied the sexual allegations.
Ms Swartz then narrated how the matter was escalated to the employer’s circuit manager, and how the incidents caused an uproar on the school’s WhatsApp group, and how a political party even wanted the police’s intervention. She stated that the teacher took family responsibility leave the following day, until he was formally suspended.
In cross-examination, Ms Swartz stood by her testimony and stated that she did not take the learners’ statements, but Mrs Mallat. She denied having made false allegations against the teacher.
Mrs Christina Nomfundo Koopman ‘Mrs Koopman’, the Deputy Principal, testified as the fifth witness for the employer. She testified that she remembered having been called in by Ms Swartz and Mrs Mallat, in which the teacher was accused of having committed acts of sexual violations on DC and KS. Mrs Koopman confirmed the details of the allegations as were narrated to her, and how she learned that they were more comfortable with corporal punishment, instead of being sexually harassed and touched by the teacher.
Mrs Koopman stated that she had a separate talk with the teacher about the allegations, and that the teacher was not shocked or showed any remorse, and only admitted to the corporal punishment and not the sexual allegations. She stated that she also questioned the teacher about his administering corporal punishment in the storeroom, and that the teacher gave her many excuses.
In cross-examination, Mrs Koopman stood by her testimony and admitted to not being an eyewitness, but reiterated that the teacher showed no remorse and that the teacher used to be the chairperson of the school’s Disciplinary Committee.
Ms Lucy Boks ‘Ms Boks’, the employer Social Worker, testified as the sixth witness. She testified on how the matter was reported to her office, and how she visited the school to interview the learners (DC and KS). Ms Boks stated the procedure she followed for interviewing the learners and how she reminded them of their rights and their duty to tell the truth. She also described the learners’ state of mind and physical appearance at the time, which, according to her, showed they were anxious.
In cross-examination, Ms Boks also admitted that she was not an eyewitness, that there was a substantial period between the time of the incident’s report on 26 May 2025, and the day of the interviews, which was 03 June 2025. She stated that she is capable of spotting a lie, and that from her experience, the learners were truthful.

Employee’s Case

Mr Willem Baartman, the teacher, testified as the only witness in his case. He stated that he remembered how he was called to the office by Ms Swartz, Mrs Koopman and Mrs Mallat, who confronted him with allegations of sexual offences and corporal punishment. The teacher stated that the allegations were far from the truth, and that Mrs Koopman interviewed him privately, and that he wanted to know the identity of the learners, which was withheld from him.
The teacher stated that he denied the sexual allegations and, in some way, admitted to the claims of corporal punishment. He said that there was a lady from SADEC who spent a considerable amount of time in his class, and who could be a competent witness in this arbitration. The teacher explained that he had taken his scheduled leave the following day and for three days, and that he was called to school by the employer’s representative to be served with suspension papers.
The teacher then elaborated on the behaviour and characteristics of KS, and how problematic KS was, and how he did not want KS in his class. He denied ever telling KS that he dislikes her and stated that he did not have a good relationship with her.
The teacher then went on to elaborate on his journey to becoming the Departmental Head for Mathematics and Science, and how Ms Swartz and some other people were against his appointment, and how he contested with Ms Swartz for the post of Principal. He gave extensive details about the challenges he faced at the school regarding his work relationship with Ms Swartz and his performance, and that Ms Swartz never actually wanted him at Bongani Primary School.
The teacher also explained the behaviour of DC, and how problematic she was in 2023, and how a colleague of his, Mrs Myburgh, could not work with Ms DC. He stated that Mrs Mallat never testified at this arbitration, and that Ms Swartz has always trusted him with both boys and girls, even after hours. The teacher stated that all the learners were always fond of him, and failed to understand why he would prey on DC and KS, and not the others, who even cleaned his classroom in private. He stated that he had two family members at Bongani Primary School, who were humiliated by these allegations.
In cross-examination, the teacher stood by his testimony and admitted to having been previously dismissed by the employer in 1999 for having had an intimate relationship with a learner. He stated that he does have colleagues who can testify in his favour, but that he fears intimidation by the employer. The teacher stated that Ms Tasnym, the lady from SADEC, and others were such potential witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT

As stated, the employee pleaded not guilty to the charges against him. The employer called six witnesses, and the employee testified as the sole witness in his defence. The employer’s witnesses were consistent in their versions with no contradictions. I, therefore, find them credible and reliable. The employee only denied the allegations against him, without any evidence to corroborate his version.
I shall now proceed to determine the charges levelled against the teacher, in light of the evidence led by the parties:

As regards the happenings in the laboratory or storeroom adjacent to the teacher’s class, both DC and KS testified that the teacher took them one by one into the room, and administered corporal punishment on the learners, except the two of them, who had to endure sexual assaults at the hands of the teacher. Both of them stated that they would have preferred the same as the other learners, by being given corporal punishment, but the teacher refused and chose to touch their breasts, buttocks, and DC, who was kissed as well.
Now, there were no eyewitnesses to see these acts being committed in the private storeroom. However, I am persuaded by the evidence of the likes of Mrs Sophie S, whose testimony shows that there is some truth in the version of KS. Mrs Sophie S’ observation of KS during that period, the moodiness, the throwing away of the Maths books, and the hatred KS developed towards the teacher are all signs that show it is plausible that KS is telling the truth.
Both DC and KS also corroborate one another’s version, and I tend to agree with KS that logic dictates that when the teacher has done the same thing to two different learners, that by all probability should their statements be similar. As for the teacher, he only denied having touched the learners’ breasts, buttocks and kissing them, without telling me what he did to them in the storeroom. Not for once did the teacher say that he also meted out corporal punishment on KS and DC. He only denies having touched their private parts.
This, unfortunately, is not persuasive on the side of the teacher. A mere denial of allegations without putting a version which seeks to portray the truth of what actually happened is not enough to lead to an acquittal. The two learners were also consistent in their versions during the reporting stages. What they told me is what they told Ms Swartz, and Ms Boks, and Mrs Sophie S in the instance of KS. It is accordingly my finding, that the employer has proven this allegation against the teacher, on a balance of probabilities. I shall, as a result, not determine whether the teacher is guilty of Alternative to Count 1.
Then there is Count 2:
Count two (2)
During the first quarter (January-March 2025) and the second quarter (April-May 2025) near (Bongani Primary School) you committed misconduct in terms of section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that you inter alia, while on duty, you conducted yourself in an improper, disgraceful manner towards learner DC and learner KS in the storeroom adjacent to your classroom, whilst you knew or ought to have known that you were not allowed to do so.
The teacher has testified that he was placed in a position of trust, in that he always had access to female learners, even after hours. He is also the chairperson of the school’s disciplinary committee. Being the honourable man that he was supposed to be, in light of the guilty finding under Count 1, I find it rather distressing why the teacher would make himself guilty of such acts.
The touching of young girls’ private parts (12 and 13 years old) is rather despicable, to say the least. Mrs Koopman testified that the school’s teachers, including the teacher, were trained by SACE on their Code of Conduct, and that the teacher knew what was expected of him. Still, the teacher went on to commit these acts, hoping that what happened in the four walls of the storeroom would stay there and never get out. Unfortunately for him, the sexual acts in the storeroom saw the light of day.
I am persuaded on a balance of probabilities that the teacher has conducted himself in an improper and disgraceful manner towards learners DC and KS in the employers’ storeroom, whilst he knew or ought to have known that he was not allowed to do so. I shall also not deal with the Alternative to Count 2, because of the guilty finding on the main charge.

The learners testified that they were disgruntled about the misconduct of the teacher, to the point where it traumatised them. They stated that they would have preferred corporal punishment over the sexual acts which they had to endure. Since the learners did not welcome the sexual advances and attempts of the teacher, it goes without saying that the conduct of the teacher in itself has harassment connotations attached to it.
As seen under Count 1, I hereby also find the teacher guilty under Count 3, for having harassed the two learners who happen to be children.

VERDICT

I hereby find the teacher guilty on al three charges levelled against him.

SANCTION

The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998

The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
(1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.” [my emphasis added]
It is clear from the ELAA that a peremptory duty exists on me to dismiss the teacher if he is found guilty of having sexually assaulted a learner in accordance with section 10 of the ELAA. A dismissal, therefore, automatically follows a guilty finding. If put differently, one may also say that the teacher is dismissed by operation of law after being found guilty of having sexually assaulted a learner of the school where he was employed.
Based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory and must be handed down to the employee. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. The teacher, in my view, abused his authority as a teacher and betrayed the trust placed in him while standing in loco parentis towards the learners.
Having found the teacher guilty of the main charge, Count 1, which is based on paragraph 17(1)(b) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the teacher must be dismissed.

CHILD PROTECTION REGISTER

The parties did address me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of Ms M. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

It is common cause that Ms DC and KS were 12 and 13 years old at the time when the teacher committed the misconduct against them, which by its very nature, is serious.
Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

Having found the teacher guilty of sexual assault and sexual harassment, I hereby do find him unsuitable to work with children. Based on these findings, I will instruct that the teacher’s name be reported to the Director-General of the Department of Social Development for listing in Part B of the Child Protection Register.
In the premise, I make the following award:

AWARD

Mr Willem Baartman is found guilty of the charge of sexual assault levelled against him by the Head of Department: Northern Cape of Department of Education.
The mandatory sanction of dismissal is imposed with immediate effect on the teacher.
The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.
The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the 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 Willem Baartman 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.

This is done and dated on 01 December 2025, at Kimberley.

David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator