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03 December 2025 -ELRC478-25/26MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD AT LAERSKOOL KLIPFONTEIN, EMALAHLENI, MPUMALANGA PROVINCE
Case Number: ELRC478-25/26MP

In the matter between: –
MPUMALANGA DEPARTMENT OF EDUCATION EMPLOYER
And
ANDRIES LODEWICK LOMBAARD EMPLOYEE

ARBITRATION AWARD

ARBITRATOR: ADVOCATE MORAKA ABEL MAKGAA
Heard: 12 September 2025, 30 September 2025 and 27 October 2025.
Closing arguments: 06 November 2025
Date of Arbitration Award: 03 December 2025
Nature of the proceedings: Section 188A of the Labour Relations Act 66 of 1995 read with the ELRC Collective Agreement 3 of 2018.
DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was heard at Laerskool Klipfontein. Mr Andries Lodewick Lombaard (Mr Lombaard or the Employee) was present and represented by Mr Phillip Havenga, an admitted attorney employed by the Suid Afrikaanse Onderwysersunie (“SAOU”) as its Legal Advisor whereas the Mpumalanga Department of Education (“the Department”) was represented by Ms Chauke GS, employed by the Employer as its Labour Relations Officer.
2 Mr Musa Ka Myeza and Ms Mafundo Mohaule-Mboweni, who are the Interpreter and Intermediary of the ELRC respectively, were in attendance. The proceedings were digitally recorded and conducted in English.
FACTUAL BACKGROUND
3 During May 2025 the Department preferred charges of misconduct against Mr Lombaard. It is alleged that around February 2025 or March 2025 he kissed a Grade 7 learner on her lips on two separate occasions (hereinafter to be collectively referred to as the kissing incidents).
4 On 31 July 2025 he was issued with a notice of the disciplinary hearing. The matter was referred to the ELRC in accordance with the provisions of the ELRC Collective Agreement 3 of 2018. The matter was set down for arbitration on 12 September 2025, and served before me.
5 The notice of the disciplinary hearing/charge sheet was marked as Annexure “MDOE1”, made up of 2 pages. The snap chats were marked as Annexure “MDOE2”, made up of 7 pages. The parties’ signed pre-arbitration minutes are marked as Annexure “AR1, and are made up of 3 pages
6 The parties were given until 06 November 2025 to file their written closing arguments. I wish to confirm receipt of the parties’ written submissions, which have been taken into account in this matter. I am indebted to the parties’ representatives for the well-argued written submissions.

DISCOVERY OF DOCUMENTS AND RECALLING OF THE COMPLAINANT

7 On 12 September 2025 I gave an ex-tempore ruling ordering the Employer Representative to discover the electronic information which the third witness of the Employer, Mrs Denesy van Dyk, made reference to during her evidence-in-chief.
8 It is important to indicate that the Employee’s Representative, Mr Havenga, was strongly opposed to discovery of the snap chats in question on the following contending that:
(a) the snap chats in question ought to have been timeously discovered as opposed to being discovered during the course of the proceedings;
(b) the Complainant had already concluded her testimony and left the witness stand.
9 At the end of Mrs Van Dyk’s evidence-in-chief I decided to adjourn the proceedings for the day and gave the parties directives as to how discovery of the snap chats in question must be handled. The matter was postponed to 27 September 2025 per agreement
10 The reasons for my decision of 12 September 2025 are contained in a separate ruling which was issued after the proceedings of 12 September 2025 and sent to the parties by the ELRC.
11 After conclusion of the Employee’s evidence or after the Employee had closed his case, to be more accurate, I decided to recall the Complainant. The decision was taken for purposes of enquiring as to whether the Complainant had any knowledge of the snap chats on pages 1 to 7 “MDOE2”.
12 The Complainant was sworn-in and gave evidence under oath. At the end of the Complainant’s evidence, I gave both the Employer and the Employee the opportunity to ask the Complainant questions (if any). The representatives of both parties indicated that they had no questions for the Complainant.
13 I felt it was important for me to enquire from both representatives as to why none of them did not realize that it may be important to consider calling one or more of the learners who are said by both the Complainant and Mr Lombaard to have been part of the group which used to go to Mr Lombaard’s classroom in the company of the Complainant.
14 The answer from both of them was that it was not necessary for them to do so. It was ultimately agreed by both parties that statements could be obtained from the learners concerned after obtaining consent of their parents.
15 The principal was requested to facilitate obtaining of the learners’ statements after obtaining their parents’ consent. The principal submitted statements from three of the affected learners, which were given to the parties’ representatives.
16 After reading the statements, Mr Havenga raised an objection to their admissibility contending that the learners may have been unduly influenced to write statements which were potentially prejudicial to the Employee. I decided to uphold the objection of Mr Havenga.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
17 The first witness is a learner who will, for purposes of these proceedings, be referred to as the Complainant. She testified that she was born on 06 February 2012, and is 13 years old. She is presently doing Grade 7 at Laerskool Klipfontein. Sir Lombaard taught her English during the 2024 academic year, but he is not teaching her in 2025.
18 She and Sir Lombaard started to become close to one another as from November 2024. They were communicating via WhatsApp status and snap chats, sharing text messages and random pictures. They had reset their WhatsApp settings such that only the two of them could have access to their communications.
19 She used to go to Sir Lombaard’s classroom regularly. Sometimes in the company of other learners such as AB, MVR, LB, MC, ZV, EV, JPB and WR, but ended up going to his classroom alone. She further testified that the first incident took place during February 2025 or March 2025, in the store room in Sir Lombaard’s classroom.
20 During the course of their communication, Sir Lombaard asked her as to when was she going to greet him properly. He thereafter went to the store room, which is in his classroom. She followed him. Upon arrival in the store room, Sir Lombaard bend down and kissed her on the lips. She kissed him back, and thereafter left the classroom and went to the After Care.
21 The second incident happened a few days after the first incident. It also happened in the store room, in Sir Lombaard’s class. It happened in circumstances similar to those of the first incident except that on this occasion she started by hugging him before they could kiss each other.
22 She informed one her friend and fellow learner, who will in these proceedings referred to as MC, that she and Sir Lombaard kissed each other. MC ended about informing the After Care Worker in the name of Natalie.
23 A day after the second incident she went to Sir Lombaard’s classroom. It was after the lessons, in the afternoon. While seated in Sir Lombaard’s classroom, Natalie came to her. Natalie found her alone in the classroom because Sir Lombaard had gone out of the classroom with another teacher.
24 On their way to the After Care, Natalie asked her whether she and Sir Lombaard had kissed each other. She freaked out and decided to tell Natalie everything about the two incidents. Natalie in turn told her mother about what she had told her. She also told her mom about what happened between her and Sir Lombaard.
25 Even after everyone had found about the kissing incidents, she and Sir Lombaard continued talking to each other on WhatsApp status. She remembers that while she was on a vacation with her family, they continued talking on snapchats. Their communications including where Sir Lombaard was asking her as to how she was coping with the whole situation.
26 She also wrote a letter to Sir Lombaard because she thought that he would think that she told other people about the kissing incidents purposefully. In the letter she, amongst others, told Sir Lombaard that she was sorry about what happened.
27 Under cross examination, she stuck to her guns about the evidence which she gave during evidence-in-chief, particularly with regard to the issue of the snap chat communications and the circumstances surrounding the ‘kissing incidents’.
28 She insisted that there were instances where she started visiting Sir Lombaard alone, and that all her friends were aware of that fact. The reason she visited Sir Lombaard alone was because she felt that there was a connection between her and Sir Lombaard, which Sir Lombaard was also aware of.
29 She testified that they continued with their WhatsApp status communications even the kissing incidents were known by Natalie. They were, amongst others, asking each other as to whether it would still be possible for them to talk to each other.
30 She further testified that after her mother realized that there were still WhatsApp status communications between her and Sir Lombaard, she instructed her to deleted everything about such communications on her cell phone, which she did.
31 She insisted that the other learners who used to go with her to Sir Lombaard’s classroom could come and confirm that there were instances where she went to Sir Lombaard’s class alone.
NATALIE PIENAAR
32 She used to work for the Home After Care, but she ceased working there during August 2025. She further testified that the learners from Laerskool Klipfontein were kept at the Home After Care, and they were under her care.
33 She corroborated the Complainant’s evidence in material terms, particularly with regard to how she became aware of the allegations pertaining to the kissing incidents as well as the fact that she indeed informed the Complainant’s mother about the kissing incidents.
34 She further testified that a day after being told that Wicus and the Complainant kissed each other, she went to Wicus’ classroom to look for the Complainant. She found the Complainant alone in the classroom, seated. Wicus was not present in the classroom.
35 Under cross examination, she testified that she has never seen the Complainant with Mr Lombaard together. She further testified that on the day she went to fetch the Complainant from Mr Lombaard’s classroom, she met Mr Lombaard on the corridor.
36 She further testified that Mr Lombaard was coming from his classroom. She was not sure as to whether Mr Lombaard and the Complainant were together in Mr Lombaard’s classroom.
DENESY VAN DYK
37 She corroborated the evidence of both the Complainant and Ms Pienaar concerning the facts and circumstances surrounding the kissing incidents. She further testified that she told the Complainant that there should no longer be any contact with Mr Lombaard. She also kept on checking the Complainant’s cell phone regularly.
38 She found out screen shots in the Complainant’s cell phone which showed that there were still communications between Complainant and Mr Lombaard. She forwarded the said screen shots to herself and to the Complainant’s father. What worries her was that the fact that the Complainant was calling Mr Lombaard by using his first name. She had also realized that the Complainant had saved Mr Lombaard’s cell number as “Meneer Boetiekie”. She asked the Complainant about that, who confirmed that it was Mr Lombaard’s cell number.
39 She testified that she believes that the screen shots on pages 1 to 7 of Annexure “MDOE2” showed communications between Mr Lombaard and the Complainant. She, for instance, testified that she believes that the message which reads as follows “I hope you had an awesome day and that I will try to make more eye contact today”, was from Mr Lombaard to the Complainant.
40 Under cross examination, she testified that the first incident could have occurred before the Complainant’s birth day whereas the second incident could have occurred before her own birth day party, which was between 06 February 2025 and 15 March 2025.
41 She further testified that she received a letter from Ms Chauke which it is said was written to Mr Lombaard by the Complainant. She spoke to the Complainant about it. She confirmed that she was the one who wrote the letter.
42 She insisted that even though she does not have proof as to whether there were direct messages between the Complainant and Mr Lombaard, she believes what the Complainant told her.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
43 Andries Lodewicus Lombaard, who is the Employee in this matter, testified under oath. His evidence can be summarized as follows. He is an English teacher at Laerskool Klipfontein. He taught the Complainant English during the 2024 academic year.
44 He testified that there was a group of six learners, viz EV, C, WR, NVD, L and MC, who used to come and greet him in class. These learners would get into his class just to ask him as to how was his day.
45 He denied any existence of an intimate or special relationship between him and the Complainant. He further testified that the Complainant had never come to his class in the absence of other learners. He denied existence of the incidents where it is alleged that he and the Complainant had kissed one another on two separate occasions.
46 He testified that the only communications which he had through the snap chats and WhatsApp status messages were meant for his estranged girlfriends, viz Trachel Jessica and Janita Esterhuizen. He denied that he has ever had any snap chats and WhatsApp status communications with the Complainant either before or after the incidents which are the subject matter of this enquiry.
47 He further testified that he had no knowledge of the snap chat message on page 1 of “MDOE2”. He confirmed that the snap chats on pages 2, 3, 4, 5, 6 and 7 were from his WhatsApp status. He further testified that these messages were either meant for Trachel Jessica or Janita Esterhuizen. These communications were posted on his WhatsApp status after breakdown of his romantic relationships with them.
48 He testified that he did not know Natalie Pienaar before this case started. He further testified that he did not see her on the day she said she went to his class to fetch the Complainant.
49 Under cross examination, he testified that he did not know whether the Complainant had ever gone into the store room in his classroom. What he knows is that the Complainant had never gone into the store room in his presence.
50 He further testified that he did not know what was it that the Complainant was doing in his class on the day which Ms Pienaar said she found the Complainant in his class because he was at the rugby practice. He also testified that he could not dispute Ms Pienaar’s evidence that she found the Complainant in his class because he was coaching rugby.
51 He testified that he had a WhatsApp group with learners in which he was the administrator, but since everything happened it had been discontinued. He reiterated his evidence that the Complainant may have fabricated evidence against him because she may have had a crush on him.
RECALLING OF THE COMPLAINANT
52 At the end of the Applicant’s case, I informed the parties that I have decided to have the Complainant recalled in order to get clarity on her knowledge of the snap chats on pages 1 to 7 of “MDOE2”.
53 She testified that the documents on page 1 to 7 of Annexure “MDOE2” are the WhatsApp statuses which she testified about during her evidence-in-chief. She further testified that the document on page 1 is the snap chat on her WhatsApp status whereas the snap chats on the other pages were communications on Mr Lombaard’s WhatsApp status.
ANALYSIS OF EVIDENCE AND ARGUMENT
54 Paragraph 3.1 of the ELRC Collective Agreement 3 of 2018 provides as follows:
“In all matters in which the employer wants to take disciplinary action against an educator for alleged sexual misconduct committed towards any learner, an inquiry by an arbitrator (also known as a disciplinary hearing in the form of an arbitration), as intended in Section 188A of the Labour Relations Act, and clause 32 of the Dispute Resolution Procedures of the ELRC, shall be mandatory”.
55 Section 17 of the Educators Act, which provides as follows:
“17. Serious misconduct. —
(1) An educator must be dismissed if he or she is found guilty of-
(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.
(2) If it is alleged that an educator committed a serious misconduct contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2”.
56 Section 18(1)(q) of the same Act provides as follows:
“18. Misconduct. — (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable
Manner”.
57 In David Oupa Diholo v Gauteng Department of Education , it was held that the provisions of sections 17(1)(b) and (c) and 18(1)(q) of the Educators Act are not mutually exclusive. It was further held that at the core of these provisions is the question whether the impugned conduct by the teacher is regarded as improper, disgraceful and unacceptable vis-à-vis a learner.
58 In the light of the fact that the Complainant in this matter is a minor child, it is also important to make reference to section 28(1)(d) of the Constitution of the Republic of South Africa,1996, which provides as follows:

“Children
28 (1) Every child has the right to be protected from maltreatment, neglect, abuse or degradation”.
59 It is trite that in disciplinary proceedings, the employer bears the onus to prove, on a balance of probabilities, that the employee had committed the misconduct against him or her. In National Union of Mineworkers and Others V Commission for Conciliation Mediation and Others , it was held that the onus in civil cases is discharged if the inference advanced is the most readily apparent and acceptable inference from a number of possible inferences.
60 In the instant case, both parties decided that it was not necessary for them to call any of the learners with whom the Complainant had visited Mr Lombaard’s class, or any other witnesses who could have had some personal information on the nature of the relationship between Mr Lombaard and the Complainant. The inevitable consequence of the parties’ decisions is that there is no direct evidence which could be relied on for purposes of answering the question whether or not Mr Lombaard and the Complainant had indeed kissed each other on two separate occasions.
61 In the circumstances, the controversies surrounding the kissing incidents will have to be resolved on the basis of circumstantial evidence. In Barloworld Equipment Southern Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others , it was held that when faced with circumstantial evidence, the arbitrator is duty bound to consider the cumulative effect of all the evidence before him or her and to draw an inference through a careful survey of the connection between the facts and the offence alleged to have been committed by the employee. It was further held that when assessing the inference to be drawn from the facts, the arbitrator should consider the probabilities thereby taking into account the totality of evidence before him.
62 When properly construed, Mr Lombaard’s evidence was, in the first instance, an outright denial of the existence of any inappropriate relationship between him and the Complainant. In the second place, he denied anything and everything that had to do with the kissing incidents contending, amongst others, that there was never a situation where the Complainant visited him in the absence of other learners.
63 The inherent risk with the approach adopted by Mr Lombaard and his attorney is that we would not have a countervailing version of Mr Lombaard in the event of the Complainant’s version being accepted as representing some truth about the facta probanda in this matter.
64 The only aspect where Mr Lombaard proffered a version with some details is with regard to the issue of the snap chats on pages 1 to 7 of Annexure “MDOE2” except that he sought to suggest that such communications had nothing to do with the Complainant.
65 In the process of answering the controversies surrounding both the existence of an inappropriate relationship, and the question whether or not the kissing incidents took place, I wish to answer the question whether or not there were days on which the Complainant visited Mr Lombaard’s classroom in the absence of other learners.
66 Firstly, both the Complainant and Mr Lombaard were ad idem that the learners who were cited in their respective evidence used to visit Mr Lombaard’s classroom in the company of the Complainant.
67 During cross examination the Complainant testified, amongst others, that if the other learners could be called to come and give evidence, they would definitely confirm that there were days on which she had visited Mr Lombaard’s classroom being alone.
68 Part of Ms Pienaar’s testimony was to the effect that a day after being told by the Complainant’s friend, viz MK, that the Complainant and Mr Lombaard had kissed each other, she went to Mr Lombaard’s classroom. She further testified that on her way to Mr Lombaard’s classroom, she met Mr Lombaard, who was coming from the direction of his classroom. She found the Complainant alone, seated in Mr Lombaard’s classroom.
69 The above evidence of Ms Pienaar was corroborated by the Complainant. The Complainant also testified that Ms Pienaar found alone in the classroom because Mr Lombaard had gone out of the classroom with another teacher.
70 Firstly, the above evidence of Ms Pienaar and the Complainant was neither disputed nor contradicted during cross examination. Secondly, it was only during his evidence-in-chief when Mr Lombaard sought to suggest that he did not meet Ms Pienaar on that day. He also testified that he did not know anything about Ms Pienaar at that time.
71 He also, for the first time under cross examination, testified that he could not have seen or known about the Complainant’s presence in his classroom because he was at the rugby field executing his coaching responsibilities.
72 In President of the Republic of South Africa and Others v SA Rugby and Football Union and Others , the Constitutional said the following:
“…If a point in dispute is left unchallenged in cross examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct”.
73 I have no reason why the undisputed evidence of Ms Pienaar and the Complainant cannot be accepted as a true reflection of what transpired on that day. It is against this background that the evidence of Mr Lombaard which sought to suggest that the Complainant had never visited him in his classroom in the absence of other learners falls to be rejected.
74 It is therefore my finding that it is reasonably possibly true that before the arrival of Ms Pienaar and before Mr Lombaard could go out of his classroom with the other teacher, Mr Lombaard and the Complainant were together in Mr Lombaard’s classroom.
75 In the circumstances, it can reasonably be concluded that there were days on which the Complainant visited Mr Lombaard in the absence of other learners. It is reasonably possibly true that on such days the Complainant and Mr Lombaard were together in Mr Lombaard’s classroom in the absence of third parties.
76 The next question is whether the Complainant and Mr Lombaard communicated via snap chats and WhatsApp statuses. Closely linked to this question, is the question whether or not the snap chats on pages 1 to 7 of Annexure “MDOE2”, represented communications between the Complainant and Mr Lombaard.
77 As already indicated, this is the only dispute of fact where Mr Lombaard had proffered a version as opposed to saying that he had no knowledge of or had nothing to do with a specific factual allegation.
78 In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and Others , the Supreme Court of Appeal said the following about the approach that may be adopted when the Court or the arbitrator is faced with two irreconcilable and mutually destructive versions:
“…To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. 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 demeanour 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 extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre 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. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail”.
79 I am of the view that the question whether there were any communications between the Complainant and Mr Lombaard suggesting existence of an improper, disgraceful or unacceptable conduct on the part of Mr Lombaard, can easily be resolved through analysis and evaluation of the probabilities or improbabilities of their respective versions.
80 The fact that the Complainant had written a three-page letter to Mr Lombaard in connection with the allegations relating to the kissing incidents was either common cause or not disputed by Mr Lombaard and his attorney. The Complainant’s oral evidence, as I understand it, sought to suggest that by writing such a letter she was not only apologizing to Mr Lombaard, but she also wanted to assure him that she was not the one who made the information relating to the kissing incidents known by third parties.
81 Mr Lombaard’s attorney opted to oppose discovery of the said letter, purely on technical grounds despite the fact that both himself and the Employer’s Representative were of the view that this letter was irrelevant to the issues which must be determined in this matter.
82 I am of the view that the overly technical approach which was adopted by Mr Lombaard’s representative amounted to a missed opportunity by Mr Lombaard to state his side of the story about the facts, circumstances and the rationale behind the Complainant’s decision to write him such kind of a letter, especially in the midst of the allegations surrounding the kissing incidents.
83 Turning to the issue of the snap chats, the Complainant’s evidence that the following snap chat on page 1 of Annexure “MDOE2” is from her WhatsApp status was not disputed by Mr Lombaard:
“ Ek hoop jy get n awesome daggie ek sal prober meer oog kontak maak vandag.”
Translated as “I hope you had an awesome day and I will try to make more eye contact today.”
84 In fact, Mr Lombaard’s version was that he had no knowledge of the above-mentioned snap chat message.
85 Both the Complainant and Mr Lombaard are in agreement that the snap chats on pages 2 to 7 were taken from Mr Lombaard’s WhatsApp status. There was no dispute between the parties that all the snap chats on pages 1 to 7 are messages relating to and affecting two people who are in an intimate or romantic relationship. It is also clear that the messages from Mr Lombaard were used to express some frustrations and difficult challenges both himself and the intended recipient of the messages were confronted with.
86 The only difference between the Complainant and Mr Lombaard revolves around the question as to who was the intended recipient of the snap chats on pages at issue. Before dealing with the contents of the messages, I wish to indicate that part of the undisputed evidence of Mrs Van Dyk was that the Complainant had saved Mr Lombaard’s cell number as ‘Mnr Boetieq’.
87 The snap chats on pages 4, 5 and 7 of of Annexure “MDOE2”, show that they are from ‘Mnr Boetieq’. In both the Complainant’s message on page 1 and the messages of Mr Lombaard, particularly the messages on pages 4 and 6 reference is made to an eye contact. Mr Lombaard’s messages on pages 4 and 6 read as follows:
“4. Mnr Boetieq
Today, 15:40
And then, as easy as that, you made my day. Never knew eye contact and a smile could mean so much to me.
6.After seeing you smile at me today, I realized that no matter the drama, the sadness, the…”
88 During the proceedings I, inter alia, enquired from Mr Havenga as to whether they were intending to call any of the two persons who Mr Lombaard’s version sought to suggest that they were the intended recipients of snap shots on pages 2 to 7 of Annexure “MDOE2”. The answer was in the negative.
89 Mr Lombaard and his attorney had once again elected to have the factual dispute involving the snap chats to be resolved on the basis of the versions of Mr Lombaard and the Complaint. Before indicating as to whose version should prevail, I wish to make a few comments on another aspect of Mr Lombaard’s evidence which relates to the snap chats at issue.
90 Assuming that Mr Lombaard’s version on the issue of the snap chats is correct, the question is that why would he wish to share the messages which are so personal and private with all and sundry, including the learners he is teaching. If ever it were to be true, the inherent risk with such kind of transparency is that kind of a conduct on the part of Mr Lombaard may not elicit respect from the learners.
91 When properly construed, it becomes clear that the contents of the snap chats are reflective of the general thrust of the oral evidence which was given by the Complainant during her evidence-in-chief. Secondly, it is undeniable that the kissing incidents controversy has carries with it frustrations and uncertainties similar to those that are apparent from the snap chats messages on pages 1 to 7 of Annexure “MDOE2”.
92 It is because of the coincidental similarities referred to above that Mr Lombaard and his legal representative should have at least realized that the evidence of the persons they say were the intended recipients of Mr Lombaard’s snap chats was of critical importance to their defence. Mr Lombaard could have, for instance, consider discovery of communications from Ms Trachel Jessica and/or Ms Janita Esterhuizen, especially in the light of the fact that the snap chat from the Complainant resonate well with the thrust of the messages from his own snap chats.
93 When analyzed within the totality of the evidence in this matter, I am persuaded that the Complainant’s version must take precedence over that of Mr Lombaard. The Complainant was, comparatively, the most reliable witness. She was forthright, consistent, confident and full of clarity on a number of critical questions which must be answered in this matter.
94 The totality of Mr Lombaard on the other hand was characterised by bare denials and lacked important details, especially in respect of the material facts in this matter. It is my finding that the snap chats on pages 1 to 7 of Annexure “MDOE2” are part of the WhatsApp status communications between the Complaint and Mr Lombaard.
95 As already indicated, the only version about what has happened or did not happen in the store room on the days on which the Complainant said that she was with Mr Lombaard in his classroom, turns on the version of the Complainant only.
96 When this factual allegation is considered within the context of the totality of the evidence in this matter as well as in the light of the findings that I have already made in connection with other factual disputes, it could reasonably be concluded that the kissing incidents took place.
97 I am not prepared to accept the proposition that the whole kissing incidents had everything to do with an ulterior motive on the part of the Complainant and/or her mother. There was no credible evidence which was adduced by the employee party to support existence of a conspiracy theory against Mr Lombaard by the Complainant and her mother.
FINDINGS
98 It is my finding that Mr Lombaard is guilty of a misconduct contemplated in section 17(1)(b) and (c) of the Educators Act.
99 It is further my finding that, by committing the misconduct contemplated in section 17(1)(b) and (c), Mr Lombaard has also conducted himself in an improper, disgraceful or unacceptable manner while on duty within the contemplation of section 18 (1)(q) of the Educators Act.
100 It is also my finding that Mr Lombaard is unsuitable to work with children as envisaged by section 120(1) (c) of the Children’s Act 38 of 2005.
SANCTION
101 In MEC for Education for the Province of KwaZulu Natal v Education Labour Relations Council , the Labour Court, in the relevant parts, said the following about the issue of sanction where an educator had been found guilty of an offence listed under section 17 (1) (a) to (f) of the Educators Act:
“In the context of the right of a child to be protected from maltreatment, neglect, abuse or degradation, an arbitration involving an educator who has been found guilty under Sections 17 (1) (b) and (c), and 17 (2) of the Act must be approached with due regard to the learner as victim.
An arbitrator must balance the interests of the alleged victim with those of such an employee when considering the evidence before him or her”.
102 The Employee, Andries Lodewick Lombaard, is hereby dismissed as an employee of the Mpumalanga Department of Education.
103 The ELRC is directed to notify the Director General of the Department of Social Development about the findings made against Mr Lombaard in terms of the provisions of section 120 of the Children’s Act 38 of 2005.
104 The ELRC is also directed to furnish SACE with a copy of this arbitration award.
DATED AND SIGNED AT POLOKWANE ON THIS 02ND DAY OF DECMBER 2025


MORAKA ABEL MAKGAA
(ELRC PANELIST)