IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG, KWAZULU-NATAL
CASE NO: ELRC 101 – 24/25KZN
In the arbitration between:

DEPARTMENT OF EDUCATION KWAZULU – NATAL APPLICANT
(Employer)

and

N F THABETHE RESPONDENT
(Employee)

AWARD

Details of hearing and representation

1. This Inquiry by Arbitrator (IBA) was held in terms of Clause 32 of the ELRC Constitution, read with Section 188A of the Labour Relations Act 66 of 1995 (LRA). The hearing was finalized on 04 December 2024.
2. Mrs. J Dumisa, from the department’s employee relations office, represented the applicant. Mr M Dlamini, an official from the union SADTU, represented the respondent.
3. The hearing was digitally recorded.
4. The representatives made an application to submit their closing arguments in writing on 10 January 2025. I granted the application. The Council forwarded the applicant’s closing arguments to me on 14 January 2025. On 07 February 2025, the Council confirmed that the respondent had failed to file any closing arguments.
5. I accordingly regard the 7 February 2025 as the final day of the hearing.
6. The parties relied upon a common bundle of documents, which I marked Bundle A.

Issue in dispute

7. I am required to determine whether the respondent contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (Act), as amended.

Background to the dispute

8. The respondent is employed by the department as an educator based at the Mariannridge Secondary School, Pinetown District, KwaZulu-Natal.
9. The applicant charged the respondent with misconduct in terms of Section 17(1) (b) of the Act in that it is alleged that he sexually assaulted a learner on two occasions.
10. The applicant filed a request for an Inquiry by Arbitrator (IBA) with the Council in terms of the ELRC Constitution. An IBA was scheduled before me by agreement. That agreement makes it compulsory to hold such inquiries in the form of arbitration in all instances in which an educator is charged for sexual misconduct committed against a learner or learner at a school.
11. The learner in this matter was under the age of 18 at the time. I accordingly refrain, as is the practice in such matters, from disclosing the learner’s identity. I hereinafter refer to the learner as the complainant.

Survey of evidence

12. I have considered all the evidence before me. I am, however, required by Section 138 (7) of the LRA to provide brief reasons for my award. I accordingly discuss below those aspects of the evidence that I determine to be material and relevant to the charge and upon which I rely to make this award.
13. The applicant led the evidence of the complainant and two other witnesses, namely; Ms S Norain, the complainant’s cousin; and Ms P.Goqo, an educator at the school. The respondent testified in his defence and did not call any witnesses.

Applicant’s Case

14. The complainant testified that she met the respondent, Thabethe, in 2023 when she joined the school as a Grade 11 learner. He taught her History. Later that year she filed a complaint of sexual assault against him regarding two incidents in which, she alleged, he forcefully had sexual intercourse with her without her consent.
15. The first incident took place on Friday, 19 May 2023 and the second on Friday, 16 June 2023.
16. On 19 May 2023, the school held a talent show. The complainant and some friends left the school premises to consume alcohol. Upon their return, they approached the ticket counter, staffed by amongst others, the respondent. The respondent shouted at the group that they “smelt of alcohol.” They paid no attention to him and went into the hall.
17. She attended the show for a while but felt “ tipsy” and decided to leave. On her way out the respondent asked her where she was going. She informed him that she did not feel well and was going home. He reminded her that she had not yet collected her draft project from him, which was due that Monday. He asked her to wait and to fetch the project from him later that day. The complainant returned to the talent show to wait.
18. The respondent later sent the class- captain to call her. She reported to the office where she found the respondent with his friend Chiliza, an educator assistant. He said he could not find her project and asked her to follow them to his classroom. On route, he complimented her by stating that she looked very pretty. She ignored the comment.
19. He found her project in the classroom cupboard but asked for her cell number. She initially gave him an incorrect number which he immediately called. He became aggressive when he realized this. She felt forced to give him her correct number. He called the number to verify it and only then handed her project over. She walked straight home to the Mpola area where she was living at the time.
20. On route, the respondent called her stating, “Come I can see you ”. She noticed that Chiliza was standing at the gate to her home and Thabethe in front of an unknown house across the street. Chiliza said that Thabethe wanted to speak to her about school. She thought it was important and followed him. Thabethe had already entered and Chiliza asked her to come in. She refused but Chiliza asked her to relax because Thabethe wanted to show her something.
21. Chiliza took her to a bedroom where Thabethe was seated on the bed. She asked him what was going on. He said come in I am a teacher and am not going to do anything to you. He asked her how old she was, and she answered sixteen. He complimented her once again saying that he had always liked her because she was pretty. He said that she was turning him on and thereafter touched his private parts.
22. He suddenly kissed her on the neck, and she moved away. He asked her why she was acting scared and whether she was a virgin. When she replied yes, he said that she was lying. He said he would only believe her if she had sex with him. He gave her two minutes to undress and walked out of the room.
23. He returned and removed all her clothes. He “jumped on top of her ” and asked her to calm down. She was extremely scared, closed her eyes, and tried to blank out everything that was happening. Thabethe had sexual intercourse with her without her consent.
24. When Thabethe saw blood on the bed, he said, “Oh! So you are a virgin.” She asked him to please leave the room and quickly dressed. She heard Thabethe and the other boys laughing. She thereafter went directly to her aunt’s flat, had a bath, and slept for most of the weekend. She did not tell her aunt what had happened.
25. The second incident took place on 16 June 2023. The complainant and her cousin, Shannon Norain, attended a youth function. Shannon thereafter invited her to another function in Mariann Ridge. She saw Chiliza at the function and her mood immediately changed. She asked Shannon if she knew Chiliza and asked her if they could leave, without telling her the reason.
26. Whilst walking out of the house she saw Thabethe entering. She was extremely shocked to see him and could not understand what he was doing at yet another learner’s function. She panicked and attempted to leave but Thabethe stopped her. She felt threatened and sat down. He sat down next to her, and he and the others present took out drugs that looked like cocaine and started to sniff it.
27. The respondent thereafter became violent, started kissing her, and demanded to have sex with her in front of his friends. He touched her private parts and made jokes. He gave her the option of either having sex in the presence of everyone or in the bedroom. Shannon’s protests were stopped by the boys around her who threatened her and told her to shut up. The complainant started crying and shaking uncontrollably.
28. Thabethe pulled her to the room. He asked her why she was making him look stupid in front of his friends. He picked up her dress and pulled her close. She resisted and he threatened to call his friends so that they could watch under which threat she gave in. He once again had sexual intercourse with her without her consent. This time around he was extremely rough.
29. Shannon eventually came into the bedroom when she could and wanted to know why she was crying and shaking. She told Shannon what had happened and asked her if they could immediately leave. Shannon advised her to report the matter.
30. On that Monday Thabethe saw the complainant and her mathematics teacher, Ms Goqo, having a conversation at school. He phoned Goqo later that day and told her not to believe anything that the complainant said because she was a liar. The complainant reported the matter to her class teacher, Mrs. DN Ncube, and it was ultimately reported to the principal, Mr Mtungwa.
31. She laid a criminal charge against the respondent and underwent Pregnancy, HIV, and STI tests. A social worker counseled her. She attempted to commit suicide, and her doctor diagnosed her as suffering from anxiety and depression and prescribed medication.
32. It was suggested, in cross-examination, that she was so highly intoxicated on the day that she was confusing the respondent with someone else. The complainant maintained her version.
33. Shannon confirmed the complainant’s version of 16 June 2023. She identified Thabethe as the person who claimed that the complainant was his girlfriend whom he could touch wherever he wanted. She in particular confirmed that she saw Thabethe forcibly pulling the complainant into the bedroom. The complainant later informed her that Thabethe had sexual intercourse with her forcefully and without her consent. She encouraged the complainant to report the matter to her mother and Ms Goqo.
34. Ms Goqo testified that during or about June 2023 she noticed that the complainant was not her normal self. She repeatedly asked the complainant what the problem was, and the complainant would brush her questions off by saying it was family stress.
35. The complainant eventually relented and informed her that an educator at the school had sexual intercourse with her without her consent. She later informed Goqo that the educator in question was the respondent, Thabethe.

Respondent’s Case

36. The respondent denied the allegations against him.
37. He confirmed that he shouted at the complainant’s group on the day of the talent show because he smelt alcohol on them. The complainant also appeared to be intoxicated. He denied talking to her personally but conceded that she may have been part of a group of learners whom he had reminded to collect their draft projects. He conceded that he may have handed the complainant’s draft project to her.
38. He recalls seeing the complainant at his friend’s house, later that day. He did not pay attention to her. He denied the complainant’s version that he had sexual intercourse with her. He alleged that he had no idea why she accused him of such conduct and later surmised that she was confusing him with someone else because she was so intoxicated.
39. He recalls that he saw the complainant on 16 June 2023. The complainant was accompanied by her cousin, Shannon Norain. He noticed that they were intoxicated. He did not buy alcohol for the learners present nor did he use cocaine. He did not pay any attention to the complainant or her cousin.
40. He denied having any telephone conversation with Ms Goqo about the complainant. He was seriously confused as to why the complainant was raising these allegations against him.
41. The respondent did not call any witnesses.

Analysis of evidence and argument

42. The charge is set out in the Notice of Disciplinary Hearing . It alleges that the respondent sexually assaulted the complainant on two occasions thereby contravening Section 17 (1) (b) of the Employment of Educators Act .
43. The charge reads as follows:

“CHARGE OF MISCONDUCT IN TERMS OF THE EMPLOYMENT OF EDUCATORS ACT 76 OF 1998

Be advised that you Mr N.F Thabethe, duly appointed by the head of department in terms of the Employment of Educators Act, as amended, as an educator at Mariannridge Secondary School, are hereby charged with misconduct in terms of the Employment of Educators Act 76 of 1998, as amended, as follows:

On or about the year 2023 at or near Mariannridge Secondary School, you committed an act of sexual assault on a learner by the name of (complainant) who was in grade 11 at the time. The said learner alleged that you had sexual intercourse with her without her consent on 2 separate occasions. The allegations leveled against you put you in direct contravention of Section 17(1)(b) of the Employment of Educators Act No. 76 of 1998, as amended. “

44. Section 17 (1)(b) of the Act reads as follows:

“Serious misconduct – (1) an educator must be dismissed if he or she is found guilty of–
(a) theft, bribery, . . .
(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) …”

Whether the respondent committed the alleged misconduct?

45. I am required to determine whether the respondent committed sexual assault on the complainant on 19 May 2023 and 16 June 2023.
46. It is common cause that the respondent was employed as an educator at Mariannridge Secondary School and that the complainant was 16 years old at the time, and a learner at the school. It is also common that the respondent taught the complainant History in 2023 when she was in Grade 11.
47. The respondent denied that he sexually assaulted the complainant on the dates specified or on any other occasion. In the premises, the main factual issue that I am required to determine is whether the respondent committed the misconduct alleged.
48. The respondent’s version of events, save for his denial of sexually assaulting the complainant, is broadly consistent with the complainant’s version , both on 19 May 2023 and 16 June 2023.
49. The respondent admits that he saw the complainant at school on 19 May 2023, that he shouted at her group because they “smelt of alcohol”, and that the complainant appeared to be intoxicated. He further concedes that the complainant may have been a part of a group of learners to whom he had issued the instruction to collect their draft projects and importantly that he may have handed the complainant’s draft project to her. Reason and logic dictate, on this last point, that the complainant could only have collected her draft history project from the respondent, her History teacher.
50. The probabilities indicate that the complainant’s interaction with the respondent and Chiliza unfolded, by and large, in the manner described by the complainant. Despite the complainant seriously implicating Chiliza, the respondent’s alleged friend, for his role in the build-up to the sexual assaults, the respondent failed to call him as a witness to refute the complainant’s version in respect of both 19 May 2023 and 16 June 2023.
51. The respondent, in his version, places himself on the scene at which both instances of sexual assault took place. He claimed that Madlala was also his friend at whose house he attended social functions. The respondent, likewise, failed to call Madlala as a witness to refute the complainant’s version.
52. The respondent’s overall defence, concerning both incidents, is that the complainant confused him with someone else because she was highly intoxicated at the time. It is, or so the respondent alleges, a case of mistaken identity. Both Chiliza and Madlala were in the best position to refute the complaints’ version. The respondent’s failure to call these material witnesses must result in my drawing the adverse inference that the witnesses could or would not refute the complainant’s version.
53. The complainant, on the other hand, testified graphically and in detail about both instances of sexual assault that she suffered at the hands of the respondent. The complainant and her witness, Shannon, testified in a frank and honest manner and such discrepancies as appeared from their evidence are not material.
54. The complainant testified that she lost her virginity, that she reported the matter to her aunt and Mrs. Ncube, that she opened a criminal case against the respondent and underwent pregnancy, HIV, and STI tests; that she attempted to commit suicide and was diagnosed as suffering from anxiety and depression, that she was counseled by a social worker and prescribed medication by a doctor. None of these consequential events were challenged by the respondent.
55. I accordingly find, on the complainant’s undisputed version, that she was sexually assaulted on both 19 May 2023 and 16 June 2023. The question that remains is whether the complainant was mistaken or confused about the identity of the person who sexually assaulted her, as alleged by the respondent.
56. The respondent’s defence of mistaken identity is based on the allegation that the complainant was intoxicated to such an extent that she was incapable of correctly identifying the individual who sexually assaulted her. It is common cause that the complainant was under the influence of alcohol on both occasions. I, however, reject the respondent’s defence for the reasons that follow.
57. The complainant frankly admitted that she consumed a large quantity of alcohol early on 19 May 2023 before attending the talent show, and some alcohol on 16 June 2023. The respondent in his version did not on either occasion get close enough to the complainant to evaluate her level of sobriety or awareness. He merely noticed that she was present but did not pay attention to her because he does not entertain learners after school hours. He did not even notice when she left.
58. The respondent on the other hand is well known to the complainant as her history teacher who taught her for almost half of the 2023 school year. In conflict with the respondent’s attempt to distance himself from the complainant, he was able to say with some authority that she was an average student.
59. Concerning the second incident on 16 June 2023, the respondent’s defence of mistaken identity collapses. It is common- cause that the complainant’s cousin, Shannon Norain, was present at that function.
60. Shannon confirmed that it was the respondent who claimed that the complainant was his girlfriend whom he could touch wherever he wanted, that he did touch the complainant on her private parts in the presence of everyone, that the complainant looked uncomfortable and attempted to push the respondent’s hands away each time, and that he eventually forcibly pulled the complainant into the bedroom. When she eventually went into the bedroom, she saw the complainant shaking and crying. The complainant told her that the respondent had forcefully had sexual intercourse with her.
61. In the premises and for the reasons set out above I find that the respondent sexually assaulted the complainant on both 19 May 2023 and 16 June 2023 by forcefully having sexual intercourse with her in the circumstances and in the manner described by the complainant.

Sanction

62. Section 17 (1) of the Act is prescriptive. That section makes it mandatory for an arbitrator to dismiss an educator who is found guilty of committing sexual assault against a learner. I accordingly impose on the respondent the prescribed sanction of dismissal.
63. The applicant’s representative did not make an application in terms of Section 120 (1)(c) of the Children’s Act that I declare the respondent unfit to work with children. That section provides for such a finding to be made by any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person concerning a child.
64. The assaults took place when the complainant was 16 years old. The respondents’ tactics were opportunistic and predatory. He noted that the complainant was under the influence of alcohol and consequently vulnerable at the time. The probabilities suggest that the respondent enlisted Chiliza’s help during the first incident to convince the complainant to enter Madlala’s house and thereafter the bedroom where he was; using his authority as an educator.
65. The applicant’s representative submitted, correctly so in my finding, that the respondent behaved in a manner that was in complete conflict with the professional, moral, ethical, and protective values expected of an educator concerning learners at a school. For those reasons, I invoke the provisions of Section 120(1)(c) of the Children’s Act.
66. Section 122(a) provides that a finding in terms of Section 120 (1)(c) may be made by a court, or a forum contemplated in subsection 120 (1)(c) above, or of its own volition or on application by an organ of state involved in the implementation of this Act.
67. The educator confirmed that he was aware that he was not allowed to consume alcohol with learners and was required to discourage them from such conduct. He was further aware that he was not allowed to have sexual intercourse with a learner at his school, under any circumstances whatsoever.
68. Section 28 (2) of the Constitution provides that a child’s best interest is of paramount importance in every matter concerning the child. I am therefore under a constitutional imperative to invoke Section 120(1)(c) of the Children’s Act, as I hereby do.

AWARD

I accordingly make the following award:

(a) The respondent is found guilty of contravening Section 17 (1) (b) of the Employment of Educators Act 76 of 1998, as amended.

(b) The respondent is dismissed in terms of Section 17(1) of the Act.

(c) The respondent is finally declared, in terms of Section 120(1)(c) of the Children’s Act 38 of 2005, to be unfit to work with children.

26 February 2025

ELRC, Senior Panelist DATE
Adv. Anashrin Pillay
ELRC Arbitrator