Panelist: Jonathan Gruss Case No.: ELRC781-24/25EC Date of Award: 03 November 2025

In the INQUIRY BY ARBITRATOR between:

SIBONGILE MAZISA
(Employee)

and

DEPARTMENT OF EDUCATION : EASTERN CAPE
(Employer)

Employee’s representative: Mr Mtywaru & Ms Ngcete (SADTU)

Employer’s representative: Mr Xhalisile

DETAILS OF HEARING AND REPRESENTATION

1. This matter was set down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled on 25 August 2025 and 13 October 2025 at the District Office in Gqeberha. The employee, Sibongile Mazisa appeared in person and was represented on 25 August 2025 by Mr Mtuwaru from SADTU and on 13 October 2025 by Ms Ngcete also from SADTU. The employer, Department of Education: Eastern Cape was represented by Mr Xhalisile, a labour relations officer. The parties agreed to submit written closing arguments by no later than 22 October 2024. The parties have submitted as agreed written closing arguments.

CHARGES

2. The Employee was charged with contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998 as amended by committing an act of rape. “On or during the 30th of August 2024 at Ithembelihle Comprehensive School, you are alleged to have raped a 16 year old “SM” in the school toilets.”
3. A not guilty plea was entered by the Employee as relates to the charge with no explanation provided.
4. The Employer called 3 witnesses, SM testified under oath to the following effect.
   4.1 She is currently 17 years old and when the incident occurred on 30 August 2024 she was 16 years old. She testified that the incident occurred at school, after-school. She had been called in for an afternoon class, they were supposed to write a test. The class that they had that afternoon was IsiXhosa. She had a close relationship with the Employee, sometimes they would buy each other lunch and sometimes the Employee would not have money for lunch and she would then buy him lunch.
   4.2 After the class was postponed she told a friend that she was going to the toilet and she would catch up with her friend. She was the only person in the toilet. Some of the toilets have doors whereas others did not have doors. Whilst in the toilet she heard someone coming into the toilet area. She first saw that the person was wearing takkies and recognised them as those of the Employee. She then stood up and got dressed and quickly exited the toilet. From the cubicle she proceeded into the passage inside the toilet. There are toilets on the right-hand side and left-hand side and between the right and left hand side toilets there is a passage. When she was inside the toilet she asked the Employee what was he was doing there. The Employee responded that he is doing nothing. When she attempted to exit the toilet the Employee grabbed her and pulled her back into the cubicle. She then fell down and was crying in that she was extremely upset. She tried to scream unfortunately the Employee prevented her from screaming by closing her mouth with his hand. He then pulled up her skirt and pulled down her tights and panties. The Employee took out his penis and inserted it in her. The Employee did not ejaculate inside of her but outside.
   4.3 Under cross examination the witness was asked to describe the colour of the Employee’s takkies he allegedly was wearing. The witness at first responded that she thinks the takkies were brown. It was suggested to the witness that the Employee does not have brown takkies. The witness responded that she could not remember the brand of the takkies. As to whether she defended herself, the witness explained that she attempted to fight the Employee by pushing him away but he was more powerful than her. As to how does she know that the sperm was outside, the witness responded that it was on the floor. The witness confirmed that she did not report the incident immediately to the office in that she was scared and she did not think of reporting it to the principal at the time. She explained that she was shocked and scared and did not know whether the principal was in his office. The witness was asked whether she contacted the Employee after the incident, the witness indicated no, she confirmed that the Employee tried to call her in person and she ignored him. She confirmed that she did not sustain any injuries although when the Employee was inside her it was painful.
5. Ms Nasiphisipho Diamond testified under oath to the following effect.
   5.1 When the incident happened she was SM’s girlfriend although now they are just friends. She became aware of the incident on 14 September 2024. SM texted her and indicated that she would like to speak to her about something personal. She invited SM to come over which SM did. Before SM informed her of the rape she noticed that SM prior to the disclosure was acting strange, she was not herself. She was deep in thought. It took time for SM to tell her what had happened. It was reported to her by SM who identified the Employee as the perpetrator that she was attending afternoon classes and these classes were cancelled by the Employee. Thereafter, as reported SM went into the girls toilets and she heard footsteps. When she walked out of the cubicle she enquired from the Employee what was he doing in the ladies toilets? When SM as reported attempted to walk away from the Employee, the Employee grabbed SM and pulled her towards him and then down. When SM explained to her what occurred, SM was crying and SM mentioned to her that she was the first person she had told about the incident. She managed to persuade SM to inform her mother of the incident. On 16 September 2024 they both told SM’s mother as to what occurred.
   5.2 Under cross examination, witness indicated that she and SM were in a relationship for about a year. She found SM to be mature and a cool friend and they could talk about everything. SM could be honest with her and SM had never lied to her. When she enquired from SM when the incident was reported to her as to the reason why she did not report the incident to her mother immediately, SM indicated that she was afraid of her mother, her mother was not well. She accompanied SM to report the incident to her mother in that SM had requested her to do so. What she noticed that after the incident SM started to get depressed. When SM informed her of the incident she specifically enquired from her whether the Employee penetrated her.
6. Ms Pumla Mavikela testified under oath to the following effect.
   6.1 She is employed by the Employer as the Principal at Ithembelithle Technical School. The protocol security measures at school is that during school hours they have two security officers on duty who are employed by the Employer. On the date of the alleged incident she was present at the school. She was in the hall and no disturbances were reported to her. It is not the norm for male educators to meet female educators in the toilets. The people who were supervising should have seen the incident and reported this to her. There are no cameras in the toilets and no cameras in the corridors near to where the toilets are situated. On a question as to who is responsible to monitor the use of the toilets, the witness indicated that they have a lady who is employed as a cleaner who maintains the toilets. The security also monitor the toilets but this is random. Incidences must be reported to the class teacher or the head, if they are not present it must be reported to the security. The incident was reported to her on 19 September 2024. When she enquired from SM as to the reason why she took so long to report the incident, SM indicated that she was afraid of her mother in that the mother was not well. As a principal she was shocked when the incident was reported to her. In order to prevent re-occurrence, she immediately instructed security to frequently patrol the toilets. As to reasons why there are no cameras, the witness indicated this would not help in that they have problems with learners removing property so had they installed a camera near to the toilet learners would have removed the camera.
   6.2 Under cross examination the witness confirmed that the English paper was written on 30 August 2024 and she was there as the chief invigilator. As to academic achievements the witness confirmed that SM struggled academically although she was not aware of any report about SM’s behavior at school. She is unaware whether SM had been suspended from school.
7. The Employee testified under oath to the following effect.
   7.1 He is not guilty of the charges that he raped SM. When the alleged incident occurred he was making his project for term 3. He was also busy with provincial moderation for grade 12. He called for the grade 12 files so that they may be taken for moderation. He was busy doing his rounds and entered all the Grade 9 classes. He called learners individually, those who did not finish in their registered class. He requested teachers to allow learners who were not finished to come to his class after lunch. The learners did not come to the class. All the grade 9 learners who did not complete the project arrived at his class and the purpose was for them to fix their projects. When the grade 9 ‘s had finished their projects and when he was done with the grade 12 he released them in that they were going to write a paper in the afternoon. When he was about to finish his marking there was a teacher downstairs. He told Ms Madlalisa not to leave him behind. She told him to come down in that she would be leaving anytime. He then took his bags and went to Ms Madlalisa and sat with her. One of his colleagues, Ms Debe misplaced her cell phone and they immediately helped to look for the cell phone. She indicated that they must go and look in her car and he looked in her car and he could not find the cell phone. They then asked the caretaker of the school Mr Ntantiso to phone the cell phone and when he called the cell phone they went back to the teacher’s vehicle and found the phone next to the seat. When he retrieved the phone he handed it to Ms Debe. He then went to collect papers and accompanied her to collect the IsiXhosa papers. Thereafter, they left and went home. This is what he knows that occurred on 30 August 2024. He had no extra classes with the learners that day. He does admit that he called the grade 9 learners who did not complete their projects so that they can get the marks. In describing SM as a learner academically in the subject IsiXhosa, she was good. However, as to her behaviour she talks in class and likes to play and she likes to fight in class. There was an occasion when he returned from the hall and he came across SM fighting with her friend about her boyfriend. SM’s friend had accused her in sleeping with the friend’s boyfriend. Since he is on the disciplinary committee of the SGB they try to resolve this themselves.
   7.2 Under cross examination, the Employee indicated that he had been an educator for 5 years. He confirmed that only males are allowed in the male toilets and males do not have access to the ladies toilets. As to him having access to the ladies toilet, he indicated that there was an occasion where he and Ms Ntantiso were taking measurements of the inside walls of the toilet cubicles and he was doing so as part of the maintenance committee. He has never been alone with SM. On a question as to the Employee accounting for his whereabouts when the incident occurred, he indicated that he could not recall in that he did not know the time when the alleged incident occurred. What he can account for is that he was in his classroom. He indicated that he had left the school at 13h45. He confirmed that he has never had a problem with SM and he cannot think of a reason why SM would be accusing him of rape. All that he knows that since 2019 up to 2025 no learner has lodged a complaint about him. He indicated that he does not think that SM has his cell number in that they only talk in the classroom. He never involved the principal, only the deputy principal to resolve SM’s conduct.
8. Ms Phuweka Madlalisa was called as an Employee witness and testified under oath to the following effect.
   8.1 She knows the Employee. They worked together. On 30 August 2024 there were at school together, they arrived in the morning and were at school until the school came out. When getting ready to leave the Employee came to her class. She had already finished packing. She usually gives the Employee a lift. The Employee came to her and they went down the stairs together with another colleague who asked them to wait in that she was looking for her cell phone. The cell phone was eventually found in the vehicle.
   8.2 She is employed as an English teacher and knows SM. She has never had any close contact with SM. The Employee is a young teacher, the kids would not be the same way in her class as in the Employee’s class. On a question asked by myself, the witness indicated that they normally knock off at 13h00 on Fridays although she cannot be exact only to say that they left school between13h40 to 13h45.
   FINDING
9. The issue to be determined is whether or not the Employee raped SM. Did he have sexual intercourse with SM? The Employee denies committing the misconduct for which he was charged and claims to have no knowledge of the incident. I must comment in passing that I found SM to be an honest witness. I kept on asking myself the question why would she falsely accuse the Employee of raping her? No suggestion or motive was presented by the Employee during the cross examination of SM and when the Employee testified. SM did not immediately report the incident and the first person that she reported the incident to was her “girlfriend” Ms Nasiphisipho Diamond on 14 September 2024 approximately two weeks after the alleged rape. SM accompanied by Nasiphisipho reported the incident to SM’s mother on 16 September 2024. The reason why the matter was not reported immediately was because SM was scared of her mother and it was Nasiphisipho who persuaded SM to report the incident to her mother. What is important as testified by Nasiphisipho is that she noticed that SM was not the same, SM became depressed. This tells me that something must have happened that caused SM to be depressed. When the Employee testified he testified about SM’s behaviour at school. This I viewed as a character assassination. It was suggested by the Employee that SM was playful and was a learner that fought in the class. He described an incident where after returned from the hall and he came across SM fighting with her friend about a boyfriend. SM’s friend had accused SM in sleeping with the friend’s boyfriend. This version was never put to SM when she testified and whether this was a mere attempt to paint SM as a promiscuous person served no purpose as the Employee denies raping SM. When SM testified she indicated that she had a close relationship with the Employee, sometimes they would buy each other lunch and sometimes the Employee would not have money for lunch and she would then buy him lunch. This portion of the evidence was not challenged under cross examination when SM testified. Ms Phuweka Madlalisa testified that the Employee is a young teacher, the kids would not be the same in her class as in the Employees class. This explains why the Employee and SM had a close relationship, they would buy each other lunch and when the Employee did not have money she would buy him lunch. In trying to understand the Employee’s actions, he testified as relates to SM that the argument that SM and a friend had concerned SM’s friend accusing her in sleeping with her boyfriend. Considering the close relationship the Employee and SM, and the Employee learning or becoming aware of allegations made that SM had been sleeping with her friends boyfriend makes one question or think whether this could be the reason why the Employee did what he was alleged to have done. I have no reason to doubt the credibility of SM and must conclude on the balance of probabilities that on 30 August 2024, the Employee raped SM in the toilet cubicles at Ithembelihle Comprehensive School. Therefore he is guilty of contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998. This section makes it obligatory when misconduct is committed in terms of this subsection that dismissal as a sanction must be implemented.
   10 In the matter of Algoa Bus Company (Pty) Ltd v TASWU obo Mzawi and Others (PA05/23) [2024] ZALAC 42 (10 September 2024) the Labour Appeal Court held at [ 14] as follows:
   “Secondly, and more fundamentally, the Labour Court erred to the extent that it considered that the arbitrator had committed a reviewable irregularity by deciding to uphold the employee’s dismissal, in the absence of specific and discrete evidence concerning a breakdown of trust or deterioration in the employment relationship. The determination of the fairness or otherwise of a dismissal involves a moral or value judgment, to be made by the presiding arbitrator, after considering all of the relevant factors and circumstances. Sidumo & another v Rustenburg Platinum Mines & others [2007] 12 BLLR 1097 (CC) (Sidumo) specifically enjoins arbitrators to “consider all relevant circumstances” (own emphasis added). The absence of any specific evidence adduced in an arbitration hearing regarding a breakdown or deterioration in the employment relationship is thus not a basis to set aside an arbitrator’s decision to uphold a decision to dismiss. As this Court has observed, the existence of serious misconduct can in itself lead to a finding that a dismissal should be upheld, without evidence of any breakdown in trust. Indeed, the CCMA Guidelines on Misconduct Arbitration (Guidelines) repeat the injunction to make a value judgment as to the fairness of the employer’s decision to dismiss, taking into account all of the relevant circumstances. To the extent that the Labour Court held that it was necessary for the appellant to lead such evidence as a necessary condition for a finding of unfair dismissal that is not the law. In National Union of Metal Workers of South Africa v Commission for Conciliation, Mediation and Arbitration and others (2023) 44 ILJ 1575 (LC), the Labour Court provides a useful summary of developments post-Edcon Ltd v Pillemer NO and others. (2009) 30 ILJ 2642 (SCA). Both this Court and the Labour Court have consistently held that there is no general obligation on an employer to lead evidence as to the appropriateness of dismissal as a sanction or any breakdown in the trust relationship, nor is there some limited category, as the Labour Court appears to suggest, in which an employer may be relieved of such an obligation (the Labour Court gave the examples of assault and dishonesty). Any deterioration in the trust relationship between employer and employee may be a relevant or even significant factor in the determination of the fairness or otherwise of a dismissal, but it is not a determinative factor. More often than not, the evidence of the nature and extent of the employee’s misconduct will be sufficient for an arbitrator to exercise the required value judgment on the fairness of dismissal as a sanction. The Labour Court’s finding that absent any evidence as to the suitability of dismissal as a sanction for the employee’s misconduct, her dismissal was axiomatically unfair, constitutes a misconception of the applicable legal principles. The arbitrator did precisely what he was required to do – he made a moral or value judgment based on the totality of the evidence before him. It is difficult in these circumstances to appreciate how it can be said, as the Labour Court found, that he committed any gross irregularity. Specifically, there is no basis for the Labour Court’s conclusion that the arbitrator’s conclusion was based on ‘speculation’. All of the evidence that served before the arbitrator spoke to the magnitude of the employee’s misconduct – she breached a workplace rule, and the rules of the road, with calamitous consequences.”
10. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator arbitrating a dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator with reference to the SACE Code of Professional Ethics for educators, the sanctions provided for in the Employment of Educators Act, including the mandatory sanctions of dismissal prescribed for certain forms of misconduct by the Employment of Educators Act.
11. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings in which that person is involved; or any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by a forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
12. Section 122 of the Children’s Act further provides that the relevant administrative forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. 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 registrar regardless of whether the appeal proceeding has been instituted or not.
13. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:

14.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
14.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
14.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
14.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
14.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute

15. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.

AWARD

16. The Employee, Sibongile Mazisa is found guilty of contravening Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended in that on 30 August 2024 he raped a learner “SM” a 16 year old learner at Ithembelihle Comprehensive School.
17. The Employee, Sibongile Mazisa is therefore dismissed on the charge as reflected in paragraph 16 with immediate effect from the Department of Education: Eastern Cape.
18. I find that the educator, Sibongile Mazisa as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgressions as referred to in paragraph 16 above, is unsuitable to work with children.
19. I further find that the educator, Sibongile Mazisa as a consequence to the transgressions as referred to in paragraph 16 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
20. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
21. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

Name: Jonathan Gruss
(ELRC) Arbitrator