Panelist: Kuvonakala Chavalala
Case No.: ELRC82-25/26GP
Date of Award: 02 September 2025
In the ARBITRATION between:
SADTU obo Ntsikelelo Tony Zililo
(Union / Employee)
and
Department of Education Gauteng
(Employer)
Union/Employee’s representative: Ms Cebekulu
Employer’s representative: Mr. KgatleDETAILS OF HEARING AND REPRESENTATION
[1] This is an award between SADTU obo Ntsikelelo Tony Zililo (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on 23 June 2025 and was finalised on 07 August 2025.
[2] Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that in all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. All the charges the employee faced were alleged sexual misconduct against a learner.
[3] I informed the parties that the names of the learners will be omitted from the award since they are still learners or minors.
[4] The employee was represented by Ms. Cebekulu, an official from SADTU. Mr Kgatle represented the employer.
[5] The employer submitted a Bundle of documents which we named Bundle A and the employee submitted a Bundle which we named Bundle B.
[6] Parties had to submit written closing arguments on or before 15 August 2025 and the employee did so. The employer could only submit on 17 August 2025 and same was forwarded to me on 18 August 2025. The arguments were considered in this award.
[7] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[8] I am required to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.
BACKGROUND TO THE ISSUES TO BE DECIDED
[9] The employee is currently employed as an educator at Lufhereng Secondary School since January 2021. The employee was notified of possible allegations against him 07 February 2025 and he was placed on precautionary transfer since the notification of the allegations. He received the notice of disciplinary action on 08 April 2025.
[10] The allegations levelled against the employee are as follows:
• Allegation 1
It is alleged that while employed at Lufhereng Secondary School, you had a sexual relationship with MA, a 17 years old learner at Prudence Secondary School.
In view of the above you are thus charged with misconduct in terms of Section 18(1)(q)) of Employment of Educators Act 76 of 1998 as amended.
• Allegation 2
It is alleged that while employed at Lufhereng Secondary School, you impregnated MA, a 17 years old learner at Prudence Secondary School.
In view of the above you are thus charged with misconduct in terms of Section 18(1)(q)) of Employment of Educators Act 76 of 1998 as amended
[11] The employee pleaded not guilty to both charges.
[12] The parties agreed that the following were common cause issues: –
a) The employee has been employed by the employer since 01 January 2021. He is stationed at Lufhereng Secondary School.
b) The employee is currently precautionarily transferred to Johannesburg West District offices. Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
c) The employee has a clean disciplinary record.
d) The employee knows MA and it is correct that he had a sexual relationship with her that resulted in MA’s pregnancy and child birth.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.
Employer’s case
The employer called two witnesses who testified as follows:
First Witness: Learner MA, whose identity is withheld due to the fact that she is a learner who was at the time of incident and testimony a minor. She understood what taking an oath is. She was 18 years old at the time of her testimony. She testified under oath with the assistance of an intermediary, Ms Ramatsimele Kupa who also took an oath. She testified in camera via a virtual platform. The summary of the evidence is as follows:
[13] She was born on 28 November 2006 and was at the time of her testimony a learner at Flora Park Comprehensive school in Polokwane in Grade 12.
[14] She knows the employee, he is the father of her son. She met him towards the end of November 2022, she had just turned 16. They met at Protea Glen while she was on her way to a tuckshop. He asked for her numbers and she gave him, he texted her and met later on that day to get to know each other.
[15] As recorded in her statement from line 8, page 17 of Bundle B, approximately two weeks after she met with the employee, they met for leisure time (“chillas”). At this meeting, they consumed alcohol and engaged in recreational activities. On that occasion, they engaged in unprotected sexual intercourse. She did not give much thought to the potential consequences at the time.
[16] She subsequently discovered that she had fallen pregnant as a result of that encounter. She informed the employee of the pregnancy. She expressed a desire to terminate the pregnancy, but the employee disagreed. She gave birth to their son in August 2023. Following the birth, the respective families met to discuss and negotiate the payment of customary damages.
[17] Their relationship never got to a discussion about age and she never informed the employee that she was a secondary school learner.
[18] Under cross-examination, she reiterated that she never disclosed her age to the employee because she did not consider the relationship to be serious. She could not recall having told him she was a student at Rosebank College. She confirmed that she never met the employee while in her school uniform.
[19] She testified that she predominantly consumed Savannah cider during their social engagements and had done so in the employee’s presence and that of his colleagues. She acknowledged her awareness that the law prohibits individuals under the age of 18 from consuming alcohol.
[20] She admitted to have stayed overnight at the employee’s residence. Her sisters were aware of the relationship. Her mother knew she was involved with a man who owned a car, as she had related details about the driving lessons the employee had given to her. The employee would on occasion collect her from the gate of her home.
[21] MA conceded that during her pregnancy, the employee transported her to a clinic and while there, he requested to see her medical file to ascertain her age, a request she refused. She stated that her refusal was based on the belief that he had no right to the information as they were no longer in a relationship at that stage.
[22] She is not aware of how the employee ultimately discovered her age. She could not deny the proposition that he became aware in January 2023 that she was still a minor and a school learner. She conceded that the employee ceased all communication with her in that same month of January 2023. At the time he ceased communication with her, the employee was not yet aware that she was pregnant.
[23] She stated that following the birth of the child, the employee provided financial support for the baby. She confirmed that when he was unable to provide financially for the child, her mother reported the matter to the Department of Education. Her mother reported the matter in January 2025.
Second witness: Cynthia M, whose full names are withheld due to the fact that she is a parent to the alleged victim, who is a leaner. Stating his full names may expose the identity of the learner. She gave evidence under oath as follows:
[24] She became aware of a sexual relationship between the employee and her daughter, MA, around February 2023. This was after she questioned MA about a potential pregnancy, having noticed physical changes in her daughter’s body. MA confessed that she was, in fact, pregnant and that the employee was the father. The witness stated she was not aware at that time that the employee was significantly older than MA. Subsequently, she went to the school where the employee was teaching to confront him. She testified that he did not deny the pregnancy. Following this confrontation, she went to his home, and they discussed the payment of customary damages for the pregnancy.
[25] Under cross-examination, the witness stated that she only met the employee for the first time when she went to report the pregnancy and had not met him prior to this. She further testified that she has no knowledge of whether MA had informed the employee that she was a student at Rosebank College. However, the employee, being a teacher who routinely deals with children, should have possessed the professional discernment to recognise that MA could not have been telling the truth about her student status or age. His colleagues were also negligent in their failure to discern that MA was a scholar.
[26] She conceded that it is correct that she reported the matter to the Department of Education primarily because the employee failed to provide financial support for the child’s upkeep. She stated that had he complied with his obligation, she would not have proceeded reported him. She viewed the employee as being disrespectful towards her. She confirmed that the last payment was received in October 2024, which directly led to her decision to report the matter in December 2024.
THE EMPLOYEE’S CASE
Employee: Ntsikelelo Tony Zililo , the employee testified under oath and the summary is as follows:-
[27] He met MA in late November 2022. He stated that he was driving a vehicle with his colleague, Mr. Rankapule, when he saw her walking to a tuckshop on the road during school hours. He was in possession of Mr. Mchunu’s phone, as they intended to use it to purchase food. Mr. Mchunu is one of the educators at Lufhereng Secondary School. He stopped her and asked to know her. MA introduced herself as “Hope,” a name he continued to use to date. MA was accompanied by her sister, Amahle. They exchanged contact numbers and communication subsequently commenced.
[28] Mr. Rankapule requested that he and MA hook him up with Amahle and they did so. They started meeting up for leisure time, during which time they consumed alcohol.
[29] He asked MA about what she did for a living, to which she stated she was a student at Rosebank College. He noted that she was readily available for communication whenever they chatted. They met shortly before festive season and because of that, they were out most of the time socialising since schools were closed. They were often with Mr. Rankapule and Amahle. They visited establishments that sell alcohol, such as pubs and taverns. To him, MA had the physical stature and cognitive ability of a young adult. Her built was larger than that of her older sister, Amahle. Had security personnel at these venues suspected she was under the age of 18, they would have requested ID cards; however, the group was always granted access without hesitation by the security personnel.
[30] The employee further testified that on some occasions, the group would purchase alcohol and chill at Mr. Rankapule’s place to socialise in what he described as an adult setting. These gatherings involved activities including the consumption of alcohol, vaping, and participating in intimate games such as “truth or dare” and “30 seconds.”
[31] The employee testified that he regularly collected Amahle and MA from the gate of their home. He stated that he had not met their mother in person but was aware that she knew of his existence. He knows this because after he provided MA with driving lessons, she informed her mother about the driving lessons. MA’s mother was aware her daughter was dating a man who was employed. This also gave him the belief that MA was old enough to date a working man, otherwise her mother would have forbade the relationship.
[32] He lost his personal cell phone at a year-end function and, as a result, consistently communicated using Mr. Mchunus phone.
[33] His other colleague, Mr. Nyantombo, was in a relationship with Nokukhanya, another sister of MA. Nokukhanya informed Mr. Nyantombo that MA was a high school learner. Mr. Nyantombo conveyed this information to him. He was shocked and was in disbelief that she was a scholar. He immediately contacted MA via text message to confront her, and she confirmed that she was a high school learner. Following this confirmation, he ceased all communication with her. He stated that although she attempted to contact him, he consistently ignored her from that time, which would have been in January 2023.
[34] He later heard from Mr. Rankapule that Amahle had revealed MA was pregnant. He waited for the matter to be formally reported to his family. He stated that Amahle and MA suggested terminating the pregnancy, but he did not support the termination of pregnancy. Subsequently, MA’s family visited his home, and the families discussed the payment of customary damages.
[35] He further stated that after the baby was born, he regularly visited MA’s home to see the child. MA’s mother repeatedly suggested that he acquire his own residence where he and MA could live together as a couple. He could not agree to this proposal since he had become aware that MA was a school learner.
[36] There was a time during the pregnancy that he transported MA to a clinic. On that occasion, he requested to see her clinic file to ascertain her age and MA refused. He knew MA only by the name “Hope” until he was served with the audi letter. Communication between them continued, but solely regarding the well-being and care of the baby.
[37] MA’s mother had insisted on the immediate payment of customary damages and he was not in a financial position to pay damages. She subsequently engaged in conduct he perceived as blackmail, repeatedly threatening to report him to the Department of Education, warning him that he would lose his job if he did not pay.
Cross examination
[38] He was born in August 1997. He is employed as a teacher for Grade 11 and 12 pupils at Lufhereng Secondary School. He noted that the average age range of these learners is approximately 16 to 19 years.
[39] He stated that, in his view, MA differed significantly from his learners in terms of her physical stature, behaviour, and cognitive demeanour. MA has mature tattoos and her manner of speaking is bold and authoritative.
[40] The employee asserted that his relationship with his learners is strictly professional, that of an educator and pupil, and that he views them as children. In contrast, MA consistently behaved as an adult.
Second witness: Gift Rankampule
[41] He is an educator at Lufhereng Secondary School and a friend of the employee. He confirmed that he was present in the employee’s vehicle on the date they first met Learner MA. He stated that MA was accompanied by another girl, whom he later learned was her sister, Amahle, while they were on their way to a tuckshop. He witnessed the employee initiate a conversation with MA, ask for her telephone number, and subsequently began communicating with her.
[42] He asked the employee to facilitate an introduction to MA’s sister, Amahle, which was arranged. Thereafter, the four individuals began socialising together as two couples, regularly spending leisure time together, which included the consumption of alcohol. The witness stated that MA had represented herself as a student at Rosebank College, and Amahle as a student at Cape Peninsula University.
[43] After some time, they discovered that MA was in fact a school learner. He then confronted his girlfriend, Amahle, demanding to know why she had withheld this vital information. Amahle replied that it was not her place to disclose it. Upon learning this, the employee immediately terminated all contact with MA, unbeknown to them that MA was already pregnant at the time. He is aware that MA attempted to contact the employee after this, but the employee ignored her.
[44] The witness asserted that MA’s appearance and demeanour suggested she was above the age of 20. She had never been refused entry to, or asked for ID card at establishments selling alcohol because her appearance and behaviour were consistent with someone over the legal age. She drank alcohol and engaged them in conversations on topics such as politics, reality shows, and current affairs. Although the witness acknowledged that he taught children of the same age MA was at the time, he testified that he was unable to pick up that MA could be of a similar age, due to her mature presentation.
Cross examination
[45] According to his recollection, they did not meet up for leisure with MA and Amahle the same day they met them but on subsequent days.
Third Witness: Calvin Nyantombo
[46] He is an educator at Lufhereng Secondary School. He stated that he met MA through the employee when he accompanied him to her home. On that occasion, he was introduced to Nokukhanya, another sister of MA and subsequently began dating her. He never socialised with the employee and Mr. Rankapule for leisure time together with their girlfriends (MA and Amahle).
[47] Around January 2023, he confided in Nokukhanya regarding his younger sister, who was in secondary school but was not serious about her studies. In response, Nokukhanya stated that MA was similar and was also in secondary school but was not serious about school. He was shocked could not believe that MA was a secondary school learner because of her physically older appearance. They would as well pick up the sisters directly from their home, which was never presented as a problem. MA was relaxed and free in her interactions with him and his colleagues, a demeanour that differed with that of their own learners, who viewed educators as parental figures.
[48] He broke the news to the employee who was with Rankampule at the time. The employee was in disbelief.
[49] Under cross-examination, he stated that he only saw MA in the presence of the employee on two separate occasions. He did not regularly interact with them in their leisure times.
Fourth witness: Njabulo Professor Mchunu
[50] He is an educator at Lufhereng Secondary School.
[51] He stated that he knows MA, but knows her by the name “Hope.” He became aware of her through messages intended for the employee that were sent to his cell phone. The employee used the witness’ phone for communication after losing his own phone at a year-end function.
[52] He knows MA as the employee’s girlfriend. He was often occupied with duties at a marking centre and was therefore not regularly present at the social gatherings his colleagues had with their girlfriends. On the occasions he was present, he observed that the group went to establishments selling alcohol. He noted that MA was consistently granted entrance to these venues and that she engaged in conversation with the group in a manner he perceived to be that of an adult.
[53] Under cross-examination, the witness stated that he discovered MA was a school learner around January 2023, when this information was relayed to them by Mr. Nyantombo
Fifth witness: Precious Selaelo Ramodike
[54] She is an educator at Lufhereng Secondary School, and the employee is both her colleague and friend. She was introduced to MA as the employee’s girlfriend. She described MA as having a firm character and frequently employing vulgar language.
[55] In her engagements with MA, MA would enquire about her experiences in the teaching profession and her methods of administering discipline at school. She characterized their conversations as “grown-up”. Their social meetings involved the consumption of alcohol. MA never at any stage disclosed that she was a school learner. It would have been inhumane for her, as a female educator, to have been aware of this information and still supported the relationship.
[56] Based on her knowledge of the employee, their friendship and the professional ethics they both uphold, she is certain he was unaware that MA was a learner. She also personally had no suspicion that MA could be a learner, despite teaching learners aged approximately 13 to 21. There were no similarities between MA and the learners she teaches. Their social interactions included late-night hangouts and they frequented establishments selling alcohol, ie Jacks and Tankiso. She recalled that at one stage, MA offered the witness encouragement regarding the witness’ anxiety about Grade 12 results.
[57] On one occasion, while driving with Mr. Rankapule, the employee and MA, they stopped at a filling station. She and MA went to the ladies’ room together. MA’s mother called to inquire about her whereabouts. She replied that she was still with Zililo (the employee), and no further questions were asked. She interpreted this as an indication that MA’s mother was aware of and condoned the relationship.
Cross -examination
[58] She stated that she understands adolescent development and puberty as most of her learners are adolescents. She stated that most misbehaviours from her learners were experimental in nature while MA’s conduct showed experience in what she was doing. She confirmed she met with MA and the employee on several occasions since it was December school holidays.
[59] She further stated that the employee informed her that MA was a learner, a revelation that left him worried and shocked. She stated that she was also shocked and disappointed in herself for failing to identify MA’s true status. Upon learning of the pregnancy, she felt defeated that a learner and teenager had fallen pregnant. She felt that she had failed the learner as well by failing to notice the learner’s age group and her scholar status.
ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT
[60] The employee was charged under sections 18(1)(q)) of the Employment of Educators Act (EE Act) in that while on duty, he conducted himself an improper, disgraceful or unacceptable manner. The allegation against the employee had a sexual relationship with MA who was a learner at Prudence Secondary school which resulted in her falling pregnant.
[61] The greater part of the factual matrix in this case was common cause. It was common cause that there was indeed a sexual relationship between the employee and MA which resulted in her falling pregnant and giving birth to a child in August 2023. It was common cause that the relationship started at the end of November 2022 and was over by January 2023.
[62] MA admitted that she never told the employee that she was a learner or her age because she was not sure where the relationship was going. This information was revealed by MA’s sister, Nokubonga, who was in a relationship with another educator. The evidence from both the employer and the employee parties confirmed that upon learning of MA’s age and scholar status, the employee ceased all communication to him, unbeknown to him that she was already pregnant at that stage.
[63] The argument by the employer is that given the fact that the employee and his colleagues were all educators teaching learners of the same age as MA, they ought to have known that MA was a learner. Specifically, the respondent argued that the employee knew but chose to ignore this fact because she was not in the same school as him.
[64] The argument by the respondent that the employee knew MA’s age and scholar status and chose to ignore that fact stands to be rejected because it is not supported by the evidence before me. The employee testified that he was not aware. MA also testified that she never disclosed to the employee his age. There was nothing suggested in the evidence that the employee knew of the learner’s age and scholar status .
[65] The employee also argued that the matter was only reported to the respondent due to his failure to provide financially for his child. This fact was not at all denied by MA’s mother, she in fact stated that had he provided for the child, she would not have reported the matter. The argument that there was an ulterior motive for reporting the matter also stands to be rejected because it is irrelevant. An institution of charges is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, there are no reasonable grounds for charging the employee. In other words, the best motive does not cure an otherwise wrongful disciplinary action and the worst motive does not render an otherwise correct disciplinary action wrongful. Given the fact that the sexual relationship and the pregnancy are common cause, there are reasonable grounds in this case for charging the employee.
[66] It must be noted that an educator has a an ethical duty to know a learner’s age to prevent sexual misconduct before engaging in sexual relations with a learner, even of a different, school is regarded as a very serious offence in the Education sector. The South African Council for Educators (SACE) Code of Professional Ethics mandates that educators avoid all forms of abuse and maintain appropriate conduct, which inherently includes understanding and respecting age differences.
[67] Section 28(1)(d) of the Constitution of the Republic of South Africa provides that ‘(e)very child has the right to …be protected from maltreatment, neglect, abuse or degradation’. This is an obligation that everyone who interacts with a child has, and if one transgresses this obligation, the defence of ‘I did not know” ,”I was drinking with her” or that the child looked like an adult, can never be sustained. The responsibility of ensuring that this right is upheld lies on the employee in this instance and not the learner. This is why it is more onerous on any Educator to know with certainty the age and scholar status of a person.
[68] In the age we live in, it is increasingly becoming very difficult to make a correct assumption on the person’s age and scholar status by physical or behavioural observation. The employee, being in the education sector ought to have taken steps to ensure that he satisfied himself that he is not a risk of breaching his Professional ethics but more importantly that he is not at risk of violating the protection he is expected to provide to a learner as an in loco parentis. His failure to ascertain this fact with certainty was inherently negligent.
[69] The negligence is fundamental to proving that the employee’s conduct was improper, disgraceful, or unacceptable in terms of the expected standards for an educator. It is my finding that the employer has discharged it onus in proving that the employee was guilty of Allegation 1 and 2. I subsequently return a verdict of ‘Guilty’ on both charges.
[70] I now turn to the question of sanction. There can also be no gain-saying that the nature of the offence of sexual relationship with a minor child who is a learner automatically breaks the trust relationship between the educator and the employer. It would be risk for the employer to keep him in employment as the employer would not be able to guarantee a safe education environment of the learners.
[71] In these circumstances based on the evidence and my conclusions above, the employee must be dismissed with immediate effect.
[72] Section 120 (1) (c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 121 provides that where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law. Section 120 (2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
[73] The employee’s conduct, although negligent, lacked direct intention to have a sexual relationship with a learner/child. I view it necessary to consider this aspect as intention implies a conscious desire to commit and offence, while negligence involves a failure to exercise reasonable care, resulting in unintended harm. I therefore do not find that that he is unsuitable to work with children.
AWARD
[1] I impose the sanction of mandatory dismissal with immediate effect.
[2] I make no order as to costs
Kuvonakala Chavalala
ELRC Panellist