IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO.: ELRC 498-25/26KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

M NZIMANDE RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 01 SEPTEMBER 2026

Applicant’s representative : MS N. MAZIBUKO

Respondent’s representative : MS Z. S. KHANYILE (NATU)

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and initially held at the offices of the KwaZulu-Natal Department of Education, Kokstad and due to threats/safety issues the venue changed to Durban Teachers Centre, 14 Clayton Road, Overport, Durban and subsequently to Department of Education, Truro House, 17 Margaret Mncadi Street, Durban . These proceedings were digitally recorded.
[2] Ms N. Mazibuko, a Labour Relations Officer, represented the applicant (employer) and Ms Z.S. Khanyile from NATU represented Mr N. Nzimande, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 15 September 2025 but postponed due to the applicant claiming to be unwell. On 17 October 2025, after the preliminaries, the respondent party requested for an inspection in loco to be conducted at Gxalingenwa Primary School whereafter same was duly conducted. On 16 January 2026, the matter was postponed due to the respondent’s representative non-attendance and she emailed a sick note to the applicant. The matter proceeded on 30 January 2026, 6 March 2026, 24 April 2026, 1 June 2026, 5 June 2026 and 3 July 2026. The matter was concluded on 22 July 2026 when the parties submitted their written mitigating and aggravating circumstances as well as their closing arguments which was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in a bundle of documents which was marked as bundle “A” and was utilized as a common bundle.
[6] The nature of the process and all rights was explained to the parties.
ISSUES TO BE DECIDED
[7] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[8] Mr Nzimande is employed as an educator at Gxalingenwa Primary School.
[9] Two learners made allegations of sexual misconduct against Mr Nzimande and the employer subsequently charged him with misconduct.
CHARGE
The employer preferred the following charge against Mr Nzimande: –
[10] You are hereby given notice to attend a disciplinary hearing in terms of Schedule 2, clauses 5 and 7 of the Disciplinary Code of the Employment of Educators Act 76 of 1998 as amended to answer charges of misconduct against you. The alleged misconduct is as follows:
CHARGE 1
It is alleged that in 2024, you committed an act of sexual assault on a learner by the name of Learner A, thereby contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.
CHARGE 2
It is alleged that in 2024, while on duty you conducted yourself in an improper manner in that you proposed love to learners by the name of Learner A and Learner B thereby contravened Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.
PLEADINGS
[11] Mr Nzimande pleaded not guilty to the charges.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE APPLICANT’S / EMPLOYER’S CASE
The employer called four witnesses to testify on their behalf.
LEARNER A
[12] Learner A testified that she was eleven years old and a Grade 7 learner at Gxalingenwa Primary School. She knew Mr Nzimande, who had been her Grade 5 teacher and had taught her IsiZulu, Geography, History and Social Science. She described her relationship with him before the incidents as that of a teacher who was funny.
[13] Learner A testified that Mr Nzimande called her while she was outside playing, told her that he loved her and instructed her to go behind the classroom door. He kissed her on the mouth and put his tongue into her mouth. He thereafter gave her R5, without explaining why he was giving her the money, and she returned outside to play.
[14] She testified that Mr Nzimande kissed her on other occasions and would call her behind the classroom door, kiss her and give her money. On one occasion during break time, he told her that he would give her money and instructed her to go behind the classroom door, where he kissed her. She stated that she was shocked by the incident. According to her, on the following day he again called her, gave her money and kissed her. She testified that this conduct continued almost daily and maintained that she had never requested money from him.
[15] Learner A testified about an incident involving a desk. She stated that Mr Nzimande instructed her to take a desk and place it behind the classroom door. He instructed her to pull up her uniform, remove her panties and sit on the desk. She testified that he then inserted his tongue into her vagina.
[16] She stated that this was separate from another incident during which Mr Nzimande instructed her to stand and face the wall and inserted his penis into her anus. She testified that this incident occurred behind the classroom door while the other learners had gone outside to play.
[17] Learner A further testified that Mr Nzimande would sometimes call her in the morning when he arrived at school and insert his penis into her anus. She stated that this occurred approximately three times or more. She testified that the conduct was painful but that she did not report it because she was afraid of him as an adult and as her teacher. She stated that she feared that he could kill her and that he had instructed her not to tell anyone.
[18] Learner A also testified about an incident in the staff room concerning a lost class register. She stated that Mr Nzimande instructed her and Learner SK to look for the register in the staff room. When they did not find it, Learner SK was instructed to search in other classrooms, while Learner A remained in the staff room with Mr Nzimande.
[19] She testified that Mr Nzimande sat on a chair, pulled up her uniform, pulled down her panty and inserted his finger into her vagina. According to Learner A, Learner B then entered the staff room to boil water. When Learner B entered, Mr Nzimande removed his finger. Learner A stated that Learner B looked at them and thereafter proceeded to boil the water.
[20] Learner A testified that Mr Nzimande subsequently told her that what Learner B had seen constituted misconduct and that he would have to speak to Learner B because it could result in him losing his job. She stated that he later told her that he had spoken to Learner B.
[21] Learner A described further occasions during which Mr Nzimande told her that there was love between them. On one occasion, he told her that their love was safe and that he had dreamt that elders had informed him that it was safe. She stated that he brushed her thighs.
[22] On another occasion, Mr Nzimande told her that there was a high level of love between them and instructed her to sit on a desk and remove her panties. She testified that he told her that he was going to suck her vagina. After the incident, he gave her money and told her to leave.
[23] Learner A also testified about an occasion when she was wearing a tracksuit. She stated that Mr Nzimande told her that there was much love between them but that they could not engage in the conduct because she was wearing a tracksuit. She testified that he nevertheless instructed her to go behind the classroom door, kissed her and gave her money.
[24] Learner A further testified about a stokvel or savings arrangement involving herself and other learners. She stated that Mr Nzimande had initiated the arrangement and kept the money. She contributed R4, while Mr Nzimande contributed additional money on her behalf. She testified that he showed her an exercise book recording the amount accumulated for her, which reflected R12.
[25] She testified that Mr Nzimande gave her money after the incidents and told her that he loved her. She reiterated that she had never requested money from him.
[26] Learner A testified that Mr Nzimande continued calling her to the back of the classroom door, where he would kiss her and give her money. She stated that this conduct continued until Learner B reported the matter to her mother.
[27] Learner A testified that Learner B’s mother thereafter contacted Mr Nzimande and that the matter was subsequently reported to the principal. She stated that, after the matter was reported, Mr Nzimande no longer came to school.
[28] Under cross-examination, Learner A confirmed that the alleged incidents occurred at Gxalingenwa Primary School and that she knew the school, its classrooms, staff room and areas where learners played. She confirmed that she had attended the school for approximately eight years, starting from Grade R and she was familiar with the educators.
[29] Learner A agreed that the classroom windows were sufficiently large for persons outside to see into the classroom and that there were no curtains. She further agreed that learners and teachers passed through the area outside the classroom and could see into it.
[30] Learner A initially described the playground as being in front of the classroom but subsequently explained that the playground or playfield was situated behind another row of classrooms. She nevertheless confirmed that learners also played in the grassed area between the rows of classrooms. She stated that this area was close to her classroom and was used by learners during break and free time. She further confirmed that learners and teachers walked through the area.
[31] Learner A described her classroom row, the row facing it and the Grade R classrooms behind her row. She described the area between the classroom rows as an assembly area and confirmed that learners also played in parts of that area.
[32] Learner A accepted that the area behind the classroom door was not completely hidden. She confirmed that people could see through the classroom windows. She nevertheless maintained that, because of the position of the door and windows, a person walking past the classroom would not necessarily have been able to see her and Mr Nzimande when they were positioned behind the door.
[33] She was questioned about her evidence that Mr Nzimande would take the learners outside to play, including when it was cold. She stated that Mr Nzimande would sometimes take learners outside even when the weather was cold or when it was sunny.
[34] Learner A confirmed that the incidents occurred on school days and that teachers and learners ordinarily moved between classrooms. She explained, however, that there were occasions when teachers were teaching and no one was outside.
[35] She was questioned about incidents allegedly occurring after school. She stated that, after learners had finished sweeping and had left the school, Mr Nzimande would sometimes signal her to come behind the classroom door. She explained that she and other learners travelled home by car and that the vehicle had not yet arrived; the other learners travelling in the same vehicle would wait outside the school gate. She stated that the alleged after-school conduct occurred many times.
[36] Learner A confirmed that teachers could still be present or on duty when learners were leaving, depending on the time. She stated that the principal generally remained at school after the other teachers and learners had left. She disagreed with the proposition that teachers were not permitted to leave at the same time as learners.
[37] Learner A disputed the proposition that teaching and learning ended at 14:30. She explained that Grade 3 finished at that time but that Grades 4 to 7 continued with further lessons. She stated that learners generally left at approximately 15:00, although she could not recall the precise time and was uncertain whether the bell rang at 15:00 or approximately 15:30. She ultimately accepted that she could not remember the precise times at which lessons and the school day ended.
[38] It was put to Learner A that Mr Nzimande would testify that he conducted the Grade 7 morning class from Monday to Friday and that he would therefore not have been alone with her in the mornings. She disagreed and stated that there was a day when the morning classes were not conducted. She explained that when Mr Nzimande was conducting the Grade 7 morning classes, she would not see him, but that she would see him on mornings when he was not conducting that class.
[39] She confirmed that some incidents occurred in the morning and that others did not. It was put to her that at the time she arrived at school, other learners would not have been outside playing at the time because Mr Nzimande would have been conducting the Grade 7 morning class. She disputed this and maintained that he did not conduct the morning class every day.
[40] Learner A was questioned about why she did not immediately report the alleged conduct. She confirmed that she did not report the incidents immediately, continued attending school and continued attending classes taught by Mr Nzimande. She explained that she was scared of him and feared that he might threaten her. She stated that she was concerned that, if she told her guardian, the matter would be reported to the principal.
[41] Learner A confirmed that she was not afraid of the adult with whom she lived. She stated that her fear was directed towards Mr Nzimande and that she feared that he might threaten her. She explained that she was afraid to report him because Mr Nzimande had proposed love to her and she feared that, if he learned that she had reported that conduct, he would no longer treat her well.
[42] Learner A confirmed that she did not scream during the alleged incidents, did not immediately leave the classroom on every occasion, did not seek assistance from another educator and did not immediately report the conduct. She explained that, on some occasions, when Mr Nzimande signalled her to come to him, she avoided him and left the classroom. She nevertheless confirmed that she continued attending school and, on occasions, went to him when he called her.
[43] Learner A was referred to her statement, which recorded that the alleged penetration occurred approximately three times or more and continued until the matter was reported. It was put to Learner A that, if penetration had occurred, she would have experienced pain and that this would have affected her ability to continue with her normal school activities. She confirmed that she continued with her daily activities and stated, in response to the proposition put to her, that she had not experienced pain.
[44] Learner A confirmed that she had been interviewed by the principal, Mrs Dlamini and Mr Xaba and that she had been questioned more than once about what had occurred. She confirmed that, when initially questioned, she had not disclosed everything and had denied the allegations.
[45] It was put to Learner A that Mr Nzimande would testify that he maintained a professional relationship with her because she was one of the top learners in his class and that his interactions with her were limited to encouraging her academic performance. She confirmed that she had been among the top five learners and that Mr Nzimande encouraged learners academically. She disputed, however, that his relationship with her was limited to academic encouragement.
[46] Learner A was questioned about Learner ND and a love letter. She denied having an affair with the learner but confirmed that Mr Nzimande had found her with a love letter from him. She stated that the learner had attempted to propose a relationship to her.
[47] It was put to her that Mr Nzimande would testify that he had become aware of the letter because she had been disturbing the class by reading it and he intervened and stopped the relationship between her and Learner ND and he encouraged her to perform better at school and to leave boys alone. She confirmed that Mr Nzimande had intervened, but disputed the reasons advanced by him for his intervention. She confirmed that she was afraid that Mr Nzimande might report the matter to her mother. She stated that Mr Nzimande had never advised her that boys were negatively affecting her academic performance.
[48] It was put to Learner A that Mr Nzimande would testify that the allegations against him had been orchestrated by adults, including Learner B’s mother and the principal, and that Learner A had participated in the alleged orchestration. She denied these propositions. It was also put to her that Mr Nzimande would testify that she had been involved in the alleged fabrication because of the incident concerning Learner ND and the love letter. She denied this and reiterated that she was not involved in a relationship with Learner ND.
[49] Learner A confirmed that Learner B had entered the staff room during the incident involving the insertion of a finger into her vagina. She stated that Learner B remained there briefly, plugged in the kettle and did not shout or scream. She confirmed that no educator entered the staff room while Learner B was there.
[50] Learner A was questioned about the money she received from Mr Nzimande. She confirmed that money was involved in the incidents and that she had received money from him. It was put to her that the money had come from the stokvel funds. She stated that she did not know whether this was so. She confirmed that she had not returned the money and had not immediately reported the incidents involving the money.
[51] It was put to Learner A that Mr Nzimande would testify that he had never assaulted her, had never proposed love to her and that his interactions with learners were limited to academic matters and encouraging them to perform well at school. She rejected the propositions concerning the alleged assault and love proposal. She nevertheless acknowledged that Mr Nzimande did encourage learners to perform well academically.
[52] It was also put to Learner A that Mr Nzimande would testify that the classroom did not provide sufficient privacy for the conduct alleged against him. She disagreed. She further rejected the proposition that the allegations against him were untrue.
[53] During re-examination, Learner A reiterated that Mr Nzimande had described the money he gave her as a “free gift” and maintained that he gave her money after kissing her and after the alleged anal penetrations.
[54] Learner A was asked whether Learner B’s mother or Mr Xaba had instructed or encouraged her to fabricate allegations against Mr Nzimande. She stated that they had not and maintained that Mr Nzimande had sexually assaulted her.
[55] She clarified that Learner ND was someone with whom she played but that she was not close to him. When asked why she had been afraid that Mr Nzimande would not treat her well if she reported the conduct, she stated that he had told her not to report him because he would lose his job.
LEARNER B
[56] Learner B testified that she was 15 years old and a Grade 9 at Ginyane High School. She knew Mr Nzimande, who had taught her isiZulu in Grade 5 and Social Sciences in Grades 6 and 7.
[57] She testified that she witnessed an incident involving Mr Nzimande and Learner A in an office. She stated that she saw Mr Nzimande’s hand under Learner A’s school uniform, on her private parts. She entered the office to plug in a kettle, at which point Mr Nzimande removed his hand. She thereafter returned to her classroom and later returned to collect the kettle.
[58] Learner B testified that she did not immediately report what she had seen. She stated that Mr Nzimande subsequently called her to the Grade 5 classroom and asked her not to report the incident, telling her that he would lose his job if she did. She could not recall the exact date or month but placed the incident in 2024.
[59] Learner B explained that she was initially uncertain about what she had witnessed. She stated that, when Mr Nzimande subsequently told her not to panic because the conduct had allegedly been occurring for some time, she understood what she had initially thought she had seen was in fact what he had been doing.
[60] She testified that, after some time, Mr Nzimande called her and proposed a relationship. She asked for time to consider the proposal and thereafter left the room. She subsequently told her mother about the proposal, following which her mother contacted the school principal, Mr Xaba.
[61] Learner B further testified that she later disclosed to her mother that she had witnessed Mr Nzimande touching Learner A’s private parts. She stated that the disclosure followed her mother asking why she appeared traumatised. Her mother contacted the principal, who indicated that the matter would be addressed on the following Monday.
[62] She testified that the principal subsequently took her and Learner A to a police station where cases were opened. She stated that they were thereafter taken to a hospital in Pietermaritzburg for medical examinations. She also testified that her mother subsequently took her for a traditional virginity test because her mother did not believe that Mr Nzimande had not done anything to her.
[63] Under cross-examination, Learner B confirmed that she had only seen Mr Nzimande’s hand under Learner A’s tunic. She expressly stated that she did not see penetration or kissing and did not see what occurred before she entered or after she left the office. She further confirmed that she did not see Mr Nzimande’s hand inside Learner A’s vagina.
[64] She explained that she did not report the incident immediately because she was uncertain about what she had seen and believed that she had no evidence. She was concerned that, if the allegation were denied, she would be regarded as having fabricated it.
[65] Learner B confirmed that she did not immediately report the incident to the principal, but first disclosed it to her mother. She stated that approximately two months had passed between the incident and her disclosure. She also confirmed that she had initially told her mother about Mr Nzimande’s proposal before disclosing the incident she had witnessed.
[66] Learner B stated that the medical examination indicated that Mr Nzimande had not done anything to her. She also stated that the examination revealed a previous rape, but expressly stated that Mr Nzimande was not responsible for that incident. She confirmed that her mother was aware of the previous rape before taking her for the traditional virginity test.
[67] Learner B stated that Mr Nzimande had been a karate teacher, participated in community activities and was regarded as having a good reputation in the community and at school.
[68] Learner B was questioned about her mother’s relationship with Mr Nzimande. She stated that her mother was a traditional healer and that Mr Nzimande had previously been one of her clients. She stated that, from her perspective, the relationship had ended when Mr Nzimande proposed a relationship to her. She disputed the proposition that the relationship had ended because of disagreements about money. She explained that her mother provided healing services without requiring immediate payment and stated that she did not know whether her mother remained angry with Mr Nzimande.
[69] Learner B denied having had a relationship with a learner educator, Mr Mnguni. She acknowledged that Mr Nzimande had spoken to her about Mr Mnguni, but stated that she had informed him that there was no relationship between them. She stated that she regarded Mr Mnguni as a senior or worker at the school and denied that there had been a relationship between them and further denied that she had any reason to protect him.
[70] It was put to Learner B that her mother had orchestrated or fabricated the allegations against Mr Nzimande because of the alleged breakdown of their relationship. Learner B denied this. She stated that her mother was not permitted to deal with court cases and maintained that her mother or the principal had not influenced or fabricated the allegations. She referred to her disclosure concerning the previous rape as an example of an incident which she had not attributed to Mr Nzimande.
[71] It was further put to her that Mr Nzimande would deny having proposed a relationship to her. She disputed this and maintained that he had proposed a relationship to her and maintained that neither she nor Learner A had any reason to fabricate the allegations.
LEARNER B’S MOTHER
[72] Learner B’s mother testified that Learner B attended Gxalingenwa Primary School during 2024 and that she knew Mr Nzimande as an educator at the school and as a member of the community. She stated that he also visited her home to obtain traditional healing services from her and described their relationship as that of a client and service provider.
[73] She testified that Learner B appeared stressed after school and initially disclosed that Mr Nzimande had proposed a relationship to her. Learner B’s mother stated that she telephoned Mr Nzimande about the disclosure. According to her, when she asked him what he had said to her daughter, he responded that he was sorry. She stated that the conversation was brief and that she did not know precisely what he was apologising for.
[74] She testified that Mr Xaba, the school principal, subsequently telephoned her and informed her that he was with Mr Nzimande. According to her, Mr Xaba told her that Mr Nzimande had said that he had jokingly spoken to a child. She was requested to attend the school the following day to discuss the matter.
[75] Learner B’s mother testified that she thereafter attended a meeting at the school with Mr Xaba, Ms Mayeza and Mr Nzimande. She stated that the discussion at that stage concerned the alleged proposal and that no allegation of sexual assault or rape was raised. She stated that Mr Nzimande acknowledged that he had proposed to Learner B, had apologised but stated that he had not done anything to her.
[76] She testified that she did not immediately report the matter to the police. Instead, she took Learner B for traditional virginity testing because she wanted to establish whether Mr Nzimande had done anything to her daughter. She stated that the testers indicated that he had not done anything to Learner B and that she consequently decided not to pursue a charge against him in relation to that allegation.
[77] She testified that Learner B subsequently informed her that she had witnessed Mr Nzimande doing something inappropriate to Learner A, behind or at the back of a door. She confirmed that Learner B did not provide her with detailed information about the alleged conduct. She stated that she did not question her daughter further because she did not want to hear or repeat details of what had allegedly occurred.
[78] She informed Mr Xaba that her daughter had reported witnessing something involving Mr Nzimande and Learner A and left it to the principal to obtain further information from the children. She stated that the matter was thereafter reported to the police and that detectives became involved.
[79] Learner B’s mother testified that she accompanied Learner B and Learner A to a hospital in Pietermaritzburg at the instruction of the detectives. She stated that, in relation to her own daughter, she was informed that Mr Nzimande had not done anything to her. She was not present when Learner A’s medical results were disclosed and did not know the outcome of Learner A’s examination.
[80] Under cross-examination, she confirmed that her knowledge of the events involving Learner A was derived entirely from what Learner B had told her. She had not been present when the alleged incident occurred, did not know precisely what had happened and did not personally question Learner A about the matter.
[81] She confirmed that there were no text messages, letters or other written communications concerning the alleged proposal to Learner B. She maintained that Learner B had reported the proposal to her and that Mr Nzimande had responded by saying that he was sorry when she telephoned him. It was put to her that Mr Nzimande would testify that his apology related to the circumstances in which he received her call wherein he was in a steam room and was not an admission concerning the alleged proposal. She disputed that this altered her account of the conversation.
[82] It was further put to her that Mr Nzimande would testify that he had voluntarily gone to the principal after receiving her telephone call because he was shocked by the allegations and that she had been angry and shouting during the call. She denied shouting and maintained that the conversation had been brief.
[83] Learner B’s mother denied that her relationship with Mr Nzimande had become strained because of money or unpaid traditional healing services. She stated that he obtained services from her when he required assistance and paid what he could afford. She denied that he owed her money, including an alleged outstanding amount relating to an umsamo ritual, and denied that there had been any quarrel or financial dispute between them.
[84] It was put to her that the allegations against Mr Nzimande had been orchestrated because of a strained relationship arising from an alleged financial dispute. She denied that there had been such a dispute or that the allegations had been fabricated or orchestrated.
[85] It was put to her that Mr Nzimande would deny proposing a relationship to Learner B and would also deny doing anything inappropriate to Learner A. She confirmed that her evidence concerning the alleged events involving Learner A was based on what Learner B had told her.
THEMEMBANI EPHRAIM XABA
[86] Mr Themembani Ephraim Xaba testified that he is the principal of Gxalingenwa Primary School and that Mr Nzimande is employed at the school as an educator.
[87] He stated that he became aware of an allegation concerning Mr Nzimande and Learner B on 16 October 2024, when Mr Nzimande came to his home and informed him that Learner B’s mother had accused him of proposing a romantic relationship to her daughter and that he had apologised and informed Learner B’s mother that it was a mistake. Mr Nzimande requested him to contact the mother and ask her to attend the school.
[88] The following day, Mr Xaba arranged a meeting attended by himself, Mr Nzimande, Ms N.F. Dlamini, an SMT member, Ms N. P. Mayeza, an LO educator and Learner B’s mother. He testified that Learner B’s mother reported that she had noticed a change in her daughter, who appeared stressed, and that Learner B had told her that Mr Nzimande was proposing to her.
[89] Mr Xaba testified that Mr Nzimande was given an opportunity to respond and he apologised and asked for forgiveness, although he did not expressly state what he was apologising for. He stated that Mr Nzimande referred to a problem involving young girls who had feelings for him and sometimes wrote letters or scripts expressing their love for him. He also referred to Learner B and two other learners who allegedly approached him during breaks. Mr Xaba stated that Mr Nzimande had not previously reported such conduct to him.
[90] Mr Xaba testified that Learner B’s mother expressed concern about the safety of learners and that he advised her to report the matter to the SAPS. She indicated that she intended to take Learner B for a traditional virginity test before deciding what further action to take.
[91] Mr Xaba testified that on 19 October 2024, Learner B’s mother telephoned him and reported that Learner B had allegedly seen Mr Nzimande with Learner A engaged in an inappropriate act. Mr Xaba stated that he informed Learner B’s mother that he would question Learner A on the following Monday.
[92] On Monday, he and the departmental head, Mrs Dlamini, interviewed Learner A. He testified that Learner A initially denied the allegations but subsequently made allegations concerning Mr Nzimande. According to Mr Xaba, Learner A stated that during Term 1 of 2024 Mr Nzimande had promised her money if she obtained good marks, subsequently gave her money, and that their closeness began thereafter.
[93] Mr Xaba testified that Learner A alleged that Mr Nzimande touched her thighs and that, on occasions when it was cold, he instructed the other learners to go outside while remaining in the classroom with her. She alleged that, when they were alone, he took her behind a classroom door and engaged in sexual acts involving anal penetration and vaginal penetration with his finger. She alleged that the incidents occurred more than ten times.
[94] Mr Xaba stated that Learner A did not identify the particular classroom or provide specific times when the alleged incidents occurred. She referred generally to being behind a door and sitting at a desk while the other learners were outside. He stated that Mr Nzimande taught morning classes, although not every day.
[95] He did not personally interview Learner B concerning what she had allegedly witnessed.
[96] He stated that previously, he and Mr Nzimande had a good relationship as colleagues and members of staff but their relationship had changed following the allegations and the ensuing case.
[97] Under cross-examination, Mr Xaba confirmed that, according to information later conveyed to him by Learner B’s mother, the persons who conducted the test found that Mr Nzimande had not done anything to Learner B.
[98] He confirmed that his knowledge of the allegations was based on information reported to him by others. He further confirmed that the initial allegation concerning Learner B was an allegation of a romantic proposal and did not involve an allegation of sexual penetration.
[99] Mr Xaba acknowledged that Learner A initially denied the allegations and that questioning continued because the interviewers considered that she might not immediately disclose everything. He accepted that interviewing a minor concerning sexual allegations required caution and that questioning could potentially influence what a learner said. He stated that a female educator was present and the atmosphere was relaxed. He disagreed that Learner A had been subjected to pressure or fear.
[100] Mr Xaba testified that he subsequently reported the allegations to the circuit manager and thereafter took the learners to Creighton SAPS, where a criminal case was opened. He stated that, to his knowledge, the criminal case remained pending. He confirmed that he formally reported the matter to the Department and had not received any medical reports concerning the learner.
[101] Mr Xaba testified that he had not personally observed Mr Nzimande behaving inappropriately towards any learner. He confirmed that, before the allegations, he and Mr Nzimande had a good relationship and were members of a lift club. He stated that Mr Nzimande had not previously been charged or disciplined under his supervision.
[102] Mr Xaba denied having prior disputes with Mr Nzimande or having previously accused him of theft of school property. He also denied that the allegations were fabricated by himself and Learner B’s mother. He stated that he was not aware of any prior difficulties between Mr Nzimande and Learner B’s mother.
[103] Mr Xaba confirmed that Mr Nzimande had not, during the meeting with Learner B’s mother, expressly admitted to proposing a romantic relationship to a learner, admitted to loving a learner, or stated that he had a relationship with a learner. He further confirmed that there was no documentary evidence, such as written messages or social-media correspondence, produced to him at that stage establishing that Mr Nzimande had made such a proposal.
[104] Mr Xaba confirmed that Mr Nzimande had voluntarily approached him at his home on 16 October 2024 after learning of the allegation. He accepted that this conduct could be consistent with Mr Nzimande seeking to address or clear up an accusation against him. He further acknowledged that Mr Nzimande’s apology was not expressly linked by him to a particular act and that Mr Nzimande’s version was that the apology did not constitute an admission of guilt.
[105] Mr Xaba testified that educators were aware of the applicable requirements concerning misconduct under section 17 and that his role as principal was to report the allegations and ensure that they were investigated. He agreed that the allegations required further investigation and that Mr Nzimande was entitled to fair treatment until the allegations were established. He confirmed that he did not know the outcome of the criminal proceedings.
[106] Mr Xaba confirmed that although Mr Nzimande told him that learners wrote scripts or letters expressing their love for him, he had never personally seen any such letters.
THE RESPONDENT’S / EMPLOYEE’S CASE
MDUDUZI PROTAS NZIMANDE
[107] Mr Mduduzi Protas Nzimande testified that he is 58 years old and has been employed as an educator by the Department of Education for approximately 35 years. He is employed at Gxalingenwa Primary School. He testified that he was aware of the professional boundaries applicable to educators and learners and had attended workshops concerning educator conduct, misconduct and relevant policies.
[108] He denied proposing a romantic relationship to Learner B or Learner A and denied kissing, touching, assaulting or otherwise engaging in sexual or improper conduct with Learner A. He specifically denied inserting his penis into Learner A’s private parts and maintained that none of the alleged incidents occurred.
[109] Mr Nzimande testified that he had previously obtained traditional services from Learner B’s mother, including herbs and umsamo. A dispute subsequently arose between them in 2023 concerning payment for those services. He stated that he had agreed to pay her in installments but experienced difficulty in doing so, which caused their relationship to deteriorate. He maintained that they thereafter stopped communicating.
[110] He testified that he believed the dispute with Learner B’s mother provided a possible motive for allegations against him. He further attributed the allegations concerning Learner A to Mr Xaba, whom he said had previously had disagreements with him concerning missing school property, including a radio and tablets. He maintained that these circumstances contributed to his belief that the allegations had been orchestrated against him.
[111] Mr Nzimande testified that he first became aware of the complaint when Learner B’s mother telephoned him and accused him of proposing love to her daughter before terminating the call. He thereafter reported the telephone call to Mr Xaba. According to him, he did so because of his existing dispute with Learner B’s mother and because he did not believe that he could deal with her directly.
[112] He testified that Mr Xaba subsequently informed him that he had spoken to Learner B’s mother. He stated that he was not informed that a meeting had been arranged for the following day. He attended school the next day and was later called to the principal’s office, where Mr Xaba, Learner B’s mother, Mrs Dlamini and Ms Mayeza were present.
[113] According to Mr Nzimande, the meeting initially concerned Learner B. Learner B’s mother stated that her daughter had told her that Mr Nzimande had proposed love to her and that he had apologised. He denied having apologised or having proposed a romantic relationship to Learner B. He testified that Learner B’s mother threatened to have the child’s virginity tested and to have him arrested if the testing showed that he had touched her. He stated that he told her to proceed with the testing because he had done nothing to the learner.
[114] Mr Nzimande testified that Learner B’s mother subsequently raised an issue concerning Learner A. He stated that the principal indicated that the issue concerned Learner A’s mother and that little further was discussed. He maintained that this was when he first became aware that allegations concerning Learner A had been raised.
[115] He testified that he subsequently learnt during the arbitration that Mr Xaba and Mrs Dlamini had interviewed Learner A. He had not been present or informed of the interview. He stated that he expected Learner A’s mother to be involved in allegations concerning her child and testified that he had not seen any medical evidence concerning Learner A.
[116] In relation to the alleged incident involving Learner A in the staffroom, Mr Nzimande testified that he and Learner A, together with another learner whom he identified as Learner SK, had been looking for his missing class register. He stated that they searched the staffroom and the area containing the HOD space and kettle. He denied instructing Learner SK to leave so that he could be alone with Learner A and denied that Learner B had found him engaging in improper conduct with Learner A.
[117] He also denied that he had taken his class outside in cold weather in order to remain alone with Learner A. He stated that the school was in a cold area and that he would not deliberately take learners outside in such conditions.
[118] Mr Nzimande described the staffroom and surrounding area as generally open and accessible during the school day. He testified that learners entered the area to boil water for teachers and use the microwave.
[119] He denied giving Learner A money for an improper or sexual purpose. He explained that learners participated in a stokvel arrangement and that, where a learner required money, he could provide or advance money from that learner’s accumulated dividends. He maintained that any money given to a learner was unrelated to improper conduct.
[120] He described his involvement in the community, including coaching football, teaching martial arts, assisting with cultural and drama activities, and providing assistance to learners with school trips, clothing and shoes. He relied on these activities in describing his relationship with learners and his role as an educator and community member.
[121] Under cross-examination, Mr Nzimande maintained his denial of the allegations concerning Learner A. He accepted, however, that when Learner A testified he had not disputed her evidence that he had given her R5. He explained that he had remained silent because he was waiting for his opportunity to give evidence. He similarly accepted that he had not disputed her evidence concerning the amount recorded in an exercise book relating to her stokvel contribution, stating that the exercise book was not before the arbitration and that he was clarifying the position in his own evidence.
[122] He confirmed that he had been represented throughout the proceedings and had passed written information to his representative while witnesses testified. He explained that he had not intentionally withheld information but that he had not managed to communicate every matter to his representative and that some matters were addressed when he subsequently gave evidence.
[123] Mr Nzimande maintained that Learner A had fabricated the allegations. When asked why a ten-year-old learner would falsely implicate him, he stated that persons behind the learner could have influenced her. He identified Mr Xaba and Learner B’s mother as the persons whom he believed were responsible. When asked whether he had proof of this, he referred to his previous difficulties with Mr Xaba and his financial dispute with Learner B’s mother.
[124] He accepted that Mr Xaba had denied accusing him of stealing the school radio and tablets. He nevertheless maintained that their relationship had been poor. He also maintained that his version concerning the dispute with Learner B’s mother was correct, despite her denial that he owed her money.
[125] Mr Nzimande was questioned about an allegation that Mr Xaba had previously told him to shoot him. He acknowledged that he had not previously mentioned this incident and maintained that it demonstrated the seriousness of the differences between them.
[126] Regarding the initial complaint, Mr Nzimande confirmed that he had reported Learner B’s mother’s telephone call to Mr Xaba on the same day. He disputed Mr Xaba’s evidence that he had apologised for proposing love to Learner B and had described the conduct as a mistake. He maintained that any apology related to the fact that he had been steaming when Learner B’s mother telephoned him was not an admission that he had proposed love to the learner.
[127] He initially indicated that he had asked Mr Xaba to speak to Learner B’s mother and that he wanted the matter discussed. When questioned specifically about whether he had asked Mr Xaba to arrange a meeting for the following day, he stated that he had not specifically requested such a meeting and maintained that he was unaware that one had been arranged.
[128] He was further questioned about his contention that Learner A’s mother should have attended and testified. He maintained that, although Learner A could testify about what allegedly occurred, he expected her mother to provide evidence concerning what she had observed regarding her child.
[129] Mr Nzimande confirmed that there was a criminal case arising from the allegations. He maintained that he had not committed any of the alleged acts and that any conduct involving money, the staffroom or the learners was unrelated to sexual or improper conduct.
ANALYSIS OF EVIDENCE AND ARGUMENT
[130] The respondent is charged with misconduct in terms of section 17(1)(b) and 18(1)(q) of the Employment of Educators Act 76 of 1998 (as amended) (EEA).
[131] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners. The statutory and professional framework within which the evidence must be considered is therefore particularly important.

[132] The SACE Code of Professional Ethics prescribes the standards expected of educators in their interaction with learners. Clause 3 requires, amongst other things, that an educator avoid humiliation and abuse, refrain from improper physical contact with learners, refrain from courting learners, refrain from sexual harassment and sexual relationships with learners, and use appropriate language and behaviour in interactions with learners.
[133] These provisions reflect the special position of trust occupied by an educator. The relationship between an educator and learner is not an ordinary relationship between equals. The educator occupies a position of authority and responsibility, and learners are entitled to be protected from conduct which breaches the professional and personal boundaries inherent in that relationship.
[134] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child. The protection afforded to children is therefore an important consideration in determining the professional standards applicable to educators.
[135] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra 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 the state or any other person having sufficient interest in the protection of children.”
[136] The employer bears the onus of proving the alleged misconduct on a balance of probabilities. The respondent bears no onus to establish his innocence. The question is whether, having regard to all the evidence, the employer has established that its version is more probable than that of the respondent.
[137] In resolving the conflicting versions, I have applied the approach in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie SA and Others 2003 (1) SA 11 (SCA). The credibility and reliability of the witnesses must be assessed together with the objective facts and inherent probabilities. The ultimate enquiry is whether the party bearing the onus has established its version as more probable than the competing version.
[138] This approach has been applied in labour matters. In Rustenburg Platinum Mines Limited v CCMA and Others (JR2283/09) [2014] ZALCJHB 20 (23 January 2014), the Labour Court emphasised the need to consider credibility, reliability and probabilities together. The same approach is reflected in MEC for Education: North West Province v Rasutha and Others (JR689/14) [2018] ZALCJHB 299 (28 September 2018).
[139] I have also considered S v Jackson 1998 (1) SACR 470 (SCA). The evidence of a complainant in a sexual-misconduct matter is not to be approached with either undue suspicion or automatic acceptance. It must be evaluated rationally against all the evidence.
[140] The same approach applies where the complainant is a child. The learner’s age, the relationship of authority between the learner and educator, the circumstances of the disclosure, any delay or initial denial, and the learner’s ability to observe and recall events are relevant considerations. None is, however, determinative.
[141] In MEC for Education, KwaZulu-Natal v ELRC and Others (D537/07, D166/10) [2011] ZALCD 24 (2 June 2011), the Labour Court cautioned against treating delayed reporting and continued interaction between a learner and educator as necessarily inconsistent with an allegation of sexual misconduct. The Court recognised the importance of considering the learner’s age, circumstances and the relationship of authority between the learner and educator.
[142] Learner A is the principal witness concerning Charge 1 and is also material to Charge 2. She testified that the respondent had previously taught her, told her that he loved her, called her behind the classroom door, kissed her, gave her money and engaged in inappropriate sexual touching. She further alleged that the respondent penetrated her.
[143] Her evidence was reasonably detailed concerning the nature of the conduct, but she could not provide precise dates and times for the individual incidents. There were also inconsistencies concerning aspects of the physical layout and use of the school premises.
[144] These are material limitations. They affect the weight to be attached to her evidence, particularly because she alleged more than one incident occurring over a period of time. I have also taken into account that Learner A was approximately ten years old when the alleged incidents occurred.
[145] A further material consideration is that Learner A initially denied the allegations when questioned by school authorities and subsequently made more serious allegations after further questioning.
[146] I regard the initial denial as a genuine weakness in the employer’s case. It cannot simply be ignored or explained away. At the same time, it does not follow that the later account must necessarily be false.
[147] Learner A explained that she was afraid of the respondent and that, as her teacher, he occupied a position of authority over her. Her explanation is relevant to the circumstances surrounding the initial denial and subsequent disclosure.
[148] I have also considered whether the subsequent questioning could have influenced or contaminated Learner A’s account. There is insufficient evidence, however, to establish that the substance of the later allegations was supplied to her by the persons questioning her. There is also evidence that a female educator was present during the questioning.
[149] I accordingly find that the circumstances of the subsequent questioning reduce the weight that can safely be attached to Learner A’s later account, but they do not establish that the account was fabricated.
[150] Learner B is an important witness because she gave direct evidence concerning an incident involving the respondent and Learner A.
[151] She testified that she entered the staffroom to plug in a kettle and observed the respondent’s hand underneath Learner A’s uniform in the vicinity of her private parts. She testified that the respondent removed his hand when she entered.
[152] This evidence is significant because it independently places the respondent and Learner A together in the staffroom and provides direct evidence of inappropriate physical contact.
[153] Learner B made important concessions under cross-examination. She accepted that she did not see penetration, did not see kissing, did not see what occurred before she entered the room, and did not see what occurred after she left. She also accepted that she did not see the respondent’s hand actually inside Learner A’s vagina.
[154] I accordingly do not treat Learner B as an eyewitness to penetration. Her evidence is confined to what she personally observed.
[155] Her concessions are nevertheless relevant to her reliability. She did not attempt to embellish her evidence by claiming to have witnessed conduct which she expressly accepted she had not seen. I accordingly attach material weight to her evidence concerning the physical contact which she actually observed.
[156] Learner B further testified that the respondent subsequently called her to a classroom, asked her not to report what she had seen because he would lose his job, and proposed a romantic relationship to her.
[157] She did not immediately accept the proposal. She sought time to consider it and thereafter disclosed the matter to her mother.
[158] Learner B’s mother was not an eyewitness to any of the alleged misconduct. Her evidence therefore cannot independently establish what occurred between the respondent and either learner.
[159] Her evidence is nevertheless relevant to the chronology of the complaint. She testified that Learner B disclosed the alleged romantic proposal and that she thereafter contacted the respondent and became involved in discussions concerning the complaint.
[160] She testified that the respondent said that he was sorry during a telephone conversation. I attach limited weight to this as an admission because the evidence does not establish precisely what the respondent intended by the statement or what conduct he was acknowledging.
[161] Mr Xaba was likewise not an eyewitness to the alleged misconduct. His evidence is principally relevant to the chronology of the complaints and the manner in which they came to the school’s attention.
[162] His evidence confirms that the initial complaint concerned Learner B and the alleged romantic proposal. He further testified that the respondent approached him after becoming aware of the complaint and that a meeting subsequently took place at the school.
[163] Mr Xaba also testified that Learner A initially denied the allegations and that questioning continued because those questioning her believed that she had not disclosed everything.
[164] I therefore treat the evidence of Learner B’s mother and Mr Xaba primarily as evidence corroborating the chronology and reporting of the complaints, rather than as independent evidence of the underlying sexual conduct.
[165] The respondent gave a comprehensive denial. He denied proposing a romantic relationship to either learner and denied kissing, touching, sexually assaulting or having sexual contact with Learner A.
[166] His defence rests principally on the contention that the allegations were fabricated and that Learner A’s subsequent allegations were influenced by the manner in which she was questioned.
[167] The respondent suggested that Learner B’s mother had a financial dispute with him and that Mr Xaba had previous disagreements or hostility towards him. These circumstances were advanced as possible motives for fabrication.
[168] Learner B’s mother denied the alleged financial motive and Mr Xaba denied the alleged hostility. More importantly, the respondent did not place before me sufficient independent evidence demonstrating a dispute of such substance that it would make the fabrication of serious sexual allegations probable.
[169] I have not rejected the respondent’s defence merely because it is a denial. He was entitled to put the employer to the proof of its case. His version must, however, be tested against the evidence supporting the employer’s case and the objective probabilities.
[170] The respondent accepted that he gave Learner A R5. His explanation was that the payment was connected to the learners’ stokvel arrangement.
[171] The payment does not, standing alone, establish sexual misconduct. I have nevertheless considered it as a surrounding circumstance. Having regard to Learner A’s evidence concerning the money, the respective contributions to the stokvel and the respondent’s explanation, I find Learner A’s version concerning the payment more probable than the respondent’s explanation.
[172] The respondent also accepted that he was present with Learner A and Learner SK in the staffroom while looking for a missing register.
[173] This is an important objective fact. The respondent’s presence with Learner A in the staffroom is not dependent upon Learner A’s credibility. It is admitted by the respondent himself and corresponds with the location identified by Learner B.
[174] The respondent relied upon the openness of the school environment, the movement of learners and educators and the visibility provided by classroom windows. These circumstances create a possibility that inappropriate conduct could have been observed. They do not, however, establish that such conduct could not have occurred.
[175] Learner B’s evidence is important in this regard. She entered the staffroom and observed the respondent’s hand underneath Learner A’s uniform. The evidence therefore demonstrates that the respondent and Learner A could be together in circumstances in which inappropriate conduct could occur before another person entered.
[176] I have also considered the respondent’s evidence concerning his reputation, community involvement, long service and positive relationship with learners. These are relevant considerations, but they cannot determine whether the particular misconduct occurred.
[177] The competing versions must ultimately be assessed cumulatively.
[178] The first significant probability is that the respondent and Learner A were together in the staffroom. This is admitted.
[179] The second is that Learner B independently observed the respondent’s hand underneath Learner A’s uniform in the vicinity of her private parts. This materially weakens the respondent’s complete denial that any inappropriate physical contact occurred.
[180] The third is the chronology of the complaints. The evidence establishes that Learner B’s complaint concerning the alleged romantic proposal arose before Learner A’s more serious allegations were fully disclosed.
[181] This chronology is significant because it weakens the proposition that the entire matter was manufactured as a consequence of the later questioning of Learner A.
[182] The fourth consideration is the absence of a substantiated motive for fabrication. The alleged financial dispute involving Learner B’s mother and the alleged hostility involving Mr Xaba were not sufficiently established to render fabrication the more probable explanation.
[183] The fifth consideration is Learner A’s initial denial. As already stated, this is a material weakness. I have not disregarded it. It must, however, be weighed against her explanation of fear and the authority relationship between herself and the respondent and against the independent evidence supplied by Learner B.
[184] The sixth consideration is the possibility of contamination through questioning. I have found insufficient evidence to establish that the substance of Learner A’s later allegations was supplied to her by the persons questioning her.
[185] The seventh consideration concerns the allegation of penetration. Learner B did not witness penetration. There is no medical evidence before me establishing penetration, and Learner A could not identify precise dates for the alleged incidents.
[186] I therefore approach the allegation of penetration with particular caution. I do not infer penetration merely from the fact that inappropriate physical contact has been established.
[187] In Mbeja v Head of Department for the Department of Education (Eastern Cape) and Others (D138/2024) [2026] ZALCD 17 (30 March 2026), the Labour Court considered an educator who was charged under section 17(1)(b) for sexually assaulting learners through conduct including inappropriate touching and forced kissing. The Court confirmed that the finding of sexual assault was grounded in the actual evidence concerning inappropriate touching and forced kissing. It further held that an erroneous reference in the award to sexual intercourse did not render the outcome unreasonable because the finding of sexual assault was supported by the evidence actually led.
[188] The eighth consideration is the respondent’s explanation concerning the R5 payment. For the reasons already given, I find Learner A’s account concerning the payment more probable. I treat this as a corroborative circumstance, rather than as proof of the sexual misconduct itself.
[189] The ninth consideration is Learner B’s evidence concerning the romantic proposal. Her account was followed by a disclosure to her mother and was subsequently brought to the attention of the school. This provides contemporaneous evidence of the complaint and is inconsistent with the proposition that the allegations only arose after Learner A was questioned.
[190] The tenth consideration is that the respondent did not challenge certain material aspects of the employer witnesses’ evidence by putting his contrary version to them during cross-examination. I have considered this as part of the overall assessment of the evidence, but it does not alter the allocation of the onus.
[191] I have considered the evidence of all the witnesses, the documentary evidence placed before me, the respective versions of the parties and the arguments advanced. I have assessed the evidence holistically and have not approached any witness’s evidence on an isolated basis.
[192] Having weighed these factors together, I find that the employer’s version is more probable than the respondent’s version in respect of the material conduct established by the evidence.
[193] I have not reached this conclusion because Learner A is a child, because the allegations are serious, or because the respondent is an educator. I have reached it because the material evidence, considered together with the independent evidence of Learner B, the admitted presence of the respondent and Learner A in the staffroom, the chronology of the complaints and the probabilities arising from the evidence, supports the employer’s version.
[194] Conversely, I have not ignored the weaknesses in the employer’s case. Learner A’s initial denial, the absence of precise dates, inconsistencies concerning aspects of the school environment, the absence of medical evidence and the limited scope of Learner B’s observation have all been taken into account.
[195] These weaknesses do not, however, collectively render the employer’s version less probable than the respondent’s denial.
[196] I accordingly find that the employer has established, on a balance of probabilities, that the respondent engaged in inappropriate sexual conduct towards Learner A and made romantic advances towards Learner B.
FINDING
[197] Sexual assault involving a learner is addressed under Section 17(1)(b) of the EEA, which entails serious misconduct and stipulates that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee.
[198] According to legal definitions, assault refers to an unlawful and intentional act that either impairs another person’s bodily integrity or creates a reasonable belief that such harm is about to occur. Therefore, sexual assault is a form of assault that occurs in a sexual context, where the victim’s sexual integrity is either violated or threatened.
[199] Misconduct in terms of section 18(1)(q) 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.
[200] The critical evidence concerning the physical conduct is that of Learner A and Learner B.
[201] Learner B directly observed the respondent’s hand underneath Learner A’s uniform in the vicinity of Learner A’s private parts. She did not observe penetration and I make no finding that her evidence establishes penetration.
[202] Her evidence nevertheless establishes direct, non-consensual and sexually inappropriate physical contact with Learner A, and materially corroborates Learner A’s account that the respondent engaged in sexual touching.
[203] Learner A further testified that the respondent kissed her and engaged in sexual touching, and that he penetrated her. Learner A could not provide precise dates for the alleged incidents, she initially denied the allegations, there is no medical evidence establishing penetration, and Learner B did not witness penetration. Nevertheless, the question remains whether Learner A’s evidence concerning the particular sexual conduct, when considered with the surrounding evidence and probabilities, is more probable than the respondent’s complete denial. I find that it is.
[204] The respondent’s admitted presence with Learner A in the staffroom, Learner B’s direct observation of inappropriate sexual touching, the chronology of the complaints, the absence of a sufficiently established motive for fabrication, the evidence concerning the R5 payment and the overall probabilities materially support the employer’s version.
[205] Most importantly, the finding of guilt on Charge 1 does not depend upon an unsupported inference or upon evidence which was not placed before the enquiry. It rests upon the evidence actually led concerning the respondent’s sexual conduct towards Learner A.
[206] I am satisfied, on a balance of probabilities, that the respondent committed an act of sexual assault against Learner A as charged.
[207] The respondent is accordingly found guilty of Charge 1, in contravention of section 17(1)(b) of the Employment of Educators Act 76 of 1998.
[208] Charge 2 alleges that the respondent, while on duty, conducted himself in an improper, disgraceful or unacceptable manner by proposing love or a romantic relationship to Learner A and Learner B.
[209] In respect of Learner B, I accept her evidence that the respondent proposed a romantic relationship to her. Her evidence was followed by a disclosure to her mother and was subsequently reported to the school. I find her version more probable than the respondent’s denial.
[210] In respect of Learner A, I accept her evidence that the respondent told her that he loved her and referred to a relationship between them. This evidence is considered together with the other evidence concerning the respondent’s inappropriate interaction with her.
[211] An educator proposing or cultivating a romantic or sexual relationship with a learner is fundamentally inconsistent with the professional boundaries applicable to educators. The position of authority occupied by the educator makes such conduct particularly serious.
[212] I accordingly find that the employer has established Charge 2 on a balance of probabilities.
[213] The respondent is therefore found guilty of Charge 2, in contravention of section 18(1)(q) of the Employment of Educators Act 76 of 1998.
[214] I have reached these findings after considering the evidence holistically and applying the probabilities enquiry in Stellenbosch Farmers’ Winery. I have neither accepted the learners’ evidence merely because they are learners nor rejected the respondent’s evidence merely because he denied the allegations.
[215] The employer has accordingly discharged the onus of proving both charges on a balance of probabilities.
[216] In Mudau v MEIBC & Others [2013] 13 ILJ 663 (LC), the Labour Court recognised that in a section 188A enquiry the arbitrator is required to determine whether the employee committed the misconduct with which he or she was charged and, if so, whether there is a fair basis for termination of the employment relationship. The question of sanction therefore falls to be considered separately.
SANCTION
[217] In determining the sanction, I have considered the provisions of Item 3 of Schedule 8 to the Labour Relations Act, together with the principles set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC). I have weighed the nature of the misconduct, the position occupied by the respondent, the impact of the misconduct, the interests of the employer, the respondent’s personal circumstances, service and the possibility of corrective discipline.
[218] The misconduct is particularly serious because the respondent occupied a position of trust over vulnerable learners. Educators stand in loco parentis and are expected to maintain strict professional boundaries at all times. They are expected to safeguard learners’ physical and psychological well-being and to provide a safe educational environment. The employee had a legal and moral obligation to safeguard and protect Learner A and Learner B and not breach the trust placed in him as in loco parentis. The respondent’s conduct fundamentally undermined the trust inherent in the educator-learner relationship.
[219] In terms of Section 17 of the EEA, it is mandatory that an educator convicted under this section must be dismissed. There is no discretion to impose a lesser sanction than dismissal. Dismissal is a statutory sanction.
[220] In the circumstances, dismissal is fair, appropriate and justified. The respondent is accordingly dismissed.
AWARD
[221] The employee, M.P. Nzimande, is found guilty on Charge 1 in terms of contravention of section 17(1)(b) and guilty on Charge 2 in terms of section 18(1)(q) of the Employment of Educators Act.
[222] The employee, Mr M.P. Nzimande is dismissed with immediate effect.
[223] The employer, the KZN Department of Education must inform the employee, Mr M.P. Nzimande of his dismissal immediately on receipt of this Award.
[224] Mr M.P. Nzimande is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[225] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr M.P. Nzimande’s name as contemplated in section 120 in Part B of the register.
[226] The ELRC must also send a copy of this Award to the South African Council for Educators (SACE) to consider revoking Mr M.P. Nzimande’s SACE certificate.

ELRC Commissioner: P. Jairajh