IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON

Case No: ELRC76-26/27GP

In the matter between

GAUTENG DEPARTMENT OF EDUCATION Applicant – Employer

and

MAGEZI JERRY MALULEKE Respondent – Employee

ARBITRATOR: Adv. S Fourie
HEARD: 26 June 2026 and 12 -14 August 2026.
FINALISED: (Closing statements 21 August 2026)
DELIVERED: 03 September 2026

INQUIRY BY ARBITRATOR – ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The Inquiry by Arbitrator, was heard at the Gauteng Department of Education in Johannesburg on 26 June 2026 and 12 to 14 August 2026. The Employee, Mr. Magezi Jerry Maluleke (“Maluleke”), was present and represented by Mr. Moses Mohlabi from SADTU. The Employer was represented by Mr. Ramaite Kgatle (“Kgatle”), its ELR practitioner also the Initiator. The witnesses’ identities are known to the parties. Ms. Edna Shibisi served as intermediary after Ms. Gina Wentzel assisted on the first day of the Inquiry. Ms. Joyce Makgatho served as the interpreter. The proceedings were conducted in English and Setswana. I kept handwritten notes and were also digitally recorded.
2. It was indicated to the parties at the commencement of the Inquiry, that at the conclusion of the process, inclusive of their closing arguments, they must address the Commissioner on whether the educator is fit or unfit to work with children in terms of section 120 of the Children’s Act.

POINTS IN LIMINE

3. None.

THE ISSUES TO BE DETERMINED

4. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Mr. Maluleke pleaded not guilty to the allegation listed hereunder. I am required to determine whether the employee is guilty of the charges levelled against him and if so, to determine the appropriate sanction.
5. Parties hereto submitted a signed pre-arbitration minute which was signed by the parties on 23 April 2026. Maluleke contends that the two allegations arise from the same incident and that charging them separately constitutes impermissible duplication. He argues that this unfairly exaggerates the seriousness of the allegations. This issue was, however, not included in the per-arbitration minute.

BACKGROUND TO THE DISPUTE

6. The Employee, Mr. MJ Maluleke (Persal no: 21796980) is employed by the Department of Education of Gauteng at Harry Gwala Primary School as a PL1 educator. The charge against the Employee reads: Allegation 1 – It is alleged on or about 17 February 2025 while on duty at Harry Gwala Primary School you sexually assaulted a learner, Learner B by touching her on the buttocks. In view of your actions, you are thus charged with misconduct in of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998 as amended. Allegation 2 – It is alleged on or about 17 February 2025 while on duty at Harry Gwala Primary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you pulled Learner B by her trousers and asked her to kiss you. In view of your actions, you are thus charged with misconduct in of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998 as amended.

SUMMARY OF THE EVIDENCE

7. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 18 pages). The Employee submitted a bundle of documents (Bundle ‘EE’ 1-2 pages).

The Employer’s case

8. Learner A (age 11), testified under a solemn affirmation after it was established, she could distinguish between right and wrong. At school mam Ntanda asked them (Learner B and Learner C) to take textbooks to his class where they found Maluleke in class (4C) who was busy with his phone sitting at the table. They asked him if they could place the books which he agreed to. When they were done Maluleke called Learner B who went to him and he touched her buttocks whilst he asked her things with her responding to him. After that, Learner B asked them if they saw that Maluleke touched her buttocks which they confirmed. Learner A told her to speak to her mother about it or a teacher. Learner A agreed that she would tell her mother.
9. Learner A further stated that there were other learners in the class, but not all saw what happened. The ones who saw what happened said Ha! Sir with Maluleke responding to say: What? Learner A feels that Maluleke sexually abuses girls. Learner A informed no one, but Learner B told Sir Sithole and her mother.
10. In relation to the second allegation, Learner A responded that ‘illegally’ touched Learner B’s buttocks.
11. During cross examination, he stated that they took many textbooks to 4C and did so many times. He was with Learner B and Learner C. He was still in the class in front of the desk when Maluleke called Learner B. To the question whether the touching was intentional, Learner A responded that he wanted to do it and that it was not the first time he touched her and in grade 4 and other children. Learner A stated that Maluleke would touch whilst talking with you.
12. To the notion how Learner B reacted, Learner A stated that when they went out of the class Learner B said Ha! Sir touched my buttocks it is not good because she is a girl and he is a boy. She did not want to cry but was mad. He could not recall how many learners there was in the class, but they were writing. The ones who saw it said Ha! And Maluleke said What? Learner A stated that Learner B was on Maluleke’s left side when it happened. Maluleke dropped the call before he touched Learner B.
13. To the notion whether he saw Maluleke to have pulled Learner B by her trouser, Learner A responded that he pulled her slowly to the side and touched her buttocks. To the question whether Learner A saw Maluleke to have kissed Learner B, he responded that he did not see that part. To the notion whether the pulling was rough, Learner A responded that it was smooth. He also responded that Maluleke was seated. It was not the first time and did so with another Learner (called “L..”) which he saw at the home language period. Learner A denied the notion that Maluleke assisted to deliver the books to the class.
14. Learner B (age 11), testified under a solemn affirmation after it was established, she could distinguish between right and wrong. In relation to the first allegation, Learner B testified that Mam Ntanda sent them to take textbooks to class 4 E. Sir Maluleke was busy on the phone when they placed the books on the table. Maluleke grabbed her by the hand and spanked her on the buttocks telling her to kiss him on the cheek – showing the right cheek. She then shifted to the left. She asked Leaner A and Learner C if they saw what Maluleke which they did and they said that he must be reported. They went to report the incident at Thole who was busy. She reported it to her mother who said she would visit the principal. The following day she reported it to Thole and the Deputy Principal who reported it to the principal.
15. She stated that there were other learners in the class sitting at a table next to Maluleke who responded Ha! Sir to which Maluleke responded for them to shut up and write. Maluleke was seated at the back of the class facing the front.
16. She stated that it left her feeling painful. She would not agree with anyone who would say it did not happen because there are witnesses who saw what happened. For the touching was not by mistake and was intentionally. She says so because if the touch was a mistake, it would not have been for a long time.
17. In relation the second allegation, Learner B showed how Maluleke pulled her closer telling her to kiss him on the chin – showing the right cheek. She then shifted away from him.
18. Referring to a written document from Maluleke (on EE1) where Maluleke wrote that After some months Mam Mokwena approached and told me that Learner B said I have begun touching her cheeks again, Learner B responded that Mam Mokwena is a teacher but denied having told her about the incident. Learner B agreed to what Maluleke wrote about her seeing him in a vehicle with three other occupants calling her. She stated that she did not know the others in the vehicle with Maluleke. She could not recall the date but was with another friend on their way to buy fat-cakes which she reported to Mam Mokwena.
19. During cross-examination, she responded that she knows Learner A but not friends with each other. To the notion that Learner A contradicts her version in relation to the class where Learner A referred to class 4C and she to 4E, Learner B responded that it was class 4E stating that they even argued if he (Learner A) does not remember. She stated that Mam Ntanda sent them to class 4E.
20. Referring to the allegation, she responded that they were asked to take the textbooks where they found Maluleke in the class on the phone. He tried to pull her by the pants and to kiss her so she shifted away but he pulled again and said she must kiss him on the cheek (showing the right cheek). She stated that Maluleke was standing behind the desk when he called her which was at the back of the class. There were other learners in the class.
21. She stated that they carried textbooks only once to the class but not sure how many books each one of them carried. To the notion that Learner A version that they carried it more than once but many times, she responded Learner A was usually sent because he is a male prefect which was before she became a prefect. She and Learner A was tasked to carry the books, and they asked Learner C to help them. She agreed that Mam Ntanda did not send them one by one but all three at the same time. Before she took the textbooks to 4E, she attended the class of Mr. Sithole.
22. She denied it to have been easy for Maluleke to touch her on her neck or shoulder because she was standing and he was seated. She responded that she wore school pants and a jacked with the jacket hanging just below her waist. To the notion that Maluleke could have touched her jacket and not her buttocks, she responded that she would have felt it. She denied the notion that Maluleke fondled with her but pulled her by the pocket and touched her buttocks with his left hand. She stated that he said nothing other than “come here baby girl”, because he was busy on the phone.
23. She responded that she did not report it to the principal because she was supposed to report to her class teacher who could report it to the principal. She agreed that she told her mother after she talked to Mr. Sithole. She told her mother the same day after the incident who came to School. At first, she was not felt bad about what happened but is better now. She agreed to have discussed the case with other learners.
24. Referring to the second paragraph of EE1, she stated that she was not present when Maluleke uttered the words mentioned. She could recall the story about when Maluleke called her when inside the car, but she ran away. She cannot recall well but the vehicle was Silver in colour. The vehicle was not driven by Maluleke but another person, someone dark.
25. To the notion how other learners responded when Maluleke spanked her, she responded: Hmm and Ha Sir with Maluleke responding shut up and write.
26. Learner C (age 11), testified under a solemn affirmation after it was established, he could distinguish between right and wrong. He stated that Sir called Learner B whilst he and Learner A was busy at the cupboard and another learner busy to clean the chalk board. Learner B went to Sir who touched her buttock. He then told Learner A not to look but to pretend looking as if he was not looking. Learner A then asked him if he saw it which he confirmed. He then helped Learner A to open the cupboard. Thereafter they went back to class. Sir then asked them what happened because he saw Learner B was crying so they told him that Maluleke touched her buttocks. Thereafter no further discussion took place as they were told to be seated.
27. Learner C stated that the incident made him to be scared because it was wrong. He denies anyone’s notion that the incident did not happen because it did and he is telling the truth.
28. For Learner C, the incident occurred in class D.
29. During cross examination, he stated that the reason he was there is to testify for Learner B. He stated that they took the textbooks to Maluleke’s class 4D. He denied Learner A version to be 4C, but to Learner B’s version of 4E, he agreed to and apologised confirming it to be 4E. He denied the notion that he is lying and recall it to be 4E. The reason to go to the class was they were asked to take the textbooks to 4E. They were sent there by Maluleke but to Learner A’s version that Mam Ntanda sent them, Learner A remained silent for a while then agreed to have been sent by Mam Ntanda. When asked again what the reason is to change his answer, Learner C 4 remained silent. When asked if he do not remember, Learner C responded that he does not remember. To the notion that he lies, Learner C remained silent but then stated that he forgot and apologised saying he is sorry.
30. To the notion where Maluleke told them to take the textbooks to, Learner C responded that Mam Ntanda told them to take the books to Maluleke’s class. They took the books once and then returned to their class. Learner C did not agree with Learner A’s version that it was more than once. He stated that he tells the truth and can be confirmed by Learner B. Learner C denied that they have discussed the case, but they told Learner B to stop crying then sat down.
31. Learner C explained that at the class where they took the textbooks, Maluleke called Learner B, but she did not want to go so he (Learner C) told her Sir is calling her. Then Learner A asked him to open the cupboard, and it was when he saw Sir’s hand touching Learner B. He then told Learner A to look but not to be obvious.
32. Learner C stated that there were other learners in the class busy writing. He stated that when the others saw what happened they said Ha! And “Yooo”. When it happened, he was behind the table facing. After the incident, Learner A and B went out before him.
33. Learner A stated that Learner B and Maluleke were close to each other. Maluleke did not kiss Learner B and only touched her buttocks with his right hand. Learner C did not agree with Learner B’s version that Maluleke touched with his left hand. Learner C did not agree with Learner A’s version that Maluleke spanked her but touched her. His hand touched her – demonstrating it going downwards. He cannot recall which side, but he recalls him touching her but not kissing her. In relation to the table, Learner B was taller than Maluleke. It was not easy to touch Learner B anywhere because he waited for her when he called her and when he, Learner C turned his head, he could see Maluleke touching her.
34. Learner C remained silent to the version that his version differs with Learner B whose version is that Maluleke pulled her closer. Learner C also remained silent to the notion that they are lying and fabricate stories against Maluleke. (Learner C showed faces and made moves during these notions to him). Learner C denied having discussed the case with Learner B parents and saw her mother at the sitting for the first time. He stated that Learner B did not scream and kept quiet but cried when they got to the other class. Learner C remained silent to the notion that he was coached to tell lies.
35. Sophy Ngwenya (‘’Ngwenya’’) testified under oath. She is the mother of Learner B. On the day Learner B went to school as normal. When she returned, she became aware Learner B was not the same. She told her that Mam sends her and two friends to take books to Maluleke’s class. Maluleke was on the phone. When finished, when she told him about the textbooks it was when he touched her buttocks grabbed her hands telling her to kiss him here (showing the right cheek). She asked her what she then do, to which Learner B responded that she went to the teacher who send her, but the teacher was busy and not able to talk to her. She does not know the teacher but apparently has retired. Ngwenya reported the incident to the principal.
36. She stated that Maluleke came to her place of residence. He told her that he did not do what was alleged and apologised. She asked him what the reason was to come to her house to which he responded that he wanted to speak as adults. She told him that he was not supposed to be at her house. Maluleke then asked to see Learner B, but she refused. She stated that his facial expression was that he was scared. The main reason for his visit he said was that he wanted the case not to go further. He also said that he would do anything for the case not to go further then she told him to leave her house.
37. During cross examination, she stated that it must be reported to the Department. For her she is sure about Learner B’s explanation because she does not lie. Referring to the reporting letter on ER1 using the word inappropriate, she responded that she reported to the principal that Learner B told her that Maluleke touched her buttocks and grabbed her hand asking her to kiss him on the cheek.
38. To the notion that Learner B’s version she did not state about Maluleke grabbing her hand, Ngwenya responded that it is what she told her.
39. She stated the reason Maluleke came to her house on the Sunday early in the morning waking her up. This was after the incident during the week and was for the case not to go further. He said that he came to apologise because his work was in trouble and might lose his employment. She stated that Maluleke said he would do anything for the case to be withdrawn. He wanted to speak to Learner B, but she refused.

The Employee’s case

40. Magesi Jerry Maluleke (Maluleke), testified under oath. He denied having touched Learner B’s buttocks. He knows Learner B and teaches her in 2024. In his 8 years as a teacher, he had never been accused of misconduct.
41. To the allegation levelled against him, he stated that he had no interaction with Learner B on 17 February 2025. He stated that after the English class in 5E, he was asked by the deputy principal to assist to carry books. Learner B was walking in front of him with her friend to 4C which was their class in 2024.
42. He denied that he pulled Learner B closer, touching her buttocks or spanked her. He also denied that he kissed her. He stated that he never met Learner B in 4E but went to 4C where he passed them and placed the books near the green board with them placing the books near the cupboard on the floor. He stated that Learner B was also asked to carry books by the deputy principal.
43. In the class, he told the girls, which made them to giggle and run away that, “this was our class – let’s just kiss and say goodbye”. Maluleke thinks that hearing the word kiss, they giggled and left him alone.
44. Maluleke has no idea what the reason would be for the learners to testify against him. For him, they fabricated the evidence against him because of them referring to different classes. He stated that they might have taken books to 4E and 4D, but he took books to 4C coming from 5E. He denied having been on the phone whilst at the desk as stated by Learner A and B and was from another class.
45. Referring to the first allegation, Maluleke stated that it was fabricated against him because after that day, Learner B continued to spread false accusations about him saying that he started again to touch her cheeks and to kiss her. He was so disturbed thinking there might be someone behind it. Learner B also went on saying he called her when he was with others in a vehicle.
46. To the notion whether Maluleke suspects someone, he responded that Learner B is a child and do not want to point to anyone but there may be people behind it because he was never at 4E and was also seated at a desk and not busy on his phone. He has no idea who to suspect being behind this. He stated that he cannot risk his career to do such things and is also a parent.
47. To the notion whether it was possible to pull Leaner B by her trouser without the rest of the class to see, Maluleke responded that he was not seated being asked to assist to carry books to 4C where they placed the books and they went out. The notion was repeated to which Maluleke responded that it is impossible due to the distance between the green board and the cupboard.
48. Maluleke denied Learner A’s version to have called Learner B responding that he did not call Learner B but spoke to both. He knows Learner A teaching him in 2024 but never saw Learner A on that day. He spoke to Learner B and her friend at 4C saying, “this was out class lets kiss it goodbye” because they would not return to the class.
49. Maluleke agreed to have visited Learner B’s house. This was after he was called to the office and served with a letter by Kgatle not able to remember the date. It did not sit well with him because he did not do it. He heard that Learner B’s mother came to the school, but he did not see her, so he went to her house on the Sunday to speak to her daughter to clear his name, but she was angry with him. He told her that whatever she heard, was all lies and he explained to her what happened. She responded that her child would not lie. He just tried to speak the truth to clear his name that he did not touch Learner B. He then left.
50. The reason he was scared was because it is normal for any person to be scared when accused of something you did not do. He promised nothing to Learner B’s mother for the case to go away and only asked her if he could speak to Learner B. He denied Ngwenya’s version that he visited her house early morning but was around 10:15 am leaving at around 10:30am.
51. Referring to EE, Maluleke’s story to Kgatle of what occurred after 17 February 2025, Learner B accused him calling her whilst inside a vehicle he used of a colleague (Mr. Gwaigwai) which he denied. Another colleague (Mokoena) approached him that Learner B told her that Maluleke started again to be touching her cheeks.
52. During cross-examination, Maluleke stated that he taught Learner B in 2025 in 4C having a good relationship being an obedient learner although she was a slow learner. He did not teach her in 2025. Maluleke responded that there are around eight male teachers at the school. To the notion that it is ironic saying that Learner B is slow and not teaching her in 2025, what the reason would be for her to fabricate accusations against Maluleke not being the only male teacher, he responded that he does not know. Maluleke denied the notion that he is the one who fabricates a story.
53. To the notion that three witnesses corroborating each other that Maluleke touched Learner B’s buttocks even though they have contradicted each other in relation to the class, Maluleke denied the allegation and that it was fabricated against him.
54. To the notion that Maluleke failed to rebut the three Learners corroborating evidence, he responded that he stated that Learner B was with another female Learner and not Learner A or C and that they did not find him in class 4D or 4E.
55. Referring to ER10, Maluleke being the author, it reads: “Dear Sir I acknowledge receipt of the Audi Letter dated 12/05/2025. I understand the seriousness of the allegations. Responding to the questions why I should not be charged is tantamount to incriminating myself in the ongoing or concluded investigation. I therefore elect to respond to the allegations levelled against me at the appropriate time and appropriate forum. Please note that I am not holding any stewardship position in the union I belong to…” The reason he wrote it was that after he received the Audi letter from Kgatle, he just wanted to tell that he did not do it and should not be charged. To the notion that such wording does not state that he did not do it, Maluleke responded that he said he must not be charged. To his wording where he stated that it is tantamount to incriminating himself and would respond at the appropriate forum being the current process, what the reason would have been to go the Learner B’s house, Maluleke agreed that the current process is the correct time and forum but that it was just to clear his name.
56. Maluleke denied the notion that he went to Learner B’s residence to bribe her not having the intention to clear his name in the current process. To the notion why he did not invite the parent to the school in the presence of the principal, he responded that he did not see her at school. He agreed that it is not the norm and deviated from the norm to go to a parent’s house, but after he received the Audi letter on the Friday, but he could not wait till the Monday to clear his name, so he went to her house on the Sunday.
57. To Ngwenya’s version that Maluleke said to her that they must speak as adults, Maluleke responded to speak as parents because he could lose his job and the future of his children. He believed so because of the lies fabricated against him.
58. In relation to EE1 where Learner B approached Mam Mokoena telling her about him to begin touching her and called her whilst in a vehicle, which is all lies as well at the accusations against him. Referring to ER10, Maluleke responded that he did not agree with the allegations levelled against him which continued afterwards being the treason he wrote the letter to the Labour Department to investigate it properly.
59. Maluleke denied that he testified that there were no learners in the class and agreed to what he wrote in EE1 paragraph two that, when he entered the class there were five learners. To the notion that the witnesses corroborated each other that there were other learners in the class, but Maluleke stated that there were no learners, Maluleke responded that the witnesses referred to different classes because in 4C there were four or five learners. To Maluleke’s version that it could not have been two learners who placed the books down but five learners in the classroom, he responded that it was four or five.
60. Maluleke stated that Mokoena and Sithole did not want to testify although they approached him being concerned about the lies spread about him. He also did not call Gwaigwai to testify, whose vehicle is known to Learner B and think she may have referred to another vehicle. For Maluleke, it was not necessary to call Gwaigwai as a witness because he never stopped near Learner B.

SUBMISSIONS IN ARGUMENT

61. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances). The submissions were received and carefully considered It will however not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.

ANALYSIS OF EVIDENCE AND ARGUMENT

62. Written arguments inclusive of aggravating and mitigating evidence were submitted. I do not intend to summarise it here in detail. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. The onus is on the Employer to prove the allegations levelled against the Employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee is guilty of the allegation levelled against him. The charges read: Allegation 1 – It is alleged on or about 17 February 2025 while on duty at Harry Gwala Primary School you sexually assaulted a learner, Learner B by touching her on the buttocks. In view of your actions, you are thus charged with misconduct in of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998 as amended. Allegation 2 – It is alleged on or about 17 February 2025 while on duty at Harry Gwala Primary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you pulled Learner B by her trousers and asked her to kiss you. In view of your actions, you are thus charged with misconduct in of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998 as amended.
63. It is common cause that the allegations concern Learner B, who was approximately 10–11 years old at the time. There was a textbook-delivery involving learners and Maluleke on the relevant day. Maluleke visited Learner B’s home after receiving the Audi letter.
64. Maluleke pleaded not guilty to both allegations.

Substantive Fairness – whether the alleged incidents took place –

65. I am guided by the 2025 Code of Good Practice on Dismissal issued in terms of the Labour Relations Act 66 of 1995, as amended (“the Code”). The relevant enquiry is whether the Employee contravened a rule regulating conduct in, or of relevance to, the workplace. In this matter, the alleged misconduct is classified under sections 17(1)(b) and 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended (“the EEA”).
66. Maluleke pleaded not guilty to the allegations levelled against him. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities – see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, – see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
67. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail ” (at 14I – 15E par 5 per Nienaber JA)
68. The charge against Maluleke involves some form of sexual misconduct in relation to Learner B being the age of 10 at the time during 2025. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognized that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. This case has a different factual basis which allegedly did not take place behind closed doors. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence – see Woji v Santam Insurance Co Limited (A) at 1028B – D. I have indeed approached the Learners’ evidence with caution.

Allegation 1 – The textbooks –

69. The textbook evidence should be separated from the central allegation of touching. The discrepancies concerning the textbooks and classroom are relevant because the Maluleke relies on them to deny that he was in the same classroom with Learners A, B and C. They are not necessarily decisive if the evidence otherwise establishes that the Employee interacted with Learner B and touched her.
70. Learners A, B and C consistently placed themselves together in delivering the textbooks. Learner B said Mam Ntanda sent all three together and that Learner C helped her and Learner A. Learner A likewise placed himself with Learners B and C. Maluleke’s version was that Learner B was with another female learner and not with Learners A and C. This is a material contradiction because, if Maluleke is correct, Learners A and C could not have observed the incident as they claimed. This point goes to the heart of the factual dispute which Maluleke failed to rebut by not questioning Learner B during cross examination about the other female Learner.
71. The references to 4C, 4D and 4E constitute an inconsistency concerning the precise location. However, the evidence does not establish that the learners’ ability to observe the interaction was impossible, nor does it explain whether the classroom designations were confused or used differently by the witnesses. The discrepancy reduces the weight of the evidence concerning the location but does not, destroy potential consistent evidence concerning the interaction between the Maluleke and Learner B. Maluleke’s defence is not merely that the touching did not occur, but that the three Learners were not with him in the relevant classroom labouring the other classes stated by the Learners in respect of 4E and 4D to be a material inconsistency which it was not.

In the classroom –

72. The learners generally corroborated each other that they were asked by Mam Ntanda to carry the books to the class with Maluleke seated in the classroom busy on the phone. Maluleke’s uncorroborated version is that he had been asked to assist with carrying the books by the deputy principal and was not on his phone which contradicts the Learners’ version. The textbook evidence presents a direct factual dispute about who sent the learners, Maluleke’s role, and whether he was using his cell phone already seated in the class. The learners’ version materially corroborated on the broad circumstances, while Maluleke’s version provides an alternative account but contains admissions placing him in the same textbook-delivery interaction with the Learners.
73. The conflict concerning the cell phone is more significant. Learners A and B independently described Maluleke as busy on his phone. Maluleke expressly denied this. Learner C did not appear to provide clear corroboration on the cell phone aspect. It is plausible that the deputy principal could have asked Maluleke to assist with carrying books and Ntando the Learners however Maluleke’s version explains his presence in the classroom and his involvement with the textbooks. The learners’ evidence is nevertheless consistent in placing Maluleke in the classroom during the textbook activity.
74. Maluleke’s version that Learner B was accompanied by another female learner, contradicts the evidence of the Learners placing them together and was not presented to the Learners especially Learner B. Maluleke failed to rebut his version of another female Learner with Learner B with Learners A, B and C’s presence in the class (4C) where the textbooks were taken to and admitted that he was present during a textbook-related interaction with learners, including Learner B.
75. On a balance of probabilities, I find that the learners’ evidence is more probable regarding the broad circumstances of the encounter. Their evidence that they were together delivering textbooks and that the Maluleke was present is materially corroborated. The cell phone evidence is accepted with some caution and is not essential to the finding of misconduct. Whether the Employee was using his cell phone or assisting with the books does not materially alter the conclusion that he was near Learner B during the relevant interaction. Maluleke’s version therefore confirms the opportunity for the interaction, although he disputes the nature of the conduct.

The nature of the conduct in the classroom –

76. The central issue is what occurred between Maluleke and Learner B in the classroom. The evidence must be assessed considering the contradictions, the corroboration provided by Learners A and C, and the inherent probabilities of each version.
77. Learners A, B and C generally corroborated that they were together in the classroom during the textbook-delivery. That Maluleke called Learner B or drew her attention and Maluleke touched Learner B’s buttocks with other learners in the classroom reacted. Learner B’s evidence is more detailed. She testified that Maluleke pulled or drew her closer, then he touched or spanked her buttocks, and he told her to kiss him on the cheek then she moved away.
78. Learner A testified that Maluleke called Learner B, he touched her buttocks after he pulled her slowly to the side and other learners reacted by saying “AAH”. Learner C testified that he saw Maluleke’s hand touching Learner B’s buttock but he did not see a kiss which rather directs to the Learner C’s honesty because he would not have observed a kiss because evidence directs that it was not a physical kiss but a request to be kissed on the cheek. Learner A and C corroborated each other not to have seen kissing which is consistent with the second charge. Learner B’s version is that Maluleke asked her to kiss him on the right cheek which corroborates with what Learner B’s mother, Ngwenya testified Learner B showed her mother the right cheek in a similar manner Learner B demonstrated the action.
79. Maluleke denied touching Learner B’s buttocks, pulling her, or asking her to kiss him. He admitted that he interacted with the learners in the classroom speaking to them together rather than calling Learner B separately. He made a statement involving the word “kiss”, which he described as a joke about “kissing and saying goodbye” to the class. Maluleke maintained that he was in class 4C assisting with carrying the books and not using his cell phone and the learners’ evidence was fabricated.
80. The learners’ evidence is not identical, but it is materially consistent on the central issue. All three learners placed Maluleke and Learner B together in the classroom. All three described physical contact with Learner B’s buttocks with Learners A and C described immediate reactions from other learners. This reaction of learners saying: “AAH and Yooo”, was in respect of the touching they observed which reactions was not denied by Maluleke, however Maluleke coupled another reaction of learners as a giggle, to be when he mentioned the word kissing when he said they can kiss the class goodbye. Maluleke’s version that he said to the learners kissing the class goodbye causing them to giggle, was not presented to any of the Learners. His explanation that the reference to kissing was a joke is possible, but it is less probable in the context of an educator addressing an 11-year-old learner or learners. The admission that he used the word “kiss” makes the version of the learners’ observation of the touching and then the request to Learner B to kiss him on the cheek more probable than a complete denial and his version of what he told the learners causing a giggle.

The house visit –

81. Maluleke admitted visiting Learner B’s home on the Sunday shortly after receiving the Audi letter. The visit is relevant to the assessment of credibility and probabilities, but it should not be treated as conclusive proof of guilt in isolation from the other evidence.
82. Ngwenya testified that: Maluleke visited her home early on a Sunday morning and he woke her up although she did not indicate a time but to state it was early. She stated that Maluleke denied the allegations and apologised wanting to speak “as adults”. He also asked to see Learner B. He said that he wanted the matter not to proceed and would do anything for the case not to go further also referring to the possible loss of his employment. Ngwenya refused to allow him to speak to Learner B and told him to leave.
83. Maluleke admitted the visit but stated that it occurred at approximately 10:15, not early in the morning. He had heard that Learner B’s mother had visited the school he had not seen her at school; He stated that he went to her home to clear his name and he told her that whatever she had heard was untrue explaining his version of events; He asked to speak to Learner B but did not promise anything for the case to go away. He was scared because he had been accused of something he did not do. He accepted that visiting the home was not the normal procedure and that he had deviated from the norm. The visit is objectively unusual and inappropriate in the circumstances of a serious allegation involving a learner.
84. Maluleke’s explanation that he wanted to clear his name is possible. However, the timing, the direct approach to the parent’s home, the request to speak to Learner B, and his fear to the possible loss of employment create a reasonable inference that he was attempting to influence Learner B or her mother, or at least to manage the complaint outside the formal process.
85. The “letter” (ER10) is Maluleke’s written response to the Employer’s initial notice of allegations or Audi letter’’. It is relevant to the assessment of credibility, and Maluleke’s understanding of the seriousness of the allegations, and the timing of his attempts to clear his name. The letter states that responding to the questions “why I should not be charged” would be tantamount to incriminating himself. He therefore elected to respond at the “appropriate time and appropriate forum”. The explanation that he was reserving his defence for the appropriate forum is possible. However, it is inconsistent with his subsequent conduct of visiting Learner B’s home to “clear his name”. If he truly intended to await the formal process, the home visit becomes questionable and more difficult to explain what his motive was in visiting Learner B’s home wanting to speak to Learner B herself. The home visit occurred shortly after the Audi letter, despite the letter’s statement that he would respond at the appropriate forum. This inconsistency weakens the Maluleke’s explanation that he was simply awaiting the formal process.
86. Applying the principles in Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie and NUM v Rustenburg Platinum Mine, I have assessed the credibility of the witnesses, the reliability of their evidence and the inherent probabilities of each version. The Employer proved its case on a balance of probabilities that Maluleke failed to refrain from improper physical contact with Learner B. It therefore flows that the Maluleke’s case is less probable. In S v Mokoena 2014 (2) SACR 316 (SCA), the Supreme Court of Appeal emphasized the importance of corroboration in sexual offence cases. The Court held that the evidence of a single witness can be sufficient to prove guilt, but corroboration on material points strengthens the case. This case is relevant because the Employer’s case relies on the corroboration between Learners A, B and C on the central issue of touching. I find Maluleke guilty to both the allegations levelled against him and that he contravened offences in terms of Section 17(1)(b) and Section 18 (1) (q) of the Employment of Educators Act 76 of 1998.
87. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). I am satisfied that Employer proved on a balance of probabilities that Maluleke has irreparably destroyed the relationship of trust with the finding of not guilty to both the allegations.
88. In relation to the first allegation, I find it probable that Maluleke touched Learner’s buttocks on the day in question. Such conduct is an act of sexually assault and an offence in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 read with section 3.9 of South African Council of Educators Act 31 of 2000.
89. Having held that Maluleke misused his position as teacher, on a balance of probabilities has made himself guilty of the allegations levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
    “Everyone has inherent dignity and the right to have their dignity respected and protected”
    “Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
    “A child’s best interest is of paramount importance in every matter concerning the child”
    ‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.
90. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also consider the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction. Having held that Maluleke is guilty of sexual harassment as defined in section 17(1)(b) of the Employment of Educators Act, in relation to charge 1, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 1 stand. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to touch 10- or 11-year-old Learner’s buttocks and to tell her to kiss him, is improper and disgraceful which constitutes serious misconduct. Adults are expected to help protecting all children from sexual abuse in any form. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa now over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amount to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
91. After having committed the acts of misconduct, the refusal by an employee to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25: “Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”
92. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner cannot be trusted, especially when they in denial.
93. I am satisfied that Employer has succeeded in proving on a balance of probability that Maluleke has irreparably destroyed the relationship of trust and made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.

AWARD

94. In the premises, I find summarily dismissal of Maluleke from the employment of the Gauteng Department of Education with immediate effect.
95. Mr MJ Maluleke is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005.

The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr MJ Maluleke is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

96. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. MJ Maluleke has sexually harassed the Learner by touching her buttocks and telling her to kiss him on the cheek.

Adv. S Fourie
ELRC Arbitrator
Gauteng