IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
CASE NO.: ELRC 1064-25/26GP
In the matter between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND
PRECIOUS NHLAPO EMPLOYEE
        
Arbitrator:		   Mmamahlola Gloria Rabyanyana	
Heard: 08 May 2026, 12 June 2026 and 03 August 2026  
Closing Argument: 11 August 2026
Mitigating / Aggravating Factors:11 August  2026
Date of Award: 03 September 2026	
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Inquiry by Arbitrator.
         
                                                          
AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held on 08 May 2026, 12 June 2026 and 03 August 2026 virtually. Mr. Musa Ndlovu represented the employer. Mr. Bongani Ndlovu, a NATU union official, represented the educator. The proceedings were recorded digitally. The employer’s bundle is marked ‘E’. The Educator did not present documentary evidence.

ISSUE TO BE DECIDED

2. I am required to determine if the Educator had committed a sexual assault offence against a learner as proffered by the Employer. If I find in favour of the Employer, I will determine the appropriate sanction.
3. The educator disputes touching the learner and kissing her on the mouth.

ALLEGATIONS PROFERRED AGAINST THE EMPLOYEE

4. The Employer levelled three counts of misconduct against the employee in the following:

Allegation 1

“It is alleged that, between January and April 2025, you had a sexual
relationship with The Learner, who is a Grade 12 learner at The Glen High School
where you are an educator”.

In view of the above, you are charged with misconduct in terms of section 17.1(b) of the Employment of Educators Act 76 of 1998 as amended.

Allegation 2

“ It is alleged that on or around March 2025, or any date incidental thereto, while on duty at The Glen High School, you conducted yourself in an improper and unacceptable manner in that you sexually harassed The Learner by sending him a nude picture.

In view of the above, you are charged with misconduct in terms of section 18.1(q) of the Employment of Educators Act 76 of 1998 as amended.

Allegation 3

It is alleged that on or around March 2025, or any date incidental thereto, while on duty
at The Glen High School, you unjustifiably prejudiced the administration, discipline or
efficiency of the department in that you sent an SBA assessment to The Learner, a
Grade 12 learner at the school, prior to the scheduled writing of the assessment

In view of the above, you are charged with misconduct in terms of section 18.1(q) of the Employment of Educators Act 76 of 1998 as amended.

EVALUATION AND SUMMARY OF EVIDENCE

4. The following issues are common causes between the parties:

4.1 The Educator has been employed at Glen High School since 2019;
4.2 She is the Departmental Head for Mathematics and Science;
4.3 The educator knows the learner.

5. Ms Caroline Wendy Nel testified she was the principal of the school at the time the incident occurred in 2025. She has since retired. During June 2025, a Grade 12
   learner, The Learner, reported to her that he had been in a sexual relationship with
   Ms Nhlapho. The relationship commenced in January 2025. She asked him to write a
   statement about the incident, which he submitted. He shared WhatsApp screenshots
   between him and Ms Nhlapo with a naked body. She requested that the authenticity of
   the WhatsApp communications be verified.
6. She requested Ms Nhlapo to provide a statement to The Learner’s allegations, which she did during June 2025. She said she recognised her hand in the nude picture. The WhatsApp communications exchanged between him and Ms Nhlapo over several months were not sexual. However, she found it absurd that it continued outside the school and they were inappropriate. No policy prohibits communication between educator and learner outside school. The nature of communication is an issue.
7. The Learner later retracted his statements and the allegations against Ms Nhlapo. He said he lied and wanted to hurt Ms Nhlapo as revenge because she was refusing to take the relationship to a deeper level. During the examinations, he reinstated the allegations. He said he could not concentrate because she was invigilating the exams.
8. The communications raised a concern regarding a School-Based Assessment (SBA), as the learner pressurised Ms Nhlapo to provide him with the question paper and memorandum on the morning before it was scheduled to be written.
9. She provided him with the question paper because it was already uploaded on the school’s internal network. She could not send him the memorandum because the memorandum was not uploaded to the system at the time. Ms Nhlapo has access to this school network. As the departmental head. Her actions constitute an assessment irregularity.
10. She reported the matter to the Labour Unit for a formal investigation into both the alleged inappropriate relationship and the assessment irregularity.
11. During cross-examination, she stated that the learner informed her that he retracted the first statement because he wanted a relationship with Ms Nhlapo and she declined.
    When a version was put to her that the learner had hacked Ms Nhlapo’s phone and intimated that he blackmailed her about the assessment, she said she was not an expert. Ms Nhlapo told her that she recognised her hands on the nude picture.
12. To the version that the nude picture was photoshopped, she responded that she did not study Photoshop to be able to confirm or deny that the picture was photoshopped. She is not an expert. It was not unusual for the educators to have the learners’ phone numbers and vice versa.
13. The Learner testified that he was born on 3 March 2006. He joined the school in Grade 10, where he established several friendships. His sexual relationship with Ms Nhlapo commenced on 2 January 2025 and continued for approximately four months. He initiated the relationship because he had developed a close and comfortable relationship with Ms Nhlapo. He read out his statement on A10.
14. They would frequently discuss both school-related and personal matters, including relationships, and that she would sometimes hug him. He consequently believed that their relationship was becoming more personal and eventually asked her to be his girlfriend. Ms Nhlapo agreed on condition that the relationship remained secret. Ms Nhlapo continued to give him attention and occasionally assisted him, including buying him lunch.
15. Ms Nhlapo asked him to send her a photograph of his upper body after he told her that he had been exercising. Although he was initially uncomfortable with the request, he eventually sent her a photograph. Ms Nhlapo complimented his appearance by making sexually suggestive comments about wanting to touch him.
16. B3 is a nude picture that Ms Nhlapo sent him by WhatsApp following his request. B38 is the question paper she sent him with everything that would come with the assignment. She would send him the question papers before the assessment. He does not know why he did not send him answers.
17. She would make comments that she was sexually excited. They frequently engaged in sexual intercourse in a storeroom of her classroom during break and after school. They hugged and kissed in the storeroom. She provided condoms from her bag when they engaged in sexual intercourse. Other times they would not use condoms. Sometimes he skipped classes and assemblies to engage in sexual activity.

19 Ms Nhlapo later confessed to him that she had been attracted to him even before their
relationship commenced. Around mid-March 2025, the relationship began to
deteriorate. He discovered conversations of a sexual nature on her phone that show that
she was in sexual relationships with several other individuals.

20. The discovery emotionally distressed him to the extent that he could not attend class and instead cried in the bathroom. He confronted her with no avail. He felt betrayed and became concerned about whether he could have contracted a sexually transmitted infection from their relationship. The relationship subsequently ended.
21. He struggled with his feelings, schoolwork, social relationships and an addiction to sexual activity. He experienced the effects of the relationship for a considerable period and regretted becoming involved. He felt isolated because they kept the relationship secret and he could not freely discuss his experiences with other people. She frequently instructed him to delete their conversations and other communications to conceal the relationship.
22. During cross-examination, he stated that their relationship was initially of a normal educator-learner. She was always kind to him. She would hug him and ask if he had a girlfriend, as he was new in the country. At the time, he was in Grade 10. She gave him her cell number on the first day at school. She gave the number to other learners.
23. The relationship occurred in Grade 12 from 02 January 2025 to March/April 2025. A version was put to him that he was upset with Ms Nhlapo because she had refused to accept his proposal to have a romantic relationship with him; as a result, he took revenge on her to lose her employment. He responded that Ms Nhlapo hurt him when she broke up with him. He pressured her to love him because they were in an intimate relationship. When she dumped him, she did not care about him.
24. He refuted the version that he reported her because she was rejecting his demands for deepening the relationship and that he wanted to hurt her. He denied that he laid false allegations against him. She occasionally bought him lunch. He was drawn to her by her kindness.
25. The relationship affected him so much that he became addicted to sex. He insisted that he did not report her because she was refusing to have sex with him. He was always thinking about sex with her as they regularly engaged in sexual intercourse. She also frequently wanted sexual intercourse with him.
26. He received the nude picture on B43 from her. He denied that he photoshopped the picture and that he blackmailed her. He denied deleting other messages where he demanded money from her. He never asked her for money. They had sex in the storeroom inside the classroom during break time and after school when nobody was around. They had sex only at school.
27. When asked why he reported and retracted, he stated that he thought the Principal would punish her but did not think it would make her lose employment as the Principal indicated to him. Ms Nhlapo asked him to do something to save her employment. He reflected and resolved to save her employment by retracting. Their relationship was over, but they were chatting.
28. Later, as he still had feelings for her, he felt hurt and angry. He decided to report her again. This followed their disagreement when she told him that she did not want him near her anymore because of the rumour circulating that they were in a romantic relationship.
29. All that he reported to the principal was truthful. The lie that he created was when he retracted his claim and informed the principal that they did not have a sexual relationship.
30. He obtained Mathematics questions from Ms Nhlapo but not the answers. His request had no ulterior motive to maintain the relationship. She had trouble in providing him with the answers.
31. Ms Precious Nhlapho testified that she commenced her employment at The Glen High School in 2019 and taught Grades 10, 11 and 12. She denied having had a sexual relationship with the learner. She had a learner-educator relationship with him. The learner repeatedly made romantic advances towards her. She does not know why he lied about her.
32. The Learner frequently came to her classroom and followed her around the school to pursue a romantic relationship with him. He threatened her by referring to connections his diplomatic parents have if she rejected his advances. He threatened that his family would deal with her as they wield power. He took advantage of her kindness. One day, when he told her it was his birthday, she bought him lunch, as she does for other learners when they reach a milestone.
33. He was overly obsessed with her. He would stand at her classroom door and stare at her. He would say he came to check on his favourite teacher. She would dismiss him. She frequently called her using an international number, pursuing an intimate relationship with him. He would threaten her on her way to her home in Soweto as she used public transport.
34. She reported him to the Deputy Principal, Hanyane, who promised to assign the matter to the disciplinary committee. She deposed to the statement and had informed the Principal that she reported the matter to the Deputy Principal. Nothing happened. She was not supported despite being part of the SMT. She denied ever kissing and having sex with him.
35. A break is 30 minutes, and not sufficient to execute the allegations. The storeroom was packed with books and dirty to enable sex engagement. There is no camera in the storeroom; hence he chose it.
36. During 2024, he bought her a gift of a set of cups for her birthday. She returned the good gesture by buying him lunch for his birthday. All learners bought her birthday gift. Every time she chased him from her class, he would send threatening messages and delete them.
37. She denied sending him the nude picture on B3. She informed the Principal that it was not her picture, but the hands might be hers. If she had sent the picture, it would reflect as forwarded.
38. During cross-examination, she confirmed that A43 are text messages in which the learner threatened him. She denied the intimate relationship with the learner and giving him her cell numbers. The learners have access to educators’ numbers from the WhatsApp groups.
39. She reported the learner’s conduct to Mr Hanyane, but he did not take action. However, she did not have such proof. When asked why she did not escalate it to the Principal, she said she only told the Principal when the Principal informed her that the learner complained about her. B30 are the threatening messages from the learner. There was nothing she could do. The school did not protect educators when the learner involved the parents.
40. She told the Principal that the hand of the nude lady on B# looked like hers. The conversation between her and the learner on B, which does not have her profile picture, is not hers. Her profile picture is only seen by those she saved their numbers.
41. B18 are her texts during the investigation. This was after he had reported her. He was pursuing the proposal. She did not report him at that stage because it would not have made a difference. B20 is also her text that she had been having to leave her alone.
42. She admitted that B30, B34 and B35 are her texts. Other communications were at night. He communicated with the learner at night because if he did not respond to his calls, he would call her non-stop. He was harassing her.
43. In B35, the learner was demanding the memo for the assessment. She lied by promising him that she would check for the memo to put him off. She did not check; hence, he did not receive the memo. She did not report the incident because his parents wielded so much power. About allegation 3, she sent him the questions so he would leave her alone.
44. Mr The Learner attempted to blackmail her for refusing to accept his romantic advances. Her rejection of having a relationship with him upset and hurt. He avenged himself by fabricating the allegations.
45. Mamariri Mitchel Ledwaba testified that she is a Grade 8 and 9 mathematics teacher at the school. She commenced at the school in May 2025. Ms Nhlapho informed her that she reported a learner who was stalking her to the principal. The learner reported that he had a sexual relationship with her.
46. The boy used to come to the class and insisted on speaking to Ms Nhlapo by force and refused to leave when she chased her. Even when she told her that Ms Nhlapo was not there, he would refuse to leave. She was always with Ms Nhlapo in the classroom.
47. She did not know if they were in a sexual relationship or not. She also does not know anything about the exchange of the picture. Learners have the educator’s numbers to enable them to assist them with school work after hours. On her birthday, he brought her a gift but took it back before she arrived.
48. During cross-examination, she stated that she saw the learner a few times since he arrived at school. That is when he was writing exams and when he came to see Ms Nhlapo and forcing to speak to him. She was stationed at Ms Nhlapo’s classroom when she arrived until December 2025. She was not with Mam all the time. She would stay in the storeroom when it was Ms Nhlapo’s time to teach Grade12. When teaching Grade 11, she would go around the school. The learners were rotating to Ms Nhlapo’s classroom as she is a Departmental Head. CLOSING ARGUMENTS
49. The employer argued that Ms Nhlapho conceded that some of the communications she authored and disputed some, including the nude photograph. It was put to her that the photograph was genuine, and she sent it to The Learner. Ms Nhlapho indicated she was going to call a witness to establish that the nude photograph had been manipulated or photoshopped. However, no such witness was called.
50. Overall, the cross-examination focused on challenging Ms Nhlapho’s denial of a sexual relationship with The Learner by relying on the content, timing and context of the WhatsApp communications, the alleged exchange of a Mathematics assignment, the nude photograph, and the failure to report the alleged conduct to the Principal at an earlier stage. The employer representative sought to demonstrate that the cumulative evidence was inconsistent with Ms Nhlapho’s assertion that the relationship was solely that of an educator and learner.
51. Ms Ledwaba testified that The Learner frequently visited Ms Nhlapho’s office and allegedly attempted to impose himself on her. However, she clarified that she did not personally witness or observe any incident in which The Learner forced himself on Ms Nhlapho.
52. Ms Ledwaba further explained that she became concerned about the frequency with which The Learner visited Ms Nhlapho’s office. She testified that she questioned Ms Nhlapho about The Learner’s repeated presence in her office. According to Ms Ledwaba, Ms Nhlapho indicated that she was also surprised by the learner’s frequent visits.
53. During cross-examination, Ms Ledwaba maintained that she had no knowledge of the allegations forming the subject of the charges and could not provide any evidence or information directly relating to the alleged misconduct.
54. Ms Nhlapo argued that The Learner, in his own statement and even during his evidence in chief, admitted that he proposed the romantic relationship. They always had a good relationship, which prompted him to approach her. He took his chances because of Ms Nhlapo’s good heart, and he tried his luck, but unfortunately, he could not succeed because Ms Nhlapo rejected his advances.
55. When his plan failed, he blackmailed Ms Nhlapo that he would report that they are in love and he would ensure she lost her employment if she did not succumb to his demand. This was confirmed by the Principal, who testified that initially The Learner came to her to report the matter and later retracted that statement, saying he lied and wanted her to be fired
56. He was unhappy and intimidated her, and indeed he falsely reported her. Hence she became emotional and powerless when the principal informed her about the allegations. If indeed they were in love, he would not have reported her to the principal. He reported her because he wanted to scare her.
57. The Learner contradicted himself in line 23 by saying that he would bunk school to have sex with her, but during cross-examination he said they had sex only at school. Why would he bunk school to have sex with her?
58. The Learner is a liar, as it is improbable to finish a pack of 24,12,8,6,3 of condoms. He properly planned this, but unfortunately it does not hold water. If they had a relationship, they would have sex at her place, as she has a car and a house.
59. The principal and the school failed Ms Nhlapo by not protecting her, and they preferred to listen to The Learner. He used his parental status to intimidate Ms Nhlapo, and this must be condemned. His evidence should be disregarded for lack of substance.

ANALYSIS OF EVIDENCE AND ARGUMENTS

60. The learner’s version is that he proposed a sexual relationship to Ms Nhlapo. The relationship commenced in January 2025 and deteriorated around April 2025. Ms Nhlapo eventually ended the relationship. She was involved in other relationships. He was hurt and felt betrayed. During the existence of the relationship, he had sexual intercourse with Madam many times in the storeroom of her classroom. They used many packs of condoms.
61. He was hurt that during June 2025, he reported the relationship to the Principal. Contrary to the principal’s version, he thought the principal would punish her but did not anticipate a dismissal. He retracted the complaint when the Principal made him aware of its seriousness and the consequences. Ms Nhlapo also persuaded him to retract the complaint as she would be dismissed.
62. He stated that he lied to the principal that the relationship never existed to retract the complaint in pursuit of saving her employment. Furthermore, he lied to the Principal that he lodged a complaint because Madam was rejecting his advances to establish a sexual relationship. However, the principal’s version is that he told her that he lied about Madam to have her dismissed and hoped Madam would accept his proposal if he threatened her.
63. The central point is The Learner’s retraction and reinstatement of his complaint and the reasons thereof vis-à-vis Ms Nhlapo’s conduct and the blackmail.
64. The WhatsApp chat between The Learner and Madam confirms that he persistently had the upper hand. Ms Nhlapo bowed down to him. She insisted that he threatened and blackmailed her to have a sexual relationship with him, else he would report her to the Principal that they were in a relationship, which he eventually did.
65. What strikes me is that this is an educator-learner relationship; the educator is expected to exert her authority over the learner professionally. It is concerning when the educator succumbs to the blackmail and threats, which are not vicious in nature. She was not only an educator but a Departmental Head, a School management team member vested with the powers to instill discipline at the school.
66. The blackmail was so gross, and Ms Nhlapo was so scared of The Learner to the point of breaching and prejudicing the administration, discipline and efficiency of the department by sharing the question paper with The Learner the morning before the SBA assessment. The authority, responsibility and accountability vested in Ms Nhlapo as the Departmental Head cannot escape my mind. The link between this incident and fearing the revelation of a sexual relationship is overwhelming.
67. It is common cause that from the eve to the morning at 6 am of the assessment The Learner repeatedly sent her messages demanding that she send him the question paper and memorandum. It is not in dispute that she sent her the question paper and undertook to send him the memorandum shortly. However, she did not send the memorandum.
68. The Principal’s undisputed explanation why Ms Nhlapo failed to send The Learner the memo is plausible. The Principal submitted that Ms Nhlapo has access to the internal network. She was able to send the question paper because it was uploaded on the network. However, she could not share the memorandum because it had not been uploaded on the network.
69. I find Ms Nhlapo’s contention that she did not intend to send the question paper, but she lied to The Learner by playing him along that she would send, to be untruthful and disingenuous at a high level. I am persuaded that, fearful of The Learner to the extent of sending him the question paper, she would also send the memorandum had it been uploaded. Her failing to share the memorandum was not out of choice but constrained because it was not available.
70. The assessment cheating is in relation to a Grade 12 learner. The inference I could draw from her absurd actions and gross misconduct of leaking the question paper is that she was saving the revelation of the sexual relationship that existed during the first semester. She was compelled to do anything possible to conceal the relationship. It is not true that she was saving herself from The Learner reporting the fictitious relationship, as she suggests.
71. There was no threat to her life or well-being, which, even if it were there, would have been a better strategy to expose and report. Her persistent silence proves on the balance of probabilities that she was so scared the secret would be revealed. She was scared of his parents, and he claims they wielded power without any evidence that they interfered in this drama.
72. Ms Nhlapo concealed the blackmail because she failed to prove that she reported The Learner’s conduct to Ms Hanyane as she claimed. Despite The Learner’s persistent threats and blackmail, she did not follow up because she never reported. There was nothing to follow up. The Principal denied that she informed her about reporting the matter to Ms Hanyane. She failed to report the threats and blackmail to the Principal.
73. Despite the Principal’s denial that she reported The Learner to Hanyane, she did explain why she neither called nor subpoenaed Ms Hanyane to corroborate her version. Instead, she called Ms Ledwaba, who lacked knowledge about the reporting and could not assist the proceedings.
74. The court in the Bargaining Council for Furniture Manufacturing Industry,
    Kwazulu- Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) that an
    adverse inference should be drawn from a party’s failure to call a witness that the
    evidence that party faces must have been of such a nature that, at the time the other
    party closing its case, there was sufficient evidence to enable the court to say, having
    regard to the absence of any explanation, the other party’s version was more
    probable than not.
75. The Learner’s persistent conduct of allegedly soliciting a sexual relationship coupled with threats and blackmail constitutes harassment and a serious violation of discipline at school that could have seen the light of the day. Shockingly, such conduct could be condoned if there is fear of revealing a secret. The inference that I can draw from Ms Nhlapo succumbing to the blackmail and horrendous saga is that she was involved in a sexual relationship with The Learner from January to April /May 2025 when she ended it.
76. She was afraid to report him when he endeavored to resuscitate the relationship. She was fearful of his Diplomatic parents; if the sexual relationship with their son is revealed, she would be in trouble. Her only option was to play along. Even when he conversed with her several times at night, she was compelled to entertain him. It was risky for her to revive the relationship after it was reported in June. So this was not an option, as the relationship would be under surveillance and rumors were circulating.
77. I agree with Ms Nhlapo that communication between learners and educators outside school hours is not prohibited. However, it must be confined to schoolwork and be within a reasonable time. Most of the WhatsApp conversations between Ms Nhlapo and The Learner that she admitted she partook in were at night and early mornings and unrelated to schoolwork. The conversations were inappropriate for an educator and a learner. The conversations corroborate on the balance of probabilities that there was a sexual relationship between Ms Nhlapo and The Learner.
78. The principal’s contention that Ms Nhlapo admitted that the hands in the nude picture were not challenged. It was only during examination in chief that she mentioned that the hands looked like hers. Therefore, the Principal’s version was not tested and should be accepted as being truthful.
79. Ms Nhlapo contended that the picture was photoshopped and undertook to bring an expert witness to prove such. I allowed the parties to make submissions on the expert witness application. The employee failed to apply, and the witness was not brought.
80. Ms Nhlapo denied that the conversations, which do not have her profile picture, were hers. As I mentioned supra, I am persuaded that the conversations which she owned sufficiently link her to the committal of the offence. It is moot to determine if she was involved in those she denies, that do not have her profile picture.
81. Ms Nhlapo contended that the storeroom was dirty and packed, which was impractical to use for sexual intercourse encounters. Further, The Learner chose it because it had no camera. Ms Ledwaba contradicted Ms Nhlapo that she often stayed in the storeroom when Ms Nhlapo was teaching Grade 12. If Ms Ledwaba was comfortable sitting in the storeroom for the entire period, then it was a practical venue for sexual episodes. It is improbable that they would have sex in a camera room. Therefore, Ms Nhlapo ‘s contention about the camera room is misplaced.
82. Ms Nhlapo argued that The Learner lied as it is impossible to utilize the number of packs of condoms he claimed they have used. The Learner contends that they were obsessed with sex that it was habitual. He even got addicted to sex. It is probable, by his obsession, that Ms Nhlapo returned to the relationship; they were hyperactive and used many packs. However, the amount of condoms used and sexual encounters is not a determining factor as to whether the sexual relationship existed or not.
83. Ms Nhlapo argued that The Learner contradicted himself by saying that he would bunk school; on the other hand, he said they had sex only at the school. The Learner corrected himself that he bunked classes for sex that occurred at the school.
84. I am persuaded on the balance of probabilities that Ms Nhlapo has committed the offences. Therefore, the employer has discharged its onus by proving on the balance of probabilities that Ms Nhlapo had committed the three offences of having a sexual relationship with a learner, sexual harassment of the learner and sending an SBA assessment to The Learner, a Grade 12 learner at the school, before the scheduled writing of the assessment. I find her guilty of contravening Section 17. (1) (b) and two counts of Section 18.1 (q) of the Act.

Mitigating and Aggravating factors

85. Ms Nhlapo is a 34-year-old representing an educator in the prime of her career with long-term potential value to the teaching profession. She has dedicated six (6) years of service and has a clean record. She has consistently contributed positively to the Education and institutional goals of her school.
86. She has a significant financial liability. She is currently servicing active long-term credit agreements for her car and a house, both of which face immediate foreclosure and repossession if she is dismissed. She is the sole financial anchor for her family, bearing the financial and medical care expenses for her epileptic father, who depends entirely on her for medical stability and living necessities. She is also responsible for funding and supporting her sister’s ongoing tertiary studies.
87. The socio-economic impact of her dismissal would be devastating, shifting a heavy welfare burden onto the state, disrupting a young student’s education and severely endangering her father’s health. Dismissal should be reserved as a last resort. A corrective or alternative sanction would better serve the interest of justice than outright career termination.
88. The employer presented the aggravating factors that the offences should be considered cumulatively. The sexual relationship between an educator and a learner of the same school; difference in professional authority and responsibility between the educator and learner; repeated nature and duration of the relationship; sexual communications between the parties; exchange of an intimate photograph; sexual encounters on school premises; interference with the learner’s education; provision of Mathematics assessment material.
89. Ms Nhlapo was entrusted with more responsibility as a departmental head but failed to maintain professional boundaries despite repeated opportunities to do so. She broke the trust relationship and destroyed the learner. She damaged the dignity and reputation of the teaching profession. The offences are serious, and the appropriate sanction is dismissal. The first count carries a mandatory dismissal.

SANCTION

90. Section 17 (1) (b) of the Act carries a mandatory sanction of dismissal for a sexual relationship with a learner. I have found Ms Nhlapo guilty of this offence. The parties submitted their mitigating and aggravating factors, which I did not capture herein. The reason is that neither mitigation nor aggravating factors would impact the mandatory sanction.
91. In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court
    held that “The interests of the community cannot be ignored in determining an appropriate sentence. Some of the components of the offences occurred on the
    premises of a primary school. It is also necessary to continue to impress upon
    people in positions of responsibility who cannot leverage their power and the esteem
    with which they may be regarded to satisfy their sexual lust”.
92. In light of the seriousness of the offence and the mandatory sanction it carries, I have no discretion to deviate from a dismissal sanction, regardless of mitigating factors. As I have mentioned supra, the mitigating and aggravating factors are academic.
93. I find the two counts in which I found Ms Nhlapo in terms of Section 18 (1) (q) to be serious offences warranting a dismissal sanction. Considering the two offences cumulatively, the aggravating and mitigating factors, I am inclined to impose a dismissal sanction for the two offences.
94. The parents and the Community have entrusted her with the care and protection of learners. Nonetheless, she shamefully destroyed this trust relationship. She abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction, mandatory as it is in accordance with the Act.
95. Furthermore, I find Ms Precious Nhlapo unsuitable to work with children. I invoke Section 120(4) of the Children’s Act No 38 of 2005 to declare him, on own accord, unsuitable to work with children.
96. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 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 No 38 of 2005, that Ms Precious Nhlapo is unsuitable to work with children, for the director General to enter his name in Part B of the National Child Protection Register.
97. The attention of SACE is drawn to the fact that Ms Precious Nhlapo had a sexual relationship with a 19-year-old Grade 12 learner.
    FINDING
98. The Employee, Precious Nhlapo, is found guilty of a count of having a sexual relationship with a learner in terms of Section 17 (1) (b) of the Act, which imposes a mandatory sanction of dismissal. In addition, she was found guilty on two other serious offences which are intertwined with the sexual relationship offence, the sanctions of which I imposed dismissal with immediate effect.
99. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 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 No 38 of 2005, that Precious Nhlapo is unsuitable to work with children, for the Director General to enter his name in Part B of the National Child Protection Register.
100. The ELRC is directed to forward a copy of this award to SACE.

Signed and dated at Pretoria on 03 September 2026.

MG Rabyanyana ELRC Panellist