THE INQUIRY-BY-ARBITRATOR BETWEEN

THE HEAD OF DEPARTMENT:
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR DIBABENG ISRAEL NYOKONG EMPLOYEE

Case No: ELRC669-25/26FS
Dates: 28 November 2025
Venue: Provincial Office of the Department of Education, Bloemfontein

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Head of Department: Free State Department of Education (hereinafter ‘the employer’), and Mr Dibabeng Israel Nyokong, ‘the employee’.
2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was scheduled for 28 November 2025 at the Provincial Offices of the employer in Bloemfontein. The employer was represented by Ms L Gweba, its Labour Relations Officer. Mr KJ Mokgotsi, an Official from the South African Democratic Employees Union (SADTU), represented the employee. Mr L Mpitsi was the Interpreter. Mrs ME Twala was the Intermediary.
3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with Section 138(7) of the LRA. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

4. I am called upon to decide whether the employee misconducted himself, per the allegations levelled against him. If I find that he did commit the misconduct(s), I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

5. It is common cause that the employer has employed the employee as an Educator since May 2006. The employee was based at Moipone Primary School, Thaba Nchu, in the Motheo District of the employer. He taught Mathematics and Setswana as subjects at the primary school. Following an alleged act of sexual misconduct in November 2024, the employee was suspended, and the employer requested this Inquiry with the Council.
6. The allegation levelled against the employee is as follows:

CHARGE 1
You have contravened Section 17 (1) (b) of the Employment of Educators Act, No 76 of 1998, in that during November 2024, you committed an act of sexual assault on a grade 06 learner (the learner) when you touched her private part (vagina) in the Maths Lab.

7. The employee (hereinafter the employee) pleaded not guilty to the charges. He was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. His rights and obligations were also correctly explained to him at the commencement of the Inquiry.
8. For this award, the learners’ names shall be kept confidential. The female learner against whom the alleged misconduct was committed was in Grade 6 at the time of the alleged incidents and was 14 years old. It is alleged that the incident occurred in the employee’s Mathematics Laboratory (the Lab).
9. The employee denied the allegation against him. It was common cause that the employee and the learner knew each other and that the employee was the Mathematics and Setswana employee of the learner.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all submissions in reaching my conclusions.

Documentary Evidence

11. The parties handed in the following evidence:
    Employer: A copy of the Notice of the Disciplinary Hearing.
    Employee: Nothing.

Employer’s Case

12. The Learner testified as the first witness for the employer. She testified that during the fourth-term 2024 exams in November 2024, when she was the last person remaining in the exam room with the employee, she handed in her exam script to the employee. The learner testified that the employee then told her to go to the Lab, which was adjacent to the classroom, and to make tea for him. She stated that she complied.
13. The learner then continued to state that the employee followed her to the Lab and told her to close the Lab’s door. She stated that she did that, and upon turning around, the employee then touched her vagina through her school dress and kissed her. The learner stated that she asked the employee why he was doing that to her, and he replied by saying that he was only attracted to her at the school.
14. The learner stated that she then ran out of the Lab and classroom. She stated that the employee never apologised to her but instead pleaded with her not to report the matter, for fear of losing his job. The learner stated that she told her friends only later that day about the incident and reported it to the school principal in April 2025. She stated that she delayed reporting the incident for fear that the employee might lose his job, and that she might lose her Maths employee, whose subject she enjoyed.
15. In cross-examination, the learner stood by her version and denied that the employee ever raised concerns about her having failed Mathematics. She recalled the meeting held in the principal’s office regarding the incident and stated that her performance in Mathematics was not discussed at that meeting.
16. Ms Wani Venice Senoge ‘Ms Senoge’, the Deputy Principal, testified as the second witness for the employer. She testified that the learner reported the incident to her on 25 April 2025 and that the learner narrated to her what happened and how. Ms Senoge recalled how the learner told her about her (the learner) being alone in class with the employee after the writing of the exam paper, and how the learner was told to close the door, and how the employee asked for a hug and immediately kissed and touched the learner’s vagina.
17. Ms Senoge also testified on how the learner told her how she (the learner) asked the employee why he was doing that, and how the employee told her (the learner) that he was in love with her (the learner). She further testified that she then brought the matter to the employee’s department head and summoned the employee to the office. Ms Senoge stated that the learner was too emotional to confront the employee. She stated that the employee also appeared remorseful about the incident and admitted to having called the learner to the Lab, hugging her and kissing her, but denied the allegation of touching the vagina.
18. In cross-examination, Ms Senoge stood by her testimony and added that minutes of that particular meeting are available. She stated that the meeting was about the incident and nothing about the employee’s Mathematics curriculum.
19. Mr Themba Mhana ‘Mr Mhana’, the learner’s Grandfather, testified as the employer’s last witness. He stated that he recalled receiving a telephone call from the principal, who asked him to see her urgently regarding an incident involving her grandchild. Mr Mhana stated that he heeded the call, and that the principal informed him about the incident, which involved the kissing and the touching of the learner’s vagina.
20. Mr Mhana stated how dismayed and shocked he was, because he was of the belief that children were safe at school and that the employee stood in loco parentis towards the learner. He stated that he had a high regard for the employee and expressed his disappointment with the employee. Mr Mhana stated that he held the view that all employees should be female to ensure the safety of female learners. He stated that the learner also narrated the story to him on the same day.
21. In cross-examination, Mr Mhana stated that there was nothing unusual about the learner prior to the incident, and that he used to interact with the employee about the learner’s school performance and that of his spouse’s child, who was also one of the employee’s learners at the school.

Employee’s Case

22. Mr Dibabeng Israel Nyokong, the Employee, testified as the only witness in his case. Now apart from denying having been with the learner in the Lab in November 2024, he also denied that there was a kettle in his Lab. It was his testimony that the learner once visited him in the Lab on 18 September 2024, where he decided that the learner’s class (including the learner) should rewrite a failed Mathematics paper the following day.
23. It was the employee’s testimony that the learner was unable to sit for the paper the following day (19 September 2024) and pleaded with him to excuse her from re-writing the paper. The employee stated that he became angry, which led to the learner becoming emotional and starting to cry. He stated that he felt sorry for her and tried to calm her down. The employee stated that the learner then turned around and gave him ‘a peck on the mouth’ (a quick kiss), and immediately ran out of the lab.
24. The employee stated that this was the only time when the learner visited him in the Lab. He remembered the meeting of 25 April 2025 in the principal’s office, and the allegation of him touching the learner on her vagina. The employee stated that he was shocked and denied the allegation. He stated that no minutes of the said meeting were kept as well.
25. In cross-examination, the employee stood by his testimony and admitted again that the learner ran out of the Lab, albeit in September 2024. He stated that the hug was not a real hug, but that the learner only touched his waist. The employee stated that the learner’s version may have been fabricated because the learner wanted him to be her Maths employee again.

ANALYSIS OF EVIDENCE AND ARGUMENT

26. I shall now proceed to determine the charge levelled against the employee, in light of the evidence led at the arbitration, and the onus which was on the employer to prove the allegation on a balance of probabilities:

CHARGE 1
You have contravened Section 17 (1) (b) of the Employment of Educators Act, No 76 of 1998, in that during November 2024, you committed an act of sexual assault on a grade 06 learner (the learner) when you touched her private part (vagina) in the Maths Lab.

27. The employer called three witnesses. The learner appeared to be credible in that she maintained the same version throughout the entire time, being what she reported to Ms Senoge, to her grandfather Mr Mhana, and her testimony at the arbitration. I could not pick up any inconsistencies in her versions to the three. I therefore consider her a reliable witness.
28. As for Ms Senoge and Mr Mhana, there were no contradictions in their testimony as well. I have no reason not to consider their testimony as credible and reliable. Unfortunately for the employee, his version is not corroborated by any person or by any real or documentary evidence. His version also did not add up, in the sense that what he said about the learner was rather odd. I shall come back to this later. I therefore find the employee’s testimony unreliable and lacking in credibility.
29. The cross-examination of the learner focused on the timing of the reporting of the incident, rather than whether the incident actually occurred or not. The employee and his representative also did not challenge Ms Senoge on the incident itself in the Lab, or the touching of the vagina, but more about the learner’s grades in Mathematics. The employee also stated in his examination-in-chief that he believes that the learner’s version is fabricated because the learner wanted him to teach her Maths again. Now really? Would the learner or any learner go to such lengths just to keep an employee to continue teaching her? This is what makes me believe that the employee’s version is improbable.
30. Although the employee tried to manipulate the date of the incident from November to September 2024, the employee seems to forget that his version makes it common cause that the two of them (employee and learner) were in the Lab together and alone, that a hugging took place, and a kiss, and most importantly, that the learner ran out of the Lab.
31. It sounds rather odd that a learner who intends to kiss and hug an employee would only touch the employee’s waist lightly. I accept the learner’s version that whatever the employee did to her in the Lab was against her will, which explains the light touching of the employee’s waist. Be that as it may, I am persuaded that the employee hugged and kissed the learner and that the learner ran out of the Lab, out of fear.
32. As for the touching of the vagina, the learner’s version is not challenged by the employee. The only places where the employee denied having touched the learner’s vagina was at the meeting in the principal’s office on 25 April 2024 and at this arbitration hearing. However, the employee did not challenge the learner on this aspect during cross-examination. He also did not challenge Ms Senoge and Mr Mhana on this aspect during their cross-examination. The version of the touching of the vagina, therefore, remains unproven and probably true.
33. A mere denial of the allegation is not enough to conclude that it did not happen. He could not challenge his accuser on this aspect during cross-examination.
34. Based on the uncontested version of the learner pertaining to the touching of the vagina, and the admissions of the employee that he once found himself hugging and kissing the learner in the Lab, it is my finding that the employee has made himself guilty of the allegation recorded in the charge.

VERDICT

35. Count 1: Section 17(1)(b) of the EEA provides the following:
    Serious misconduct
36. (1) An educator must be dismissed if he or she is found guilty of –
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner, student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
37. With the evidence, which was placed before me, I find the employee guilty of having contravened paragraph 17(1)(b) of the EEA, in relation to having touched the learner’s vagina in the Maths Lab of the school.

SANCTION

37. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998

10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
    following section:
    “Serious misconduct
11. (1) An educator must be dismissed if he or she is found guilty of—
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner. student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
    other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
    (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
    and procedures 35 provided for in Schedule 2.” [my emphasis added]
12. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted the learner in accordance with section 10 of the ELAA. A dismissal, therefore, automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having sexually assaulted a learner of the school where he was employed.
13. Based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory and must be handed down to the employee. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. In my view, the employee abused his authority and betrayed the trust placed in him while standing in loco parentis toward the learner.
14. Having found the employee guilty of the main charge, which is based on paragraph 17(1)(b) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the employee must be dismissed.

CHILD PROTECTION REGISTER

41. The employer addressed me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the learner.
42. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

43. It is common cause that the learner was 13 years of age at the time when the incident in the Lab took place. Having found the employee guilty of having sexually assaulted the learner, I find him unsuitable to work with children. Based on these findings, I will order that the employee’s name be reported to the Director-General of the Department of Social Development for listing in Part B of the Child Protection Register.
44. In the premise, I make the following award:

AWARD

45. Mr Dibabeng Israel Nyokong is found guilty on the charge of ‘having sexually assaulted the learner’ levelled against him by the Head of Department: Free State Department of Education.
46. The mandatory sanction of dismissal is imposed with immediate effect on the employee.
47. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.
48. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the 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 Dibabeng Israel Nyokong 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.

This is done and dated on 02 February 2026, at Kimberley.

David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator