05 February 2026 – ELRC741-25/26KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO.: ELRC 741-25/26KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

MKHIZE S E RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 03 FEBUARY 2026

Applicant’s representative : MS J. DUMISA

Respondent’s representative : MR S. MTHIMKHULU

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, Durban Teachers Centre, 14 Clayton Road, Overport, Durban. These proceedings were digitally recorded.
[2] Ms J. Dumisa, a Labour Relations Officer, represented the applicant (employer) and Mr S. Mthimkhulu from SADTU represented Mr S.E. Mkhize, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 4 November 2025 and 10 December 2025. The matter was concluded on 16 January 2026 when the parties submitted their written mitigating and aggravating circumstances as well as their closing arguments which was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in a bundle of documents which was marked as bundle “A” and was utilized as a common bundle.
[6] The nature of the process and all rights was explained to the parties.

ISSUES TO BE DECIDED
[7] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.

BACKGROUND TO THE DISPUTE
[8] Mr Mkhize is employed as an educator at Makhapha Combined School.
[9] Seven learners made allegations of sexual misconduct against Mr Mkhize and the employer subsequently charged him with misconduct.

CHARGE
The employer preferred the following charge against Mr Mkhize: –
[10] You are hereby given notice to attend a disciplinary hearing in terms of Clause 5 of Schedule 2 of the Disciplinary Code and Procedures for Educators. The alleged misconduct is as follows:

CHARGE
In that during the period of 2024 at or near Makhapha Combined School, you committed an act of sexual misconduct and/or assault against a learner/learners in your school.
During the first period you called Learner A to the front of the class, you hugged and kissed her. You asked Learner B to have sex with you and gave her R5. You asked Learner C to be in a relationship with you, then gave her R5. You further asked Learner D, Learner E and Learner F if they knew how to have sex and you told Learner G that she is beautiful and when you see her you lose your ability to speak.
Thereby contravening Section 17(1)(b) and 18(1)(q) of the Employment of Educators Act No. 76 of 1998.

PLEADINGS
[11] Mr Mkhize pleaded not guilty to the charge.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.

THE EMPLOYER’S CASE
The employer called one witness to testify on their behalf.
LEARNER A
[12] In 2024, she was in Grade 7 at Makhapha Combined School. Mr Mkhize was one of the teachers teaching her in Grade 7. Learners B, C, D, E, F and G were her classmates.
[13] During 2024, she approached the Principal, Mr Chili and Ms Masuku, an educator and reported to them that Mr Mkhize looked at them differently and that he had tried to kiss her in front of the learners; then he had hugged her.
[14] Mr Mkhize had requested her to go to the staff room to warm his food.
[15] While she was in the staff room, Mr Mkhize arrived with Mr Shezi. Mr Shezi wanted a kiss from her. Mr Mkhize stood by the door and said, “you will not exit, without giving me a kiss” and then Mr Mkhize said, “yes, my brother, she must be kissed before she leaves”.
[16] She stood by the window but there were other learners around, thus they assumed that she might do something. Mr Mkhize then gave her R5; perhaps because he wanted to silence her.
[17] In another incident, she and her friend, Learner ZM, were standing by the toilets when Mr Mkhize called them to an empty classroom. Learner ZM went alone to the classroom and when she came back, she was crying. Learner ZM told her that Mr Mkhize had said that he wants to be in a relationship with her.
[18] She did not go with Learner ZM because she was afraid that he might close the door as he had done at the staff room.
[19] When questioned about the incident where Mr Mkhize had tried to kiss her in front of the class, she stated that she could not recall.
[20] She reported to Ms Masuku because her classmates were called to the office to say everything that they knew.
[21] Other than Ms Masuku and the principal, she reported this to her stepmum who told her father because a letter had been issued for her to come to school with a parent.
[22] She did not tell Learner ZM about what happened in the staffroom because she is not a quiet person.
Under cross-examination she testified that:
[23] In 2024, she was staying with her stepmum and dad. Currently, she was staying with her aunt because there had been a misunderstanding between her and her stepmum.
[24] She disputed that she had moved away from her stepmum because it pertained to her dishonesty.
[25] She denied that she was not telling the truth about this entire matter.
[26] Mr Mkhize requested her to go to the staff room to warm his food and Mr Shezi closed the door and said that he wanted to kiss her. Mr Mkhize did not ask to kiss her but he had the same mind as Mr Shezi.
[27] She did not voluntarily go and report to Ms Masuku. Ms Masuku and the principal, Mr Chili had called her to the office.
[28] When it was put to her that she was coerced in the office to tell lies about Mr Mkhize but she did not know the reasons because she is young, she stated that she had no knowledge of that.
[29] Upon being questioned why she had not reported to Ms Masuku or Mr Chili if Mr Mkhize had done something wrong to her, she stated that she was afraid.
[30] In the previous year, she was one of the troublesome learners thus she thought that they were calling all the troublesome learners. She disputed that she was telling this story because it was her character.
[31] Learner ZM informed her that Mr Mkhize had told her that he wants to be in a love relationship with her.
[32] She confirmed that her stepmother was not aware of what was happening up until she received the letter.
[33] When questioned if she had been abused, why on the same day, she did not report it to her parents, she stated that they were not very open to each other and most of the time they were judgmental towards her. Her father believes that she is a troublesome person and she was also afraid to speak at the beginning.

THE APPLICANT’S CASE
SIZWE ERNEST MKHIZE
[34] He is married and has a wife and children.
[35] He knew Learner A and disputed that he had tried to hug and kiss her in front of the class.
[36] He was very fond of Learner A. She used to tell him stories about herself, that she had lost her mother and was residing with her father and stepmother. There was a time when she had run away from her home and had stayed at her friend’s place for a long time.
[37] He believed that someone had told Learner A to fabricate what she had fabricated.
[38] Learner A had testified that Mr Shezi had closed the door and attempted to kiss her but Mr Shezi did not even do that thus he averred that Learner A was spoon-fed by someone to say these wrong things about him. He believed that the principal, Mr Chili, was behind the allegations because they were not in a good relationship outside the school as they did not see eye to eye with respect to political factions.
[39] He believed that people were spoon-feeding Learner A to say wrong things about him. When these cases started there were promotional posts that were advertised hence, they were trying to ruin his name.
[40] The Acting Principal, Ms Bhengu and he have a child who is around 21 years old. He believed that Ms Bhengu was trying to taint his name because she was unhappy when he got married in 2022 as she had wished for him to marry her.
[41] Educators send learners to do errands for them. He could not recall whether on that specific date, he had sent Learner A.
[42] Learner A was a naughty child, just like all other children. He did not have any relationship with Learner A’s parents.
[43] He denied that he had ever called Learner A or Learner ZM to a classroom.
Under cross-examination he testified that:
[44] It was well known that Learner A was not staying with her biological mother when she was attending his school because she used to talk about it.
[45] He agreed that it was Learner A’s version that she was no longer attending his school because she had moved to Maphumulo and was staying with her biological aunt because she did not have a good relationship with her stepmother.
[46] It was put to him that Learner A came to testify not because she was spoon-fed but because an arrangement was made by the school for her to come and testify, including the other learners where the charges had not been heard and further Learner A was only travelling with her aunt and not with Ms Bhengu thus how could Ms Bhengu influence the other learners who were in easy reach of Ms Bhengu to manufacture whatever but they did not did not come to testify while Learner A who is away from Ms Bhengu came and testified. He stated that Maphumulo was not very far and Learner A was here as she was informed by Ms Bhengu and he further averred that not only Ms Bhengu but there was a group of people who were trying to ruin his name.
[47] It was put to him that Ms Bengu, who had organized these witnesses on behalf of the department and as per his contention had caused these learners to lie and manufacture stories about him, was in the group of people that were conspiring against him, but was now failing to bring the very same witnesses to testify that they had access to, he stated that the root cause of this was manufactured against him and one day Learner A will reveal the truth.
[48] He agreed that as educators they are employed to teach the learners at the school.
[49] When asked if teaching the learners includes sending them to a staff room to warm food for him, he averred that according to his knowledge, as an educator, he is like a parent to a learner hence he could send a child anywhere.
[50] Upon being questioned if there was any document in his school or any policy that says he is permissible as parentis in loco to assume responsibility of sending learners to do errands, he stated that that was a societal norm which is how they were brought up.
[51] He denied that when he had sent Learner A to the staff room to warm his food, he had followed her to the staff room and had closed the staff room door.
[52] He disputed that Mr Shezi had attempted to kiss Learner A; had Mr Shezi ever tried to do that, he would have protected Learner A.
[53] When asked if he as a parent and had called learner A to come and hug him, why was she feeling uncomfortable, he disputed that he had tried to hug her and further stated that Learner A had testified that when he did that they were in front of the learners.
[54] When questioned as to why he had offered Learner A money, he stated that she is not the only learner and if any learner asks him for money, if he has money, he would give them.
[55] He was not saying that Learner A asked him for money but there are many learners at school and if any learner comes and asks for money, if he has the money, he would give the child but later he would not remember which learners he had given the money to.
[56] He disputed that the alleged incident with Learner ZM had taken place and averred that Leaner A was not telling the truth.

ANALYSIS OF EVIDENCE AND ARGUMENT
[57] Where there is an allegation of misconduct, the employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[58] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[59] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[60] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[61] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[62] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra provides that; “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.”
[63] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[64] The applicant submitted that their difficulty in bringing their witnesses to testify was due to intimidation involving SGB members. They however, did not call Mr Chili, Ms Masuku or Ms Bhengu to testify on their behalf.
[65] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[66] In Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA 4/11) (2013) ZALAC 29 (handed down on 7 November 2013) the Court held it is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee, through the latter’s movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however, strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question.
[67] There was no evidence presented pertaining to the allegations by Learner B, Learner C, Learner D, Learner E, Learner F and Learner G hence I cannot make a finding relating to the allegations made by these learners.
[68] Learner A was the only witness called by the applicant.
[69] I have considered the relevant cautionary rules relating to child witnesses and single witnesses which requires that the evidence accepted should be substantially satisfactory in respect of material aspects.
[70] When Learner A in her evidence in chief was questioned about the allegation in the Charge sheet pertaining to Mr Mkhize calling her to the front of the class, hugging and trying to kiss her, she averred that she could not recall this. Learner A presented no testimony regarding her allegation in the charge sheet. She failed to give any account of what had transpired in relation to the charge against Mr Mkhize.
[71] Learner A however testified about an incident in the staff room involving Mr Shezi asking her to kiss him and Mr Mkhize siding with Mr Shezi. Mr Mkhize disputed that this incident had ever taken place and disputed Learner A’s testimony pertaining to the allegations relating to Learner ZM.
[72] Learner A in her evidence testified that she did not go with Learner ZM to the classroom when called by Mr Shezi because she was afraid that he would close the door as he had done in the staffroom but under cross-examination, she testified that Mr Shezi had closed the staffroom door.
[73] Learner A further testified that she had reported her allegations against Mr Mkhize to Ms Masuku and under cross-examination testified that she did not go voluntarily to report the allegations against Mr Mkhize but she had reported it when Ms Masuku and Mr Chili had called her and other learners to the office.
[74] Mr Mkhize denied all the allegations against him and testified that what Learner A had alleged against him and Mr Shezi had never occurred. Mr Mkhize attributed these allegations to be the work of Ms Bhengu, claiming that she wanted to marry him; and to Mr Chili because of their different political views and he went further to state that many people wanted to ruin him.
[75] Having regard for the totality of the evidence, I find that the Employer has failed to prove its case on a balance of probabilities that Mr Mkhize had committed an act of sexual misconduct or assault against the learners at his school. Accordingly, I find Mr Mkhize not guilty of the charge levelled against him.