05 February 2026 – ELRC776-25/26NC

Panellist: Khuduga Tlale
Case Reference No.: ELRC776-25/26NC
Date of award: 03 February 2026

In the matter between:

Department of Education – Northern Cape Employer

And

Itumeleng Freddy Pule Educator

ARBITRATION AWARD

Details of hearing and representation

This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Northern Cape (“employer”), and Mr. Itumeleng Freddy Pule (“educator”) at the employer’s offices in Kuruman, on 09 December 2025 and concluded on 23 January 2026. Mr. OB Tshekoeng, Labour Relations Officer, represented the employer. The educator appeared in person, and Mr. MA Melokwe, SADTU full-time shop steward, represented him. Background to the dispute
The educator is currently employed as an educator (PL1) at Bagalotlhare High School in Kuruman, John Taolo Gaetsewe District. The educator acknowledged receiving the allegation against him well in advance on 07 October 2025. The notice of set down was served to the educator. The Education Labour Relations Council (“Council”) appointed Mr. RM Kwayi, as interpreter, and Ms. T Mokgwamme, as intermediary.
The allegation levelled against the educator was as follows: Charge one- “In terms of section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (“EEA”), on or about the 05th September 2025 at or near Heuningvlei, Kuruman, Northern Cape, he committed a serious misconduct in that he inter alia sexually assaulted a learner whilst he knew or ought to have known that he was not allowed to do so”. For the purpose of this award, the name of the learner will be kept confidential, and the learner will simply be referred to as “the learner”. The educator registered a plea of not guilty to the charge levelled against him.
These proceedings were conducted in English, and were manually, and digitally recorded. The parties submitted a bundle of documents, which were marked bundle “A”, and “R”. The parties agreed to submit the written heads of argument on Tuesday, 27 January 2026, and they both submitted.
In all matters in which an employer wants to take disciplinary action against an educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Council, shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the Council.

Issue to be decided

I have to decide whether an educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction. Survey of Evidence EMPLOYER’S EVIDENCE

First witness: the learner

The learner testified under oath that she was 14 years old, doing grade 8. The educator taught her natural science. All these things started at school, but she did not understand what the educator wanted to do. The educator used to come to her whilst standing with her peers, and he would have asked her whether she was dating. He used to hug her, and touch her cheeks, but she did not like it.
On 05 September 2025, her mother hosted a party at their home, and she invited her colleagues. The white polo arrived at their home, and her mother asked who were these people? She replied by saying that she did not know them. She saw the male educators from their school. She went outside to speak over the cell-phone. The educator passed her, and he asked her whether she was dating P, her friend. She replied by saying no.

9 She went for the second time outside to speak over the cell-phone. The educator approached her, and he pull her by her hips, and ended the call. He pulled and kissed her, but she managed to pull away. The educator asked her whether she was not feeling comfortable, and she replied by saying that yes. The educator pulled her again, and kissed her. He put his fingers on her private parts, and she went inside the house.

She went to the toilet inside the house. She overheard the educator asking to use the toilet, and her mother said the males were not allowed to use the inside toilet. The educator was allowed to use the toilet, and her mother’s colleague showed him where the inside toilet was. When she exited the toilet, the educator approached it, and he pushed her back to the toilet towards the wall. He covered her mouth with his hand. He lifted her left leg, pulled down her underwear, and he penetrated her vagina with his penis. When he finished, he told her that he was a Sesotho man, if she talked about what happened, he would hurt her and her mother.
She went to her bedroom, and locked herself inside. She was afraid to tell her mother what happened, and she told her mother she had flu. The mother asked how could she claimed to have a flu, but was holding her stomach. Her mother saw a love-bite, and she asked her what happened. She refused to talk, and her mother called her sister to talk to her. She was afraid to talk, and she kept saying Mr. Pule harassed her, but not saying that he raped her. The mother phoned the deputy-principal to report the harassment, and she said that she was going to the police station. This matter was reported to the police. The mother kept asking her whether Mr. Pule raped her, but she replied by saying that no, he harassed her. She opened up about the incident at the hospital that the educator raped her.
Under cross-examination, she stated that she was 14 years old when the incident occurred. It was an assistant-teachers who were invited to the party on the day in question. The educators were preparing food and others were outside cooking meat. It was noisy and there were movements outside. It was noisy when she answered her cell-phone, and the phone call lasted for three minutes. She went to the lounge from the outside. The educator requested her mother to use the toilet. She did not know why no one saw the educator when he followed her. She did not know how the educator knew that she went to the toilet. Her written statement stated that the incident lasted almost five minutes, it could be less or more than five minutes as per “A11”.
It was not easy to talk about what happened to you after been threatened. She did not want her mother to be killed because she talked about the incident. It was her mother who noticed that her underwear was upside down. She did not change her underwear because she was confused, and she did not even notice it was dirty. She was scared that she did not inform her mother and sister that she was raped.
If she continues to keep quiet about it, maybe the educator would continue with his conduct towards others at the school. She was scared and pretended she had flu. She was afraid to say that she had pain and had been raped. She was in the toilet when the educator was directed to the toilet. She was sitting in the lounge before going to the toilet. The educator used his hand to cover her mouth, and the other hand to pull her leg up. All the people were outside when she went to the toilet. Second Witness: Ms. Lorato Dorcas Olyn
The witness testified under oath that she was the learner’s mother. She did not invite the male educators to the birthday celebration. The educator asked to use the toilet, and normally the males do not use the inside toilet. The educator said that he was pressed, and wanted to do number 2. She requested one of her colleagues to show the educator the toilet.
Under cross-examination, she stated that she asked Tsholofelang to show the educator the toilet. The birthday celebration ended after 20h00. THE EDUCATOR’S EVIDENCE First Witness: Mr. Itumeleng Freddy Pule
The witness testified under oath that he and friends planned an outing after work on the day in question. At around 15h30, on their way to the tavern, they met two female colleagues, and they said that they were going to the party. They later joined them at the party, but not knowing it was at the learner’s house. On their arrival he recognized the learner’s mother, and they were welcomed. After fifteen minutes, the learner’s mother approached them, and asked his colleagues who he was, and they replied by saying that he was Mr. Pule. After one hour, she came back, and she said that what exactly they are teaching their children?
She told them that the learner was not listening at home, and she locked herself in her room, and was moody. The mother asked for advice, and his colleagues said that it was he who could assist the learner. The mother requested him to speak to her. Around 17h00, he requested to go to the toilet. They were sitting outside, and the learner’s mother allowed him to use the inside toilet. The learner was outside when he went to the toilet. The other lady showed him the toilet. The learner was not inside the toilet, and he denied the allegation that he raped the learner.
He denied ever meeting the learner inside or outside the house. From the toilet he went outside to join others. He later talked with his girlfriend over the cell-phone, and after talking over the cell-phone, the learner approached him. The learner said that she heard everything her mother told them about her. The learner said that she does not like the way her mother talked about her to the educators. She cried, and he said that they would talk one day. The learner hugged him, and he felt uncomfortable, and his colleagues were around. There were rumours that the learner like boys, and he pushed her away. He respects his work, and he never slept and stayed with learners. He denied ever having any physical contact with the learner.
Under cross-examination, he stated that the learner was sitting outside next to the main door. He confirmed that he spoke to the learner on the day in question. He requested the learner’s mother to use the toilet. He did not specify the reason for going to the toilet. He never used the inside toilet again.

Summary of Argument

THE EMPLOYER’S ARGUMENT

The employer’s representative submitted that the educator confirmed that there was a party, and he attended it. The employer’s evidence was not disputed. The educator’s behaviour impacted negatively on the future of the child. The educator failed to ensure that the best interest of the learner was protected. Instead he violated her rights in every aspect. The educator did not show any remorse, and he misused his in loco parentis position. The employer party proved their case against the educator. The trust relationship and the misconduct had prejudicial circumstances for the employer. The employer’s representative prayed that the educator be found guilty as charged.

THE EDUCATOR’S ARGUMENT

The educator’s representative submitted that there was insufficient proof to convict him. The educator denied the allegation levelled against him. There was no act of sexual assault or rape that occurred. This allegation was false, unsubstantiated, and not supported by credible evidence. There was no medical report to support her testimony that she even went to see the medical practitioner. The alleged sexual assault was said to have lasted several minutes, involved force, threats, physical restraint, and resistance yet, no one heard, no one saw, and no one intervened. This was not a minor inconsistency; it goes to the heart of probability. The educator was never alone with the learner in a closed space. Based on the above, the educator must be found not guilty on the charge levelled against him.

Analysis of evidence and argument

Section 28(1)(d) of the Constitution of the Republic of South Africa, 1996, provides that every child has the right “to be protected from maltreatment, neglect, abuse or degradation.” Section 28(2) further provides that “a child’s best interests are of paramount importance in every matter concerning the child.” These constitutional imperatives are central to the determination of disputes involving allegations of sexual misconduct against learners and must inform both factual findings and the assessment of sanction.
The allegation against the educator is that he committed misconduct by sexually assaulting a learner on 05 September 2025. Allegations of this nature are extremely serious. On the one hand, a false allegation of sexual assault may have devastating consequences for the accused, including loss of employment, reputational harm, and permanent exclusion from the profession. On the other hand, where such allegations are proven, the arbitrator has a duty to ensure the protection of children, and to determine whether the educator remains fit to work in an environment involving learners. Where an educator is found to be unsuitable to work with children, the Council is obliged to report the matter to the Director-General of Social Development for inclusion in the National Register for Sex Offenders. Whether the educator is guilty
The educator pleaded not guilty. In Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA 4/11) [2013] ZALAC 29, the Labour Appeal Court reaffirmed that the applicable test in dismissal disputes is proof on a balance of probabilities. Mere suspicion, even if strong, is insufficient to justify dismissal. The employer bears the onus to adduce credible evidence demonstrating that the employee committed misconduct warranting dismissal.
The educator’s version was that at approximately 17h00 he requested permission to use the toilet while at the learner’s home. He alleged that the learner’s mother permitted him to use the inside toilet, that the learner was outside at the time, and that he never encountered the learner inside the house. He denied any physical contact with the learner, and denied committing rape or any sexual assault. He further testified that he respects his profession and has never engaged in inappropriate conduct with learners.
Crucially, this version was not put to the employer’s witnesses, particularly the learner, during cross-examination. The learner was therefore not afforded an opportunity to respond to the educator’s denial or to his alternative explanation of events. As a result, the educator’s version remained untested and cannot be afforded significant evidentiary weight. In NUM and Another v CCMA and Others (2018) 3 BLLR 267 (LAC), the Labour Appeal Court confirmed that a commissioner commits a reviewable irregularity by relying on a version that was never put to the opposing party’s witnesses. The Court emphasized that proper cross-examination serves to place an opposing version before the witness so that evidence may be fairly and properly assessed. Where material aspects of a party’s case are not put to the opposing witnesses, the decision-maker is deprived of the ability to determine the dispute on a proper evidentiary footing.
The educator was represented by Mr. Melokwe, a full-time shop steward who regularly appears in arbitration proceedings. He cannot be regarded as inexperienced or unaware of the requirement to put his member’s version to the opposing witnesses. The failure to do so cannot be excused. The employer’s evidence, which remained largely undisputed under cross-examination, was that the learner entered the inside toilet at her home. She overheard the educator request permission to use the inside toilet, despite her mother indicating that males were generally not permitted to do so. When the learner exiting the toilet, the educator pushed her back to the toilet’s wall, covered her mouth, lifted her leg, removed her underwear, and penetrated her vagina with his penis. After the incident, he threatened her with harm should she disclose what had occurred.
Having regard to the totality of the evidence, I find the learner’s version to be credible, consistent, and corroborated by surrounding circumstances. The educator’s denial, being untested and unsupported, is improbable. On a balance of probabilities, the employer has discharged the onus of proving that the educator committed the misconduct as charged. Conclusion
I accordingly find that the educator committed serious misconduct in terms of section 17(1)(b) of the EEA, namely sexual assault of a learner. Sanction
Section 17(1)(b) of the EEA prescribes dismissal as a mandatory sanction for serious misconduct involving sexual assault of a learner. Even if dismissal were not mandatory, the gravity of the misconduct would render dismissal both fair and appropriate. Educators occupy a position of trust and authority. They assume a parental role while learners are under their care and are required to provide a safe and secure educational environment. Sexual misconduct by an educator fundamentally breaches this trust and irreparably damages the employment relationship. Such conduct is expressly prohibited by legislation and is in direct conflict with the South African Council for Educators (SACE) Code of Professional Ethics.
Section 120(1)(c) of the Children’s Act 38 of 2005 provides that a finding of unsuitability to work with children may be made by any forum recognized by law in disciplinary proceedings concerning conduct relating to a child. In terms of section 120(2), such a finding may be made on the forum’s own initiative. Given the seriousness of the misconduct and the constitutional imperative to prioritize the best interests of children, I find that the educator is unsuitable to work with children. The absence of previous misconduct does not negate the risk posed by the educator’s conduct. This finding is made solely for the protection of children. Award
The educator, Mr Itumeleng Freddy Pule, is found guilty of the charge preferred against him and is dismissed with immediate effect.
Mr Itumeleng Freddy Pule is declared unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
The General Secretary of the Council is directed, within 14 days of receipt of this award, to refer the matter to the SACE.
The General Secretary of the Council is further directed, in terms of section 122(1) of the Children’s Act, to notify the Director-General of the Department of Social Development for the purpose of entering the educator’s name in Part B of the National Child Protection Register.
The educator has the right to apply for review of this award in the Labour Court in terms of section 145 of the LRA, within the prescribed time-frames.