IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MAHIKENG (NORTHWEST PROVINCE)

Case No ELRC 788-24/25NW

In the matter between

NORTHWEST DEPT OF EDUCATION EMPLOYER

and

MOKOMELE MODISE EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 26 March 2025

CLOSING ARGUMENTS: 11 April 2025

DATE OF AWARD: 05 May 2025

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[1] This is an inquiry by arbitrator scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and held at Ngaka Modiri Molema District offices at Nelson Mandela Drive in Mahikeng in the Northwest province. Parties attended the proceedings with Miss Mathapelo Lerata, the Labour Relations Practitioner representing the employer while Mr Seitsiro Molete, a trade union official from SADTU represented the employee. I must mention that a request was made by the parties to make written closing arguments, a request I duly granted. I must however state that as at the date of my writing this award, only the employer filed its written closing arguments, and the employee failed to submit his written closing arguments despite an email reminder sent by the ELRC’s case management on 11 April 2025.

THE ISSUE TO BE DECIDED:

[2] I am required to decide whether the employee is guilty of the charge preferred against him and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[3] The employee, Mr Modise Mokomele is employed as an educator at Gold View Secondary School in the Northwest Province. The charge preferred against him stems from an allegation that he engaged in a sexual relationship with one of the learners at the abovementioned school.

Allegation 1:

“On or around term 1 or 2 of 2024 you had sexual relationship with a learner of the school where you are employed (name of the learner withheld). You have therefore contravened Section 17(1)(c) of the Employment of Educators Act No 76 of 1998 (the Act) which reads “having a sexual relationship with a learner where he or she is employed.”

[4] Mr Mokomele pleaded NOT GUILTY to the charge.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[5] The employer called learner A as the employer’s first witness. Learner A testified that she is a learner at Gold View Secondary School, and she is 18 years old and is currently doing Grade 12. The educator charged is a teacher at her school. The picture contained on page B3 of the respondent’s bundle contains a picture of learner B that was her friend at the school and the educator, Mr Mokomele. She knew that learner B had a romantic relationship with the educator. She started seeing learner B constantly visiting the educator and the educator constantly visiting their class. Learner B also received money for lunch from the educator. She initially was not aware that learner B and the educator had a relationship but had her suspicions. She confronted learner B about the relationship seeking to confirm her suspicions, but learner B denied that there was a relationship between her and the educator. But there were thereafter pictures of learner B and a video that started trending at the school. These pictures surfaced after leaner C confronted leaner B accusing leaner B of having stolen her (learner C) cellular phone.

[6] Learner C demanded her cellular phone back because she wanted to delete information that was on the phone. The incident was reported to their teacher, Miss Montso. Miss Montso called both learner B and C to her office and asked them what was going on. Miss Montso took the phone. The following day, learner C took the phone from the office and went through the phone in her (leaner A) presence and that was when they saw the pictures and videos. After school, they decided to report what they saw on a Friday morning. Learner C’s mother however took the phone, and the pictures and the videos of the educator together with learner B started trending when she arrived at school. The pictures were that of learner B’s private parts. She then went to report to one of the educators, Miss Mosweou that the pictures were trending. Miss Mosoeu then reported the matter to the principal. When asked during cross examination on how she associated the pictures as originating or belonging to leaner B, was that the picture does show that leaner B personalised the camera of the phone into her name and “…” (learner B’s shortened name) appeared on the picture screenshot. When it was put to her that the two individuals appearing on the picture on page B7, her response was it was leaner B and the educator.

[7] The employer called leaner D as its second witness. She testified that she attends school at Gold View Secondary School and that she knows the educator, Mr Mokomele who is an educator at their school. She knows learner B who was her friend and knew about the relationship between learner B and the educator. She came to know about the relationship when leaner B started frequenting the educator’s office. When she asked her what was going on between her and the educator, leaner B told her that there was nothing going on, but she frequently visited the educator’s office for school issues. She left the matter at that but after writing their first term examinations, leaner B told her that she was having a relationship with the educator. She (learner D) asked learner B why she was having a relationship with the educator as such might get her into trouble and that it might also lend the educator in trouble. She tried forcing learner B to end the relationship because their engaging in a relationship was not going to end well. When schools reopened for term 2 she asked leaner B if she had ended the relationship with the educator, and leaner B’s answer was in the affirmative. But she then started seeing leaner B going to the educator’s office and coming back having money with her.

[8] When she asked to share meals with her (leaner B) she told leaner B that she was not going to eat meals bought with the educator’s money. Leaner B then later told her that she was going on a date with the educator and learner B later posted that she was at Spur. At 00h00, learner B took a picture of herself lying on top of the educator, and sent the picture to her, showing that she was in the educator’s company. She asked leaner B why she was with the educator when she had warned her about it. When schools reopened again, the relationship between her and learner B became sour. She later learned that leaner B had stolen the phone of their classmate, leaner C. When the video showing leaner B having sex with the educator started trending at school, other learners started saying she (learner D) was the one who leaked the videos, and she told them that she knew nothing about the videos. She does not know and has never seen the picture on page B 6 but the picture on page B 7 showing learner B lying on the educator’s chest while the educator was sleeping is the one learner B sent to her via WhatsApp.

[9] Miss Lesego Mosweu was called as the employer’s 3rd witness. She works as an educator at Gold View Secondary School and knows the educator, Mr Mokomele. She knows learner B and she taught her (learner B) at Grade 11 in 2024. She heard that the educator was involved in a romantic relationship with learner B. On 19 July 2024 at around 12h45 in the afternoon, two learners came to her class and when she sought to reprimand them for disrupting her class, they told her that she did not know what they were going to say, but they left the classroom without saying anything further. She later received four pictures and a video via WhatsApp, and she was shocked at what she saw on the video. She asked one of the learners who earlier visited the class what she wanted her to do with the information, and the learner responded that she did not know. She decided to take the pictures and the video to the principal. She saw in one of the pictures learner B sleeping on the educator’s chest. The other two pictures were that of private parts of learner B and the video showed leaner B and the educator having sex. During cross examination and when it was pointed out to her by the applicant’s representative that it was not the educator appearing on the video, Miss Moseu’s response was that it was the educator and that she knew him. On being asked about the picture on page B 7and when it was put to her that the leaner B was not the one appearing on the picture, Miss Moseu’s response was that she knew leaner B and could identify her by the small scar on her (leaner) forehead.

[10] Mr Daniel Ngou Manone was called as the employer’s 4th witness. He is currently employed as the principal at Gold View Secondary School and knows the educator, Mr Mokomele. He was the one who recruited the educator to work at the school. He knows learner B and he received a report that learner B had a sexual relationship with the educator. On 19 July 2024, he received a call from Miss Mosweu who told her there was something going on at the school but was ashamed of telling him on the phone. Miss Mosweu later told him on the following Monday after the weekend that she saw pictures and video of learner B and the educator. He called learner B’s parents to the school, but learner B denied knowledge of the video. He called the educator and confronted him about the video, but the educator denied knowledge of the video. He saw the video which showed learner B and the educator having sex.

[11] He was certain that the picture shown on page B7 was that of learner B and the educator. It was not the first time that he had received reports about incidents or allegations of a similar nature where the educator was accused of touching learners’ bottoms and touching them in inappropriate manner, and he had had meetings with the educator where he spoke to him, reprimanding him about the allegations. The educator taught at Mmabatho High School but left because of allegations of inappropriate behaviour. When it was put to him during cross examination that the person shown on the video was not the educator, Mr Manone responded that it was, and that he knew the educator well and could identify him as the person on video.

Employee’s Evidence

[12] The educator, Mr Modise Mokomele, took the stand and testified that he is aware of the charge preferred against him and that he did not have a sexual relationship with learner B. He did not have a close relationship with learner B but their relationship was that of a teacher/learner which he has with all other learners and was still shocked at the allegation preferred against him. The allegations that he gave leaner B food and money and that she frequented his office were untrue. He would not have given learner B money because ethics do not permit a teacher to give money to learners. His office is always open and is a science department office and he is not the only one using the office but some of his colleagues also use the office. He is not always alone in his office. He has a professional and parental relationship with the learners as he understands that as an educator plays the role of a parent. He has a good relationship with all the learners who he assists often. He currently has a learner that he mentored who has since received a bursary. He also has a good relationship with other teachers at the school.

[13] Regarding the version by the principal to the effect that there were allegations of impropriety against him which he admitted to, the allegations were levelled against him but there was no evidence presented to support the allegations. Mr Manone, the principal was not telling the truth when he stated that he could not teach at Mmabatho High School because of the allegations of inappropriate conduct. He was declared an excess educator and had to go back to teach at Gold View Secondary School. He never met learner B at Spur as alleged by learner D and he would not do that as an educator. He has a good relationship with the learners and educators at the school and believe it is wrong of them to come and testify against him without presenting proof. The picture on page B 7 is his but he does not remember when the picture was taken. The person lying on his chest is not learner B because the picture was not clear. The picture is also not clear. He does not remember where he was when the picture was taken.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[14] Section 17 of the EEA read with the South African Council of Educators’ (SACE) Code of Professional Ethics unambiguously prohibits any act of impropriety or inappropriate conduct by educators towards learners and sexual relationships, whether by consent or not, are strictly prohibited between teachers and learners. Arbitrators, in numerous hearings that landed before the ELRC have pronounced over and over again the importance of educators shying away from and staying away from engaging in any inappropriate conduct, be it sexual or otherwise, and arbitrators have not shied away from meting out the harshest of sanctions where educators are found guilty of engaging in conduct that is inconsistent with provisions of Sections 17 and 18 of the EEA and the SACE Code of Professional Ethics.

[15] Having heard and considered evidence presented before me in its totality, it is my finding that Mr Mokomele did engage in a sexual relationship with leaner B as alleged. While learner B was not called as a witness, I find evidence led by the witnesses called by the employer to overwhelmingly support the allegation preferred against the educator. Firstly, while the educator denied having had a sexual relationship with learner B, I find the evidence by leaner A and leaner D compelling. Learner A in particular was adamant that learner B and the educator had a relationship because of learner B’s frequent visits to the educator’s office and where she would come back having money and food. While leaner B denied having a relationship with the educator when she confronted her, her suspicions were confirmed when the pictures and the video started circulating at school. Leaner D was equally emphatic that there was a romantic relationship learner B and the educator. They, leaner A and leaner D gave independent version of how they came to know about the relationship, and I had no reason to doubt the credibility of their versions. Her (learner B) version was even more persuasive and pointed to the existence of the romantic relationship between the two (i.e. learner B and the educator) as shall be clear below.

[16] Firstly, learner D was a friend to leaner B and had confronted leaner B about the relationship leaner B had with the educator and, and which relationship leaner B initially denied and which she later confessed to after the first term examinations where she (learner D) told her to stop since it might lend both her and the educator in trouble. It appears that learner B did not heed this wise counsel from her friend, learner D because she later told her about her going on a date with the educator, posted pictures of herself at Spur restaurant with the educator and later, at around midnight, sent her the picture on page B7 of her lying on the educator’s chest just to make sure that there was no doubt about her having been out on a date with the educator. Learner D’s version, supported by the picture of learner B and the educator that learner B sent to learner D left me in no doubt that there indeed was a romantic relationship between the two. The educator’s mere denial was unhelpful and did not take his case far. All he could say in response to the convincing testimony by learners A and D, in particular in relation to the picture of him and learner B in a bed together where learner B is seen lying on his chest while he was sleeping, was that, while it was him that appeared on the picture, he did not know the person lying on his chest, an assertion I find preposterous to say the least.

[17] What the educator failed to explain was how the person he claims not to know could be identified by all the witnesses called by the employer as learner B, including learners A and D. I was persuaded by the response given by Miss Mosweu during cross questioning when she pointed out that she knew the person that is with the educator in the picture is learner B who she could identify because of a small scar on her forehead, and the slight scar is indeed visible on the picture. Quite puzzling also is how the educator denied knowing the person he was with but failing to explain the striking resemblance between the person lying on his chest and learner B. Both the principal, Mr Manone and Miss Mosweu identified the educator as the one having sex with learner B in the video. I was thus left in no doubt that the educator had a sexual relationship with learner B as alleged, and I find his conduct to have been in contravention of Section 17(c) of the EEA and the SACE Code of Conduct.

[18] The educator, being an accused, bore no onus to prove his innocence but was nonetheless required to put forth as such defense as would show that the employer’s version was either untrue or far-fetched, something I find the educator to have dismally failed to do. An example is that the educator needed to provide at least good or an acceptable explanation on why the witnesses who had no history of any personal issues with him would falsely implicate him. Mr Manone for an example is the principal of the school and testified that he was the one who recruited the applicant to the school. The educator needed to explain how the principal who recruited him to the school would suddenly turn against him. It in fact appears that the principal did try to get the educator to change his ways when he reprimanded him and had meetings with him about allegations of inappropriate conduct towards learners. It appears that these efforts did not assist to the extent that the educator landed himself in trouble again by engaging in a sexual relationship with a learner.

[19] It is now trite that any allegations of misconduct towards learners should be treated very seriously, and for this reason, an educator found guilty of sexual misconduct cannot escape the sanction of dismissal. The educator, on his own version, admitted that he, as a teacher, is a parent to learners. In other words, he is in loco parentis and had a duty to ensure that learners under his care had the necessary protection from any form of abuse. The nature of the relationship between a learner and a teacher always places the teacher at an advantage. Any abuse of such advantage for a teacher’s personal gratification should invite scorn, and arbitrators will continue meting out the harshest of sanctions in order to send a strong message even to potential perpetrators of inappropriate conduct towards learners that such conduct will not be tolerated.

[20] In Mr Mokomele’s case, the video of his escapade with the learner trended at the school and the video and the pictures were there for most learners at the school to see. His was conduct that seriously harmed the teachers’ profession and surely impacted negatively on values that educators are required to espouse. A very strong message thus has to be sent that any truant behaviour by an educator that seeks to tarnish the noble profession of teaching should always be harshly dealt with. This is particularly so because learners are vulnerable and it is an educator charged with the responsibility of assuming the place of a parent while learners are under his/her care during school.

[21] The South African Council of Educators’ Code of Professional Ethics provides that educators must: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that they (educators) must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” This provision is in line with the Constitutional provision guaranteeing protection of the dignity and rights of learners. Schools are at all times required to ensure a safe learning environment, and it is teachers who should be at the forefront of championing that cause and any teacher that seeks to under such values has no business working with children. Having found Mr Mokomele guilty, it follows that he is unfit to work with children, a finding that is consistent with the provisions of the Children’s Act 38 of 2005 . I accordingly make the following award:

AWARD

[22] The employee, Mr Modise Mokomele, is guilty of serious misconduct in terms of Section 17(1)(c) of the Employment of Educators Act by having a sexual relationship with a learner at the school he is teaching at.

[23] The sanction of dismissal is imposed effective immediately.

[24] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[25] The employee, Mr Modise Mokomele, is found unsuitable to work with children in terms of Section 120(40 of the Children’s Act 38 of 2005.

[26] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Modise Mokomele, 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.

[27] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC