IN THE LABOUR RELATIONS COUNCIL

ARBITRATION AWARD
IN THE SEC 188A INQUIRY BY ARBITRATOR

Arbitrator: Retief Olivier
Case No.: ELRC 465-26/27 WC
Date of Award: 06 October 2026

In the INQUIRY BY ARBITRATOR between:

Western Cape Education Department
(Employer)

and

Xolile Duma
(Employee)

Employer’s representative: Ms Nelsonia Hlathuka – WCED


Employee’s representative: Self

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This is an inquiry by arbitrator convened in terms of section 188A of the Labour Relations Act 66 of 1995, as amended. The employee, Mr X Duma, is charged with misconduct related to alleged sexual offence of a learner of the Axios School of Skills. The employee Mr Duma represented himself, and Ms Nelsonia Hlathuka, labour relations official, represented the employer, the Western Cape Education Department. In this ruling I shall refer to Mr Duma as “the employee” and to the Western Cape Education Department as “the employer”. Ms Stephani Marks acted as an intermediary, and an interpreter, Mr Brian Banga connected virtually. The matter was heard on 2 September 2026 at the WCED offices at 1 North Wharf Square 2. Lower Loop Str, in Cape Town.

THE CHARGES AGAINST THE EMPLOYEE

2. The employee Mr Duma was charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998, in that during 1st School term of 2026, he conducted himself in an improper, disgraceful or unacceptable manner by sexually harassing a Year 4 learner A, associated with Axios School of Skills by:
   2.1 asking her on numerous occasions to give him a chance and asked her via WhatsApp to give him a chance and/or
   2.2 referring to her as “pumpkin” and/or
   2.3 telling her that his wife once asked if he would cheat on her, what race would he cheat with and that he responded by telling his wife that he would cheat with coloureds because they are full of life and are nice,
   2.4 and /or asking her to put up her hand and placed his hand next to hers, and said “see our colours are complementing each other, and/or
   2.5 asking her if she would date older men, and/or
   2.6 telling her if she would give him a chance, he would be the happiest man on earth.
3. Preliminary issues were dealt with, specifically ensuring the availability of the intermediary and an interpreter. The rights of the applicant were explained, and he acknowledged that he understood all these rights and that he was representing himself.
4. When the charges were put to the employee, he pleaded guilty to the charges. The applicant’s guilty plea was tested as per the requirement in the ELRC practice note 1 of 2018. He confirmed his guilt on all the actions noted above, except for item 2.3, as he indicated he could not remember whether he had told his wife this, but he did not dispute it per se. When further questioned the employee confirmed that he pleaded guilty to all of the charges as noted.
5. Considering the employee’s guilty plea to the charge and the specific actions relating to the charges that he conducted himself in an improper, disgraceful or unacceptable manner by sexually harassing a learner, identified as learner A for these proceedings, it was advised that the employer may make an opening statement detailing the issues that need to be addressed. Considering the guilty plea, it was not necessary to hear and consider evidence from learner A in terms of making a determination whether the employee was guilty of the charge. However, considering that the nature of the charge related to a Section 18(1)(g) offence regarding sexual misconduct, and not a section 17 offence, which carries a mandatory dismissal sanction, the employee was entitled to submit evidence regarding whether the offence was a dismissible offence, and further to submit mitigating evidence. This was also necessary in terms of the requirement of an arbitrator to determine whether the sexual abuse of a child as per the charges applies to section 120 of the Children’s Act number 38 of 2005, and to make a finding whether the employee is unsuitable to work with children.
6. The employer proceeded with an opening statement and the employer witness, the principal of the school, Mr Goerge Engelbrecht, testified to the background and nature of the offence an impact on the school and the learner, and the employee was afforded the opportunity to present evidence in mitigation, as well as a short closing argument. The employer requested to submit closing arguments in writing, and it was agreed that such written submissions would be submitted by not later than the 15th of September 2026.

SUMMARY OF EVIDENCE AND ARGUMENT

7. This ruling does not contain a complete summary of the evidence and argument presented during the proceedings, although I have considered all of it, I refer to key points as is necessary to substantiate my findings.
   OPENING STATEMENT
8. In an opening submission Ms Hlathuka, as the employer representative, provided the background to the incident and the charges as it arose. She noted that learner A, who laid the complaint regarding the sexual advances of the employee, was 18 years old and in her fourth year at the school. It was noted that the school is a school for special learners with low cognitive functioning and that these students including learners or students 5 to 6 years cognitively behind the peers in mainstream schools. She submitted that the employee sought to pursue a romantic and sexual relationship with the learner, noting that there were occasions when he was alone with the learner when he drove her from school functions in his vehicle and that he also pursued with WhatsApp messages. The learner ultimately reported these incidents, and the matter was investigated and the employee subsequently charged.

EMPLOYER EVIDENCE

9. Mr Geprge Engelbrecht, principal of the Axios Skills School and Neurodiverse Center, since 2020, testified the employee Mr Duma was employed as a Hospitality Educator on 09 January 2026. He explained that Axios School is a special school for learners with low cognitive functioning, and these students are approximately 5 to 6 years cognitively behind their peers in mainstream schools.
10. He identified the victim, learner A, as a hardworking and reserved student who started at the school in Year 1 in January 2023 and is currently in her final year, Year 4. He testified to how the allegations were brought to his attention, noting the school counselor, Ms. Gordon, approached him to report an incident, stating learner A had reported a sexual matter to another teacher, Mr. Rossouw. He noted that Mr Rossouw should then, in terms of the Abuse No More Protocol, report to him in writing. He received a short-written note from Mr. Rossouw, stating that Mr. Duma had called Learner A “pumpkin” and sent her WhatsApp messages., and he immediately reported the matter to the Directorate: Employee Relations.
11. He testified that he was deeply shocked when he first heard the allegations and did not think the reports were true at first, but he became even more shocked when he later learned the full details of what Mr. Duma had said and done to learner A more so when the formal charges were read on the record and he was made aware that Mr Duma pleaded guilty to the charge. He noted that he firmly supports the law, explaining that the law requires a Principal to always act in the best interest of the child and report matters like this to higher authorities. He concluded that he could not trust Mr. Duma to work with students again, because allowing him back into the classroom would directly violate his duty to protect vulnerable children.
12. In a fairly extensive closing argument, which I am not all repeating, it was argued the employer places significant emphasis on the testimony delivered by Mr Engelbrecht, the School Principal. The principal testified that Axios School of Skills is a specialized institution catering to learners with profound barriers to learning and development. The Principal established that the learners enrolled at this school, including the victim in this matter, are cognitively delayed by approximately five to six years compared to their peers in mainstream schooling systems. This objective, professional assessment elevates the gravity of the employee’s misconduct from a standard breach of workplace ethics to a predatory exploitation of an exceptionally vulnerable child. While a Year 4 learner in a mainstream school is already a minor requiring absolute protection, a Year 4 learner at a School of Skills possesses the cognitive capacity and emotional defence mechanisms of an even younger child. The Employee was fully aware of the institutional nature of the school and the compromised intellectual and emotional faculties of the students placed under his care.
13. In evaluating the evidence on a balance of probabilities, it was submitted one must consider the cognitive profile of the victim as outlined by the Principal. A child who is five to six years cognitively delayed simply does not possess the sophisticated linguistic capability or the complex social imagination required to fabricate a highly nuanced, adult narrative involving marital infidelity, racial fetishes, and the phraseology attributed to the employee. The only logical and plausible explanation for this specific testimony appearing in the record is that the Employee did, in fact, utter those words to the learner. The learner merely repeated the jarring and uncomfortable statements that the adult authority figure imposed upon her.
14. The employee’s admitted conduct relating to the charges, paints a disturbing picture of workplace grooming. By repeatedly asking the learner for a chance, using terms of endearment like pumpkin, comparing skin tones through physical contact, and asking her about dating older men, the Employee systematically attempted to erode the child’s natural boundaries in the context of a special school. This behaviour is uniquely dangerous. Learners with cognitive barriers are taught to trust educators implicitly as safe anchors in a world they often find difficult to navigate. The employee exploited this absolute trust to isolate the learner and to expose it to adult sexual concepts. This constitutes an egregious violation of Section 18(1)(q) of the Act. The conduct is inherently disgraceful and entirely incompatible with the high moral and professional standards demanded by the South African Council for Educators (SACE). The employer submits that the employee’s actions have shattered the contract of trust beyond repair, and his ongoing presence poses an active, unjustifiable risk to the safety of the vulnerable children enrolled at the institution.
15. The employer then refers to caselaw indicating that in MEC for Basic Education v Centre for Child Law and others (2012) ZACC 14, the Constitutional Court held that schools have a responsibility to ensure learners safety and Mr Duma’s actions breached the duty of care towards learners, as also confirmed in Mthembu v Ndlovu and another (2012) ZAKD 33.
16. It is submitted the employee’s admission to the charge that he acted in an improper manner towards the learner his actions amounted to immoral and unacceptable behaviour. He kept on asking the learner to give him a chance on several occasions. According to Section 1 of the Children’s Act 38 of 2005, the Act defines sexual abuse in relation to a child as when a teacher enters a sexual relation with the learner, regardless of the learner consenting, the teacher is committing an offence of sexual abuse as he or she is in a position of power; and the learner cannot give consent. The Act further defines sexual abuse of a child as sexually assaulting a child or allowing allow a child to be sexually assaulted; and or encouraging or inducing or forcing a child to be used for sexual gratification of another person; using a child in or deliberately exposing a child to sexual activities of pornography; procuring or allowing a child to be procured for commercial sex.
17. Educators are entrusted with the care of children, and they must act with utmost good faith in their conduct towards learners because society must be able to trust educators unconditionally with their children. Learner A is a vulnerable child at a special school who is 5 to 6 years cognitively behind her peers in mainstream schools, and she has a general right to be protected from sexual abuse, harassment, and sexual assault. Mr. Duma’s conduct towards her was inappropriate, unacceptable, and far removed from acting in the best interest of a child. He had unfortunately failed in his obligations as an adult, as an educator, and as a protector of children. Mr. Duma has breached this trust and has displayed no genuine remorse for his conduct during the inquiry; instead, he attempted to shift the blame onto another minor learner, learner B, to excuse his own actions. The seriousness of the offence is such that an employment relationship between Mr. Duma and the WCED cannot continue., especially in light of the duty in terms of the constitution to consider the interest of the child as paramount.
18. In conclusion it was argued that the employee Mr Duma pleaded guilty to the charge and his guilty plea established on the record, and the only appropriate sanction is summarily dismissal. The Education Department has a constitutional duty to protect children especially those who live with vulnerable special needs like learner A. He attempted to blame another minor student which proves that the trust relationship is broken beyond repair and his plea of guilty does not excuse the gravity of his misconduct. By failing to ensure the safety of the learners the Department has requested the employee Mr Duma be dismissed from the service of the Department of Education.

EMPLOYEE EVIDENCE

19. The employee Mr Duma pleaded guilty to the charge against him but indicated that he also called other learners by nick-names as he did not know or recollect all their names initially. He explained how he got to know learner A, stating it started in the classroom, as another learner B, who was a friend of learner A, approached him and asked him if he had feelings for her because she had noticed how he was looking at her and thought he had a crush on her. He then explained that after a class function he was responsible for driving people home and because learner A lived the furthest, she was a last person to leave his vehicle and at that time he asked her if she would mind if he stopped at the Pick n Pay before dropping her off. She indicated that she needed to confirm with her parents, and he called her mother who gave permission to make the stop. He stated that he then got carried away and asked her whether she would date an older man. He also followed up with WhatsApp messages to her.
20. During cross examination he stated that this was the first time he taught and worked with learners, that is why he initially also had difficulty recollecting all the names and gave learners nicknames, including learner B, who he called sunshine. It was put to him that the learner complained that she was uncomfortable with his conduct and that he had also placed his hand on her hand one day, and that he spoke about dating her. He acknowledged that as an educator he could not be friends with a learner in that nature, and also acknowledged that he does understand the seriousness of the charges. He stated that if he could turn the clock back, he would, but he became weak and took advantage of a learner. He pleaded that he be given a second chance.
21. It was noted when he questioned the principal, it was acknowledged he was introduced to the Abuse No More Online Course training, but explained that he only did this after the matter was reported to the Principal. Furthermore, while he has experience working with students before, those students were older adults in colleges or universities, not young children in a special school. At the conclusion of his evidence he stated did not have anything further to state in closing argument.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

22. The disciplinary charges levelled at the employee as noted is of alleged misconduct, related to the sexual assault and sexual harassment and conduct of an improper, disgraceful and unacceptable manner towards learners. As noted, learner A is a learner in a skills school with impaired cognitive abilities. The employee pleaded guilty to the charges, the only consideration therefore is to determine the sanction of dismissal. The offences relate to Section 18 (1) (q) of the Act, and it has to be determined whether the particular misconduct warrants dismissal.
23. In Collective Agreement 3 of 2018 in the ELRC it is stated in dealing with matters of this kind according to Section 28(2) of the Constitution of South Africa, the best interests of the child should be paramount. In the practice note 1 of 2018 issued by the ELRC, it is noted that the Constitutional Court has held that Section 28(2) of the Constitution imposes an obligation on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner that favours protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children; not only the life of the child who is a victim of sexual misconduct, but also the lives of learners in general who have the right to be protected against sexual abuse from educators.
24. While the applicant showed some contrition, it did not diminish his misconduct in sexually harassing a vulnerable learner that is cognitively impaired and with diminished capacity. Without repeating the considerable evidence and arguments presented by the employer, which I am in agreement with, I do find that the misconduct of which applicant is guilty of is serious and constitutes improper, disgraceful and unacceptable conduct of a sexual nature. Considering the seriousness of these charges and considering the various policy documents and legislation regarding the requirement to consider the best interest of the child, particularly in this instance where it relates to learner with the diminished cognitive abilities, I find that this warrants summarily dismissal.

RULING

25. The employee Mr Duma pleaded guilty to misconduct in relation to the article 18 (1)(q) offences, in that he also conducted himself in an improper, disgraceful or unacceptable manner relating to offences of a sexual nature. The seriousness of these offences warrants summarily dismissal. I therefore find and order that the employee Mr Duma’s employment be terminated, and that he be dismissed with immediate effect.
26. In terms of Section 120 of the Children’s Act, Act 38 of 2005, I further find that the employee Mr Duma is unsuitable to work with children. The ELRC as the administrators of this Sec 188A enquiry is therefor entitled to provide for a further hearing or process for the parties to make submissions as to whether the Director General: Department of Social Development should be informed of these findings in terms of section 120 and 122 of the Children’s Act, Act 38 of 2005.

ELRC SENIOR COMMISSIONER: Retief Olivier