06 November 2026 – ELRC1346-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION
AWARD (Sec 188A OF LRA)

Case Number: ELRC1346-25/26EC
Date: 06 November 2026

In the matter between

Eastern Cape Department of Education Employer

and

Bonani Zathu Employee (accused)

DETAILS OF HEARING AND REPRESENTATION

This is an inquiry by arbitrator, in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (LRA). The arbitration proceedings were held on 05- 06 August 2026 and 01 October 2026. Eastern Cape Department of Education (employer) was represented by its labour relations officer, Mr Lusapho Ndzongo. The educator, Mr Bonani Zathu (employee), was in attendance and was represented by his attorney of record, Mr Thobani Noah (from T. Noah and Sons Incorporated).
The proceedings were digitally recorded.
At the commencement of proceedings, the employee sought to be represented by his legal practitioner. The employer initially objected but later agreed with him being represented by his legal practitioner. I also allowed him to be represented by his attorney owing to the seriousness of the allegations he is to answer to.
At the completion of the proceedings parties agreed to submit written closing arguments (aggravating and mitigating circumstances) by not later than 08 October 2026, and they all submitted as agreed.
ISSUE TO BE DECIDED
I am required to determine whether the employee is guilty of the charge(s) preferred against him by the employer, and if I find him guilty, I will determine an appropriate sanction.
BACKGROUND TO THE ISSUE
The employee is an educator at HC High School under OR Tambo Inland District. Following allegations of engaging in unaccepted conduct against a learner, the following charges were proferred against him:
‘Charge 1
It is alleged that you committed an act of misconduct in terms of section 17(1)(c) of Employment of Educators Act 76 of 1998 as amended (EEA)
• In that on or about year 2022 or 2023 you had a sexual relationship with a learner by the name of LP;
Charge 2
It is alleged that you committed an act of misconduct as contemplated in section 18(1)(f) of Employment of Educators Act 76 of 1998 as amended (EEA) :
• Wherein you brought the name of the Department of Education into disrepute by your actions that were trending in the public domain (social media) thereby denting the image of the Department.’.
Section 17(1) calls for mandatory dismissal if an educator is found guilty of the offense under the section, while section 18(1) does not.
The employee pleaded not guilty to both charges. The basis for his plea is that there had never been a sexual relationship between him and learner, Ms LP. The employer, on the other hand, is saying the employee had confessed (or admitted) to having had sexual relationship with Ms L.P.
SURVEY OF THE EVIDENCE AND ARGUMENTS
EMPLOYER’S CASE
Mr Wele Madikizela
Mr Wele Madikizela (HC High School Principal) testified that he had led the employee from when he was still HC deputy principal to present, as he is now the school’s principal. The applicant is teaching commercial subjects and had, amongst the students he taught, taught Ms LN in the period between 2023 to 2024.
Sometime in 2023 he recalls that there were rumours in school corridors that the employee was having a romantic relationship with a learner, Ms LP. The learner’s mother had at some point came to school to bring the issue to his attention. She also reported the issue to OR Tambo Inland Circuit Manager, Mr Deleki. A meeting was facilitated and the employee was called to Mr Deleki’s office, where the learner’s mother and aunt, and the learner herself were in attendance. After having been confronted about the allegations the employee admitted to having a relationship with the learner. He even wrote his admission down and signed it. The parents had also indicated their intentions of reporting the matter to the Police.
Ms LP and her mother had on another day after the meeting went to the school and angrily confronted the witness of having spread untruthful rumours about Ms LP being pregnant. He understands that the learner’s parents were misled as he never spread such rumours.
At cross examination he conceded that he had only heard rumours and had not witnessed the veracity of the allegations. He had asked the employee about the rumours and he denied them.
Mr Mbuyiselo James Deleki
Mr Mbuyiselo James Deleki (OR Tambo Inland Circuit Manager) testified that he had known Mr Madikizela from way back when he was still a school principal, himself. Sometime in 2022 or 2023 he recalls Mr Madikizela calling him and telling him that there were parents coming to his to his office about an issue with their learner child from HC High. Indeed, the parents (Ms LP’s mother and aunt) came to Mr Delekis office. Mr Madikizela arrived as well, and the employee followed immediately thereafter.
The mother angrily vented that the employee was having a relationship with her child (Ms LP), who was 15 years old at the time. There was even a complaint that the learner would at times not sleep at home. When asked about this the employee agreed that indeed he had a relationship with the learner and he apologized to the parents. T. He went further to pen a statement (letter) wherein he admitted to having a relationship with the learner. The letter was kept in his office, but it had since been lost.
At cross examination, the witness conceded that the mother had never said the learner would have been with the employee whenever she had not slept at home.
EMPLOYEE’S CASE
Employee
The employee testified that he teaches accounting, business studies and EMS. He also served in finance committee and learners’ disciplinary committee. He stopped serving in these committees after allegations of having a relationship with the learner came to the fore.
He testified that he had cordial relations with his principal, Mr Madikizela, until sometime in 2022 after he had asked him about the supposed payment made to a certain service provider, who was to render motivational speaking at an organized teacher empowerment event organized by the school.
He recalls some time in 2022 when he was asked by Mr Madikizela to go with him to the District Office. They drove in Mr Madikizela’s vehicle. They got to the District Office and went to Mr Deleki’s office. He got to be introduced to Ms LP’s parents. Mr Deleki told him that the parent had complained about him sleeping with their child. He then asked him when he started sleeping with the learner, and his reply was that he does not know what he was talking about. Mr Deleki then angrily asked if he knew the seriousness of what he had done, and that the matter would be reported to the police. He did not, at any stage, admit to having had sexual relationship with the learner. He denies having penned an admission that he had a relationship with Ms LP.
There is an instance where Mr Madikizela got to be confronted by the learner (Ms LP), who was with her mother and aunt. He was accused of spreading false rumours about the learner. The learner had even gone to the extent of grabbing Mr Madikizela with his shirt.
At cross examination, it was put to the employee that he had admitted in a statement he wrote that he was in a relationship with a learner, and his answer was that he never wrote such statement.
Arguments
For the employer it was argued credible evidence from school’s principal and Circuit Manager pointed to the employee having penned a statement wherein he agreed to having a relationship with the learner. He had even apologized to the learner’s parents. He does not provide an alternate version to dispute what happened in the Circuit Manager’s office. The employee had no collaborative witness to back his version. Charge 2 has been proven by the fact that the employer’s witnesses testified about the employee having dented the image of the Département. The employee contravened section 17(1)(c) and SACE’s Code of Professional Ethics, which called upon him to refrain from improper physical contact with learners. He brought teaching profession into disrepute. In terms of section 28(2) of the 1996 Constitution, the best interests of the child are to take precedence over the employee’s job security. He is to be removed from school environment. The employee should also be found, in terms of section 120(4) of Children’s Act, to be unfit to work with school learners who are mostly children, and the award about his guilt finding be notified to Department of Social Development Director General. His name should also be entered into Child Protection register.
For the employee it was argued that the employer failed to prove the employee’s guilt on the balance of probabilities. The employer was supposed to lead evidence that would suggest the existence of sexual relationship between the employee and the learner. The evidence of the learner would have shed much needed light on whether there was existence of such relationship. The charges were fabricated to get the employee dismissed. He should not be found guilty of any form of misconduct alleged against him. The employer is to be ordered to pay costs, which include legal costs, to the employee for having called him to defend vexatious allegations.
ANALYSIS OF EVIDENCE AND ARGUMENTS
It is noteworthy that the employer initially expressed its intention to call the learner, Ms LP, as its main witness. The employer later on, before the close of its case, indicated that it no longer intended to call the learner as there was no cooperation from her and her parent. The employer has also not conducted investigation and produced a report with a statement from the learner, which would have provided her prima facie version.
For an employee to be proven to be guilty of section 17(1)(c) of EEA offense, he must be proven to have had sexual relationship with the learner of the same school. Ms LP was in the same school as the employee, but for the offense to be proven sexual relationship between the employee and the learner has to be proven. In MEC For Education: Northwest Province v Rasutha and Others the Labour Court held that in a case where an educator faces a charge in terms of section 17(1)(c) of EEA of having had a sexual relationship with a learner of his school, the arbitrator has to determine whether indeed the educator had the said sexual relationship with a learner of his school. The onus is on the employer to prove, on balance of probabilities, that such sexual relationship was in existence. After all evidence has been adduced, the arbitrator’s award should make judicial consideration of the evidence led and weigh up competing versions. It is from then that a finding would be made on whether there was sexual relationship.
In the case at hand the employee is said to have agreed to having been in a relationship with Ms LP. He is said to have penned a statement wherein he agreed to having relationship with the learner. The probe to the sexual nature of the relationship has not been adequately done. The said statement he is said to have expressed his admission has been lost and thus could not be scrutinized to ascertain whether the employee admitted to having had sexual relationship with the learner. The employee denied having had a sexual relationship with the learner, and no evidence was led to prove the nature of the relationship, if there was, with the said learner. The onus to prove the charge is with the employer and not the other way round. In the circumstances the section 17(1)(c) charge of the employee having had sexual relationship with learner, Ms LP, has not been proven.
The employer led no evidence with regards to charge 2. Nothing was adduced to prove that the allegations against the employee were trending in public domain (social media) and thereby denting the image of the Department. Even if it were to be proven that they were, the allegations would have stood to be unsubstantiated as the employee would not have been proven to have been responsible for the spread of unsubstantiated rumours. The employee is therefore not guilty of this charge.
AWARD
I therefore make the following award:
27.1. The employee, Mr Bonani Zathu, is found not guilty of both charges 1 and 2.
27.2. The referral stands to be dismissed.