IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT FLORIDA
CASE NO.: ELRC127-25/26 GP
In the matter between: –

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

ALPHEUS PHELANI MKHIZE EMPLOYEE
__________________________________________
ARBITRATOR: Mmamahlola Gloria Rabyanyana
Heard: 24 July 2025
Closing Arguments: 31 July 2025
Aggravating Factors: 31 July 2025
Date of Award: 06 August 2025
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Enquiry by Arbitrator.

                                                           AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by the arbitrator was held physically at the Department of Education’s Johannesburg West District offices in Florida on 24 July 2025. Mr E. Ngobeni, its labour relations official, represented the employer. The educator, Mr Mkhize, was absent. I requested Mr Mogotsi, the Council’s case management officer, to establish Mkhize’s whereabouts.
2. The feedback from Mr. Mogotsi was that Mkhize informed him that he was not interested in attending this inquiry. In consideration of the history of the inquiry as captured below, I became satisfied that Mkhize elected to waive his right to be heard. I proceeded in his absence.
3. In Foschini Group v Maidi and Others (2010) 31 ILJ 1787 (LAC), the court held that ‘it is trite law that a party who chooses not to attend a hearing, does so at his or her own peril, and is precluded from later complaining about the outcome of the hearing’.
4. I recorded the proceedings digitally. The Employer’s bundle of documents is marked “E”. The employer submitted closing arguments and aggravating factors on 31 July 2025.

BACKGROUND

5. The enquiry was initially scheduled for 18 June 2025. Mr Mkhize did not attend. Mr Ngobeni submitted that he had indicated to him that he was not interested in challenging this enquiry, his focus was on the criminal court proceedings where he is charged with rape of the learner under review. As such, he did not attend the pre-hearing meeting.
6. I requested Mr Mogotsi to call the educator, and the feedback was that Mkhize did not answer the call. Despite the proof that he was properly notified of the inquiry, I postponed the case, gave him the benefit of the doubt, and another chance.
7. The learner and her father were present on both days. The learner compromised her lessons in pursuit of justice. The postponement was adversely on the learner’s education for the day, since her absence from school was in vain.
   ISSUE TO BE DECIDED
8. I am required to determine if the Employee had sexually harassed a learner as proffered by the Employer. If I find the Employee guilty of the offences, I will determine the appropriate sanction. ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
9. Mr Mkhize was charged with three counts of misconduct as follows: – Allegation 1

It is alleged that on or around the 13th of February 2025, he sexually assaulted NM, a Grade 11 learner at the school where he is employed, in that he dragged her, undressed her, licked her body and vagina, and sexually penetrated her without her consent.
In view of his actions, he is charged with misconduct in terms of Section 17 (1) (b) of the Employment of Educators Act 75 of 1998, as amended.

Allegation 2

It is alleged that on or around 13 February 2025, he threatened to assault NM, a Grade 11 learner at the school where he is employed, in that he pointed her with a gun.

In view of your actions, you are thus charged with misconduct in terms of Section 18 (1) (r) of the Employment of Educators Act 75 of 1998, as amended.

Allegation 3

It is alleged that on or around 13 February 2025, he conducted himself in an improper, disgraceful, and unacceptable manner in that he sent a text to NM with the following sexual remarks:
• “You bath?”

• “Wearing what?”

• “Pull it down”

• “Open your legs wide open.”

• “Can I put my tongue in between your legs?”

In view of your actions, you are thus charged with misconduct in terms of Section
18 (1) (q) of the Employment of Educators Act 75 of 1998, as amended.

EVALUATION AND SUMMARY OF EVIDENCE

10. NM testified that she was born on 11 October 2008 and is 16 years old. She is doing grade 11 in 2024. Mr. Mkhize taught her isiZulu in grades 8 to 10. As they share the same surname, they became close. Later, he introduced himself to his father. They became a family and referred to him as uncle. She completed grade 10 in 2024.
11. In January 2025, when the schools reopened, he brought his young daughter, L, from KZN to reside with her. The daughter is in grade 8. He requested her to reside with him and the daughter because her home was far from school. She was residing with her mom and using public transport to go to school. His place was closer to the school. He said she would also care for his daughter as a girl. Initially, the parents were hesitant to allow her to reside with him. He persisted until they agreed.
12. She moved in with Mkhize and his daughter.it was only the three living in the house. There were tenants in the outside rooms. Mkhize gave her a set of house rules. One of the rules was that she was prohibited from calling her parents in his absence and speaking to the tenants.
13. On 13 February 2025 at about 11 p.m., whilst she was studying, he sent her a WhatsApp message as on E 24-29 which read thus:
    “You bath?” “Wearing what?” “Pull it down.”
    “Open your legs wide open.”
    “Can I put my tongue in between your legs?”
    “Are you a little wet?”
14. He instructed her to delete the messages. She screenshots the messages before deleting them. Her daughter was already asleep. She then went to bed. There was no bed in their room; they were sleeping on the floor with the daughter.
15. He opened the door to their room and entered. He quickly pulled her from where she was sleeping with his daughter. He dragged her to his room. As she tried to fight, he pulled a gun, cocked it, and instructed her to be quiet and not scream, else he would shoot her. He took off her pyjamas, pulled her legs, forced her thighs apart, licked her, and penetrated her with his penis. He told her not to tell anyone.
16. When he finished, he ordered her to take a long bath and wash the clothes she was wearing. She reported the incident to her parents the following day, on 14 February 2025. They took her to the doctor and opened a rape case with SAPS. The parents reported the incident to the principal on 16 February 2025.
17. D.A.M. testified that he is NM’s father. Sir developed a family relationship with him after getting to know him through his daughter, NM. In January 2025, Sir requested that NM reside with him and his daughter because he was closer to the school and she would keep L. busy. Following his persuasion, they relented and allowed NM to move in with him.
18. On 14 February 2025, NM called him weeping and reported that she had run away from Sir’s house with L. They were on the way to her mom’s place. He drove to meet them at her mom’s house. She showed them the screenshots and reported that Sir had sex with her.
19. They took her to the doctor and reported the incident to SAPS. He wept when he stated that he regretted immensely allowing NM to stay with Sir. He does not live with NM’s mother. NM had been living with her mother. After the incident, her mother persistently influenced NM against pursuing the criminal charges and sided with Sir. Hence, he decided with NM to relocate to her paternal aunt (his sister) within his vicinity. He is now NM’s primary caregiver. They suspect Sir had promised NM’s mother something. NM’s relocation to her place caused her to change schools. Closing Arguments
20. The employer’s representative argued that Mkhize’s actions were well calculated, like a hunting lion. He knew how to scale, plan, and prey on his victims. His actions were premeditated; he knew what his intentions were, which is the reason he provided her with rules. Such conduct could have persisted for a long time, as some learners do not come forward.

Aggravating Factors

21. A dismissal should send a strong message to the other employees. He can no longer be trusted around girl learners. His relationship with the employer is irretrievably broken; thus, he was suspended from the school as his behaviour was that of a sexual harasser or rapist. He must be registered under the National Register for Sex Offenders and be prevented a direct contact with learners. A dismissal will deter other educators from committing the same offence. ANALYSIS OF EVIDENCE AND ARGUMENTS
22. Mr Mkhize waived his right to state his case, challenge the employer’s witnesses, and mitigate the sanction if found guilty, by refusing and failing to attend this inquiry. Therefore, my determination will be based on the unchallenged evidence presented before me.
23. In determining whether he is guilty of the offences proffered against him, I will consider if the following elements are present:-
    • if his conduct was sexual;
    • if his actions resulted in the victim’s sexual integrity being impaired or inspiring the belief that it will be impaired;
    • If his actions were intentional;
    • If there are no justifiable grounds for the actions.
24. NM’s testimony is that Mkhize initiated a WhatsApp sexual text with her. He engaged in cybersex with her before he went to snatch her from her room. He dragged her to his room and threatened her with a gun. He licked her, forced her thighs apart, and penetrated her forcefully. NM was 16 years old when he had sex with her. These unchallenged, shameful messages and conduct are from an educator to a 16-year-old learner.
25. Her father corroborated what she reported to him the following day after the incident. He wept when he displayed his regret for allowing his stay with Mkhize. Their evidence is consistent with no contradictions.
26. In the absence of any contrary testimony, I am persuaded on the balance of probabilities that the WhatsApp messages were from Mkhize’s phone, which was a prelude to the sexual encounter with NM shortly after. There is a link between the messages and the sexual act. Therefore, he was the author of the messages.
27. Mkhize not only raped the learner but also threatened to shoot her if she screamed. Shame and lack of defence certainly are behind his snubbing this inquiry.
28. I am satisfied that the employer has proved that the existence of all four elements required to establish a sexual conduct as outlined above is present. Mkhize had the intention to penetrate NM, which he did, accompanied by death threats. NM’s evidence that he threatened her with a gun is unchallenged. Therefore, the employer has successfully proved on the balance of probabilities that Mkhize has committed the three offences. I find Mkhize guilty as charged.

SANCTION

29. Mkhize’s attitude of refusing to attend this inquiry demonstrates a lack of remorse for this appalling and heinous offence. He displays brazenness with no regard to the outcome of these proceedings.
30. In terms of Section 17 (1) (b) of the Employment of Educators Act of 1998, “Act”, an appropriate and mandatory sanction for a sexual assault of a learner is dismissal. Therefore, the offences that Mr. Mkhize committed carry a mandatory dismissal sanction. He knew that he was guilty and that no amount of mitigation would lessen the sanction, hence he refrained from participation and spared us the time.
31. In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court held that “The interests of the community cannot be ignored in determining an appropriate sentence. Some of the components of the offences occurred on the premises of a primary school. It is also necessary to continue to impress upon people in positions of responsibility that they cannot leverage their power, and the esteem with which they may be regarded, to satisfy their sexual lust.
32. In the light of the seriousness and heinous nature of the offence with the mandatory sanction it carries, I must impose a dismissal regardless of his disciplinary record, which the employer failed to present.
33. He committed the offences against a young adolescent girl. She looked upon him as an uncle and an educator. NM and her parents had vested their trust in him to live with him and avert long-distance travelling to school. Similarly, he would derive benefit as she cared for her daughter in exchange. He abused his powers to feed his lust. The outcome not only destroyed the trust relationship but had injured the victim emotionally and psychologically.
34. His actions are seriously harmful and destructive to the core. He destroyed the trust relationship with NM and other learners, his employer, and the community at large. He abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction.
35. He had shamefully violated the victim’s constitutional right to dignity and education. He exposed the young girl in a way that no mitigating factor would stand the test of time. He abused his position and relationship to prey on the innocent child.
36. A single offence is sufficient for dismissal. However, it was premeditated and coupled with death threats. He raped the girl at gunpoint. He preyed on this young girl to satisfy his lustful needs. Therefore, the gravity and the damage caused to the victims are glaring. Mkhize is dismissed for counts of sexual harassment and life-threatening offences.
37. I agree with the Employer that a strong message is necessary to deter potential transgressors from committing this horrendous act. The objective is to protect and safeguard the future and dignity of young learners.
38. I find Mkhize unsuitable to work with children. I invoke Section 120(2) of the Children’s Act No 38 of 2005 to declare him, on my own accord, unsuitable to work with children. Therefore, Alpheus Phelani Mkhize’s name must be entered into Part B of the National Child Protection Register, in terms of Section 122 of the Children’s Act.
39. The General Secretary of the ELRC must, in terms of Section 122(1) of The Children’s Act No 38 of 2005, notify the Director General: Department of Social Development in writing about the findings of this forum made in terms of Section 120 (4) of the Children’s Act No 38 of 2005, that Alpheus Phelani Mkhize is unsuitable for working with children, for the Director General to enter his name in Part B of the National Child Protection Register.
40. The attention of SACE is drawn to the fact that Alpheus Phelani Mkhize had sexually abused an adolescent learner.
41. The ELRC is directed to forward a copy of this award to SACE.

Signed and dated at Pretoria on 06 August 2025.

MG Rabyanyana ELRC Panellist