IN THE ELRC ARBITRATION
BETWEEN:

NAPTOSA obo Adrain Clinton Govinden “the Respondent”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Applicant”

ARBITRATION AWARD

Case Number: ELRC212-25/26KZN

Last date of arbitration: 24 July 2025

Date of submission of closing arguments: 31 July 2025

Date of award: 03 August 2025

NTOMBIZONKE MBILI
ELRC Arbitrator

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary proceedings (Inquiry-by-Arbitrator), which commenced and was finalized on 24 July 2025.
2. The arbitration was held at the Durban Teacher’s Centre, this being a venue provided by the Department.
3. The Applicant, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Ms. Nontobeko Mazibuko, employed by the Department as an Assistant Manager. The Respondent was present and represented by Ms. Ishara Dhanook, a Union Official from the National Professional Teachers’ Organisation of South Africa (NAPTOSA)
4. The proceedings were digitally and manually recorded. Mr. Bheki Hadebe provided interpreting services and Ms. B.F Khanyile was the intermediary.

ISSUES TO BE DECIDED

5. I am required to determine whether the Respondent is guilty of the charge levelled against him and if so, to determine the appropriate sanction.

BACKGROUND

8. The Respondent is employed as an Educator at Pitlochry Primary School and is charged with the following count of misconduct:

8.1 Charge1
“It is alleged that on 19 March 2025 you committed an act of sexual grooming a learner by the name of (learner A) contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998 as amended”

9. The Respondent pleaded guilty to the charge, when this plea was tendered, it was understood that he is accepting the elements of sexual grooming as an offence defined in section 17(1)(b) of the EEA. The respondent was accordingly found guilty as charged. Both parties then requested and were granted approval to provide written submissions on mitigating and aggravating factors by 31 July 2025.
10. The Applicant submitted a bundle of documents, marked bundle “A”. The bundle consists of WhatsApp messages of a sexual nature between the Educator and learner.
11. The learner shall be referred to as Learner A, because she is under the age of 18 years and her personal information shall not be published in line with the requirements of the law.

The Respondent’s Submissions on Mitigation

12. Mr Govinden, the employee, pleaded guilty to the charge; he did not want to waste the time of the hearing, neither did he intend to prolong the case by allowing child witnesses to testify.
13. He apologised for his actions and conceded that he had crossed the line and breached the code of conduct and ethics. He stated that he was remorseful and stated that it was something that he would have to live with for the rest of his life.
14. He went on to state that his only hope was that the employer would be lenient and issues him with a suspension and or a written warning alternatively allow him to resign, rather than dismissing me as there would be serious reputational damage and consequently, The implications for his prospects of future employment. I wish to make the following humble submissions :- I have been a dedicated and hardworking employee with 25 years of service, the last year of which has been in management at level 2 rank. Teaching has literally been the core of my life. I have always put the learner and the values of our constitution and education first. In fact I have personally stood up against corruption, nepotism and racism in education, at great personal cost to my career. I believe that I still have value to add in the education sphere.
15. At my present age it will be very challenging for me to find suitable employment in any other sector besides education which would meet my current financial commitments. My 79 year old mother is dependent on me for her care. She is currently under treatment for cancer with Dr Landers who is an oncologist. Not being able to provide continuous affordable medical aid cover for her would literally be life threatening.
16. At no time did I have any intention of doing anything to the learner, It started off as joking that got out of hand. I accept full responsibility for this as she is a minor. I am truly sorry and remorseful for my actions. I was most certainly not ‘grooming’ the learner. I would never harm any learner.
17. He said that he met with the parents at school after they submitted a written complaint/statement to the principal. He read out his written statement and apologised to the parents who were evidently upset. The mother of the Learner told him that he was the learner’s favourite educator and she remarked that she ‘did not know what to do’. The learner’s father stated to the principal that his statement and apology were ‘okay for now’. He went on to state that all this resulted from his callous, reckless and unethical actions.
18. He stated that he cared deeply for the learners and have always gone the extra mile for them. He assured the employer that he posed no danger to any learner, and should the employer sanction him with a sanction short of dismissal, he vowed that nothing like this will ever occur again”.
19. It was further submitted that there has never been any physical interaction between the employee and the learner.

The Applicant’s Submissions in Aggravation

12. The Educator contravened the Code of Conduct and ethics of SACE section 3.12 which says that an Educator must use appropriate language and behaviour in his interaction with the learner and acts in such a way as to elicit respect from the learner. The Educator was aware of the rule and that he can be dismissed for his action he even mentioned that “nothing will happen to the child, but his career is at stake” (page8 of the bundle)
13. The Educator has abused his power by grooming eleven-year-old learner in a primary school in that he was making conversations through Tik Tok and WhatsApp with a minor of sexual nature e.g.,” your pussy gets wet when it gets aroused…so what …. It’s natural … u can’t stop nature… everybody known about it… it’s not a secret” (pag.18 of the bundle) at the end suggested that the child must attend his maths tuition during weekend.
14. The educator pleaded guilty to show remorse, but this is a serious offence that cannot be overlooked. The Employment of Educators Act is clear that any educator who has been found guilty of contravening section 17(1) must be dismissed.
15. The Educator’s name should be registered in the Child Protection register as he is not fit to work with children and be reported to Social Development. He contravened the constitution Act 108 0f 1996 Section 28(2) which says a child best interest are of paramount important in every matter concerning the child. The Educator betrayed the trust that is placed by the department and parents on him as a parent towards learners in school. Therefore, he must be declared as unfit to work with children in terms of Section 120(1) (c) of the Children’s Act 38 of 2005.

ANALYSIS OF EVIDENCE AND ARGUMENT

20. The allegations are that the respondent had sexually groomed learner A and is in breach of section 17(1)(b) of the EEA.
21. Common assault is defined in our common law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened.
22. Assault by means of menacing threats of a sexual nature may occur without any touching. The elements of sexual assault are (a) conduct of a sexual nature (b) which results in the victim’s sexual integrity being impaired (or inspiring the belief that it will be impaired) (c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent by the victim (d) intention to commit the misconduct – in other words accidental unintentional bodily contact is excluded from the definition.
23. It follows from the plea of guilty tendered by the respondent that there was no evidentiary burden on the employer to prove each of the elements as the respondent simply accepted liability. Unlike in criminal courts, where the State has an evidentiary burden to prove its case beyond reasonable doubt, the standard is much lower in labour matters, where the evidentiary burden is lower and the standard of proof is on a balance of probabilities. I am satisfied that the plea of guillty tendered by the respondent accords with the dictates of fairness and equity required for fair labour practices.
24. It is clear from the evidence that the respondent directed sexual messages to the student with a clear end in mind, he sought to introduce sexual behaviour to the learner in a manner that is unacceptable and clearly in breach of the Code of Conduct for Educators. The inference that this amounts to grooming is not contended against and therefore the only one to be drawn from the facts, it therefore must be accepted. This said, I am convinced that the undisputed evidence demonstrates conduct of a sexual nature inspiring the belief that bodily integrity of the minor child, in a manner that is unlawful. No justification in law was given by the respondent for his conduct. This therefore means that the respondent is guilty of sexual assault contemplated in the EEA.
25. Section 17(1)(b) of the Employment of Educators Act outlines the following:
    “An educator must be dismissed if he or she is found guilty of-
    (a)…
    (b) committing an act of sexual assault on a learner, student or other employee.”
26. The allegations, when proven, amount to serious breaches of professional ethics and the Employment of Educators Act, which safeguards learners’ dignity and the school/learning environment. The vulnerability and age of alleged victim heightens the seriousness of the offence and requires strict accountability.
27. The evidence before me strongly suggests a pattern of misconduct, including sexualized comments while engaging with a learner. The inappropriate language that was used when communicating with the learner is wholly unacceptable. Teachers play an important role in the lives of children that they interact with and they are placed in a position of trust. The trust relationship has, in my view, been rendered broken at the instance of the respondent.
28. When the respondent opted to use the kind of language when communicating with a learner he accepted the consequences that come with his pattern of behaviour. The respondent’s plea for leniency and his reasons for requesting a sanction short of dismissal do not adequately address the gravity of his actions. The respondent’s actions have clearly crossed a line that cannot be excused or justified in any way. The respondent’s statement that “nothing like this will ever occur again” is not sufficient to guarantee that similar actions will not be repeated in the future.
29. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) the following was held:
    “In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
30. I am not satisfied that the respondent laid any foundation in demonstrating that dismissal was not an appropriate sanction for the proven misconduct. In this regard I find that the dismissal is the only appropriate and fitting sanction for the misconduct that he is found guilty on.
31. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:
    “Substitution of section 17 of Act 76 of 1998 The Employment of Educators Act,1998, is hereby amended by the substitution for section 17 of the following section:

Serious misconduct

17. (1) An educator must be dismissed if he or she is found guilty of —
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner. student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).

(2) If it is alleged that an educator committed a serious misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.”

32. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted the Girl Child in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. The employee is simply dismissed by operation of the law, after being found guilty of having sexually assaulted a girl child at the school where he was employed.
33. It follows, based on the provisions of the law (the ELAA), a dismissal is mandatory and the only appropriate sanction which must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the children.
34. Having found the employee guilty of the count, which is based on paragraph 17(1)(b) of the EEA, which provides for a mandatory sanction of dismissal, upon a guilty finding, by operation of law, the employee must be dismissed.
35. The employer, in its aggravating submissions addressed me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the children. Section 1 of the CA provides the following:

“1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years”

36. Section 1 of the Sexual Offences Act also defines a child as follows:

“1. Definitions and interpretation of Act

(1) In this Act, unless the context indicated otherwise-
‘child’ means a person under the age of 18 years and ‘children’ has a corresponding meaning”

37. Section 122(1) of the CA provides the following:

“122

(1) Finding to be reported to the Director-General. The registrar of the relevant court, or the relevant administrative forum, or if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-

(a) of any findings in terms of section 120 that a person is unsuitable to work with children, and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.”

38. It follows that the finding which I have made necessitates that the decision be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.
39. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

AWARD

I accordingly make the following award:-

1. The Respondent, Mr. Adrain Clinton Govinden, is guilty of committing misconduct as set out in the charge sheet;
2. The Respondent is sanctioned to summary dismissal;
3. Mr. Adrain Clinton Govinden is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005;
4. 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 the Mr. Adrain Clinton Govinden 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;
5. The General Secretary of the Education Labour Relations Council is directed to serve a copy of this was to the South African Council of Educators (SACE).

NTOMBIZONKE MBILI
Arbitrator 06 August 2025