Case Number: ELRC 806-24 25 MP
Commissioner: M.A. HAWYES
Date of Award: 03 July 2025
In the ARBITRATION between
Department of Education: Northwest
(Employer)
and
M.J Nchabaleng
(Employee)
- DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 24th of February 2025, 24th of March 2025, 24th of April 2025 and was finalised on the 30th of May 2025.
1.2 The entire inquiry by arbitrator took place in person at the Nkangala District Office, KwaMhlanga.
1.3 Mr. A.N Maseko a union official from SADTU, represented the employee for most of the inquiry by arbitrator except for the 24th of February 2025 when Mr. M.M Mahlobogoane, also a SADTU official, represented the employee.
1.4 Mr. P.N Sibanyoni, a labour relations officer, represented the employer.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 6th of June 2025. The said arguments were timeously received and my award now follows.
1.6 The only documents introduced during the course of the arbitration were the written charge levelled against the employee and a statement written in Zulu that purported to be that of the affected learner.
1.7 Detailed notes and a digital recording was also kept of the entire arbitration process. - ISSUE IN DISPUTE
Whether the employee is guilty of sexual misconduct as contemplated in section 17 (1) (b) of the Employment of Educators Act no 76 of 1998 (as amended) (EEA). The employee was charged with sexual misconduct in that during the third quarter of 2024 he committed an act of sexual assault upon a learner by the name of TM, by touching her private part. - BACKGROUND TO THE ISSUE
3.1 The Respondent employs the employee at King Makhosoke II Secondary School and at the time of the alleged incident in 2024 he was the acting principal at the school.
3.2 The employee pleaded not guilty to the charge preferred against him. - SURVEY OF PARTIES EVIDENCE AND ARGUMENT
POINT IN-LIMINE RAISED BY THE EMPLOYEE AND OTHER PROCEDURAL ISSUES
4.1 Mr. Mahlobogoane raised a point-in-limine that the charge sheet was vague because it did not specify the date on which the alleged incident occurred.
4.2 Mahlobogoane argued further that because no date of the alleged incident was mentioned, he was unable to prepare properly, the employee was prejudiced and he asked that the case against the employee be dismissed.
4.3 Sibanyoni opposed the application stating that the fact that the date of the alleged incident could not be pinpointed did not mean that the incident did not happen.
4.4 After consideration I dismissed the point-in limine. Given the nature of disputes on this kind and the fact that many learners cannot remember dates does not mean that they are not honest in their testimony. Sometimes the inability to cite a specific date is cured by the subsequent evidence itself.
4.5 After making my decision on the point in limine, Mahlobogoane became visibly angry, stood up and indicated that he was leaving the hearing room which he proceeded to do. The employee was as shocked and surprised as the rest of us were at Mahlobogoane’s unprofessional conduct.
4.6 After subsequent discussions with the employee, he indicated that he wanted the case to proceed, he was tired and he would represent himself. The arbitration then continued and the employee pleaded not guilty to the charge.
4.7 The evidence of three witnesses was led on the 24th of February 2025, which evidence I will survey shortly.
4.8 Sibanyoni advised me that despite numerous attempts to obtain an undertaking from TM’s mother to bring TM to the hearing the mother had steadfastly refused to do so.
4.9 I immediately directed Sibanyoni to issue subpoenas for the complainant’s mother and the complainant herself to attend the hearing on the next occasion.
4.10 The matter was adjourned to the 24th of March 2025 and on this date Mr. Maseko from SADTU appeared and sought to represent the employee. Upon learning that the evidence of witnesses had been led on the 24th of February 2025, Maseko requested for a postponement and requested that he be furnished with the recordings of the 24th of February 2025 to prepare. The request was eventually granted and the case was later adjourned to the 24th of April 2025.
4.11 Maseko furnished me with his email address (sekosabby@gmail.com) and I undertook to forward the digital recordings to him via We Transfer. I send the recordings on the 24th of March 2025 at 14h49 to the email address which he had provided. (I have proof of this). Maseko had seven days within which to download the recordings and did not do so. I received no further request from Maseko or the ELRC case management officer to forward the recordings again.
4.12 On the 24th of April 2025 Maseko accused me of not sending the recordings to him and requested another postponement, which request was denied and the arbitration continued with the employee calling two witnesses in support of his case. The employee himself did not testify. Thereafter the employee closed his case.
4.13 I should also mention that on the 24th of March 2025 neither the mother of TM nor TM herself appeared to testify. Sibanyoni had also sought to call another minor witness, apparently a friend who was with TM when she allegedly reported the incident to the witnesses whose evidence will be surveyed shortly. Sibanyoni advised that this witness refused to testify at the hearing if TM herself did not testify.
4.14 Sibanyoni from the employer advised me that the subpoenas could not be served because neither of the parents could be found to serve the subpoenas on.
4.15 Before the case was postponed on the 24th of March 2025 Sibanyoni led the evidence of two more witnesses and then closed his case.
4.16 After the matter was adjourned to the 24th of April 2025 the first witness called by the employee was the mother of TM. TM did not accompany her mother.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
4.17 The Respondent initially led the evidence of three witnesses on the 24th of February 2025. The witnesses were Mr. Sanele Makhabela, Ms. Queen Mhlangu and Ms. Precious Molepe.
4.18 The first witness (Makhabela) (testified that they were members of a local Crime Watch and they had been invited by the principal of the school to give a presentation at assembly. The school had numerous problems related to gangsterism and drugs. The invite took place in September 2024.
4.19 After the presentation they were standing outside the hall when the complainant TM approached him. She was crying and alleged that a teacher had touched her breasts and buttocks and done other things.
4.20 Makhabela testified that he decided to call some of his female Crime Watch colleagues (namely Joyce Mhlungu and Queen Mhlanga) to deal with TM further. He remained present though. They took her to their car to comfort her.
4.21 Makhabela testified that TM mentioned the dates of the incidents of sexual abuse but he could no longer remember the dates that she had mentioned.
4.22 Later when the school had closed they went to TM’s home which was right next to the school and spoke to TM’s mother. Initially she was enthusiastic and wanted to cooperate in reporting the matter to the school. Later when it became clear that the employer was seriously investigating misconduct charges against the employee her attitude changed and she became aggressive and uncooperative.
4.23 Makhabela testified that they went to the school two days later and wanted to report the incident to the principal but the principal was not there. Being Crime Watch members they wanted to see the allegations properly investigated. They ended up speaking to one of the deputy principals, Mr Mguni, and reported what had transpired to him.
4.24 The employee was given an opportunity to cross-examine Makhabela and did so quite extensively putting his version to Mkhabela and the other Crime Watch witness .
4.25 The employee for the first time raised the issue of a stolen generator. He put it to Mkhabela that TM had approached him on the 18th of September 2024 and told him that she knew who had stolen the generator and asked for R200 to give the information of who was involved. Makhabela stated that they agreed on R100 and a few days later TM asked him to pay her the R100 and he did so.
4.26 The employee later stated during cross examination that the school management team held a meeting on the 24th of September 2024 which TM had attended and TM disclosed that a member of the school governing body (SGB) had stolen the generator. This after a cleaner was initially alleged to have stolen the generator.
4.27 On the 2ND of October 2024 he ran into the witness Makhabela and other ladies from Crime Watch who were discussing with one of the deputy principals as to what had been reported to them. It was at this stage that he learned that TM was alleging sexual misconduct against him.
4.28 It was at this point that the employee alleged a conspiracy against him and accused Mkhabela and the other Crime Watch people of interfering with school business.
4.29 Queen Mhlangu testified that she was a member of Crime Watch and they had been invited to talk to the school at assembly on security issues at the beginning of the 4th school term in 2024.
4.30 Mhlangu testified that TM initially approached Makhabela about an incident and he quickly called Mhlangu and other Crime Watch ladies to deal with the situation.
4.31 TM then related that the employee would call her and her friend to the staff room. The employee would then give TM’s friend money to send her away. After that the employee would touch her breasts , beat her with the stick on her buttocks and touch her private parts.
4.32 Mhlangu then testified that they approached TM’s mother at home. Her home was right next to the school.
4.33 Mhlangu testified that the mother stated that this was not the first time she had heard of these allegations and had wanted to come to the school. Mhlangu told her to wait until they (Crime Watch) had reported the matter to the school.
4.34 Mhlangu testified that they asked Makhabela to stand aside and it was only the Crime Watch ladies that spoke to TM’s mother. Mhlangu observed that TM’s mother was initially very cooperative but she changed later.
4.35 Mhlangu testified that when TM approached them she looked scared. She stated that she was very scared of her mother who was very loud at home and shouted a lot.
4.36 Once again the employee was given ample opportunity to cross-examine Mhlangu and did so.
4.37 The third witness was Ms Precious Malepe, a PL 2 departmental head at King Makhosoke II Secondary School.
4.38 During the first week of the 4th term one of the deputy principals at the school, Mr Mnguni approached her and asked her to come to his office. He then explained that Crime Watch community members had approached him and reported what TM had said to them that she was being harassed and sexually accosted by the employee.
4.39 Malepe confirmed that the employee was acting as the principal of the school while the principal was on leave.
4.40 Malepe testified that TM admitted that the employee had touched her inappropriately over time. TM also stated that the employee had called her on the day Crime Watch were at the school and touched her inappropriately.
4.41 Malepe testified further that Mnguni then suggested that they should write a letter to the circuit manager about the incident. She was not involved in the case after that.
4.42 On the 24th of March 2025 the employer led the evidence of two additional witnesses namely circuit manager of the KwaMhlanga Southwest district, Ms. M.S Madigage and deputy principal Mr Desmond M. Mnguni.
4.43 Mnguni testified that in October 2024 at around 12h05 he was approached by Crime Watch members who reported to him that TM had approached them to report that the employee was touching her inappropriately on the buttocks and breasts and had hit her with a stick on her buttocks. TM denied that the employee had fingered her but alleged that he had touched her private parts on the outside..
4.44 Mnguni then testified that it was decided to involve the circuit manager in the matter.
4.45 Madigage testified that she received a report from Mnguni alleging that the employee had sexually manhandled a learner.
4.46 She then drove to the school and interviewed TM who was 14 years old at the time of the alleged incident. TM told her that the employee had touched her on her private parts and hit her with a map stick on the buttocks.
4.47 Madigage asked her to put the allegations in black and white and the child did so. Sibanyoni sought to hand up TM’s handwritten statement which was written in Zulu. After an objection to the admission of the statement by the employee’s union representative I eventually decided to admit the hearsay statement in terms of the provisions of section 3(1)© of the Law of Evidence Amendment Act, no 45 of 1988, in the interests of justice. In fact, all hearsay evidence adduced during the course of the arbitration, from both sides, was admitted on this basis.
4.48 Madigage testified that the latest incident occurred on the day before the Crime Watch people were at the school. The employee had asked her to accompany him to where the choir practice was taking place. He then touched her on the front of her private part (not inside). She was wearing a skirt and the employee also poked her with the map stick on her buttocks.
4.49 Madigage testified that the employee looked shocked when he was confronted with the allegations and stated that he could not remember anything happening on the day before the Crime Watch visit..
4.50 The employer then closed its case and the matter was adjourned to the 24th of April 2025 for the reasons cited above.
EMPLOYEE’S EVIDENCE AND ARGUMENT
4.51 On the 24th of April 2025 I was advised that the employee would not be testifying but that the employee would be calling two witnesses.
4.52 The first witness was none other than TM’s mother Mrs. Busisiwe Skosana. The witness came in with a palpable attitude and stated that she did not know why she was at the hearing.
4.53 Skosana testified that on a certain day she was approached by Crime Watch individuals who asked if she knew what the employee had done to her daughter. Skosana stated that she wanted to speak to the employee but the Crime Watch people refused to allow her to do so. She kept quiet.
4.54 Later she was summoned together with TM to the school by the employer representative (Sibanyoni). She posed the question why she was not the one laying the charge at the school. Skosana indicated that she had not seen the statement written by TM.
4.55 When Skosana started interrogating TM, TM just stared at her and kept quiet and Skosana was later asked to wait outside.
4.56 Skosana denied that TM had told her anything about an incident with the employee. Skosana maintained that she had a good relationship with her daughter and if there was a problem at school TM would have told her.
4.57 During cross-examination Skosana denied that the Crime Watch people had alleged that TM had been sexually assaulted. She stated that they only told her that the employee had poked the learner with a map stick.
4.58 Skosana testified that tempers were running high when the Crime Watch witnesses approached her since their visit took her by surprise and she felt ambushed.
4.59 Later during cross examination when asked whether she was not worried that her daughter was telling the truth Skosana replied that she was not worried because her daughter was forward and had a penchant for lying. TM had, for example, told people that her father had died which was not true.
4.60 Skosana speculated that her daughter was probably also responsible for the theft of the generator despite no compelling evidence to support that assertion.
4.61 After the completion of Skosana’s testimony, I spoke to the witness and informed her that it was not for her to decide whether her daughter was telling the truth or not. I acknowledged that children can sometimes fabricate testimony for various reasons but I told Skosana that I would be adjourning the matter one more time to the 30th of May 2025 for her to bring her daughter to testify at the inquiry by arbitrator. I advised the parties that I was calling the witness to testify. Skosana was also warned of the provisions of section 142 (8) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) concerning contempt if she did not bring the child to testify.
4.62 The employee led the short evidence of a PL1 educator, Mrs. J.T Masango, a Ndebele home language educator who testified that on the 10th of September 2024 they were practicing dancing moves for a visit from the King. They had practiced until 15h45. TM had never left the room; all were dancing and Masango was correcting them.
4.63 Masango testified further that the employee had been with the circuit manager (Madigage) during the practice and the two of them had left together at around 15h00.
4.64 During cross examination Masango conceded that there had practices before the 10th of September 2024 and she could not account for the whereabouts of the employee on other dancing practice occasions.
4.65 Finally, on the 30th of May 2025 neither the Skosana nor her daughter appeared at the hearing and the inquiry by arbitrator was finalized.
- ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The employer bears the onus of proving the allegations against the employee on a balance of probabilities.
5.2 This an unusual case where circumstantial evidence, direct evidence and hearsay evidence all play a part in setting the scene, with independent third parties being the ones responsible for reporting the incident.
5.3 The first aspect requiring attention is the weight to be given to the respective witnesses for the Respondent.
5.4 Both Crime Watch witnesses corroborated each other in all material respects. TM made a report to them and immediately implicated the employee in sexual misconduct. I accept their evidence as to how the reporting first occurred.
5.5 The question arises why did she do that. I find it highly improbable, on the facts, that TM would suddenly on a day decide to falsely implicate the employee for no apparent reason.
5.6 There is no evidence that TM had any clashes with the employee which might motivate her to falsely fabricate evidence against the acting principal.
5.7 The question arises why did she report the incident(s) to strangers. I find that TM had sufficient trust in the integrity of the Crime Watch community members to report this confidential information to them.
5.8 The natural question is if the incident(s) occurred why did she not report the incident(s) to her mother Skosana first.
5.9 I find that Skosana is an unreliable witness who seems intent that her daughter should not testify at all costs. I find that there is no evidence that TM was unwilling to testify at the inquiry by arbitrator but I find that Skosana has been almost solely responsible for keeping TM away from the hearing. She was even willing to defy a direct warning from myself to bring her daughter to the hearing. For that she is found guilty of contempt of the hearing and the matter will be forwarded to the Labour Court for proper processing.
5.10 When reporting the incident to Skosana, Makhabela testified that Skosana replied to him that she had heard these allegations before. If she had heard these allegations before why had she done nothing.
5.11 I find that it is probable that TM had reported other incidents of sexual abuse involving the employee to Skosana and her mother had ignored them. This explains why, after the most recent incident, TM, probably out of sheer desperation, resorted to reporting to perceived trustworthy strangers hoping and trusting that they would report the incident to the school where her mother had failed to do so. I find that TM clearly feared her mother and the ramifications if she reported the incident herself direct to the school.
5.12 I find that Skosana was afraid that if TM testified at the hearing she would probably tell the truth thus implicating the employee and discrediting her.
5.13 I find that it is highly probable that the employee communicated with Skosana and bribed her to not report the incident(s) to the school and keep her daughter away from testifying at the inquiry by arbitrator (even at the risk of being found in contempt of the arbitration). The fact that TM’s mother was a witness for the employee supports the argument that the union and the employee had definitely contacted Skosana without the permission of Sibanyoni and probably with the intention of keeping TM away from the witness box. Interference with witnesses that are normally witnesses for the employer amounts to serious misconduct.
5.14 The fact is that the circumstantial evidence supports the inference that the employee was engaged in illicit and covert acts of sexual misconduct probably beyond the confines of the charge that he faces in this matter.
5.15 The circuit manager Madigage was also a good witness whose testimony added credibility and support to the Crime Watch witnesses. It further bolstered the version that TM had probably suffered ignominious sexual actions by the employee and had then been silenced by the unholy alliance between the employee and her mother.
5.16 It is common cause that Madigage (being a senior manager) provided a safe space for TM to explain what had happened to the extent that she was willing to make a written statement which was consistent with the versions given by the Crime Watch witnesses. The hearsay statement made by TM has not been contradicted by any evidence led by the employee or his witnesses
5.17 Hearsay evidence may be unreliable in certain circumstances and should be approached with caution but it should likewise not be ignored if it supports the other circumstantial evidence clearly implicating the employee in misconduct. To ignore the hearsay evidence in this case will result in an injustice being perpetuated.
5.18 The Applicant chose not to testify under oath. This is suspicious because there were many aspects that required clarification from him. This is not a criminal case where the employee has a right to remain silent. Silence in this situation probably amounts to an admission of guilt. If the employee was so confident of his version he should have been willing to testify under oath and be subject to cross examination.
5.19 The evidence of witness Masango fails to establish proper timelines and does not provide the employee with any alibis that exclude and dislodge the evidence presented by the employer. - AWARD
6.1 The employee is found guilty of the sexual misconduct charge levelled against him.
6.2 Section 17 (1) (b) of the EEA states that an employee must be dismissed if found guilty of committing an act of sexual assault upon a learner.
6.3 There is no need for me to call for submissions in mitigation or aggravation of sanction since dismissal is the only sanction that can be imposed in these circumstances.
6.4 The employee is hereby dismissed from the services of the employer with immediate effect.
6.5 The employee is found to be unsuitable to work with children in terms of section 120 (4) of the Children’s Act no 38 of 2005.
Signature:
Date: 03 July 2025
Commissioner: M.A. Hawyes