IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EASTERN CAPE APPLICANT
AND
SADTU obo ASIPHE MHANA RESPONDENT
CASE NO ELRC1312-24/25 EC
DATE/S OF HEARING 15 APRIL 2025 – 14 OCTOBER 2025
DATE AWARD SUBMITTED 07 NOVEMBER 2025
NAME OF PANELIST SIZIWE GCAYI

SUMMARY : Labour Relations Act No 66 of 1995 – section 188A – Inquiry by an arbitrator: Alleged misconduct of sexual nature against a learner by an educator.

ARBITRATION AWARD
Inquiry in terms of section 188A of the LRA of the LRA 66 of 1995

DETAILS OF THE HEARING AND REPRESENTATION

1. The inquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 (LRA) as amended read together with ELRC Resolution 3 of 2018. The matter was held on 15 April 2025 – 14 October 2025 at Mthatha department of education offices at 09h00. Ms Zukiswa Nkomo an official represented the Applicant [department of Education Eastern Cape]. Mr Ayanda Tyantsi an official from the SADTU represented the employee – [Asiphe Mhana ]
2. The proceedings were electronically and manually recorded.
3. The proceedings were conducted in English and there was Xhosa interpreter, and an intermediary. For purposes of this award the names of the learners will not be revealed. We will refer to them as ZM and LB.
   ISSUES TO BE DECIDED
4. I am required to determine following:
   Whether the employee is guilty of the charges proffered against him by the employer. If I find him guilty on all or any of the charges, I should decide the appropriate sanction. Charges were read on record. The employee confirmed that he understood the charges levelled against him. He was questioned about his plea; he pleaded not guilty on both charges. A plea of not guilty was entered on his behalf.

BACKGROUND OF THE DISPUTE

5. The employee is employed as an educator at Bazindlovu Senior Secondary School, OR Tambo Inland.
6. The employee is charged with the charges mentioned:
   Charge 1
   • It is alleged that you committed an act of misconduct in terms of section 18 (a) of the Employment of Educators Act 76 of 1998 [ as amended] which inter alia reads as follows “ fail to comply or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship”.
   • On or about 10th November 2024 after 21:00 pm you called a learner alone (privately) to the library where you were sleeping during the school camp.
   Charge 2.
   • It is alleged that you committed an act of misconduct in terms of section 17 1 of the Employment of Educators Act, 76 of 1998 (as amended) which inter alia read as follows “Committing an act of sexual assault on a learner, student or other employee”.
   • On or about 10th November 2024, you sexually harassed a learner by the name of ZM by touching her inappropriately.
   • On or about 10th November 2024, after 21:00 you called a learner by the name of ZM and inserted your fingers in her private part.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case

7. The Employer led evidence of five witnesses. Their evidence is summarised below. Learner ZM testified as follows: She was 23 years old. In 2024 she was doing grade 12 at Bazindlovu Senior Secondary School [ SSS]. The employee was known to her. He taught her accounting in 2023 and 2024. In relation to the incident of November 2024, she mentioned that they had a school camp. They used classrooms for both learning and sleeping. On the day in question, it was in the evening the employee approached them as students and instructed them to practice accounting. He requested other students to assist her in accounting because she failed accounting in the previous term. He left with learner L. After 15 minutes learner L returned to the classroom and called her, she refused to go. It was the suggestion of other students that she had to go, it was possible that she was called for accounting material. She dressed properly and left. She meet with the employee who stood next to grade 11C. She was questioned about learner L. They proceeded to the library, door was locked, curtains closed. The employee grabbed her, and she fell. The employee told her not to be afraid, it will remain between the two of them. He was horny. In the process the phone rang, employee instructed her to be silent, she demanded the keys. The person on the phone was Aviwe. The employee stopped with the phone and approached her. He massaged her breasts, kissed her and placed his finger on her vagina. He opened her thighs with his knees. He demanded that she touch his penis. He was ready to engage in sexual intercourse with her. She cried all this time. The employee told her not to be afraid of him. The students emerged and shouted outside, that he must stop what he was doing. He stopped and told her to be quiet. He opened the door, she went out. He addressed students as comrades; students shouted at him. He returned to the library. All students proceeded to the classroom where they were sleeping.
8. Learner A, B and N phoned Ms Ngunge, Ms Mpofu. In the early hours of the morning around 01h00 AM, Ms Mpofu arrived at the school and she was informed of the unfortunate incident. The following day the incident was formal reported at school, her parents also arrived at the school. The employee was also present at school. A meeting was convened, the employee was questioned about the allegations, he blamed alcohol for his behaviour that he could not recall anything. He apologised for his behaviour
9. It was her evidence that she was disappointed by the conduct of the employee, she trusted him. She did not expect him to victimise her the way he did. Before the incident, the employee first sent her messages. She also mentioned that other two students were also victimised by the employee, two girls Learner L and A. She mentioned that the students noticed that she took long with the employee at the library and decided to check on her. They witnessed everything through the window. It was her testimony that after her exams she left for Johannesburg. She received a phone call from her friend questioning her about the incident. She also received a call from Siyanda, who was asked by the employee to speak to her to withdraw the charges against him. Siyanda meet with the employee, they had discussions about charges to be withdrawn. Siyanda begged her to withdraw the charges she refused.
10. The employee contacted her family members; her brother and Aunty requested them to speak to her to withdraw the charges. Both her brother and aunty refused. The School Governing Body [SGB] members were also approached by the employee to speak to her. On 26 January 2025 one member of the SGB questioned her about the status of the case and the availability of the witnesses. She also mentioned that the whole incident affected her, she could not study well.
11. Learner LB testified as follows: She studied at Banzindlovu SSS. Leaner ZM was known to her and the employee was known to her. In relation to the school camp, she mentioned that all female students slept in one classroom. The 11 November 2024 was a Sunday, the employee questioned them about another student who was not present. He also requested that leaner ZM be assisted. He left with leaner L and the leaner returned after few minutes and called leaner ZM. Learner ZM left and she did not return. Learner B was sent to look for her. Learner N in the absence of leaner B, told them that employee told her that he was horny. She fought with him. After learner N’s explanation, all students rushed to the library to look for learner ZM, upon their arrival, they witnessed the employee forcing himself on learner ZM. The employee’s hand was on ZM’s private part and his pants were down. They witnessed through the window, the blinds were short, did not cover the entire window. The employee released learner ZM when he was threatened by students about phoning ZM’s mother. They all proceeded to the classroom. ZM cried on their way to the classroom. School principal, deputy principal and other educators were contacted. It was her evidence that only Ms Mpofu came to the school, and they reported the incident. She also mentioned that students requested a meeting with the employee the following day. They questioned him about his behaviour towards learner ZM, he told them that he will visit ZM’s family and apologise.
12. Ms Nomaweza Mjatya [ “ Mjatya”] testified as follows. She was learner ZM’s aunty. In May 2025 she received a phone call from the employee begging her to speak to ZM to drop the charges against him. She engaged him and asked if it was her daughter would she request the same. He apologized and said no.
13. Mr Mziwabantu Mondli [ “ Mondli ”] testified that learner ZM was his sister. The employee was known to him. They meet at Mqanduli Magistrate Court. He also knew him as an educator at Bazindlovu SSS. He also mentioned that there was a time he was phoned by the employee and his brother. The call was about them pleading for ZM to withdraw the charges against the employee. He declined their request. He blocked their number. The person that requested the charges to be withdrawn was the brother of the employee.
14. Mr Sazi Sonqwenqwe [ “ Sonqwenqwe”] testified that learner ZM was known to him through her cousin sister. The employee was also known to him. They meet through a mutual friend Sindile. He 1st became aware of the incident of rape and sexual assault in November 2024. He also heard about it in December 2024 when he was planning to leave for December holidays from Chuma, ZM’s cousin. During December holidays he meet with Sindile, he told him that the Respondent was willing to meet with him and assist him in facilitating the withdrawal of charges. They meet with the Respondent at Bar tavern- Endaweni. The employee requested him to speak to ZM on his behalf to withdraw the charges, he admitted that he was drunk, he did not rape ZM but penetrated her with his fingers. He also promised a monetary settlement. He was willing to pay any amount. He mentioned that he phoned ZM in the presence of the employee, she mentioned that the matter was not in her hands but of the family members. In January 2025 he left for Pretoria. The employee continued to phone him and begged him to speak to ZM. He told him that he was charged for rape whilst he did not rape ZM. It was his evidence that he could not assist further as he was in Pretoria. Employee’s Case
15. Asiphe Mhana [ Mhana ] testified himself and called one witness in support of his case. He testified as follows: He was an educator at Bazindlovu SSS since 2017. He taught accounting in grade 10-12. In November 2024 they had a school camp. He was amongst the educators that participated in the school camp, his family was made aware of the developments. At the school camp, he joined other educators, Mr Nintsane, Mr Mpaliso. He also testified about the timetable on the school camp. Accounting required one on one session. From Friday until Sunday he had one on one sessions with students. He had one on one with students. ZM was amongst the students he had one on one sessions with. He also mentioned that he used the library and described the structure of the library. He had one on one session with ZM at the library. They discussed her poor performance. He presented her with the previous question papers and assisted her. They spent 15 minutes together. She did not touch ZM. They heard noise, did not know what was happening. It was dark, they did not see. He could not see behind the blinds they were long reaching the window sill. He maintained that he never touched learner ZM. Students demanded ZM, she went to join other students. He also mentioned that he did not have a good relationship with Mr Nintsane.
16. On the issue of Mrs Mjatya, he confirmed that he contacted her as per the advice of Mr Sonqwenqwe, he requested her to speak to leaner ZM, to tell the truth. He was afraid that he might be convicted at Criminal Court and be sentenced to undergo 15 years imprisonment. He was not guilty. He also confirmed that he phoned ZM’s brother, but he spoke with his brother Aaron. He did not want to end in prison for something he did not do. He also mentioned that he knew Sazi Sonqwenqwe, he knew him as ZM’s boyfriend. He met Sonqwenqwe through Sindile Ntsizi. They meet at Mqanduli, Sindile and Sonqwenqwe were enjoying alcohol. They also offered him, and he declined at first but later joined them in enjoying alcohol. They continued with the discussion, Sonqwenqwe promised to assist him, he introduced himself as ZM’s boyfriend. Sonqwenqwe told him there was nothing for free he must be prepared to pay twice. To pay him and ZM. Sonqwenqwe phoned ZM in his presence but phone call was dropped. He maintained that the payment was introduced by Sonqwenqwe. It was incorrect that he made confession. He never touched ZM.
17. Mr Siloyiso Velelo [ “Velelo”] testified as follows: In 2024 he did grade 12 at Bazindlovu SSS. He also mentioned his school subjects. The employee was known to him. He taught him accounting. He mentioned that he attended the school camp. He also mentioned that male educators were sleeping in the library. He consulted 3 times with the Respondent at the library. Windows at the library were dark, they had blinds. It was his evidence that it was impossible for someone outside the library to see inside the library. He heard the noise from the students, they proceeded to the library, and he did not see anything because it was impossible to see inside the library whilst outside the library.
    ANALYSIS OF SUBMISSIONS AND ARGUMENTS
18. In MUDAU v MEIBC & OTHERS [2013] 13 ILJ 663 [ LC] the Court held that “the arbitrators mandate in terms of section 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties”.
19. Section 17(1)(b) of Employment of Educators Act [EEA] of 76 of 1998 provides that “ an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee.”
20. In Stellenbosch Farmers Winery Group Ltd v Martell, the Court held that a tribunal must make findings with reference to (a) credibility of the various factual witnesses; (b) their reliability and ( c) the probabilities. In the matter before the Council, I am required to make credibility findings of the destructive versions by both parties.
21. In these proceedings the onus is on the Employer to prove the guilty of the Employee who is charged with misconduct. The standard of proof that is applied in civil proceedings is balance of probabilities. It is different from the one applied in the criminal justice system which is beyond reasonable doubt. Therefore, proof on a balance of probabilities is sufficient, the same was confirmed by the Court in Early Bird Farms Ltd v Mlambo [1997] 5 BLLR 541 (LAC) .
22. It is common cause in these proceedings that the Employer led evidence of five witnesses, the Employee testified himself and called one witness. The total number of witnesses that testified was seven. Their evidence is on record it will not be repeated however reference will be made where relevant.
23. Both parties were given until 24th of October 2025 to file their closing arguments with the Council. Both parties complied, the Council received written submissions from both parties. I have taken their heads of argument into consideration in penning this award.
24. On behalf of the Employer it was submitted by Ms Nkomo that Mr Mhana is guilty of both charges as contained in the charge sheet and should be dismissed. He was unfit to work with learners. On behalf of the Mr Mhana it was submitted by Mr Tyantsi that he was not guilty of any misconduct.
25. The two witnesses ZM and LB, their evidence was in relation to charge 1 & 2.
26. These two witnesses placed the employee on scene. During cross-examination they maintained their version of events. Mr Tyantsi tried to crack them and LB Confirmed that she was being confused, however she maintained that she witnessed the employee forcing himself on ZM. The hand of the employee was on the private part of the ZM. She corroborated the version of ZM. She did not exaggerate; she did not mention the kisses. She only spoke about what she witnessed. It was put to her that she did not see clearly because she witnessed through the small part of the window because blinds did not close properly. She maintained that she had a clear view, the lights were on inside the library, she was able to see clearly. It was also put to her that lights were on because the employee had no bad intentions. She mentioned that on their arrival, there was no sign of the employee assisting ZM with school work. The employee forced himself on ZM. On the family members of ZM, aunty [ Mjatya] and his brother [ Mondli] they corroborated ZM’s version, that the employee contacted her family members and tried to influence them to have charges withdrawn. The employee did not deny that phone calls were made to the family members of ZM by himself and his brother. Sonqwenqwe also placed the employee on scene about the phone calls between them and the meeting at a tavern in Mqanduli in the presence of Sindile.
27. The employee during its case testified and led evidence of Velelo. I do not know why Velelo was called, he did not assist the employee’s case. He denied that the blinds could not close properly in the library. The employee also mentioned that the windows were closed properly. If indeed there was nothing wrong with the blinds in the library, why was the version on cross-examination by Mr Tyantsi to LB confirmed that the blinds were not closed properly. They did not cover the entire window. Someone outside the library was able to see clearly inside the library. Why was it not challenged with both ZM & LB that the library had proper blinds. It was impossible to see inside the library. In the circumstances I rule that it was an after thought from both the employee and Velelo. It was also interesting from the evidence of Velelo that it was dark in the library, they could not see inside. It was put to LB in cross- examination that the lights were on and she confirmed. Which darkness was Velelo talking about.? I was not impressed with his testimony. It was very difficult to follow it. Velelo had no intentions of assisting the Council in arriving at a fair decision.
28. The employee was also not a good witness. He tried his level best not to answer to the allegations levelled against him. He tried to influence witnesses to have charges withdrawn, it was the family of ZM & Sonqwenqwe. His conduct was that of someone who was guilty of the charges levelled against him. For someone innocent why would he go out of his way and interfere with the witnesses. Why did he not have trust in the justice system? I am certain at criminal Court; he was warned by the Court not to interfere with the police investigation and state witnesses. He chooses to do the opposite. He also did not deny that he was under the influence of alcohol on the day of the incident. I accept that alcohol was a factor in the commission of the offence. It is not possible for an educator to have one on one sessions with the learners at night. It is highly questionable for an educator to have one on one session with the learners at night. The same learners are at the school camp. They left their homes to be at school, to be taught the whole day. How possible is it then that at night again, they do not sleep, they are taught. When do they rest? The employee took advantage of the situation. He was not truthful that he was assisting ZM with schoolwork. ZM said it that the employee touched her inappropriately, he kissed her demanded to be touched on his penis. He placed his finger on her vagina. The version of ZM was confirmed by Sonqwenqwe, that the Respondent confessed to him that he did not rape ZM but penetrated her with his finger.
29. It was argued on behalf of the employee that the evidence of Sonqwenqwe be rejected. According to the employee, he met Sonqwenqwe through Sindile and he was also present at Mqanduli. The employee saw no need to call Sindile and dispute the version of Sonqwenqwe. Sindile was a friend of the employee. It is not possible that one would not make use of the witness to assist him especially in this matter where the employee claims innocence. The employee was asked after Velelo’s testimony if he had other witnesses to call and his answer was no. He confirmed that they were closing their case.
30. In relation to the evidence placed before the Council I have no reasons to reject the evidence of the Employer for the reasons stated above. I am satisfied that the Employer managed to discharge the onus placed on it to prove the guilty of Mhana on both charge 1 and 2. Mr Asiphe Mhana is found guilty on charge 1 and charge 2.
    SANCTION
31. In arriving at an appropriate sanction, I have considered the submissions made by the Applicant, the aggravating factors and the mitigating factors of the employee I will not repeat them, they are on record as submitted to the Council by both parties. As indicated above it was argued for the Employer that sanction of dismissal was an appropriate sanction. On the side of Mhana it was argued that he was a family man, responsible for his family, good educator with 100% pass rate in the district.
32. Section 188 of the LRA provides that (1) a dismissal that is not automatically unfair, is unfair if the employer fails to prove(a) that the reason for a dismissal is a fair reason [i] related to the employees conduct or capacity or [ii] based on the employer’s operational requirements and [b] that the dismissal was effected in accordance with a fair procedure.”
33. In the present matter Mhana was charged for misconduct in terms of section 17 (1)(b ) of the EEA and section 18[a] of EEA, and has been found guilty on both charges.
34. Section 17(1)(b) of Employment of Educators Act [EEA] of 76 of 1998 provides that “ an educator must be dismissed. if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee.”
35. In NEHAWU v UNIVERSITY OF CAPE TOWN 2003 the Court held “ the Arbitrator is expected to have regard to the interests of both parties in coming to a conclusion whether the conduct of the Employer to dismiss the Employee was fair or not”.
36. In MIYAMBO v CCMA & OTHERS [2010] 10 BLLR 1017 (LAC) the Court held “ in deciding on an appropriate sanction, a Commissioner must consider all relevant circumstances. However the role of trust relationship remains predominant.”
37. The question that needs to be answered is, can Mhana be trusted with learners? How did he prove himself amongst learners? He was placed in a position of trust. The parents trusted him with their children. A school is a home away from home where there are Educators who are parents to the learners. The misconduct he committed goes beyond mere sexual exploitation of a learners, but it was a criminal conduct, and such characters have no place in the schooling environment. It is clear on the evidence of the witnesses that Mhana cannot be trusted with learners. His conduct towards ZM has left scars that cannot be mended. I am not sure what measures the department put in place on the school camps to ensure the safety of learners. The learner was victimised by an educator who was placed in a position of trust. The department has no space for employees like Mhana.
38. The law is very clear on educators who have been found guilty of contravention of section 17(1) (b) of the EEA 76 OF 1998 [ as amended].
39. Section 28 [2] of the Constitution Act 108 of 1996 provides that in any decision that has to be taken involving children,” the interests of the children enjoy paramount importance.”
40. I am satisfied that I have weighed up the interests of both parties.
41. Section 120 [2] of the Children’s Act 38 of 2005 provides that “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.” In the current matter I make the finding on my own accord.
42. In the circumstances I hereby make the following award:

AWARD

43. The Employee [ Asiphe Mhna] is found guilty of contravention of section 17 (1)(b) and 18 [a] of the EEA.
44. The Employee [ Asiphe Mhana] is dismissed with immediate effect. The Employer [ Dept of Education- Eastern Cape] must inform Mhana of his dismissal.
45. Mr Asiphe Mhana is found unsuitable to work with children in terms of section 120 [4] of the Children’s Act 38 of 2005. The General Secretary of the ELRC, must in terms of section 122(1) of the Act 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 Mr Asiphe Mhana is unsuitable to work with children, for the Director General to enter his name as contemplated in in section 120 in part B of the register. Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education