IN THE ELRC ARBITRATION
BETWEEN: ELRC1421-25-26GP

NKOTSANE EPHRAIM MALEPE “the Applicant”
and

DEPARTMENT OF HIGHER EDUCATION – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: ELRC1421-25-26GP

Date of award: 07 September 2026
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 3rd and 4th of June 2026, then again on the 29th and 30th of June 2026 and was finalized on the 6th of August 2026. Both parties were present, the applicant was represented by David Mampa a PSA Official, and the Respondent was represented by Regina Mogami Habedi the Employee of the Respondent.
1.2. The initial arbitration was held virtually however the parties agreed to a face-to-face hearing to mitigate against postponements due to network issues.

2. BACKGROUND

2.1. The Applicant was employed by the Respondent (The Gauteng Department of Higher Education) as a Lecturer at Tshwane North TVET College Mamelodi Campus.
2.2. He was charged with misconduct in terms of Section 18 (1)(a) and (b) of the EEA 76 of 1998 as amended.
2.3. Charge 1. Sexual Harassment: It was alleged that you committed an act of misconduct, sexual harassment, in that during the period February to March 2024, you persistently sent your student , Ms. Faith Phahlamohlaka, unsolicited WhatsApp messages proposing to take her out for drinks / lunch even after she turned down your first invitation/ proposal.
2.4. You further abused your office power as a Building Drawing Lecturer wherein you suggested that her drawing be discussed during drinks and / lunch to persuade her to agree to your proposal.
2.5. Charge 2. Failure to submit ICASS Internal Continuous Assessment within the required submission dates. It is alleged that you failed to submit the ICASS marks for Trimester 1 of 2024 on or before the expected due date of the 19th of March 2024 without due course and thereby prejudiced the effective administration and efficiency of Tshwane North TVET College.
2.6. Charge 3: Compromising the credibility and Integrity of Assessments:
• It is alleged that you compromised the credibility and Integrity of Building Drawing N1 and Building and Drawing N2 assessments for 2024 Trimester 1( January 2024 to March 2024) by
• Giving students a marking memorandum to task 1 and Task 2 for them to rewrite/ copy in their answer sheets.
• Failing to invigilate students during assessments.
• Allowing students to write on behalf of absent students
• Conducting assessments after working hours
• Failing to provide students with assessments feedback.

2.7. The Applicant was found guilty and dismissed from his employment with the Department.
2.8. Dissatisfied with his dismissal, the Applicant referred a dispute to the ELRC for unfair dismissal.
2.9. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal for misconduct as provided for in section 191(5)(a)(i) of the Labor Relations Act 66 of 1995 (LRA.)
2.10. I am now required to decide whether the dismissal of the applicant was unfair substantively and procedurally and then to make an order accordingly.

3. FIRST RESPONDENT’S EVIDENCE AND ARGUMENTS
   MR JACOB ISAAC MALAU (The Head of Department)

3.1. The Respondent called its first witness Mr. Jacob Isaac Malau the Head of Department Engineering Studies Mamelodi Campus.
3.2. The witness testified under oath and stated that he is responsible for the Engineering Department at Mamelodi Campus comprising of Civil and Electrical Units. He is further responsible for Teaching and Learning, Implementation of College Policies, Implementation of Departmental Policies, Support of the Lecturers who ensure that everything goes according to plan, He oversees the Examinations, he ensures proper planning for the Engineering Department as a whole
3.3. He confirmed that he knew Mr. Malepe as one of the Lecturers for Engineering Drawing structural Surveying for N1 and N2, Structural Surveying N4.
3.4. Charge 3: Assessment Irregularities
3.5. Referring to the internal memorandum (Bundle p.11), Mr Malau testified that on 19 March 2024 students reported irregularities concerning their ICASS (Internal Continuous Assessment) marks for N2 Building Drawing.
3.6. The complaints were as follows:
3.7. Faith Phahlamohlaka (N1) alleged that she signed for her Task 1 mark without being afforded an opportunity to view her marked script, as it had allegedly been sent for moderation. She also signed for Task 2 without viewing the script. During the investigation, her Task 2 script could not be located, and the complaint could not be verified.
3.8. Morategi Kopane (N2) alleged that she was not permitted to view her marked script after failing to qualify. She further stated that, following intervention by her father, she was allowed to return to class to improve her mark.
3.9. Nikita Miya (N2) similarly complained that she was denied access to her marked script.
3.10. The students were instructed to reduce their complaints to writing, and their statements form part of the bundle.
3.11. Mr Malau explained that the assessment process requires lecturers to mark scripts, submit them for moderation, record the marks, and thereafter return the scripts to students. Students are entitled to inspect their marked scripts, raise queries, and sign for the recorded marks only after being satisfied with the assessment. Any dispute regarding marking must be referred to the moderator for verification.
3.12. The Applicant maintained that all scripts had been returned to students. However, when management requested all N1 and N2 scripts, Faith Phahlamohlaka’s script was missing. Mr Malau testified that this was inconsistent with the Applicant’s version. He further noted that Nikita Miya also maintained that she had never been shown her script, while certain students had been afforded opportunities to improve their marks.
3.13. Mr Malau testified that the assessment process is transparent and that students may only inspect their scripts to understand their mistakes. They are not permitted to alter answers to improve their marks, as this constitutes misconduct. Where marks require improvement, the proper procedure is a reassessment approved by the moderator.
3.14. He explained that reassessments are only authorised where a paper contains biased or unfair questions that have disadvantaged students. A written report must justify the reassessment, and all affected students must be afforded an equal opportunity to rewrite the assessment.
3.15. Mr Malau further testified that the Applicant admitted collecting the scripts and memoranda from students after receiving a telephone call from one student’s father. This, according to the witness, corroborated the complainant’s version that her father had contacted the Applicant. Although students may use the memorandum while reviewing their scripts, they are not permitted to make corrections to increase their marks.
3.16. He testified that the Applicant was called to a meeting where they wanted to establish the background of what had happened in relation to ICAS marks as the student may be disadvantaged if it was not attend to immediately. In that meeting they were able to pick up that the scripts were not moderated, and that Mr Malepe admitted that two scripts were missing.
3.17. Mr Malepe stated that he had provided the students with feedback on their assessments. However, his response was inconsistent with his admission that some of the student’s assessment’s scripts, specifically those of task 2, which carries a weighting of 70% were missing. The scripts included those of the complainant, Ms. Phahlamohlaka and another student. The absence of these scripts would inevitably prejudice the affected students as they would be unable to verify their marks or receive meaningful feedback on a significant component of the assessment.
3.18. Mr Malepe also said he invigilated all tasks given to students despite the students reporting that he did not invigilate
3.19. He also denied conducting assessments after working hours.
3.20. He however confirmed that he received a call from Ms Morategi’s father in relation to the rewriting of task and that he went to his class and took the memos and the scripts from the students which confirmed the allegations by the complaining students.
3.21. He testified that Mr. Malepe admitted to sending Faith Phahlamohlaka text messages asking her out.
3.22. Following a meeting with the Applicant, it was agreed that he would provide a written response to the allegations (Bundle p.7), which appears at page 10 of the bundle.
3.23. Mr Malau also testified that assessments must be conducted under proper invigilation. Management regarded it as a serious concern that several students independently alleged that assessments had not been invigilated. Task 1 assessments are ordinarily written during scheduled class periods, while Task 2 trial examinations appear on the formal timetable and are written over approximately three to four hours.
3.24. He further testified that statements from students alleged that one learner, who had been absent from the assessment, nevertheless received marks.
3.25. Mr Malau outlined the prescribed procedure for absent students. Assessment dates are communicated in advance, and absent students must submit a valid written explanation supported by documentary proof, such as a medical certificate, hospital records, court documentation or proof of a family bereavement before permission is granted to write the assessment at a later date.
3.26. Charge 1: Sexual Harassment
3.27. Mr Malau testified that Faith Phahlamohlaka reported on 19 March 2024 that the Applicant had repeatedly sent her text messages requesting her to go out with him. She informed management that she had retained screenshots of the messages.
3.28. The Applicant was informed of the allegations on 20 March 2024 and admitted sending text messages to Faith Phahlamohlaka inviting her out.
3.29. Mr Malau testified that it is wholly inappropriate for a lecturer to pursue a romantic relationship with a student. Lecturers are registered with SACE and are bound by its Code of Professional Ethics, which prohibits such relationships. He stated that lecturers occupy a position of trust and are expected to conduct themselves as parental figures.
3.30. He further testified that the student’s parents expressed serious concern regarding the matter. Management assured them that the allegations were being dealt with through the appropriate internal processes and advised the student to retain the screenshots as evidence.
3.31. Mr Malau explained that during the COVID-19 period lecturers were instructed to establish WhatsApp groups for academic communication with students. The screenshots contained in the bundle (pp.21–25) originated from those communications.
3.32. The matter was reported to the Campus Manager and subsequently referred to the Central Labour Office for investigation. The Applicant was precautionarily transferred (Bundle pp.4–6) to facilitate an unhindered investigation. The investigation was conducted by an independent investigator before being escalated to the Labour Office.
3.33. Implications of Assessment Irregularities
3.34. Mr Malau testified that ICASS assessments are subject to monitoring by Umalusi. Where assessment processes are found to be irregular, the Department may declare the marks irregularly obtained, which could affect not only the relevant campus but potentially all campuses within the college. He stated that once management became aware of the text messages and the assessment irregularities, the institution faced significant reputational and regulatory risks. He emphasised that all lecturers are required to comply with departmental policies, college procedures and the SACE Code of Professional Ethics.

4. SECOND WITNESS
   JAMES NDLOVU The Chairperson of the Disciplinary Hearing
   4.1. James Ndlovu is currently employed as a Deputy Director: Forensic Investigator at the Department of Water and Sanitation. He served as the Chairperson of the disciplinary hearing. His qualifications include a Diploma in Labour Law, an Advanced Diploma in Management, a National Diploma in Internal Audit, Certified Fraud Examiner accreditation, and he is a Master’s candidate in Labour Law.

4.2. Mr. Ndlovu testified that, as Chairperson, his responsibilities were to ensure procedural fairness, afford both parties an equal opportunity to present and defend their cases, assess the evidence objectively, and determine the outcome on a balance of probabilities.

4.3. Referring to Bundle A (pages 1–3), the Applicant pleaded not guilty to Charges 1 and 3 and guilty to Charge 2.
Before commencing the hearing, Mr. Ndlovu satisfied himself that the Applicant had been properly served with the notice of the disciplinary hearing and had been afforded five days’ notice. He was satisfied that the procedural requirements had been complied with.

4.4. On 3 June 2024, both parties attended the hearing. The Applicant initially appeared without representation and requested a postponement on the basis that his representative from the PSA, Mr. Madibane, was absent. Mr. Ndlovu found that no valid reason had been provided for the representative’s absence and was not persuaded that a postponement was justified. Mr. Madibane later arrived, apologized for his late attendance, and thereafter represented the Applicant. The disciplinary proceedings continued, and the Applicant’s pleas were formally recorded in the presence of his representative.
4.5. Mr. Ndlovu testified that he carefully considered the evidence of every witness, assessed their credibility, weighed the competing versions on a balance of probabilities, and considered the Applicant’s defense before reaching his findings. During the disciplinary proceedings, the Applicant tendered his resignation.
4.6. Referring to the Sanction Report (page 26) and the evidence of Samokelo Sofala (page 55), Botlomelo Makhafula (page 59), Jimmy Mahlangu (page 60), and Nkotsane Malepe (page 62), Mr. Ndlovu testified that the disciplinary code governing sexual harassment recognizes that a single incident may constitute unwelcome conduct and that repetition is not a prerequisite.
4.7. Mr. Ndlovu placed significant reliance on the WhatsApp communications between the Applicant and the student, Faith. He found it concerning that the Applicant repeatedly invited her to go out with him, referred to her as “my Faith”, and used heart emojis. In his assessment, these communications constituted unwelcome sexual advances. The student further believed that she had repeated the Drawing subject because she did not respond favorably to the Applicant’s advances.
Regarding Charge 3, Mr. Ndlovu testified that, after analyzing all the evidence, the Applicant’s version was insufficient to rebut the allegations against him.

Sanction
Mr. Ndlovu testified that the misconduct was of a serious nature and struck at the heart of the employment relationship. He concluded that the trust relationship between the parties had irretrievably broken down, thereby justifying the sanction of dismissal to be imposed.

4.8. During cross-examination, Mr. Ndlovu confirmed that the Applicant only contacted his representative on the morning of 3 June 2024, the first day of the disciplinary hearing. He maintained that the reasons advanced for the representative’s absence did not justify a postponement. Although Mr. Madibane later renewed the postponement request upon his arrival, the application was refused after due consideration, and the hearing proceeded. Mr. Ndlovu reiterated that his responsibility was to ensure that both parties were fairly represented throughout the proceedings.
4.9. Referring to page 36, where the evidence of Mr. Malau was read into the record, Mr. Ndlovu testified that student Phahlamohlaka stated that the Applicant began sending her private messages during the final trimester of 2023. She indicated that she had become frustrated with repeatedly failing and the sexual harassment she experienced. Mr. Ndlovu emphasized that the critical issue was that the harassment occurred and was inappropriate. He further noted that the Applicant never disputed that he was the individual communicating with the student.
5. RESPONDNENT’S THIRD WITNESS
FAITH PHAHLAMOHLAKA The Complainant

5.1. Faith Phahlomohlaka, an N4 Civil Engineering student who commenced her studies at the College in September 2023, testified that the Applicant, Mr Malepe, was her Building Drawing N1 lecturer.
5.2. Charge 1 – Alleged Sexual Harassment and Inappropriate Conduct
5.3. Referring to her statement (page 16), Phahlamohlaka confirmed that she authored the statement after reporting her concerns to the Head of Department. She testified that during the first trimester of 2023, Mr Malepe obtained her contact details from the class WhatsApp group and began sending her personal WhatsApp messages and making video calls. Although the messages initially consisted of casual conversation, the communication continued into 2024 and made her uncomfortable. She further testified that, during lectures, Mr Malepe would speak about his personal experiences, including dating “chubby women,” which she considered inappropriate.
5.4. Phahlamohlaka stated that she took screenshots of the WhatsApp messages and forwarded some of them to Morategi. She further testified that Mr Malepe frequently viewed her WhatsApp status and addressed her as “my Faith,” which she perceived as creating the impression that an intimate relationship with him was expected in order to pass the subject. She stated that she repeated Building Drawing three times but performed well once the subject was taught by a different lecturer.
5.5. During cross-examination, Phahlamohlaka testified that she informed her parents about the messages in November, whereafter her father contacted Mr Malawu telephonically. She further alleged that, during 2024, Mr Malepe inappropriately touched her buttocks while removing money from her back pocket. She denied the allegation that Mr Malepe lent his phone to students to make personal calls, explaining instead that he instructed her to use his phone only to scan documents and convert them into PDF format. She also maintained that she never visited Mr Malepe’s office alone.
5.6. Charge Relating to Irregular Re-test Practices
5.7. Phahlamohlaka testified that she observed certain students rewriting a Building Drawing test while in possession of the memorandum. Upon enquiring, she was informed that they were writing a re-test. After discovering that her own mark was low, she initially considered participating in the re-test but decided against doing so, believing it would be unfair to students who had been absent. She testified that only three students had performed well in the original assessment and that no notification of the re-test had been communicated through the class WhatsApp group, creating the impression that the opportunity was afforded only to selected students.
5.8. She further testified that Thapelo Masemola, who had already achieved a satisfactory result, also participated in the re-test and informed her that he was rewriting on behalf of Jimmy Mahlangu.
5.9. Charge 3 – Failure to Properly Invigilate Examinations
5.10. Referring to page 2, Phahlamohlaka testified that the Building Drawing examination, scheduled for four hours, was postponed commencing at 12h00 and concluded at approximately 18h00. She alleged that Mr Malepe frequently left the examination venue unattended, allowing students to assist one another during the examination. Upon completion, students left their answer scripts on the lecturer’s desk.
5.11. She further testified that despite producing answers similar to those of other students, she failed the examination. She stated that she was never afforded an opportunity to inspect her marked scripts, as Mr Malepe consistently advised that they had been sent for moderation and only the final marks were communicated to students.
5.12. General Conduct
5.13. Phahlamohlaka testified that Mr Malepe was overly familiar and physically demonstrative with students. She confirmed that she attended classes regularly without disciplinary issues and stated that, on occasion, Mr Malepe permitted students to use his laptop during class activities.

6. FOURTH RESPONDENT WITNESS
   MS. MORATEGI CLEMENTINE KGOPANE Student at Tshwane TVET College

6.1. She testified under oath and stated that she is a student studying Civil engineering at Tshwane TVET College and she joined the College during the Second Trimester of 2023. Her subjects were Building Drawing, Mathematics, Building and Civil technology.
6.2. She confirmed that she knew Mr. Malepe the Applicant in this arbitration as her Lecturer for Building and Drawing N1 since 2023.
6.3. She was aware that Mr. Malepe was texting Phahlamohlaka with inappropriate messages asking to go out with her and asking her to go to hotels with him. Phahlamohlaka had shared those messages with her. She testified that some of those messages were “view once” and would disappear after they were viewed once.
6.4. She testified that the messages escalated when there were talks about marks and that was a concern for her, she discouraged Phahlamohlaka from going out with Mr. Malepe who was like a father to them, he testified that Phahlamohlaka was traumatized by this and did not do well as a result in 2024.
6.5. She testified that in 2024 they wrote Task 1 and Mr. Malepe was not present to invigilate them, they started helping each other, Their answers were the same as they were helping each other but Phahlamohlaka still did not pass. Phahlamohlaka did not get her script back and when she asked Mr. Malepe he said it was taken for moderation.
6.6. She testified that Mr. Malepe got Phahlamohlaka’s number from the group chat.
6.7. She testified that Mr. Malepe only gave his favourites were given their marks to the exclusion of certain students. She confirmed the favourites to be Samukelo Segwala, Boitumelo Makgafola and Jimmy Mahlangu
6.8. She testified that on the 18th of March 2024, she received a text message from Phahlamohlaka informing her that other students were rewriting Task 2 at school.
6.9. She testified that she was surprised to see this behaviour from Mr. Malepe as Phahlamohlaka repeated the same subject x3 and she realised the seriousness of this matter, in March she advised Phahlamohlaka to report this matter to the authorities.
6.10. She testified that on the 18th of March 2024 when she went back to TNC she found students rewriting, Phahlamohlaka was amongst those that were writing, on the 19th of March she reported the matter to the HOD because she felt she was not treated fairly. She stated that Mr. Malepe was supposed to tell everyone that there is a rewrite.
6.11. She reiterated that Phahlamohlaka was very uncomfortable with the texts that were being sent by Mr. Malepe, but she started regretting not going out with him because she realized that she was failing the module.
7. THE FIFTH RESPONDENT WITNESS
MS. NOKOFA MIYA Student at Tshwane TVET College

7.1. She testified under oath and stated that she joined the College in January 2023 and Malepe was her Lecturer for Building Drawing N1 from Trimester 1 to Trimester 3. She testified that she repeated Building and Drawing for all three Trimesters
7.2. She testified that she felt that they were disadvantaged by not getting the same opportunity that the other students were getting to rewrite Building and Drawing.
7.3. She testified that she got 33% for Task 2 and 50% for Task 1 and she did not qualify to sit for final exam. She was aware that Samukelo also did not qualify. They did not see their scripts as they should, their results were posted on WhatsApp by Mr. Malepe.
7.4. When they were writing Task 2, Mr Malepe changed the time for the Assessment to start at 12h00 and the assessment usually takes 4 hours and above. He did not invigilate them and as a result, they were helping each other in his absence.
7.5. She testified that Jimmy did not write that assessment because he was working, and that is why Masemola wrote for Jimmy when the other students were given a chance to rewrite the Assessment.
7.6. In 2024 she was taught by another Lecturer, and she passed the Building Drawing without any issues.

8. APPLICANTS CASE
   Mr. NKOTSANE EPHRAIM MALEPE The Former Lecturer of Tshwane TVET College

8.1. Summary of the Applicant’s Evidence (Mr Malepe Nkotsane Ephraim)
8.2. Mr Malepe Nkotsane Ephraim testified that he was employed as a PL1 Civil Engineering Lecturer from January 2009 until February 2026. He testified in relation to the disciplinary charges brought against him and denied all allegations of misconduct.
8.3. With reference to Charge 1, Mr Malepe testified that between February and March he was stationed at TNC Campus, where he was teaching Building Drawing. He confirmed that he taught Ms Faith Phahlamohlaka during 2023 and 2024 after she repeated the subject. He disputed the allegation that she was his best-performing student, stating that she frequently absented herself from classes, failed to complete homework and practical assignments, and her poor performance was attributable to truancy and the practical nature of the subject.
8.4. Mr Malepe acknowledged communicating with Ms Phahlamohlaka via WhatsApp only after she offered to scan his sister’s certificate, as he urgently required the document and did not have access to a scanner. He maintained that there were no institutional restrictions prohibiting WhatsApp communication between lecturers and students, and that such communication was commonly used for academic purposes.
8.5. Regarding the WhatsApp screenshots contained in Annexure A2, Mr Malepe denied sending the messages attributed to him. He denied engaging in prolonged text conversations, voice calls or video calls with Ms Phahlamohlaka. He testified that, on one occasion, he answered a video call while teaching because he believed she required academic assistance after noticing her absence from class. According to his evidence, Ms Phahlamohlaka appeared partially undressed, behaved in a sexually inappropriate manner, and asked whether he liked what he was seeing. He stated that he immediately regarded her conduct as inappropriate and had no interest in further communication, which explained his brief responses thereafter. She testified under oath and stated that she was appointed as the Principal on the 1st of November 2020.
8.6. Mr Malepe categorically denied proposing a romantic relationship to Ms Phahlamohlaka, sending sexually explicit messages, touching any student inappropriately, accepting sexual favours in exchange for marks, or treating any student preferentially.
8.7. In relation to the WhatsApp messages contained in Annexure A1, Mr Malepe testified that he was unfamiliar with the alleged conversations and denied authoring the lengthy messages attributed to him. He explained that during class his cell phone remained on his desk while he moved around assisting students, making it improbable that he could have exchanged lengthy messages during teaching hours. He further denied communicating with Ms Phahlamohlaka for periods of 60 to 70 minutes. Although he acknowledged that the profile photograph appearing in one screenshot could depict him, he denied responsibility for the messages themselves.
8.8. When referred to the investigation report, Mr Malepe disputed the recorded statement that he admitted asking Ms Phahlamohlaka out. He maintained that their first communication related solely to the scanning of his sister’s certificate.
8.9. Mr Malepe further testified that, following the allegations against him, he was instructed to report to the Central Office and understood that he had been transferred from Mamelodi Campus. He confirmed that the relevant correspondence was dated 8 April 2024.
8.10. Concerning Charge 3, Mr Malepe testified that, after Test 1 had been marked, students were provided with the memorandum to compare their answers and verify the correctness of their marks before the results were finalised. He stated that, on the day in question, only one of the five students attended class, while the remaining four were absent, and that he was merely providing academic feedback.
8.11. Mr Malepe denied allegations that he accepted bribes, exchanged marks for sexual favours, or compromised the integrity of assessments. He testified that during examinations students’ cell phones were collected and secured in a locker, after which he distributed question papers and invigilated the examination.
8.12. He further testified that his normal working hours ended at approximately 14h30, with consultations continuing until 15h00. He denied remaining on campus until 16h00 or later. Regarding the allegation that students were permitted to write assessments on behalf of others, he testified that one student, Jimmy, was absent on the scheduled test date due to circumstances reported by his uncle and was permitted to write the assessment the following day.
8.13. With regard to sanction, Mr Malepe testified that the disciplinary process was procedurally unfair. He stated that his union representative arrived late at the disciplinary hearing and requested a postponement to familiarise himself with the matter, which request was refused. He maintained that he had committed no misconduct and relied on his unblemished 15-year service record and consistent pass rates of between 80% and 90% in support of his case.
8.14. Cross-Examination
8.15. During cross-examination, Mr Malepe testified that assessment records were stored electronically on his laptop, while Portfolios of Evidence were maintained by individual lecturers. He denied allegations that examinations continued until 19h00, stating that assessments commencing at 12h00 would ordinarily conclude within a reasonable period. He further denied leaving the examination venue before students, explaining that he remained responsible for returning students’ cell phones after the assessment.

9. The 2nd Witness of the Applicant
   MS. SAMKELO SOFALA (The Student at Tshwane TVET College)

9.1. She testified under oath and stated that she is a student at Tshwane TVET College studying Civil Engineering since 2023 to 2025.
9.2. She confirmed that she knows Mr. Malepe as the Lecturer for N1 and N2 Building Drawing from the last Trimester of 2023 and the first Trimester of 2024.
9.3. She testified that she was not aware of the attempts by Mr. Malepe to take Phahlamohlaka out, she testified that Mr Malepe treated all the students the same, she was not aware of any behaviour that is untoward. She testified that Phahlamohlaka would sometimes be late for class, and she would call or send messages.
9.4. She testified that Mr. Malepe would sometimes borrow his phone to students to make calls without monitoring them.
9.5. She denied that Mr. Malepe ever made inappropriate remarks about students and confirmed that she is very comfortable around Mr. Malepe and there was never a time when she felt uncomfortable.
9.6. She denied that results were sent on WhatsApp group.
9.7. She denied that there were students who wrote for other students.
9.8. She stated that she could not remember rewriting any assessment.

10. THIRD APPLICANTS WITNESS
    BOITUMELO MAKHAFOLA The Student Tshwane TVET College

10.1. Boitumelo Makhafola, a student, testified that she commenced her N1 studies towards the end of 2023 and enrolled for N2 Building Drawing from January to March 2024. She confirmed that the Applicant, Mr Malepe, was her Building Drawing lecturer.
10.2. Makhafola testified that she knew the complainant and further confirmed that she, together with Mzwandile, Humfrey, Faith, and Miya, did not attend classes regularly. She denied witnessing any inappropriate conduct by the Applicant and rejected allegations that he favoured certain students or invited students to lunch. She described the Applicant as a father figure who was approachable, supportive, and willing to assist students with personal challenges.
10.3. She testified that students were provided with a memorandum to compare their answers after assessments and were permitted to consult the Applicant regarding any corrections. Following Test 2, students received their marked scripts together with the memorandum. She stated that Faith, Miya, and Morategi were absent on that occasion and denied that any re-writing of the test occurred. She further testified that she left the campus early that day.

10.4. Makhafola confirmed that the Applicant personally invigilated all tests and examinations. She denied that he permitted students to write assessments on behalf of others or that students shared desks during assessments.
10.5. During cross-examination, Makhafola testified that she became acquainted with Faith during the third trimester of 2023 and that they were not in the same class in 2024 because Faith was repeating the module. She stated that Building Drawing tests were allocated four hours and were written during the scheduled subject period without the need for students to be called individually. She confirmed that students ordinarily received their marked scripts before marks were officially published; however, in respect of Test 2, only the scripts were returned as the marks had not yet been published.
10.6. Makhafola further testified that she left campus early on the day of the alleged re-test incident and therefore did not remain on the premises thereafter. She confirmed that the Applicant occasionally lent his cell phone to students to contact their families in emergencies. Lastly, she testified that students who were absent for approximately 80% of classes did not qualify to sit for examinations.

11. FOURTH APPLICANTS WITNESS
    JIMMY MAHLANGU Student Tshwane TVET College

11.1. Jimmy Mahlangu testified that he is a student at Tshwane TVET College, where he has been enrolled for Civil Engineering since 2023. He stated that he knew Mr. Malepe, who was his lecturer until N2 in 2024. He confirmed that he successfully passed all his subjects.
11.2. Mahlangu testified that he did not write Task 2 on the date on which the rest of the class completed the assessment because he was ill. He stated that he subsequently wrote the assessment on the following day. He further testified that he was not aware of any student being permitted to rewrite Task 2. He denied that Masemola had written the assessment on his behalf.
11.3. Mahlangu testified that Mr. Malepe was responsible for invigilating all the assessments written by the class. He stated that there was no occasion on which students were permitted to write assessments after hours or late in the day.
11.4. He denied that Mr. Malepe showed favouritism towards particular students in the class and stated that all students were treated equally.
11.5. Mahlangu identified Samkelo, Boitumelo, Mzwandile, Thapelo and himself as students who regularly attended classes, He further stated that the complainant, Faith Phahlamohlaka, Clementine and Miya were students who were regularly absent from class.
11.6. Mahlangu denied that Mr. Malepe had ever made comments in class concerning the physical fitness or appearance of female students. He further testified that he had no knowledge of Mr. Malepe harassing Phahlamohlaka.
11.7. Overall, Mahlangu’s evidence was that he did not observe or have knowledge of any preferential treatment, irregularities relating to the writing or rewriting of assessments, inappropriate comments concerning female students, or harassment of Phahlamohlaka by Mr. Malepe.

12. ANALYSIS OF EVIDENCE

12.1. CHARGE 1: SEXUAL HARASSMENT
12.2. The Applicant was charged with sexual harassment, it being alleged that during February to March 2024 he persistently sent his student, Ms Phahlamohlaka, unsolicited WhatsApp messages proposing to take her out for drinks/lunch, even after she had declined his first invitation. It was further alleged that he abused his position as a Building Drawing lecturer by suggesting that her Drawing be discussed during drinks and/or lunch in order to persuade her to agree to his proposal.
12.3. The Applicant pleaded not guilty.
12.4. The applicable enquiry is whether the Respondent has established, on a balance of probabilities, that the conduct alleged in the charge occurred.
12.5. The charge must be determined on the evidence actually placed before me. I must therefore distinguish between what is directly established, what is corroborated, and what is merely inferred.
12.6. The fact that the communications occurred through WhatsApp does not, by itself, make the conduct sexual harassment. Nor does an invitation by a lecturer to a student to have lunch or drinks automatically constitute sexual harassment. The context is critical.
12.7. In University of Venda v Maluleke and Others (JR2125/13) 2017 ZALCJHB 72 (2017) 38 ILJ 1376 LC the Labour Court recognised the significant power differential inherent in a lecturer–student relationship. The Court emphasised that a lecturer occupies a position of trust and authority over students and must exercise particular care in dealings with them.
12.8. Likewise, in Department of Health, Western Cape v Twalo and Others, (C159/2020) 2022 ZALCCT 15 [2022] 8 BLLR 741 (LC) the Labour Court criticised an approach which considered invitations to lunch without properly considering the surrounding circumstances. The Court held that the evidence concerning repeated invitations could not simply be ignored and that the conduct had to be assessed in its proper factual context.
12.9. The question before me is accordingly whether the evidence establishes that the Applicant’s conduct, considered cumulatively and in the context of the lecturer–student relationship, constituted unwelcome conduct of a sexual or romantic nature and amounted to an abuse or improper use of his professional position.
12.10. Evidence concerning the complaint
12.11. Mr Malau testified that he received complaints from three students concerning the Applicant. One of those students was Ms Phahlamohlaka.
12.12. The complaints initially concerned academic matters, including students’ concerns about scripts and their eligibility to sit for examinations. Mr Malau testified that the students also raised concerns that the Applicant had favourites and treated certain students differently.
12.13. Of relevance to this charge, however, is that Ms Phahlamohlaka specifically complained that the Applicant was sending her messages and informed Mr Malau that she had evidence of those messages on her cell phone.
12.14. Mr Malau further testified that, during the investigation, the Applicant admitted that he had sent messages to Ms Phahlamohlaka. This was confirmed by the Chairperson of the Disciplinary hearing as well.
12.15. This evidence is important because it constitutes evidence independent of Ms Phahlamohlaka that the issue of communications between the Applicant and the complainant was raised contemporaneously and that the Applicant, during the investigation, accepted that he had sent messages to her.
12.16. I therefore do not approach the case as one where the only evidence linking the Applicant to the messages is the complainant’s subsequent assertion that he sent them.
Evidence of Ms Phahlamohlaka
12.17. Ms Phahlamohlaka testified that she regarded the Applicant as a father figure. She explained that the Applicant obtained her telephone number from the class WhatsApp group and that she began receiving messages from him in approximately September 2023.
Her evidence was that the communications initially concerned academic matters but subsequently changed in character, with the Applicant beginning to ask her out.
She testified that she refused to go out with him, but that he persisted.
12.18. This evidence is significant because the charge itself does not rest simply on an isolated invitation. The allegation is one of persistent invitations after an initial refusal. That distinction is important.
12.19. An isolated invitation to lunch, considered without context, would ordinarily not be sufficient to sustain a finding of sexual harassment. The allegation here is that the Applicant continued after the invitation had been rejected and that the invitations were linked to the academic relationship.
12.20. Corroboration by Morategi
12.21. Ms Phahlamohlaka’s evidence was not entirely uncorroborated. Morategi testified that Ms Phahlamohlaka sent some of the messages to her and that she discouraged Ms Phahlamohlaka from going out with the Applicant. Morategi also testified that some of the messages were sent as “view once” messages.
12.22. I regard this evidence as significant, although I do not treat Morategi as an independent witness to the Applicant actually sending every message. Her evidence is instead corroborative of the surrounding circumstances. In particular, it supports Ms Phahlamohlaka’s evidence that: she had received messages from the Applicant, the messages were sufficiently concerning to her that she shared them with another student, she discussed the invitations with Morategi; and she was discouraged from accepting the invitations.
12.23. The fact that a complainant contemporaneously shares the substance or contents of alleged inappropriate communications with another person is a relevant consideration when assessing the probabilities and credibility of her subsequent account.
12.24. The Applicant’s version
12.25. The Applicant denied sending inappropriate messages to Ms Phahlamohlaka. He relied on the proposition that WhatsApp communication between lecturers and students was not prohibited and maintained that his communications with her were academic. He further alleged that Ms Phahlamohlaka had herself behaved inappropriately by video-calling him while partially dressed and asking whether he liked what he saw. He denied asking her to lunch or drinks.
Finally, and importantly, he denied that the messages contained in Annexure 1 were sent by him.
12.26. His final position was that the complainant could have sent the messages to herself from his phone in order to make it appear that he had sent them.
12.27. The Applicant’s denial of Annexure 1
12.28. This aspect requires careful treatment because, as I understand the evidence, Annexure 1 was not initially disputed.
12.29. It was treated as common cause until the Applicant was about to close his case, at which stage he challenged the authenticity of the messages. That procedural history is material.
12.30. I do not find it appropriate to approach Annexure 1 as though the Respondent had been put to proof of its authenticity from the commencement of the arbitration.
12.31. The Respondent presented its case in circumstances in which the authenticity of the document was not apparently in dispute. It was only later that the Applicant changed his position and suggested that the complainant might have fabricated the messages by sending them to herself from his phone.
12.32. Expert evidence was then not permitted.
12.33. I therefore make no finding that Annexure 1 was forensically authenticated. That is not necessary for the determination of the charge.
The question is whether, notwithstanding the absence of expert evidence, the evidence as a whole establishes on a balance of probabilities that the Applicant authored the communications.
12.34. The late challenge to Annexure 1 is a factor I take into account when assessing the Applicant’s credibility and the probabilities.
12.35. It is particularly significant because the Applicant did not merely challenge the interpretation of the messages. His ultimate version was that the messages were not his at all.
12.36. That position sits uneasily with Mr Malau’s evidence that, during the investigation, the Applicant admitted sending messages to Ms Phahlamohlaka.
12.37. The Applicant’s admission to Mr Malau. This is, in my view, a particularly important piece of evidence. Mr Malau testified that the Applicant admitted during the investigation that he had sent messages to Ms Phahlamohlaka.
12.38. If I accept that evidence, it materially undermines the Applicant’s later blanket denial that he sent the messages.
12.39. The significance of the admission is not that it necessarily proves that every message in Annexure 1 was authored by the Applicant. It does not. Its significance is that it establishes that the Applicant’s current position that the messages attributed to him were not sent by him is inconsistent with what Mr Malau says the Applicant admitted during the investigation.
12.40. This inconsistency is material because the Applicant’s defence depends substantially upon the proposition that the WhatsApp communications were not authored by him.
12.41. I therefore find Mr Malau’s evidence concerning the admission to be an important factor in the assessment of the competing versions.
12.42. The “view once” messages
12.43. Morategi’s evidence that some of the messages were sent as “view once” messages also deserves consideration.
12.44. I do not regard this evidence as proving authorship. It does, however, explain why the complainant might not have been able to produce every communication in permanent form and why some of the communications may have been preserved differently. More importantly, it supports the general proposition that the communications were not merely an allegation constructed for the disciplinary proceedings.
12.45. I therefore treat this evidence as corroborative but not decisive.
12.46. The Applicant’s explanation concerning academic communication, The Applicant’s assertion that WhatsApp communication was not prohibited is not a sufficient answer to the charge.
12.47. I accept that there was nothing inherently improper in a lecturer communicating with his student through WhatsApp. Indeed, Ms Phahlamohlaka herself accepted that the initial messages were academic. That is not inconsistent with the Respondent’s case.
12.48. The allegation is that the nature of the communications subsequently changed. This distinction is important.
12.49. A message such as: “Please submit your Building Drawing” would plainly fall within legitimate academic communication. A message proposing drinks or lunch after an earlier refusal is different.
12.50. It becomes still more significant if the lecturer proposes discussing the student’s academic work during that private social engagement.
12.51. The Applicant’s reliance on the general permissibility of WhatsApp therefore does not answer the allegation actually made against him.
12.52. The Building Drawing allegation. This is, in my view, the strongest contextual aspect of the charge. The Applicant was the complainant’s Building Drawing lecturer. The evidence is that the Applicant suggested that her Drawing could be discussed during drinks and/or lunch.
This is important because it places the proposed social interaction within the context of the Applicant’s academic authority.
12.53. It is not necessary to find that the Applicant expressly offered marks or an academic advantage in exchange for accepting his invitation. The charge does not allege that. The allegation is more subtle: that the Applicant used his position as lecturer and the academic relationship to persuade the student to agree to a social encounter. That allegation is objectively plausible.
12.54. A student dealing with the lecturer responsible for an academic subject is not in the same position as an ordinary social acquaintance. The lecturer has authority and influence in relation to the student’s academic progress.
12.55. University of Venda v Maluleke and others (JR2125/13) [2017] ZALCJHB 72 (2017) 38 ILJ 1376 (LC) is particularly instructive in this regard. The Labour Court recognised the substantial power differential between a lecturer and students and held that the lecturer’s position of trust and authority is an important consideration in assessing alleged sexual harassment. The relevance of that principle here is not that the Applicant was automatically prohibited from having any social interaction with a student. It is that the academic relationship changes the meaning and potential impact of the social invitation.
12.56. Was the conduct unwelcome? On the evidence, I find that it was. Ms Phahlamohlaka testified that she initially regarded the Applicant as a father figure. She did not describe herself as seeking a romantic or social relationship with him. More importantly, she testified that she declined his invitation and that he nevertheless persisted.
12.57. Morategi corroborated the fact that Ms Phahlamohlaka discussed the messages with her and that she discouraged her from going out with the Applicant.
12.58. I therefore find that the Applicant knew, or at least ought reasonably to have known, that the invitations were unwelcome.
12.59. The issue is not whether Ms Phahlamohlaka expressly used the words “sexual harassment” when declining the invitation. The issue is whether, viewed objectively and in the circumstances, the Applicant was put on notice that his advances were not reciprocated.
12.60. The significance of persistence, Persistence after rejection materially changes the character of an otherwise innocuous social invitation. The charge specifically alleges that the Applicant continued to propose drinks/lunch after Ms Phahlamohlaka had turned down his first invitation.
I find this aspect of her evidence probable.
12.61. Her evidence is supported by the fact that she discussed the communications with Morategi and sought her advice. It is further supported, at least in a broader sense, by the evidence that she complained to Mr Malau and indicated that she possessed evidence of the messages. This is not a case where the allegation emerged for the first time during the arbitration.
12.62. The video-call allegation
12.63. I have carefully considered the Applicant’s evidence that Ms Phahlamohlaka video-called him while partially dressed and asked whether he liked what he saw. If that occurred, it would plainly be relevant to the Applicant’s perception of the relationship. It does not, however, provide a defence to Charge 1.
12.64. First, the charge concerns the Applicant’s conduct. Second, even if the student behaved inappropriately on one occasion, that would not entitle the Applicant, as her lecturer, to respond by pursuing a personal or romantic relationship with her. Third, the Applicant was the person occupying the position of authority and therefore bore the greater professional responsibility to maintain appropriate boundaries.
12.65. I therefore do not find it necessary to determine conclusively whether the video-call incident occurred in precisely the manner described by the Applicant. Even accepting the Applicant’s account for present purposes, it does not materially alter my conclusion on Charge 1.
12.66. Credibility of the Applicant
12.67. There are two material difficulties with the Applicant’s version. The first is his blanket denial of the messages despite Mr Malau’s evidence that he admitted during the investigation to sending messages to Ms Phahlamohlaka.
The second is the late challenge to Annexure 1.
12.68. The Applicant was entitled to dispute the authenticity of the document, but the timing of that challenge is relevant to the weight I attach to his evidence.
12.69. It is difficult to reconcile a position in which the communications were apparently not disputed during the material part of the arbitration with a subsequent assertion, immediately before the Applicant closed his case, that the complainant may have fabricated the messages by sending them to herself from his phone.
That is a serious allegation. It would require a credible evidential foundation. On the evidence before me, I find that foundation lacking.
12.70. There is no evidence before me establishing that Ms Phahlamohlaka had access to the Applicant’s phone or that she actually manipulated his device to manufacture the messages.
12.71. The Applicant’s theory is therefore possible in the abstract, but possibility is not probability.
12.72. Assessment of the evidence as a whole
12.73. I have not treated the WhatsApp messages as determinative on their own. Rather, I have considered the following evidence cumulatively:
First, Ms Phahlamohlaka testified that the Applicant obtained her number from the class WhatsApp group, initially communicated with her academically and thereafter began asking her out.
Second, she testified that she rejected the invitation but that the Applicant persisted.
Third, she shared some of the messages with Morategi.
Fourth, Morategi corroborated that she had seen some of the messages and that she discouraged Ms Phahlamohlaka from going out with the Applicant.
Fifth, Morategi testified that some communications were sent as “view once” messages.
Sixth, Ms Phahlamohlaka complained to Mr Malau and told him that she had evidence of the communications.
Seventh, Mr Malau testified that the Applicant admitted during the investigation that he had sent messages to Ms Phahlamohlaka.
Eighth, the Applicant was her Building Drawing lecturer and therefore occupied a position of academic authority over her.
Ninth, the allegation that the Applicant proposed discussing her Drawing during drinks/lunch provides a specific connection between the social invitation and the academic relationship.
Tenth, the Applicant’s ultimate denial that the messages in Annexure 1 were sent by him emerged only at a late stage, notwithstanding the earlier evidentiary treatment of the annexure as common cause.
12.74. When these factors are considered together, the probabilities favour the Respondent’s version.
12.75. Is this sexual harassment?
12.76. I find that it is. I reach this conclusion not because the Applicant invited a student to lunch, and not because he used WhatsApp.
I reach it because the evidence establishes persistent and unwelcome personal/social advances by a lecturer towards his student after she had declined the invitation, coupled with the use of the academic relationship as part of the proposed social interaction.
12.77. The conduct therefore has to be viewed against the power imbalance between lecturer and student.
12.78. The reasoning in University of Venda v Maluleke is particularly persuasive: the Labour Court recognised that a lecturer’s position creates a substantial power differential and that the lecturer’s dealings with students must be assessed with that responsibility in mind.
12.79. Twalo is likewise important because it demonstrates why invitations to lunch cannot be assessed by looking at the word “lunch” in isolation. The surrounding circumstances and the evidence of persistence must be considered.
12.80. The present case is distinguishable from a situation where a lecturer makes an isolated, innocent invitation which is immediately accepted or declined, and no further personal conduct occurs.
12.81. Here, I find that there was persistence after rejection and that the academic relationship was brought into the proposed private interaction. That conduct crossed the professional boundary.
12.82. Having considered the totality of the evidence, I find that the Respondent has proved Charge 1 on a balance of probabilities.
13. CHARGE 3. Compromising the Credibility and Integrity of Assessments
13.1. The Respondent bears the onus of establishing the alleged misconduct on a balance of probabilities. In assessing the evidence, regard must be had not only to the number of witnesses who supported a particular version, but also to the inherent probabilities, corroboration, concessions made under cross-examination, and the reliability and credibility of the witnesses.
13.2. In this matter, the evidence concerning the irregularities was principally presented by Mr Malau and corroborated in material respects by the student complainants, particularly Ms Faith Phahlamohlaka, Ms Morategi Kopane and Ms Nikita Miya. Their evidence was not confined to a single allegation but disclosed a number of related irregularities concerning the administration, supervision, recording and feedback of the assessments.
13.3. 1. Alleged provision of the marking memorandum and rewriting of assessments
13.4. The most serious allegation is that students were permitted to improve or rewrite their answers using the marking memorandum.
13.5. Morategi’s evidence is particularly material. She testified that she received a text message from Faith informing her that students were in class correcting their Drawing scripts using a memorandum. She immediately went to campus and found students engaged in the exercise. According to her, the students confirmed that they were improving their marks. By the time she arrived, the material had been collected and she was therefore unable to participate.
13.6. This evidence is significant because Morategi was not merely repeating hearsay about an alleged practice. She testified to what she personally observed upon arriving at the campus. Her evidence also accords with the complaints received by Malau.
13.7. Malepe’s explanation was that the students were not rewriting the assessment but merely verifying the correctness of their marks. This explanation is difficult to reconcile with Morategi’s evidence that students were in class correcting their Drawing scripts using a memorandum. More importantly, if the exercise was merely a legitimate verification of marks, there is no satisfactory explanation why the scripts and memorandum were being used in a classroom exercise after the assessments had already been completed.
13.8. The evidence of Makhafola does not materially assist Malepe on this issue. Although she testified that students were verifying their marks and not rewriting the assessment, she conceded that she left campus early that day. She therefore could not testify meaningfully about what occurred after her departure. Her evidence consequently cannot rebut Morategi’s direct evidence concerning what Morategi observed when she arrived at campus.
13.9. The fact that Malepe denied that students were rewriting the assessment does not, in itself, resolve the conflict. His version must be assessed against the probabilities and the corroborating evidence. On the totality of the evidence, the Respondent’s version is more probable.
13.10. I accordingly find that the allegation that students were afforded an opportunity to improve/rewrite their answers with reference to the marking memorandum has been established on a balance of probabilities.
13.11. 2. Failure to properly invigilate the assessments
13.12. There is also a substantial dispute regarding invigilation. Malau testified that students complained that Malepe did not properly invigilate the assessments and that, as a consequence, students copied from one another and assisted each other during the assessments. This evidence was supported by the student complainants.
13.13. Malepe denied the allegation and maintained that he invigilated all the assessments. His evidence was supported by Sofala and Jimmy Mahlangu. However, the credibility of this evidence must be approached with caution.
13.14. The evidence of the Applicant’s witnesses does not satisfactorily explain the allegations made by several students that they were able to copy and assist each other. More importantly, the Applicant’s witnesses appeared to provide evidence that was closely aligned with Malepe’s version, without satisfactorily addressing the specific irregularities raised by the complainants.
13.15. The Applicant’s witnesses appeared “practiced” in their evidence they gave highly aligned evidence but failed to provide convincing explanations for material aspects of the opposing version.
13.16. I therefore find that the Respondent has established, on a balance of probabilities, that Malepe failed to properly supervise/invigilate the assessments, creating an environment in which students could assist or copy from one another.
13.17. 3. Students allegedly writing assessments on behalf of absent students
The evidence regarding this allegation is less compelling than that concerning the other irregularities.
13.18. This allegation requires particular consideration because the evidence concerning it is materially stronger when the evidence of Ms Phahlamohlaka and Ms Morategi is considered.
Ms Phahlamohlaka gave direct evidence that she encountered Samkelo writing an assessment on behalf of Mahlangu, who was absent from the assessment.
Her evidence was not based upon information subsequently conveyed to her by another person. She testified that she personally found Samkelo writing the assessment and asked him why he was there, particularly because she understood that he had already passed the assessment.
According to her evidence, Samkelo explained that he was writing the assessment on behalf of Mahlangu, who had been absent.
13.19. This is significant. The allegation is therefore not dependent merely upon an inference drawn from a complaint by another student. There is direct evidence from a witness who says that she personally observed the alleged substitution taking place.
13.20. The evidence was materially corroborated by Ms Morategi. She testified that she arrived later and also found Samkelo writing the assessment.
Morategi’s evidence does not necessarily establish everything that occurred before she arrived, nor does it establish by direct observation what instructions, if any, Malepe gave to Samkelo. Her evidence does, however, independently corroborate the central factual circumstance that Samkelo was present and was writing the assessment.
13.21. The two witnesses must therefore be treated with appropriate precision. Their evidence establishes the fact which they personally observed. It does not, merely by reason of their observations, establish that Malepe instructed Samkelo to write on Mahlangu’s behalf or that Malepe expressly authorised the substitution.
Malepe’s version
13.22. The Applicant’s version is that Mahlangu was absent from the assessment but subsequently returned the following day and wrote the assessment himself. Malepe therefore denies that Samkelo wrote the assessment on Mahlangu’s behalf.
13.23. I have considered this version carefully.
13.24. Mahlangu’s evidence that he subsequently wrote the assessment is relevant and, if accepted, supports the Applicant’s account concerning what occurred on the following day. It does not, however, necessarily answer the separate question of whether Samkelo had previously written an assessment on Mahlangu’s behalf.
13.25. The two propositions are not necessarily mutually exclusive. It is theoretically possible that Samkelo wrote an assessment for Mahlangu and that Mahlangu subsequently wrote another assessment. If that were the case, however, it would itself constitute an irregularity requiring explanation.
13.26. More importantly, Malepe’s version does not satisfactorily explain the evidence of Phahlamohlaka and Morategi. That account does not explain:
• why Samkelo was present.
• why Samkelo was writing the assessment.
• why Phahlamohlaka says that Samkelo told her he was writing for Mahlangu.
13.27. The fact that Mahlangu subsequently wrote an assessment therefore does not, in my view, satisfactorily rebut the evidence that Samkelo had already written on his behalf.
13.28. I accordingly find that the Respondent discharged the onus on a balance of probabilities that a student was allowed to write on behalf of another.
13.29. 4. Conducting assessments after working hours
13.30. There is evidence that Task 2 was postponed to 12h00 and that it was a four-hour assessment. On the students’ version, this resulted in the assessment continuing until after 18h00.
13.31. Malau testified that students complained about this arrangement. The evidence of the students corroborated the fact that the assessment commenced at approximately 12h00 and extended well beyond ordinary hours.
13.32. Malepe denied that he conducted assessments after hours and stated that he knocked off at 14h30 and had never been on campus after 16h00. This evidence is difficult to reconcile with the evidence that Task 2 was a four-hour assessment commencing at 12h00. Even accepting Malepe’s contention that he did not remain on campus after 16h00, this does not adequately explain how a four-hour assessment could properly have been conducted after being commenced at 12h00.
13.33. More importantly, Malepe’s own version appears to place him in conflict with the objective chronology of the assessment.
13.34. I accordingly find that the Respondent has established that the assessment was conducted outside the prescribed or reasonable assessment hours and that this constituted an irregularity compromising the proper administration and integrity of the assessment.
13.35. 5. Failure to provide assessment feedback and access to scripts. On this issue, there is particularly strong corroboration.
13.36. Faith testified that she signed for her Task 1 and Task 2 marks without being afforded an opportunity to view her scripts. Her Task 1 script was allegedly said to have been sent for moderation, while her Task 2 script could not subsequently be located.
13.37. Malau testified that, during the investigation, it was discovered that Faith’s script was missing and that the scripts had not in fact been sent for moderation as students had been told. Two scripts were ultimately found to be missing, and Malepe conceded that the scripts were missing.
13.38. This evidence is highly significant. It is not merely a dispute between Malepe and the complainants about whether feedback was provided. There was objective evidence during the investigation that scripts were missing and that the explanation given to students concerning moderation was inaccurate.
13.39. Morategi and Miya likewise complained that they were not permitted to view their marked scripts. The complaints concerning lack of feedback were therefore not isolated.
13.40. Malau’s evidence that lecturers are expected to provide students with assessment feedback is consistent with the purpose of an assessment system. A lecturer’s failure to provide students with access to their scripts, coupled with missing scripts and an inaccurate explanation concerning moderation, materially undermines the transparency and reliability of the assessment process.
13.41. Malepe did not provide a satisfactory explanation for the missing scripts or for why students were unable to access their marked work.
13.42. I therefore find that the Respondent has established the allegation that Malepe failed to provide proper assessment feedback and failed to ensure that students had reasonable access to their marked scripts.
13.43. Credibility of the respective versions
13.44. I have considered Malepe’s contention that the complainants were unreliable because they were allegedly habitually absent and tardy. This criticism does not, without more, render their evidence false. Indeed, Malepe conceded that he was aware of their alleged tardiness but could not adequately explain why he did not follow the prescribed procedure to address it.
13.45. The evidence of the complainants also contains material corroboration. Their complaints were made independently and relate to different aspects of the assessment process, while Malau’s investigation subsequently revealed objective irregularities, particularly the missing scripts.
13.46. By contrast, the evidence of Malepe’s witnesses was largely supportive of his version, but some of it was materially limited. Most notably, Makhafola conceded that she had left the campus early and therefore could not give evidence regarding the alleged rewriting exercise that occurred thereafter. Jimmy’s evidence confirms only that he wrote his assessment the following day; it does not resolve the wider allegations concerning the conduct of the assessments.
13.47. I am therefore not persuaded that the Respondent’s witnesses should be preferred merely because they gave consistent evidence. On the material issues, the complainants’ evidence is supported by the surrounding circumstances and, importantly, by objective findings made during the investigation.
13.48. The charge is framed broadly as compromising the credibility and integrity of the Building and Drawing N1 and N2 assessments. It is therefore unnecessary for every individual allegation to be proved in order for the overarching charge to be sustained. What must be established is that Malepe engaged in conduct which materially compromised the integrity and credibility of the assessment process.
14. FINDING
14.1. Having considered the evidence as a whole, I find that the Respondent has established the following allegations on a balance of probabilities:
• Students were permitted to improve/rewrite assessment answers using the marking memorandum.
• Malepe failed to properly invigilate the assessments.
• The assessment was conducted at an inappropriate time and extended into after-hours.
• Students were not properly provided with feedback or access to their scripts; and
• Assessment scripts were missing and the explanation that they had been sent for moderation was not supported by the investigation.
• A student wrote an assessment on behalf of an absent student, has been established with sufficient evidence.

14.2. I accordingly make the following award

15. AWARD

15.1. I find the dismissal of the Applicant NKOTSANE EPHRAIM MALEPE by the Respondent The Department of Higher Education Gauteng to be appropriate.
15.2. This application is dismissed.

GCINA MAFANI
Arbitrator 07 September 2026
ELRC1421-25-26GP