IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
SIBIYA, K The Educator

Inquiry by Arbitrator

Case Number: ELRC780-21/22 KZN

Date of award: 08 April 2025

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Website: www.elrc.org.za

DETAILS OF THE INQUIRY

1. The Inquiry by Arbitrator was held at the Empangeni office of the Employer and at Empangeni High School. The hearing of evidence commenced on 3 October 2022 and proceeded on 29 November 2022, at which hearing it was agreed by the parties that the hearing would not be rescheduled until the Council had been notified by the Employer that a transcription of an audio recording upon which it intended to rely, was ready. Ultimately the transcription was not procured by the Employer and the hearing re-commenced on 14 August 2024 and proceeded on 25 October 2024, 29-31 January 2025 and 19 March 2025, on which date the hearing of evidence was finalized. The representatives requested and were granted permission to submit written closing arguments. These were due by 26 March 2025 but none were submitted despite the Council having sent a reminder.
2. The Employer was represented by its employee, Ms Danisa. A bundle of documents marked exhibit A was handed in by her and she called four witnesses to give oral evidence.
3. The Educator, Dr K W Sibiya, was initially represented by counsel, Mr Kulati. Instructed by MHS Attorneys. At the hearing on 25 October 2024, the Educator acted on his own behalf. He advised that he had not placed his representatives in funds. On 28 January 2025 Mr Kulati’s instructing attorneys withdrew as the Educator’s attorneys of record and they were replaced by Chris G Attorneys. Ms Nyembe of Chris G Attorneys thereafter represented the Educator. The Educator gave oral evidence and four bundles of documents marked as exhibits B, C, D and E respectively were submitted on his behalf.
4. The alleged misconduct that is the subject matter of this dispute is of a sexual nature. In order to preserve the privacy of the Learners involved I shall refer to them as Learners 1, 2 and 3 respectively. Learner 3 did not testify. The mother and father of Learner 1testified and I shall refer to them as such.
5. The services of an interpreter and intermediary were utilized as required.
6. The proceedings were digitally recorded.

EXPLANATION OF THE EDUCATORS’ RIGHTS

7. At the commencement of the hearing, I explained the following rights to the Educator, who confirmed that he was aware of and understood these rights:
   7.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, I stressed the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
   7.2. The right to give evidence and to call witnesses.
8. The Educator confirmed that he had been given written notice of the alleged misconduct. He had had sufficient time to prepare for this Inquiry.
9. It was explained to both parties, who indicated that they understood that:
   9.1. A separate hearing in respect of sanction in event of a finding of guilty would not be held. Evidence in mitigation and aggravation of sentence would need to be presented prior to a finding on the merits of the case having been given;
   9.2. They could make closing arguments after all evidence had been heard; and
   9.3. In terms of section 120 of the children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Educator is unsuitable to work with children. It was further explained that as with the question of sanction, a separate hearing would not be held.

THE CHARGE, PLEAS AND PLEA EXPLANATIONS

10. The charges are at pages 1-6 of exhibit A and read as follows:
    “Charge 1
    It is alleged that on16 June 2021 at Wildenweide Boarding Facility you sexual assaulted a learner by the name of Learner 1, in that you asked her to kiss you; thereby contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
    Charge 2
    It is alleged that on the 2021 at Wildenweide Boarding Facility you sexual assaulted on a learner by the name of Learner 1 in that you show her a picture of your private part on your cellphone; thereby contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
    Charge 3
    In that during the period 2019 at or near Kwa Msane at Mnotho Primary School, committed sexual misconduct against a learner (Learner 3) in that you touched her hand, tried to kiss her your school you thereby contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
    Charge 4
    In that during the period January 2022 at or near Veld n Vlei you kissed Learner 2 in then you said you wanted to grease your mouth you thereby contravened section 17(1)(c) of the Act.
    Charge 5
    In that on or about period 2022 at or near Veld n Vlei you committed an act of sexual misconduct when you asked Learner 2 if she was using any prevention for pregnancy, you also asked her “if she ever used morning pills” you thereby contravened section 17(1)(c) of the Act.
    Charge 6
    In that during the period February 2022 at or near Veld n Vlei, you committed an act of sexual misconduct in that you gave Learner 2 a lift, you kissed her in the mouth, you took her inside your trouser brush, it against your private part you went on to brush her thighs and peeping under her skirt. you thereby contravened section 17(1)(c) of the Act.
11. The Educator pleaded not guilty to each of the charges and offered the following plea explanation:
    11.1. All the alleged misconduct is a fabrication brought about by his competitors in the mathematics field who cannot match his prowess;
    11.2. His troubles started as a result of the jealousy of a mathematics educator who previously had been used by the KwaZulu-Natal Department of Education to provide extra mathematic lessons to rural and township learners;
    11.3. The Educator teaches at Mbusiwabathetwa Secondary School and runs a home-based business together with his wife providing extra mathematic lessons to learners from various schools. The female learners stay on site whereas the male learners stay off-site;
    11.4. Learners have access to a cellular phone of his;
    11.5. In September 2021 he was contacted by people stating that they worked for the Daily News and who asked him to pay a R30 000 bribe in return for them not to publish an article that he had raped a learner at the school at which he taught. At that stage he was unaware of any allegations that might have been laid against him. He refused to cooperate;
    11.6. He thereafter got a call from someone who identified himself as Mr Mdletshe, the father of a learner at his business, who threatened to expose him in the media were he not to pay him R6 000. The Educator asked him not to go to the media but rather to lay a complaint with the police;
    11.7. He had last received a call from Mdletshe on 24 August 2022. This call was recorded and the transcription would be provided to this hearing.
    11.8. Learner 1 was a very quiet child. The Educator’s wife will say that she very rarely came into their home unlike other children and that she never stayed over week-ends.
    11.9. SACE had investigated the allegations and chose not to charge him. Likewise, the police also investigated the allegations and he gave a statement to the police during or about May 2022.
    11.10. With regards to counts 4-6 the Educator denies ever having been at Veld n Vlei. What he does say is that when he had seen Learner 2 walking along the road, he had stopped and given her a lift to his home. She studied and stayed at his property. Immediately after having given her the lift, the Educator received a call from someone who said that he had seen what the Educator had done to the child.

THE EVIDENCE ON BEHALF OF THE EMPLOYER

12. The mother of Learner 1 stated that at the dates of the alleged incidents Learner 1 was at John Ross College and a boarder at the Educator’s boarding house in Richards Bay. The mother of Learner 1 stayed (and stays) in Mtubatuba.
13. The Educator held camps and offered extra mathematic lessons that the Learner had wanted to attend. She would take and fetch the learner from the boarding house. Most of her dealings were with the wife of the Educator and not with him.
14. The mother of Learner 1 had initially withdrawn her from the boarding house following her having been injured in an incident at a pool. The alleged incidents leading to this hearing had happened thereafter.
15. Under cross-examination the mother of learner 1:
    15.1. Stated that the learner had not informed her of the alleged assault by the Educator;
    15.2. Stated that she did not know a person by the name of Learner 2, when it was put to her that she was Learner 1’s cousin;
    15.3. Stated that the swimming pool incident had occurred during and about August-September 2021. She had been informed of the incident by the Educator’s wife, who took Learner 1 to hospital and Learner 1 herself. She had been unable to go to the hospital herself as she did not have transport at the time;
    15.4. Agreed that Learner would usually be fetched from the boarding school by either herself or the Learner’s brother;
    15.5. Stated that after the pool incident the Learner had stayed at her home in Mtubatuba and she had looked for an alternative boarding house at which the Learner could stay;
    15.6. Agreed that she thereafter had placed her at a boarding house at which boys also stayed. She had only discovered later that it was also linked to the Learner.
16. On being questioned by me she stated that she had referred Learner 1 initially to a social worker and then psychologist as she was concerned with her daughter’s behaviour. At that stage she was unaware of any allegations concerning the Educator’s alleged misconduct.
17. The father of Learner 1 works and stays in Durban during the week whilst his wife stays at their Mtubatuba residence.
18. He is the author of the letter dated 15 September 2021 (at page 7 of exhibit A) by which he had notified the Employer of the alleged misconduct of the Educator. The letter was preceded by him having referred the Learner to a counselling service offered by his employer, Transnet, after he had been informed by his wife that the Learner was not being herself.
19. He was subsequently contacted by the service provider and advised that there was a serious issue and that he should immediately remove Learner 1 from the Educator’s boarding house. On that day he had driven to Richards Bay, collected his daughter and taken her to their Mtubatuba residence, where he had left her with his wife. He had later been told by his wife that there was a big problem. He told Learner 1 that she must be as open as possible with them.
20. After having engaged with the principal of John Ross College, he had referred the matter to SAPS, who had gone to his residence. He was later contacted by his wife and informed that the SAPS social worker had said that as there was no physical evidence of an assault, there was no case. He had then decided to consult a friend, Makwakwa, who worked for the Daily News. Makwakwa had informed him that the advice of the social worker was incorrect. He had then told his wife to open a criminal case as by then he was back in Durban.
21. He had been contacted by the Educator who had implored him not to go to the police. He had said that he did not know what had triggered the Learner to complain and wanted to meet and discuss the issue with him. Learner 1’s father had been so frustrated and angry at the time that he had refused to meet.
22. Learner 1’s father denied that he was a party to the conversations reflected in exhibit C.
23. Under cross-examination he:
    23.1. Agreed that apart from being advised by the counsellor to remove the Learner from the boarding house of the Educator, he knew nothing else about what might have happened to her. He further agreed that he suspected that she might have been raped;
    23.2. Could not comment on the version that a friend of the Learner had contacted his wife to fetch the Learner following the pool incident as neither the Educator nor his wife were there at the time;
    23.3. Agreed that after his wife had spoken to the Learner she had said that the Learner had not told her what had happened. He had feared the worst;
    23.4. Confirmed that he was aware that the Learner had withdrawn the criminal complaint but was unaware that the Learner had insisted that the Educator also undertake not to sue her;
    23.5. Stated that he was unaware that the Learner had also withdrawn the SACE case;
    23.6. Was unaware that two other complainants had withdrawn their complaints with the Department;
    23.7. Stated that he had not initially dealt with the police but rather that his wife had. After she had not been assisted by the Mtubatuba police he had contacted his friend Thabo Makwakwa for assistance. Thabo had got back to him and advised him that the complaint should be taken to Debbie of Richards Bay. This was done by his wife and he had subsequently had interactions with the investigating officer;
    23.8. Denied having approached Thabo of the “newspapers” before having approached the police;
    23.9. Stated that he had not advised the Educator that he was recording their phone conversations;
    23.10. Denied that the audio recordings had been “cut” but maintained that they were a complete recording of their conversation. The first call had terminated for a reason unknown to him and the Educator had then called him back and they had continued with their conversation;
    23.11. Denied that he had attempted to extort money from the Educator. He had never had a phone number commencing 064, which is reflected on the Educator’s phone as having been the first three numbers of the phone used when the alleged extortion occurred;
24. Learner 1 is the complainant in respect of counts 1 & 2.
25. In 2021 she was aged 17 and a grade 11 learner at John Ross College, which is situated in Richards Bay. During that year she had also started lodging at the boarding house of the Educator so that she could attend the extra lessons given by him in mathematics and accounting. She felt that she needed assistance in both these subjects. In addition to the residence of the Educator, there were two outside cottages in which lodgers stayed and attached to one these cottages was a room in which classes were held. These classes were attended by both lodgers and persons who did not stay on the premises but simply attended classes. Dr Sibiya made use of assistants to present lessons. Lodgers were allowed to use the kitchen, watch TV and use the photocopier in the main residence.
26. With regards to count 1, Learner 1 stated that the alleged incident had occurred during a week-end. She and others could not attend class on that day as the class was full of non-resident attendees. She had gone to the main house to watch TV. On entering she had seen two learners at the photocopier and the Educator had entered and asked her to follow him. She had assumed that he wanted her to assist him with something. She had followed him into his bedroom. As they entered, he had closed the door behind them and kissed her on her lips. She had immediately pushed him away without giving him the opportunity to say anything. She had run back to her room and had told her friend Asanda about the incident via WhatsApp. Asanda was not a boarder.
27. Sometime after the abovementioned incident she and others were sitting in the room in which classes were held. She was preparing to study business studies and had one of the phones of the Educator, which they were allowed to use, in her possession as she intended to download past examination papers. She was sitting at a table with other learners when the Educator approached and stood next to her. He took the phone from her saying that he wanted to show something to her. He had then gone to the phone’s gallery and showed her a photograph of male genitalia, which she had assumed to be that of the Educator. He had then snatched the phone back from her before handing on to another girl, who had asked to use the phone. It was later given back to her to continue downloading past examination papers. She felt lost, confused, violated as she did not expect such conduct from someone she regarded as an elder, acting in place of her father whilst she stayed with him. She had not reported this to her parents as their relationship was such that she would not have felt comfortable discussing such issues with them. She was also so focused on improving her marks that doing so remained her principal purpose. She had again confided in her friend Asanda about a day after the incident and sometime later she had told another friend, Daboluhle, who had said that she would inform her mother. Her mother had subsequently contacted her but she still could not confide in her and could only cry. She had later spoken to people referred to her by her father’s employer. She was subsequently able to speak to her parents and a report was made to the police.
28. The statement at pages 8-11 of exhibit B was prepared by her with the assistance of the police when they had come to her school.
29. Under cross-examination Learner 1:
    29.1. Conceded that 16 June 2021 (the date of the first alleged incident) was a Wednesday and did not fall on a weekend as she had testified. She knew that it had been a holiday and had assumed that it fell on a weekend.
    29.2. Disputed that the wife of the Educator was home on that day
    29.3. With regards to Phila being described in her statement (at pages 8-11 of exhibit A) as her friend, submitted that the statement had been drafted by the police and though read back to her, she had not noticed that Phila had been incorrectly described as her friend. They had both stayed at the boarding house but were not friends;
    29.4. Submitted that she and others would help the Educator around the house as a child would assist a parent. He was not questioned when he asked for assistance;
    29.5. Stated that she would not find it strange were her father to ask her to follow him to his bedroom. As she took the Educator to be like her father, she did not find it strange when he had asked her to follow him to his bedroom;
    29.6. When it was put to her that were her version to be true, she would have screamed when he had kissed her in the bedroom, she stated that by pushing him away and running from the bedroom was her way of helping herself;
    29.7. With regards to count 2, confirmed that other learners were present at the table at which she had been sitting;
    29.8. Agreed that the Educator had his own phone for his use and another that he allowed the lodgers to use;
    29.9. Stated that the Educator had held the phone very close to her face and that it was probable that others could not see what the Educator had shown her;
    29.10. Confirmed that she was aware that the phone was an iPhone and that such a phone had a folder that only the account holder could access. It was the Educator who had accessed the photograph shown to her, not her;
    29.11. Agreed that she had studied life orientation at school and was aware of what could be done in the circumstances in which she found herself but knowing what to do, was different from being comfortable doing it;
    29.12. Stated that she could not remember the date on which she had been removed from the Educator’s boarding house;
    29.13. When it was put to her that her version was a fabrication as she had given dates of incidents in her statement to the police that would have occurred after she had been removed from the boarding house, denied any fabrication and submitted that she was not sure of dates and the order of events as she had been in therapy and was trying to put the incidents behind her.
    29.14. Denied that the real reason for her having left the boarding house was the incident when she had been injured at the swimming. She had, however, told a friend that she had left as she had got hurt;
    29.15. Further denied that it was after she had been injured at the pool, that she had fabricated the version of abuse by the Educator;
    29.16. Agreed that she had benefited from the lessons offered by the Educator.
30. Learner 2 was a lodger and attended extra lessons at the Educator’s boarding house in 2022. At the time she was a learner at Mtubatuba Christian Academy. She is the complainant in respect the alleged misconduct detailed in counts 4, 5 and 6.
31. One day soon after becoming a resident at the boarding house she had met the Educator at the gate to the residence. She was on foot having walked from the bus stop after school and the Educator was in his car, about to open the gate. He put his head out the window, said that she was beautiful and asked her to kiss him. She had done so. She had not mentioned this to anyone. This is the alleged misconduct covered by count 4.
32. With regards to count 5, Learner 2 stated that she had been seated in the classroom at the boarding house having finished attending an extra lesson, when the Educator, whom she could see outside, had blown her a kiss and indicated that she should go to him. She had done so and the Educator had asked her whether she was “preventing” (taking contraceptives) and knew about the morning after pill. She was shocked and said that she did not take them. He had then said that they should book a hotel room and that they would only need about 10 minutes.
33. With regards to count 6, Learner 2 stated that she was walking from the bus stop towards the boarding house when the Educator stopped his car and offered her a lift. As she was about to get into the rear seat he had told her to sit in front. She had done so. They had passed an educator who assisted at the boarding house but did not stop to offer her a lift. When she had got into the car, the Educator had locked the car doors. He then told her to kiss him. she had given him a “baby kiss.” He had then asked whether she was sure that she wanted to only give him a “baby kiss” and she had answered that she was. He had then asked her to give him a long kiss, like a French kiss. She had again given him a baby kiss.
34. The Educator had then placed her hand on his thigh and then moved it so that it rested on his private parts. She removed her hand and asked whether he was going to give the educator a lift. His response had been that he wouldn’t as he was still “jorling.” He had then once again placed her hand on his penis. She had removed her hand and he had asked why she was scared as they were alone. He had then rolled up her skirt, brushing her thigh and “peeped” under her skirt. She had said that he must stop as his wife would see. He had driven into the yard and they had gone their separate ways.
35. She had gone to the toilet and cried. A friend had approached her and she had relayed what had happened. The following day at school she had been unable to control herself and a male learner friend had asked her why she was crying. She had confided in him and he had informed an educator, Ms Nkosi, who had informed her parents. She had not immediately reported the last incident to her parents as she was scared to do so but she had come to the realization that she needed their help. She was angry and very sad.
36. As she thought that she would be able to cope on her own, she had not initially informed her parents.
37. A criminal case had been opened by her mother and her statement in this regard is at page 16 of exhibit A.
38. There was no reason for her to falsely implicate the Educator.
39. She had not complained after the first two incidents as she had not thought that he wanted to make her his sexual partner.
40. Under cross-examination Learner 2:
    40.1. Stated that the Educator was not an educator at her school, Mtubatuba Christian Academy and she had not been involved in a sexual relationship with him;
    40.2. Stated that she had kissed the Educator as a daughter would kiss her father. She and her father kiss often. She has that type of family. She had a close relationship with her parents. She had not initially told her parents about the incident as she thought that she could deal with the situation herself and thus had no reason to tell them. After the third incident she, however, came to realise that a trend was evolving from the first incident;
    40.3. Stated that when he had beckoned for her to leave the classroom and join him outside, it was he who had initiated the topic of conversation. Although she had been concerned about the line of questioning, she had not reported this to anyone;
    40.4. Stated she had started staying at the boarding house in 2022 though she had initially attended lessons there in 2021;
    40.5. Accepted that given the model of vehicle driven by the Educator, its doors closed automatically; (At this stage the hearing adjourned to allow the witness time to compose herself.)
    40.6. Stated that she had kissed the Educator whilst in his car as she felt vulnerable when the doors had locked and she thought that for her safety, it was best for her to “play along” with him. It had not occurred to her to attract attention by banging on the windows;
    40.7. Submitted that when the Educator had moved their conversations to protection and morning after pills, she realized that he was no longer acting in the role as her guardian;
    40.8. Agreed that no verbal threats had preceded them kissing in his car;
    40.9. Disputed that she had no interest in pursuing the criminal case;
    40.10. Denied that she was colluding with Learner 1 to falsely implicate the Educator. She was not related to Learner 1 though they were both from Mtubatuba and at one stage had both been learners at Mtubatuba Christian Academy;
    40.11. Stated that she was at the boarding house for approximately 2 months and had left on the Thursday immediately following the last incident.

APPLICATION FOR ABSOLUTION FROM THE INSTANCE

41. The Employer closed its case on conclusion of Learner 2’s evidence. Immediately thereafter an application for absolution from the instance was brought on behalf of the Educator.
42. The grounds on which the application was based may be summarized as follows:
    42.1. The Employer had no jurisdiction to discipline the Educator as the alleged misconduct had occurred at or near the Educator’s boarding house, which is not linked to the Employer in anyway;
    42.2. The counts record that the Educator was charged in terms of sub-sections 17(1)(b) and 17(1)(c) of the Employment of Educators Act 76 of 1998 (EEA,), which apply to learners and educators from the same school. As it was common cause that the Educator did not teach at the schools attended by the learners, the Educator had no case to answer; and
    42.3. The Employer was not fulfilling the duties of an educator at the time of the alleged misconduct and as such, the Employer had no jurisdiction to discipline him.
43. The application was opposed on behalf of the Employer.
44. I denied the application as:
    44.1. While certain of the counts do incorrectly indicate that they are in terms of section 17(1)(c) of EEA, particulars of the alleged misconduct are given in the counts, witnesses had testified in respect thereof and there is not simply a bald reference to the Educator having contravened the provisions of section 17(1)(c) of the EEA. The acts of misconduct that the Educator was required to answer were described in the respective counts;
    44.2. Disciplinary charge sheets are not expected to be drawn up with the particularity expected to be found in criminal charge sheets and the erroneous reference to the said section, does not mean that the Educator did not know the cases that he was required to answer; and
    44.3. There is no restriction limiting the Employer’s jurisdiction only to misconduct that takes place on school premises.
45. On me giving the above ruling an application for a postponement was brought to enable the Educator to challenge my ruling to the Labour Court. This application was refused.
46. Thereafter, a postponement application was brought on the ground that the Educator intended to call his wife as his first witness but that she was unavailable to attend the hearing on 19 March 2025. The application was refused as there was no explanation before me why the Educator could not testify.

THE EDUCATOR

47. Dr Sibiya denied that he had committed any misconduct.
48. In respect of the evidence of Learner 2, he submitted that it was his practice to offer lifts to anyone, learners or educators, whom he came across walking from the main road to his boarding house. He, however, had no independent recollection of ever having given Learner 2 a lift.
49. He agreed with the evidence of Learner 1 that he provided a cellular phone to learners to use. This was done so as to enable them to download past papers. Everyone had access to the phone.
50. He had initially started providing extra lessons in mathematics and science in 2009. As demand grew he offered boarding facilities. He was simply the founder of the facility. He employed educators to provide classes and his wife was responsible for the day-to-day affairs of the business. At the time of the alleged incidents there had been approximately 20 boarders and an additional 20 learners who attended classes only. This business has now grown to involve approximately 200 learners at various sites. There is no relationship between the Employer and the business.
51. The success of his business had led to a deterioration in his relationship with officials of the Employer’s District Office and educators from Mtubatuba. This arose as learners preferred to attend his classes rather than attend those arranged by the District Office or schools in Mtubatuba.
52. He previously did not know Learner 1 or her parents. He had got the cellular phone number of Learner 1’s father from Makwakwa.
53. Under cross-examination the Educator:
    53.1. Agreed that Learners 1 & 2 were registered with the Employer as learners;
    53.2. Agreed that no alarm would be raised if he was seen in his car with a learner;
    53.3. Disputed the evidence of Learner 2 that no security guard was on duty at the entrance to the boarding house and maintained that at the date of the alleged incident, a guard had been employed;
    53.4. Disputed the evidence of the learners that boarders were allowed to watch television in the residence;
    53.5. Stated that he did not have personal dealings with the learners attending his facility. They dealt with his wife. He would attend classes on occasion; and
    53.6. Denied having called Learner 2 from the class as testified by her.

ANALYSIS OF EVIDENCE

54. The Employer bears the onus of proving the guilt of the Educator on a balance of probabilities.
55. No evidence was led in respect of count 3 and the Educator is found not guilty in respect of this count.
56. With regards to Learner 1 the Educator is charged with two counts of having sexually assaulted her. The first assault is alleged to have occurred at the boarding house of the Educator on 16 June 2021 by him having asked her to kiss him (count 1) and the second assault is alleged to have occurred during 2021when the Educator had shown a photograph of his penis to her (count 2.) In both cases it is alleged that by so acting, the Educator had contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 (the Act.)
57. With regards to Learner 2 it is alleged that in each of counts 4, 5 and 6 that the Educator contravened section 17(1)(c) of the Act by having a sexual relationship with her in that during January 2022 he had asked her to kiss him (count 4;) during or about 2022 he had asked her whether she was taking contraceptives and whether she had ever taken the “morning after pill” (count 5;) and during February 2022 he had kissed Learner 2, placed her hand on his penis and looked under her skirt (count 6.) All these acts of misconduct are alleged to have occurred at or near Veld ‘n Vlei.
58. Learner 2 testified that each of the alleged acts of misconduct had taken place at or near the Educator’s boarding house at which she had been a boarder. Insofar as the reference to Veld ‘n Vlei in counts 4-6 is a reference to a place other than the Educator’s boarding house, I find that the evidence of Learner 2 cures any deficiency in the charge sheet.
59. As already indicated, the Educator’s representative called for him to be discharged in respect of counts 4, 5 and 6 as in each count the Employer had alleged that he had conducted a sexual relationship with a learner of the school at which he was employed contrary to the provisions of section 17(1)(c) of the Act whereas it was not in dispute that Learner 2 and the Educator were not at the same school. Nowhere in the said counts is it alleged that the Educator and learner 2 were in a consensual relationship. Further, the counts each detail the respective elements of the alleged misconduct with which the Educator was charged. I am accordingly satisfied that the reference to section 17(1)(c) of the Act in each of these counts was done in error and that the reference ought to have been to section 17(1)(b) of the Act. Learner 2 testified in respect of each of these alleged acts of misconduct; the Educator cross-examined her and was able to respond to her evidence. I am satisfied that the Educator suffered no prejudice by the counts having incorrectly referred to section 17(1(c) of the Act.
60. Before dealing with the oral evidence presented at the hearing, I wish to deal with the printouts of electronic messages that form part of the bundles of documentary evidence submitted on behalf of the Educator and the audio recording presented by the Employer during the testimony of Learner 1’s father.
61. During the presentation of the Employer’s case reference to printouts of WhatsApp messages was made by the Educator’s representative. The father of Learner 1 in particular denied that he had been a party to a series of exchanges allegedly between the Educator and himself. Whilst it had been submitted that the authenticity of these messages would be established, no evidence in this regard was led by or on behalf of the Educator. I accordingly do not have any regard to the content of these messages in deciding upon the guilt of the Educator.
62. On the other hand, evidence consisting of an audio recording of a cellular phone conversation allegedly between the father of Learner 1 and the Educator was submitted on behalf of the Employer. The Educator challenged authenticity of this evidence as he submitted that the recording was incomplete and was thus not a true reflection of the conversation. The recording had been made by the father of Learner 1 and he admits that the recording is interrupted. He submits, however, that this is not due to any manipulation by himself but was rather the result of the call being “dropped” by the cellular phone service provider. Once connection had been re-established the conversation had continued and thus he submits that the recording is a complete record of the conversation. No expert evidence was led in respect of the cause of the interruption in the recording; namely, whether it was intentionally done or whether it was brought about by the call being “dropped.” If the interruption of the recording was intentional this would render the recording incomplete and thus unreliable as it would not amount to a full recording of the conversation. Without expert evidence in this regard, I am unable to determine whether the recording is accurate and complete and thus reliable. As such, I have not had regard to the content of the audio recording presented on behalf of the Employer.
63. I now turn to the oral evidence presented at the inquiry.
64. The mother and father of Learner 1 testified on behalf of the Employer. Neither of them had any first hand knowledge of the alleged misconduct of the Educator. In addition, Learner 1 did not make “a first report” to either of them. Their evidence largely revolved around their response as concerned parents once the father had been advised by the “employee wellness” service provider to remove Learner 1 from the boarding school of the Educator. As already mentioned it was suggested to the father of Learner 1 that he was at least party to attempts to extort money from the Educator. This allegation was vehemently denied by the father. There is no evidence before me that he had ever made false claims against the Educator. At this inquiry he testified that he feared the worst; namely, that Learner 1 had been raped but that he did not know what had happened to her as she had not told him.
65. Insofar as the evidence of the mother and father of Learner 1 does not supplement the evidence of Learner 1 in respect of the alleged misconduct of the Educator, her evidence must be approached as that of a single witness. Similarly, the evidence of Learner 2 is also that of a single witness. I must thus be satisfied that their evidence is reliable and credible in considering the guilt of the Educator.
66. With regards to count 1, Learner 1 testified that on 16 June 2021 the Educator had called her to his bedroom and once there and on closing the bedroom door, kissed her on her mouth. She testified that she had immediately pushed him away and run from the bedroom. Under cross-examination she conceded that 16 June 2021 did not fall on a week-end as she had testified but stated that her recollection was that the incident had fallen on a non-school going day and she had assumed it to have been on a week-end. It was further put to her that her version was improbable as were it to be true, she would have screamed and not simply have pushed the Educator away and run from the room. The Educator avers that no such incident occurred.
67. With regards to count 2, Learner 1 testified that whilst she was sitting at a table with other boarders, the Educator had taken a cellular phone from her and shown her a photograph of male genitals, which she had assumed to be those of the Educator. The Educator denied that such an incident occurred and it was suggested that the version of Learner 1 was highly improbable as the incident had taken place in the presence of other learners and the photograph had allegedly been stored on a cellular phone to which it was common cause all the boarders had access.
68. In the face of the Educator’s bare denial, I need to determine whether the evidence of Learner 1 is credible and reliable. With regards to count 1 I do not find the evidence of Learner 1 that the incident occurred on the week-end whereas it is alleged in the charge sheet to have occurred on 16 June 2021, a public holiday, to detract from her reliability or credibility. Given the lapse in time, her explanation is understandable. Her evidence was otherwise given in a calm and clear fashion; it was consistent, with no contradictions or improbabilities being revealed in cross-examination. Similarly with regards to count 2, her evidence was also consistent throughout. With regards to the submission on behalf of the Educator that it was improbable that he would have stored the photograph on a phone to which all had access, it was the evidence of Learner 1 herself that had revealed this. Had she wanted to fabricate a version, she could quite easily have stated that the photograph had been on the Educator’s private phone. I find that there are no internal contradictions or improbabilities in the evidence of Learner 1.
69. While the lack of motive does not necessarily supplement the reliability and credibility of a witness, I need to consider whether any weight can be attached to the averments by the Educator that he is the victim of a conspiracy to falsely implicate him. On the one hand he alleged that the District Office and/or educators from Mtubatuba were jealous of his successful business and wanted to undermine him. Secondly, it was submitted that Learner 1’s father sought to extort money from him. Thirdly, it was submitted that following the incident at the pool in which Learner 1 had been injured, she had brought the false allegations against him. With regards to each of these alleged motives I find that:
    69.1. No link between the District Office or educators from Mtubatuba and Learner 1 or her parents was alleged or established;
    69.2. The father of learner 1 denied any attempt to extort money; did not attempt to falsely implicate the Educator in that his evidence was that he did not know what the Educator was alleged to have done but that he had feared the worst and gave his evidence as one would expect from a concerned parent; and
    69.3. There is nothing before me that can suggest any motive for Learner 1 to falsely implicate the Educator in sexual assault allegations following her being injured at the swimming pool. Such an allegation by the Educator simply makes no sense.
70. In light of the above, I find that there was no motive by Learner 1 alone or in collusion with others, to falsely implicate the Educator.
71. With regards to the evidence of Learner 2, she testified that she had kissed the Educator after he had said that she was pretty and asked her to kiss him (count 4;) he had called her from the classroom and asked her if she was taking contraceptives, the morning after pill and whether they should book into a hotel (count 5) and that the Educator had kissed her, placed her hand on his penis and looked under her skirt (count 6.) As with Learner 1 the defence of the Educator was once again a bare denial. Learner 2 gave her evidence in a clear and consistent fashion. She freely made concessions such as when she conceded that, in respect of count 4, she was not and did not feel compelled by the Educator to kiss her. She generally gave her evidence in a calm manner. The only time when she became upset was when being cross-examined in respect of the alleged misconduct contained in count 6. After a short adjournment, she continued her testimony. No internal contradictions emerged in her evidence and as with Learner 1 I find no reason to believe that she sought to falsely implicate the Educator. As with Learner 1 she voluntarily agreed to testify a number of years after the alleged incidents had occurred and after she had ceased being a learner. As with Learner 1, I find her evidence to be reliable and credible.
72. What remains for me to do is to determine whether the Employer has established that the Educator is guilty of misconduct. Sexual assault may be described as the unlawful and intentional conduct by the perpetrator which results in the sexual integrity of the victim being impaired (or conduct inspiring the belief that it will be impaired.)
73. Count 1 states that the Educator sexually assaulted Learner 1 in that he asked her to kiss him. The evidence of Learner 1 was not that the Educator had asked her to kiss him but rather that he, without her consent, had kissed her on the mouth. I am satisfied that the evidence of Learner 1 cures any deficiency in the charge sheet and that this conduct of the Educator amounted to a sexual assault on Learner 1. I accordingly find that he is guilty having sexually assaulted learner 1 as provided for in section 17(1)(b) of the EEA and is thus found guilty of count 1.
74. Count 2 avers that the Educator had sexually assaulted Learner 1 by showing her a photograph of his genitals. The evidence of Learner 1 does not establish that she was assaulted in any way and the Educator is found not guilty.
75. As already indicated above, no evidence was led in respect of count 3 and the Educator is found not guilty.
76. Count 4 avers that the Educator kissed Learner 2. The evidence of Learner 2 was that she had kissed him after he had asked her. She did not feel compelled to do so and did not feel as if she was asked to do so in a sexual manner. The Educator is found not guilty of count 4
77. Count 5 avers that the Educator committed an act of misconduct by questioning Learner 2 as to whether she was on contraception. Learner 2 did not feel threatened in any way by this conduct of the Educator. The Educator is found not guilty.
78. In respect of count 6, I find that Learner 2 felt compelled to kiss the Educator, who had also without her consent had taken her hand and touched his penis with it, brushed her thighs and looked under her skirt. I find that the Educator thereby sexually assaulted learner 2 and guilty of contravening section 17(1)(b) of the EEA.
79. Having found the Educator guilty of two counts of having contravened the provisions of section 17(1)(b) of the EEA, I am obliged to impose the sanction of dismissal in respect of both counts 1 and 6.

FINDING

80. The Educator, Dr Khangelani W Sibiya, is found guilty in respect of counts 1 and 6.
81. The sanction in respect of each of counts 1 and 6 is dismissal.

INQUIRY IN TERMS OF SECTION 120 OF THE CHILDREN’S ACT 38 OF 2005, AS AMENDED

81. Section 120(1)(c) of the Children’s Act provides that a finding that a person is unsuitable to work with children may be made by any “forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
82. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing. The parties were again reminded of this inquiry after the conclusion of the Inquiry.
83. No submissions were made by either the Employer or the Educator. I have, however, had regard to the evidence presented during the inquiry by arbitrator. The Educator has been found guilty of two counts of sexual assault. In addition, however, the evidence of both Learner 1 and 2 indicates that the Educator engaged in conduct of a sexual grooming nature. On his own evidence he continues to run boarding and teaching facilities for learners.
84. In terms of section 120 of the Children’s Act 38 of 2005, as amended, I find that the Employee, Dr Khangelani W Sibiya, is unsuitable to work with children.

ORDER IN TERMS OF SECTION 120 OF THE CHILDREN’S ACT 38 OF 2005, AS AMENDED

85. Dr Khangelani W Sibiya is found unsuitable to work with children in terms of section 120 of the Children’s Act 38 of 2005, as amended.
86. The General-Secretary of the ELRC must in terms of section 122(1) of the Children’s Act 38 of 2005, as amended, notify the Director General of the Department of Social Development in writing of the finding of this forum made in terms of section 120 of the Children’s Act 38 of 2005, as amended, that Dr Khangelani W Sibiya is unsuitable to work with children, for the Director General to enter his name in part B of the register as contemplated in section 120 of Children’s Act 38 of 2005, as amended.
87. Dr Khangelani W Sibiya is advised that in terms of section 121 of the Children’s Act 38 of 2005, as amended, he may have my finding in terms of section 120 of the said Act, reviewed by a court.

J Kirby
Arbitrator 08 April 2025
ELRC780-21/22 KZN