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08 September 2026 – ELRC660-25/26KZN

IN THE ELRC ARBITRATION
BETWEEN:

Yanga Ngcaweni “the Respondent”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Applicant”

ARBITRATION AWARD

Case Number: ELRC660-25/26KZN

Last date of arbitration: 13 August 2026

Date of submission of closing arguments: 24 August 2026

Date of award: 08 September 2026

NTOMBIZONKE MBILI
ELRC Arbitrator

DETAILS OF HEARING AND REPRESENTATION

  1. This is an arbitration award, in the disciplinary matter (Inquiry-by-Arbitrator), which commenced on 10 October 2025, proceeded on 25 November 2025, 11 June 2026, and was finalized on 13 August 2026.
  2. The applicant, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Ms. Jabu Dumisa, and the respondent was represented by Ms. Kwezi Mlambo from SADTU.
  3. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 24 August 2026.
  4. The arbitration was initially held at Umzimkhulu which is situated in the Southern part of the Province of KwaZulu-Natal Department, this being a venue provided by the Department. The matter thereafter continued as an online hearing.
  5. The proceedings were digitally and manually recorded. Mr. Bheki Hadebe provided services of an interpreter and Ms. Hlengiwe Phakathi was the intermediary.

ISSUES TO BE DECIDED
6. I am required to determine whether the Respondent is guilty or not of the charge levelled against him and if so, to determine the appropriate sanction.

BACKGROUND

  1. The Respondent is employed as an Educator at Singisi Comprehensive High School and is charged with the following count of misconduct:

(a) “It is alleged that on or about 2023 to 2025, at or near Singisi Comprehensive School, you committed an act of sexual misconduct and/or assault against a learner in your school. You had a sexual relationship with the learner in so doing you contravened section 17 (1) (c) of the Employment of Educators Act 76 of 1998 as amended.”

  1. The Respondent pleaded not guilty to the charge and denied all the allegations against him.
  2. Even though the learner is currently 20 years old, she shall be referred to as Learner A, because at the time of the alleged incidents she was 18 years old, and her personal information shall not be published in line with the requirements of the law.
  3. Both parties submitted documents, marked as bundle “A” and “B”.

SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
Learner A

  1. She stated that in 2023 she was 18 years old and in grade 10. She dropped out of school in 2022 after giving birth and stayed home for the rest of the year.
  2. In 2023 she returned to school and attended Singisi Comprehensive High School and met Mr Yanga Ngcaweni (the Educator) as her tourism teacher.
  3. She required guidance on a transfer form Singisi Comp High School to another school for grade 11. Her friend suggested that she talk to the Educator, who typically assisted leaners with such situations.
  4. She sent the Educator a Facebook direct message, he replied and inquired about her day. She mentioned she was caring for her child, to which he remarked how fortunate the child was to be with her.
  5. He informed her that she could receive the transfer based on her intelligence and then expressed interest in becoming friends. She hesitated in her response, as she recognized that he was implying a romantic relationship.
  6. The following day he sent her nude pictures of himself, which he later deleted. Despite this, she agreed to be in a romantic relationship with him.
  7. During their romantic relationship, she frequently visited the Educator at his cottage and engaged in sexual activity. He consistently reminded her to delete messages exchanged between them.
  8. In August 2024 she fell pregnant with the Educator’s child and aborted the pregnancy without informing him. She explained that she kept it a secret out of fear, as he was known for being violent and creating challenging situations.
  9. In September 2024 she reconciled with the father of her child, they got engaged and moved in together. She lied to the Educator and told him that her parents forced her into the engagement.
  10. When the Educator saw her at school, he expressed his discontent about her engagement and assaulted her using a pipe. Upon returning home, she sent him a message apologizing and expressing willingness to reconcile with him.
  11. In January 2025, she ended the relationship with her fiancé and returned home. She reconciled with the Educator and continued to have sex with him at his residence.
  12. In February 2025, they had a dispute over another girl, which led to her taking an overdose of tablets in an attempt to commit suicide. She was quickly taken to the hospital, where she discovered she was pregnant. She didn’t tell her parents the true reason for the suicide, instead informing the Social Worker that it was due to the abuse she suffered from her fiancé. She later contacted the Social Worker and told her the truth, and the Social Worker advised her to report the Educator to the Department.
  13. She had a miscarriage and informed the Educator he thereafter sent her money to go to the hospital, and she instead visited the pharmacy and purchased medication to assist with the bleeding.
  14. She submitted that she fell pregnant for the third time and told her family when she experienced another miscarriage. She also told her family about her relationship with the Educator. The Educator’s family visited her home to meet with her family and paid money for cleansing her due to the miscarriage.
  15. She reported the Educator to the Department because he ill-treated her and would make comments in class which humiliated her. He further sexually assaulted her in the school toilets, despite her refusal.
  16. During cross-examination, she confessed to lying in the past and acknowledged that at times she tailors the truth. She revealed that her family urged her to be truthful during the arbitration hearing, and she has since heeded their advice.
  17. She admitted that she lied to the Social Worker in order to protect the Educator but later realized her mistake and rectified it.
  18. She denied that she accused her uncle of sexual assault and said that Thabiso was her ex-boyfriend at her former school. She did not have sex with him or accuse him of sexually assaulting her.
  19. She confirmed that she was not medically examined after the sexual assault from the Educator and that she no longer had the messages between herself and the Educator available.

Respondent’s Case
Mr. Yanga Ngcaweni (The Respondent)

  1. He stated that he met Learner A in 2022 during a burial at her home. He was attracted to her and made advances and began their romantic relationship after she agreed to date him.
  2. During their relationship Learner A was not associated to any school, and they did not engage in any sexual activities. In 2023, she enrolled at Singisi Comp High School. When he saw her in his class, he ended their relationship, explaining that they could not continue dating because he was her teacher.
  3. He submitted that Learner A did not accept the breakup and even threatened to harm him if they did not reconcile. She also told him that she would tell the Social Worker that he was abusing her.
  4. Unknown individuals attacked him at his residence, and he believed that Learner A may have been involved. He notified the school about the incident, and they advised him to go to the police station. Unfortunately, he did not receive assistance as he was unable to identify the perpetrators.
  5. After learning that Learner A was engaged to the father of her child he cut all ties with her.
  6. He was accused by Learner A of ill-treating at school, and her uncle visited the school to address the matter. The Principal requested the uncle to formally document his complaint, but the uncle never followed through with the Principals request.
  7. He stated that his family met with Learner A’s family to address the allegations of mistreatment. They were able to resolve the issue, and he was informed that Learner A had also accused her uncle of sexual assault. The same accusations which she made against him.
  8. The During cross-examination, he refuted any claims of engaging in sexual activity with Learner A. It was put to him that he did not present before Learner A the fact that they were not sexually active during their relationship.
  9. He denied exchanging messages with Learner A via Facebook and said he became familiar with Learner A when they started dating.
  10. He stated that if he abused her, she should have reported the incident to the police. He said that she did not tell her family about the alleged incidents because it was all lies.
  11. He refuted impregnating her and said her fiancé had sexual relations with her and not him.
  12. He denied that his family visited Learners A home to pay an amount for cleansing her but instead the families discussed the issue of the mistreatment. He said his family was concern regarding the attacked he experienced and suspected Learner A uncle’s friends of the attack. He did not open a criminal case because he had no tangible evidence.
  13. He said there were always learners and Educators around at school and would have not had sex with her in the toilet.
  14. He rejected the version that he gave Learner A money to go to the hospital.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. The charge against the Respondent is one of the most serious that can be levelled against an educator. Section 17(1)(c) of the Employment of Educators Act 76 of 1998 (the EEA) provides that an educator found guilty of having had a sexual relationship with a learner of the school where he or she is employed” must be dismissed “from his or her employment.
  2. In Grey v Education Labour Relations Council and Others (CA12/2014) [2015] ZALAC 50, the Labour Appeal Court held that sexual misconduct with a learner constitutes an abuse, not only of the authority and responsibility vested in an educator, but of the rights of the child.
  3. The Court stated: “Our Constitution provides that ‘(e)very child has the right to … be protected from maltreatment, neglect, abuse or degradation’… The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability.”
  4. The Court further emphasized that in such an unequal relationship, the adult (educator) bears sole responsibility for sexual activity with a learner.
  5. The jurisdictional question of whether Learner A was a “learner of the school where the Respondent is employed” at the time of the alleged relationship must be addressed. The evidence establishes that Learner A was enrolled at Singisi Comprehensive High School from 2023 onwards. The Respondent admits meeting her in 2022 before she enrolled, but the sexual relationship is alleged to have occurred from 2023 to 2025, precisely the period during which she was a learner at the school. The Respondent himself testified that when he saw her in his class in 2023, he ended the relationship because she was his learner. This concession is fatal to his defense
  6. I have considered the credibility of the witnesses. Learner A was candid about her previous untruthfulness, admitting that she had lied to the Social Worker to protect the Respondent and that she sometimes tailors the truth. However, she explained that her family had urged her to be truthful during these proceedings and that she had heeded their advice. Her willingness to acknowledge her prior dishonesty enhances, rather than diminishes, her credibility. She had no apparent motive to fabricate such serious allegations against the Respondent, particularly given the personal trauma and public scrutiny that accompanied her testimony.
  7. The Respondent’s version, by contrast, is fraught with contradictions and improbabilities. He admits to having had a romantic relationship with Learner A in 2022 but denies any sexual activity. He then claims he ended the relationship upon discovering she was his learner. However, he could not explain why, if he had genuinely ended the relationship, he continued to engage with her, why his family visited her family to resolve “issues of abuse,” or why she would fabricate such detailed allegations.
  8. The Respondent’s denial of the pregnancy and miscarriage is also implausible. Learner A provided a coherent and consistent account of three pregnancies, the abortion in August 2024, the miscarriage in February 2025 following her suicide attempt, and the Respondent’s family paying for cleansing after the miscarriage. The Respondent’s denial of the cleansing payment is contradicted by the fact that his family did visit Learner A’s family to address the matter. If there was no relationship and no pregnancy, there would have been no reason for such a visit.
  9. The Respondent’s suggestion that Learner A’s fiancé was responsible for the pregnancies is speculative and unsupported by any evidence. Learner A’s fiancé was not called to testify, and the Respondent adduced no corroborating evidence to support this assertion.
  10. On the balance of probabilities, I find Learner A’s evidence to be credible and reliable. Her testimony was detailed, consistent, and corroborated by objective facts, including the family visit, the suicide attempt, and the pregnancies. The Respondent’s evidence, by contrast, is self-serving, contradictory, and improbable.
  11. I accordingly find that the Respondent had a sexual relationship with Learner A during the period 2023 to 2025, while she was a learner at Singisi Comprehensive High School where the Respondent was employed. This constitutes a contravention of section 17(1)(c) of the Employment of Educators Act 76 of 1998.
  12. The Respondent’s conduct constitutes a fundamental breach of the trust relationship between an educator and the Department. Educators occupy a position of trust and authority over learners. The Respondent abused that position for his own gratification, causing significant physical and emotional harm to a vulnerable learner.
  13. The Respondent has shown no remorse. He maintained a complete denial of the allegations throughout the proceedings and sought to portray the learner as a liar and a manipulator. This lack of insight into the gravity of his conduct is deeply concerning.
  14. There are no substantial and compelling circumstances that would justify a deviation from the prescribed sanction of dismissal. The protection of learners and the integrity of the education system demand nothing less than dismissal.
  15. The legal principles applicable to this matter include the constitutional rights of learners to dignity, bodily integrity, and safety in terms of section 12 and 28 of the Constitution of the Republic of South Africa, 1996. Educators stand in loco parentis and are held to a higher standard of conduct.
  16. In MEC for Education, KwaZulu-Natal v Shongwe (2017) 38 ILJ 1669 (LAC), the Labour Appeal Court confirmed that any sexual misconduct by an educator towards a learner fundamentally breaches the trust reposed in the educator and ordinarily warrants dismissal, even if no “completed” sexual act occurs.
  17. In the case of McGregor v Public Health and Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1643 (CC) the Constitutional Court held as follows:
    “…sexual harassment is the most heinous misconduct that plagues a workplace. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and are inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms and non-sexism. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth striking at the root of that person’s being.”
  18. The context from which the circumstances of this case arose are a typical demonstration of sheer abuse of power and authority. The self-worth and the dignity of the victim was shattered. She clearly will suffer the effect of this experience for some time into the future.
  19. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) the following was held:
    “In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
  20. I am not satisfied that the respondent laid any foundation in demonstrating that dismissal was not an appropriate sanction for the proven misconduct. In this regard I find that the dismissal is the only appropriate and fitting sanction for the misconduct that he is found guilty on.
  21. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

“Substitution of section 17 of Act 76 of 1998 The Employment of Educators Act,1998, is hereby amended by the substitution for section 17 of the following section:

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

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

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

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

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

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

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

“122

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

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

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

  1. Having found that there was an indecent assault committed, I find that the Educator is not suitable to work with children. it follows that the finding which I have made necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.
  2. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

AWARD

I accordingly make the following award:-

  1. The Respondent is guilty of committing misconduct as set out in the charge sheet;
  2. The Respondent is sanctioned to summary dismissal;
  3. Mr Yanga Ngcaweni is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005;
  4. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that the Mr Yanga Ngcaweni is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register;
  5. The General Secretary of the Education Labour Relations Council is directed to serve a copy of this was to the South African Council of Educators (SACE).

NTOMBIZONKE MBILI
Arbitrator 08 September 2026
ELRC660-25/26KZN