Panellist: Khuduga Tlale
Case Reference No.: ELRC449-25/26FS
Date of award: 09 March 2026

In the matter between:

Sbusiso Clement Makhaza Applicant

And

Department of Higher Education & Training Respondent

ARBITRATION AWARD

Details of hearing and Representation

1. The arbitration hearing between Sbusiso Clement Makhaza (“the applicant”), and Department of Higher Education & Training (“the respondent”) was held on 30 October 2025, and concluded on 12 February 2026, at Motheo TVET Central Office in Bloemfontein. The applicant appeared in person, and Mr. B Mseleku, an attorney, represented him, whilst Ms. DM Tauoa, Labour Relations Officer, represented the respondent.
2. These proceedings were conducted in English, and were manually, and digitally recorded. The parties agreed to submit their heads of argument in writing on Friday, 20 February 2026. They both submitted.

Issues to be decided

3. The issue to be decided is whether or not the applicant’s dismissal was substantively fair.

Background to the dispute

4. The applicant was employed by the respondent as a Lecturer (PL1). The applicant’s workplace was at Motheo TVET College, Hillside View Campus in Bloemfontein. The applicant was charged with two (2) counts of misconduct relating to improper conduct, and an act of dishonesty. The applicant was informed about the allegations levelled against him. He was served with the notice of the disciplinary enquiry (“the enquiry”) on 13 August 2024. He attended the enquiry, and he was given an opportunity to state his case.
5. He was found guilty on all the charges, and dismissed on 30 June 2025. The applicant’s dismissal was due to misconduct, and his dismissal was procedurally fair. At the time of his dismissal, he earned R23 837, 50, per month. The applicant referred this alleged unfair dismissal dispute to the Education Labour Relations Council (“Council”). The certificate of non-resolution was issued, and the dispute was referred for an arbitration. The parties submitted bundle of documents. Both parties conducted a pre-arbitration meeting, and they both signed the minutes. Summary of Evidence

THE RESPONDENT’S EVIDENCE

First Witness: Ms. Dimpho Modise

6. The witness testified under oath that she was the student at Motheo TVET College, Hillside View Campus. She knew Tirisano Motlhogeloa (“Tirisano”). They are cousins, and they were staying together in Bloemfontein. They were studying civil engineering. She knew the applicant as her lecturer, and he taught her mathematics. On the night of the 13th of March 2024, she was standing outside chatting over her cell-phone, and Tirisano was inside the apartment cooking. Tirisano came out of the apartment, and she told her that the applicant was coming about her mathematics test 2 marks. In no time, the applicant arrived where they were staying.
7. Tirisano went to the applicant’s car, and she stood outside watching her. She went inside the house after ten minutes. Tirisano came back in the possession of the question paper, two answering sheets, and liqui-fruit juice. She said that she got them from the applicant to complete them, and return to him the following day, 14 March 2024. Tirisano was not well, and she asked her what was wrong. Instead of answering her, she took-out the cell-phone, and made her to listen to the audio recording. They listened to the audio recording, and they laughed.
8. She heard the voice of the applicant, and Tirisano on that recording. She could not remember everything, but she could recall hearing the applicant saying to Tirisano that “you know you are my crush”. The recording was done on 13 March 2024, when the applicant came to see Tirisano. Tirisano was the one who recorded their conversation through her cell-phone. She knew the applicant’s voice because she was her lecturer. They also started to answer the question paper. She maintained that the question paper, and answering sheets came from the applicant.
9. Under cross-examination, she stated that she did not complete her studies at Motheo TVET College. She denied the allegation to say that they colluded against the applicant. She confirmed that they jumped N2, and registered N3. She denied the allegation to say that they got assistance from high authority to jump N2 to N3. The campus manager at Hillside View was Mr. Monoko, and Tirisano knew him. Tirisano went to Mr. Monoko to report the applicant’s conduct.
10. Mr. Monoko saw Tirisano crying, and he asked her why she was crying. Tirisano explained everything to Mr. Monoko about the applicant. She denied the allegation to say that Tirisano had a relationship with Mr. Monoko. She assisted Tirisano to answer question paper received from the applicant. She confirmed that she saw the applicant’s car at their residence, and it was dark. She did not see the applicant on the day in question. The applicant was driving a white Chevrolet bakkie. She does not know the number plate of the applicant’s vehicle. She stated that Nissan and Chevrolet are the same.
11. She was able to identify the applicant’s voice on the audio because she knew his voice. She stated that the audio recording was recorded on the day in question. She listened to the audio recording after Tirisano came back from the applicant. Tirisano told her that the applicant phoned her about her test results. Mathematics test 2 results were released prior to the 13th of March 2024, and they both knew their results. The results were released on the students WhatsApp group. This WhatsApp group was for mathematics students and lecturer. She could not remember Tirisano’s initial results, but she did not pass.
12. She confirmed that Tirisano re-wrote mathematics test 2 on 13 March 2024, and she passed it. It was the applicant who initiated the whole thing of re-writing. She was not present when the applicant phoned Tirisano. The applicant’s conduct does not make sense because Tirisano failed test 2. Tirisano had no papers in her hands when leaving the apartment room, but she came back with papers in her hands.
13. Under re-examination, she stated that she managed to see the applicant’s vehicle on that night. The applicant was having a unique deep voice, and he was not fluent in Sesotho. Even in the audio recording, the applicant was trying to speak Sesotho. She maintained that she knew the applicant’s voice.
14. Under clarity questions, she stated that she could not remember when they wrote mathematics test 2, but it was in March 2024. The test 2 results were issued prior to the 13th of March 2024. She passed the test, but Tirisano failed it. Their results were posted at students WhatsApp group. She does not have those results in her WhatsApp group messages. Initially, Tirisano did not qualify to write examination. She managed to qualify after she re-wrote that test at their room in the evening.
15. Tirisano came back to the apartment room in possession of the papers, and liqui-fruit juice from the applicant. Tirisano said that the applicant gave her those papers to complete, and return to him the following day. Tirisano told her that she recorded their conversation while inside the applicant’s vehicle. Tirisano re-wrote the same question paper. Second Witness: Mr. Tshepo Archibald Monoko
16. The witness testified under oath that the respondent employed him as a campus manager at Motheo TVET College, Hillside View Campus. He knew the applicant as the former lecturer at his campus. It was during the registration time when he saw one student crying, and he went to her. He asked her what was the problem, and she replied by saying that she had a problem. They went outside, and she told her that there was a lecturer who proposed love to her. He said that her allegation was very serious. The student said that she had evidence, and the culprit was the applicant. The student took out her cell-phone, and she showed him the WhatsApp messages and audio recording. She sent that evidence to him, and he escalated them to labour relations division.
17. On 20 June 2024, the parent came to the campus with the student, accompanied by two SAPS members. They said that they had a problem with the applicant as a lecturer, and they explained their problem. They said that the applicant blocked the student’s way on her way home. He knew Tirisano by her appearance. The civil engineering students were small group and he knew most of them. He denied the allegation to say that they connived against the applicant. There was evidence against the applicant. The applicant was not the only trade-union leader at the campus.
18. There were no students allowed to register or skip a grade to higher grade. They were facing-out N1-N6, and introducing the new occupational programs. The students who had matric certificates would register for N2 or N3. During this transition, their systems were not in place. The students who failed N1, managed to register for N3, as if they were new students. They relied on the lecturers to identify those students. He denied the allegation to say that he assisted Tirisano and Dimpho to jump N2 and registered N3. Tirisano and Dimpho were deregistered.
19. The campus had nothing to do with the registration. The registration of students controlled by the central office EMIS system. He had an up and down relationship with the applicant. The immediate supervisor of the applicant was the senior lecturer, not him. They had their difference when coming to work-related issues, but they were not enemies. There was evidence and audio recording to prove that the applicant had a conversation with the student. Documents E and Q were incident report, and code of conduct. The tests were treated as an examination. After writing tests, the students were allowed to take home the question papers, not answering sheets. Tirisano did not come to him to report the incident. It was him who saw Tirisano’s crying, and he asked her why she was crying, and she explained her problem.
20. Under cross-examination, he confirmed that his working relationship with the applicant had ups and downs, but they were not enemies. He denied the allegation that the management targeted National Teachers Union members. He confirmed that the applicant was served with the audi letters. The applicant was not targeted, or harassed at the campus. He stated that he does not know Tirisano personally. These incidents were reported to him between April to June 2024.
21. Tirisano informed him that he had evidence and an audio recording regarding the allegations against the applicant, and they were forwarded to him. The concern of the student was very important to him. He forwarded all the evidence he received from Tirisano to the respondent’s labour relations division. It was not a practice to give a student(s) his number. He gave Tirisano his cell-phone number in order to send him the evidence she was referring to, but he does not have that cell-phone anymore.
22. He denied the allegation to say that his relationship with Tirisano was beyond a student and the manager. He denied the allegation to say that he assisted Tirisano to register for N3 even though she did not qualify. The campus was not involved in the acceptance of the students. The application for admission was done online, and it was controlled by the central office, not his campus. Coltech was the college system utilized for capturing of the students’ results, finance, and registration of students. Online system and Coltech are different systems. The lecturers had no access to Coltech system for capturing of results.
23. The central office MIS are the ones sending the results to the team. The senior lecturers and HOD’s were the relevant people to properly explain the capturing and verification of results. He had a limited access to Coltech system. Document “Z20” was the log report of Motlogelwa, TT, but he could not explain it. Tirisano was the student at Hillside View Campus as per “Z22”. He had no knowledge about document “Z20”. He denied the allegation to say that he distorted the information as per “Z20”, he knew nothing about it.
24. The parent of a student came with the SAPS members at the campus, and he was informed that the applicant blocked the student’s way on her way home. They alleged that the applicant wanted to offer the student a lift. He had no knowledge about the details of this matter, and he was not even a witness during the enquiry. There was nothing wrong if the lecturer wanted to talk with a student. He started to know Vincent Monoko when this incident was reported. He could not say that they are related, but they had the same surname. He knew nothing about the relationship between Vincent, and Galaletsang.
25. He denied the allegation that he and Vincent connived against the applicant. He became aware about the alleged conduct of the applicant towards Galaletsang through her mother and SAPS members. There was no report sent to his office about the missing answering sheets at room C8. He denied the allegation that he was the one who took the question papers to Tirisano.
26. Under re-examination, he stated that he had no knowledge about the relationship between the applicant and Ms. Mapela. National Teachers Union was not the only trade union at the campus, and their membership was less. He denied the allegation that the applicant was harassed at the workplace. He denied the allegation to say that he was the one who gave Tirisano the question papers. There was no evidence presented in these proceedings to prove that he had a relationship with Tirisano. Third witness: Ms. Tirisano Thembekile Motlogelwa

Presentation of Audio Recording

27. The audio recording was presented under oath. The witness testified under oath that she was the student at Hillside View, Motheo TVET College, doing Civil Engineering. She dropped her studies during the year 2025. She knew the applicant as mathematics lecturer. Document “F” was her affidavit of the events of the 13th of March 2024.The purpose of the recording was to show that she met the applicant on the day in question.
28. She testified that there were two male and female voices on the recording. The male voice belongs to the applicant, and the female voice belongs to her. The applicant asked her where should he park his car. The applicant asked her whether she was fine, and whether she was aware that she was his crush.
29. The applicant asked her to kiss her, but she refused. He requested her to kiss her hand, and he says “ao ngwanana tlhe”. The applicant said that he had a romantic interest on her, and she replied by saying that she does not know. The 2nd audio recording was recorded on 16 March 2024. It was the voice of the applicant when he saying “hey mama you are beautiful, hope you did not forget about me, and important to me”. Oral Evidence
30. On 13 March 2024 the applicant sent her the message about her test 2 marks. She told him that she was aware of her marks, and she was struggling with mathematics. The applicant proposed to meet her, and she sent him the location. The applicant arrived, and her cousin Dimpho was outside the apartment room. Dimpho noticed the white bakkie, and she said that it might be the applicant. She requested Dimpho to remain outside, and she went to the applicant, and she recorded their conversation through her cell-phone.
31. The applicant said that he was worried about her marks, and she was his crush. The applicant further stated that he wanted to assist her to pass. He gave her the question paper and answering sheets, and told her she must make sure that no one knows about this including Dimpho. He requested her to bring back the scripts to him the following morning. The applicant gave her 1 litre of liqui-fruit juice. She went back to their room, and she showed Dimpho the question paper, and answer sheet. She requested Dimpho to assist her to answer the questions, and the following morning the applicant phoned her to come to his office. The applicant marked the scripts in her presence. She maintained that the applicant gave her two answer sheets, and one question paper.
32. She did not record their conversation about the scripts. The applicant said that her cellphone was ringing, she must either answer it or drop it. She switched it off, and the recording stopped. She could not remember her initial test 2 marks. She requested the applicant to assist her with 2% because she must obtain 40% to qualify for examination. She was expecting the applicant to re-mark her script, or to re-write the paper. Document “X7” was the screenshot of their conversation. The applicant said that they must meet at 16h00 as per “X7”. She replied to the applicant’s message as per “X5”. They were supposed to meet on 15 March 2024. Document “H-H5” was the answering sheets from the applicant. The applicant’s conduct made her to abandon her studies. She received support from the respondent through counselling, and by listening to her.
33. Document “J-J3” was the answer sheets that were given to the applicant in order to correct the initial sheet. She back-dated the script in order to look as if she wrote it on 05 March 2024. The applicant marked it, and recorded the marks. She got 76% as per “J1”. Document “G” was the respondent’s marked sheet, and her name appeared at number 20, and she got 55% and qualified for an examination. The applicant assisted her to pass. Document “G1” was the central register, and her name appeared at number 14. She got 6% for test 1, and 76% for test 2.
34. Under cross-examination, she confirmed that document “F” was her affidavit in relation to this matter. She could not remember the date she received her initial test 2 marks. She requested the applicant to assist her with additional 2% on 13 March 2024. She was the admin of the WhatsApp group in the class. The students’ marks were posted in the WhatsApp group prior to the 13th of March 2024, and she failed the test. She knew on the day in question that she only needed 2% in order to qualify for an examination. The initial marks were not recorded on the Coltech system. She was with the applicant when he marked the 2nd scripts.
35. She had no knowledge how the applicant had access to the question papers he gave to her. The examination papers are sealed, and unsealed in front of the students in the examination centre. She denied the allegation that she had a relationship with Mr. Monoko. She testified that majority of the students deregistered N1, and registered N3. It was not only her, and Dimpho who registered for N3, instead of N1. She denied the allegation that she connived with the respondent’s management to implicate the applicant. She recorded their conversation while in the applicant’s car on 13 March 2024. The applicant phoned her about her marks, but she had no screenshot of that call. She was the one who started the conversation with the applicant as per X7. She texted the applicant because he initially phoned her.
36. She denied the allegation that the applicant came to their apartment in order to see how far she stayed from the campus. She screenshotted the applicant’s message saying that he was coming to her, and she forwarded it to Mr. Monoko. The screenshots were forwarded in August 2024. She confirmed that the chain of evidence was broken. She knew the voice of the applicant because he taught her. The applicant could not speak Sesotho delinquently. She maintained that it was the voice of the applicant on the audio recording. The applicant was driving small Nissan bakkie, but she could not say that it was a diesel or petrol.
37. The applicant took out her answer sheet of the 05 March 2024, and he requested her to project the marks of the 05 and 13 March 2024. The applicant was next to her to show her what to project. The applicant asked her if he assisted her to pass, whether she would be his girlfriend. She was supposed to meet the applicant on 15 March 2024 at 16h00 as per X5. She denied the allegation that the message the applicant sent to her was to give her an extra class. There was no audio recording about proposing love to her.
38. Under re-examination, she stated that it was her and the applicant’s voices on the recording. The date of the WhatsApp messages changed, when messages were exchanged. She did not speak with Mr. Monoko prior to the reporting this matter.
39. Under clarity questions, she stated that she was the one who recorded their conversation using her cellcphone. She changed her cellphone because the previous one was no more functioning. The recording was silent about the question paper and answer sheet. The voices on the recording belongs to her, and the applicant. On 14 March 2024, she went to the applicant’s office, and he took out the previous answer sheet of the 5th of March 2024. The answer sheet was marked, but she could not remember her marks. She did not pass test 2 that was written on 05 March 2024. The total mark of 27+1 comes from the projected marks of the 1st and 2nd marks of the 5th and 13th March 2024. Documents “J1-J3” was the projected results. She did not have the class WhatsApp group chat anymore. Fourth witness: Ms. Galaletsang Keikelame
40. The witness testified under oath that she was a Civil Engineering student, and she resides at Bloemanda phase 2. She knows the applicant as his mathematics lecturer. Document “F2” was her affidavit. On 20 June 2024 when writing building science, her noise was itching, and she went outside. The applicant arrived while standing outside, and he asked her what she was doing outside. She replied by saying that she was cleaning her noise. The applicant requested her to WhatsApp him, and she asked him the reason, but he said that she must WhatsApp him. She entered the class, and she continue with her test.
41. The week after the 20th of June 2024, she walked from the campus to her home at Bloemanda phase 2. She noticed a white bakkie, and on her left hand side, there was a house under construction. This bakkie followed her, she heard a voice, and it was the applicant. The applicant said that he was shouting her name, and he asked her where she was heading to. She replied by saying that she was going home. He asked her where was home, and she said that house. The municipality workers arrived, and they said a student, and the lecturer, and the applicant left.
42. She started to be uncomfortable around the applicant, and she started not attending his classes. She wrote mathematics tests 1 and 2, but she did not get her results. The applicant said that the person who wanted his/her results must chat with him on WhatsApp. She blocked the applicant’s cellphone number. She informed her mother that the applicant refused to give her the results. They went to the campus accompanied by the SAPS members, and reported the applicant’s conduct. The SAPS members spoke with the applicant in her absence.
43. She denied the allegation that she had a sexual relationship with Vincent. She stated that Vincent was her friend, and they attended school together. The surname of Vincent is Monoko, and the campus manager is also Monoko. She had no knowledge whether they are related. She denied the allegation that they connived against the applicant. Documents “X8-X10” was the conversation between her and the applicant.
44. Under cross-examination, she stated that she was the student from April 2024, and this alleged incident occurred on 20 June 2024. On 20 June 2024, there were students outside, entering their classes to start with their tests. The applicant was maybe coming from the administration block, and he seemed to know her. She maintained that the applicant knew her. They were approximately 20-25 students in mathematics class. The applicant was standing on the door when she was cleaning her nose. The applicant blocked her way, and he said that she must sent him the WhatsApp without stating the reason.
45. The applicant did not ask her the cell-phone number. The applicant’s conduct was improper when he said that she must privately WhatsApp him. She suspected that the applicant had the bad intentions. The 2nd incident occurred around 15h00 when going home alone from the campus. There were other students on the streets, and the municipality workers witnesses the incident. The applicant approached her when nearing her home street. She was walking on the safe area. The applicant when talking about unsafe area, was referring to the walking area of the artisan students, but she was not walking there. The municipality workers made him to leave her. The manner the applicant talked to her, was not the same manner he talks in class.
46. Under re-examination, she stated that it does not make sense to stop someone that you do not know. The applicant did not offer her a lift. If he was offering her a lift, why did he leave after the comment of the municipality workers? If the applicant’s intention was genuine, he could have stayed after the comment of municipality workers. She maintained that she had no knowledge that Mr. Monoko and Vincent were related. She was not aware that there was a tension between Mr. Monoko and the applicant. THE APPLICANT’S EVIDENCE First Witness: Mr. Sbusiso Clement Makhaza
47. The witness testified under oath that he was the applicant in this matter, and he was the lecturer for mathematics. He started experiencing problems at the campus since joining National Teachers Union. They were working long hours as latent lecturers. There was a water problem at the campus, and the management wanted them to stay at the campus during the examination even when there was no water. The respondent does not allow them to have trade union meetings during working hours. He became a threat for his own rights. The respondent served him with several audi letters, and they implemented leave without pay against him. Document “C-C3” was the notice to attend the enquiry that included the charges. It was the first time he was charged with misconduct.
48. Tirisano was her mathematics student who performed poorly. Tirisano’s work performance was due to poor class attendance. He had no relationship with Tirisano except of a lecturer and a student. He tried to assist her in order to improve her marks. Document “X” was the WhatsApp messages from him to Tirisano, asking her why she missed his classes. On 23 February 2024, he sent WhatsApp message to Tirisano. He was checking on her why she was not keeping her word. He had that thing of assisting the students. He invited Tirisano to his office, and his intention was basically to assist her.
49. On 05 March 2024, the students wrote mathematics main test, and it was marked. He gave the students their marks in the class room on 12 March 2024. The students were given an opportunity to engage him in relations to their allocated marks. The highest mark was 78%, and Tirisano got 73% as per “G1”. Tirisano initially got 73%, and she complaint and they corrected each other, and he added an extra 1% that gave her 76%. The total percentage of 76 was captured on Coltech system. Tirisano indicated that she wanted to bring another version. It was not correct that she was short of 2% to qualify for an examination. Tirisano was not telling the truth when she said that she failed mathematics test 2. Tirisano got 6% on her first mathematics test. It does not make sense to allow a student to re-write a paper while she passed the test.
50. Tirisano knew on 12 March 2024 that she qualified to write mathematics examination, and the test 2 results were posted on the students WhatsApp group. Tirisano was used by Mr. Monoko, the campus manager. Tirisano was supposed to repeat N1 in the year 2024, but she skipped the level to register for N3. He was alerted by the lecturers responsible for registration that Tirisano registered N3, instead of N1. This matter was raised at the staff-room, and Mr. Monoko informed Dimpho and Tirisano about this discovery. Mr. Monoko was having a relationship with Tirisano, and he assisted them to register for N3. Instead of the respondent taking this matter up, he was charged with misconduct and dismissed. He was targeted as the shop-steward at the campus.
51. Tirisano started the conversation with a greeting because she was not satisfied with her marks as per “X7”. He replied by saying that they would meet because he had no idea what she wanted, and she sent him the location. The location was sent in order to check how far she was staying from the campus. They agreed to meet the following day on 14 March 2024. There was nothing that prevented him to WhatsApp the students. The respondent had no policy in relation to WhatsApp. He did not phone Tirisano on 13 March 2024, and he had no reason to phone her. He was not desperate to see Tirisano. He wanted to assist her for the upcoming examination.
52. He had no knowledge about the voices on the audio recordings, and the idling vehicle does not belong to him. He drove NP200, and the vehicle on the audio sounds like a diesel vehicle. This audio recording does not show when it was recorded, even the people on that audio does not talk about the question paper and answer sheet. The examination papers are kept at room C8. Mr. Monoko was having an access to everything in the campus. Why could he risk his work to allow a student to bring answer papers to his office while he was sharing an office. He knew Tirisano was dating Mr. Monoko. There was nowhere in their conversation where she was proposing love to Tirisano.
53. On 20 June 2024, he saw a student in his class who he could not recognize. The student was about to write Building Science test, and he requested her to WhatsApp him. She was the student who was not attending his classes, and she got zero in her first test. There was nothing wrong to ask a student to WhatsApp him, but she did not WhatsApp him. On the same day, the student was walking on the unsafe area between the campus and the church.
54. Someone was once robbed in that area, and he was like a parent to a student. He stopped, and asked her where she was going, and she replied by saying home. He asked her where was home, and she replied by saying that house was her home. The windows of his vehicle were tainted, and how did the municipal workers see him inside the vehicle. It was not true that the municipal workers uttered the words “student and lecturer”. He denied the allegation that he blocked Galaletso’s way to go home.
55. Under cross-examination, he stated that he was not victimized, but targeted by the management. He was the branch secretary of National Teachers Union. He raised a grievance through his trade union against the management. The disciplinary action against him was the retaliation by the management. The charges involved the students, and the complaints were students, not the management. Tirisano and Galaletsang teamed-up against him. Tirisano and Mr. Monoko had a romantic relationship. He had no tangible proof to substantiate his claims. There was nothing wrong he had done to Galaletsang.
56. He confirmed that the lecturers must maintain professional boundaries with the students. He denied that it was his voice in the audio recording. He further denied that he went to Tirisano’s apartment on 13 March 2024. He started communicating with Tirisano for only one reason of being the WhatsApp admin, but not attending class, and performing poorly in her subject. He stated that he communicated with Tirisano prior to the writing of test. Documents “X-X10” were his conversation with Tirisano. He denied the allegation to say that he gave Tirisano fraudulent marks in order to obtain 76%. The marks were changed from 73% to 76% on 12 March 2024. He denied ever saying that he would come to Tirisano as per “X7”. There was no evidence to say that he went to Tirisano on 13 March 2024.
57. He confirmed that the code of conduct states that there must be a professional conduct between a lecturer and a student as per Q-Q13”. He confirmed that he asked Galaletsang to WhatsApp him without any reason. The WhatsApp was not about the marks, but the class attendance. He was told by Mr. Ntoyi that Mr. Monoko and Vincent are relatives. He confirmed that he wanted to give Galaletsang a lift. He stopped in the left hand side of the road, not off the tar road, and he did not block her way.
58. Under clarity questions, he stated that Mr. Monoko was behind these allegations against him. The involvement of Mr. Monoko and Galaletsang in this matter was his assumption. He was concerned about Tirisano’s performance. He sought reinstatement. Summary of argument THE RESPONDENT’S ARGUMENT
59. The respondent’s representative submitted that the respondent had to prove on balance of probabilities that the applicant conducted himself in an improper, disgraceful and unacceptable manner, and he acted dishonestly. The evidence showed that the applicant visited a student at her place of residence, proposed love to her and there was a voice recording to substantiate such.
60. The applicant abused his authority as a lecturer, and he occupied the position of trust and power. The evidence of the respondent’s witnesses corroborated to each other. The evidence of the applicant was not supported by any documentary evidence. Academic assistance does not require secret visits to student’s residence, provision of answer sheets, WhatsApp conversations without academic purposes. Evidence was led of WhatsApp conversation between the applicant and Tirisano. There was nowhere the applicant was talking about assisting her with mathematics or the student poor performance. The WhatsApp and audio’s corroborated with Tirisano’s versions. Dishonesty in an academic institution strikes at the heart of the employment relationship. An act of dishonesty amounted to a dismissal because trust relationship was broken.
61. The applicant alleged conspiracy against Mr. Monoko without proof. The applicant contradicted himself when leading evidence. The applicant’s conduct leaves much to be desired, especially when it comes to female students. The applicant could not be trusted around female students. The applicant does not see anything wrong with his conduct, instead of taking responsibility, he blames everyone except himself. He did not show any remorse during the proceedings. On a balance of probabilities, the allegations against the applicant were proven. The applicant’s dismissal was substantively fair. THE APPLICANT’S ARGUMENT
62. The applicant’s representative submitted that these proceedings were faced mutually contradictory versions of events. These proceedings must make the findings on the credibility of the factual witnesses; their reliability; and the probabilities. The proceedings must further determine whether the applicant contravened a reasonable rule; did the applicant know the rule; and was the rule applied consistently. The respondent should have proven that Tirisano received a call from the applicant.
63. The respondent had failed to establish this fact and the only evidence of communication between the parties appears on the WhatsApp conversations. There was no proof of a call to advise Tirisano of her marks. Even Tirisano failed to produce log of the calls from the day in question. It has been canvassed widely that in the documentary evidence of the respondent there was no place where the applicant makes any proposal that Tirisano should be his girlfriend, and the respondent failed to adduce any evidence to this effect.
64. It is common cause that the applicant requested Galaletsang to WhatsApp him. This fact was explained as this mode of communication was widely used in the institution, and therefore, cannot be seen as untoward when the applicant seeks to use it. The applicant did indeed stop to give the Galaletsang a lift on grounds of safety. Galaletsang relies on her subjective feelings which are not supported by any evidentiary or factual basis to be seen as improper, disgraceful and unacceptable conduct. No evidence was led by the respondent that the marks on Coltech system were altered. No evidence has been led by the respondent on which a reasonable Council would find that this dismissal was substantively fair. The applicant sought retrospective reinstatement. Analysis of evidence and argument Introduction
65. In every alleged unfair dismissal dispute, the applicant party is required to establish the existence of the dismissal. Once that is done, then the evidentiary burden of proof shifts to the respondent party who is required to prove the alleged dismissal was fair. In this matter, it is a common cause that the applicant was dismissed, and his dismissal was due to misconduct. Therefore, the applicant established the existence of his dismissal. In discharging the onus, the respondent led the evidence of four (4) witnesses.
66. Section 138(7)(a) of the Labour Relations Act (“Act”), as amended, enjoins me to provide brief reasons for my findings.

Substantive fairness

67. In Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others (2008) 3 BLLR 197 (LAC), it was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. In terms of Schedule 8 item 2(1) of the Act, a dismissal is unfair if it is not effected for a fair reason.
68. The applicant was not charged and dismissed for visiting a student at her residential place to provide her with question paper, and answer sheets. He was also not charged for proposing love to Tirisano, and for chatting with her through WhatsApp. The applicant was not charged for providing Tirisano with question paper and answer sheets while they were inside the applicant’s vehicle. Whether the applicant phoned Tirisano?
69. It was alleged that on 13 March 2024, the applicant conducted himself in an improper, disgraceful, and unacceptable manner when he telephoned one of his female students regarding her Mathematics N1 Test 2 marks. During the alleged call, the applicant purportedly informed the student that she did not qualify to sit for the examinations and offered to assist her on condition that she became his girlfriend. The applicant denied this allegation.
70. A proper reading of this allegation indicates that the respondent bore the onus to prove that:
    (a) the applicant telephoned the student on 13 March 2024;
    (b) the discussion concerned her Mathematics N1 Test 2 marks;
    (c) the applicant informed her that she did not qualify to sit for the examinations; and
    (d) the applicant proposed assisting her in exchange for a romantic relationship.
71. Although the allegation was made, the respondent failed to present any evidence substantiating the existence or content of the alleged telephone conversation. Notably, the testimonies of Tirisano and Dimpho did not address any telephonic communication. Their evidence related solely to an incident that allegedly occurred inside the applicant’s vehicle. In the absence of corroborating evidence, I find, on a balance of probabilities, that the respondent failed to prove that this misconduct occurred. Whether Tirisano re-wrote mathematics N1 Test?
72. The respondent alleged that the applicant acted dishonestly by providing Tirisano with a second opportunity to rewrite a Mathematics N1 test that had been written on 5 March 2024, after she had allegedly failed it. The applicant denied this allegation.
73. To succeed with this charge, the respondent was required to prove that:
    (a) Tirisano wrote the Mathematics N1 test on 5 March 2024;
    (b) she failed the test; and
    (c) the applicant improperly permitted her to rewrite it.
74. The respondent did not produce sufficient evidence to establish these elements. Only one set of test marks reflecting a total of 76% was submitted, which the respondent alleged related to a rewritten test. However, the respondent failed to submit the original script or results demonstrating that Tirisano had failed the initial test. Furthermore, Tirisano testified that she could not recall the outcome of the 5 March 2024 test. Tirisano’s version was that the applicant provided her with a question paper, and answer sheets to complete at her residence, which she was to return the following day. This version does not support the respondent’s allegation of an authorised rewrite following failure. Accordingly, the respondent failed to discharge its onus. Whether the applicant asked student to WhatsApp him?
75. It was alleged that on 20 June 2024, the applicant approached a female student, Galaletsang, while she was standing outside, and instructed her to WhatsApp him without providing a reason. It was further alleged that approximately one week later, the applicant parked his vehicle in front of her and obstructed her path.
76. The applicant admitted that he requested Galaletsang to WhatsApp him, explaining that he did so because he did not know her. He further testified that he stopped his vehicle to offer her a lift after observing her walking in what he considered an unsafe area. The respondent succeeded in proving that the interaction occurred. It is the applicant’s version that there was nothing wrong he had done to Galaletsang. However, proof of the conduct alone is insufficient. The respondent was also required to establish:
    (a) the existence of a rule prohibiting such conduct;
    (b) that the applicant was aware, or reasonably ought to have been aware, of the rule;
    (c) that the rule was breached; and
    (d) that the rule was consistently applied.
77. The respondent failed to lead evidence establishing these elements. No rule was produced prohibiting lecturers from requesting students to communicate via WhatsApp, and offering them a lift. Consequently, the respondent failed to prove misconduct.
78. In the event that an employee is dismissed for reasons related to misconduct, the employer is bound by the election it has made, as was confirmed in Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others as per paragraph 32. There was no evidence adduced to support the respondent’s case that, at the time of the applicant’s dismissal, the reason for his dismissal was improper conduct that did not appear in the charge sheet. The presiding officer of the enquiry was not called as a witness, nor was the charge sheet ever amended. It is not open for me as the commissioner to formulate a charge, different to the charge the applicant had faced during the enquiry, and to find that the newly formulated charge constitutes a dismissible offence.
79. The respondent cannot escape the consequences of the way it decided to word the charge sheet, and the charge on which it proceeded to discipline, and dismiss the applicant. Although the respondent advanced several allegations against the applicant, it failed to present sufficient evidence to substantiate the charges. On an assessment of the totality of the evidence, I am not satisfied that the applicant breached any workplace rule. Conclusion
80. The respondent failed to prove fairness in this dismissal, and the evidence presented by the respondent cannot sway my mind in a different direction. In the circumstances, I find the applicant’s dismissal to be substantively unfair.

Remedy

81. Section 193(1) of the Act empowers a commissioner to grant appropriate relief where a dismissal is found to be unfair. Reinstatement remains the primary remedy. In Nel v Oudtshoorn Municipality & another and Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration, the courts affirmed that reinstatement restores the employment relationship on the same terms and conditions that existed prior to dismissal.
82. The applicant sought retrospective reinstatement. In light of my finding that no misconduct was proven, reinstatement is appropriate. The applicant was dismissed on 30 June 2025. I therefore order retrospective reinstatement with effect from 30 June 2025. The applicant is to report for duty at the normal time on Monday, 9 March 2026.
83. In Maroveke v Talane NO and others (CC 187/20) (2021) ZACC20; (2021) 42 ILJ 1871 (CC); (2021) 9 BLLR 851 (CC); 2021 (10) BCLR 1120 (CC) (handed down on 6 July 2021) the applicant, Mr. Maroveke referred an alleged unfair dismissal dispute to the CCMA. The dismissal was held to have been substantively and procedurally unfair, but the award was set aside on review and remitted back to the CCMA. The dismissal was held to have been substantively unfair by the second commissioner and retrospective reinstatement was ordered. The LC held the order of reinstatement was appropriate, however reduced the amount in back pay from 12 months to 2 as the applicant was only unemployed for 2 months after the dismissal and therefore gainfully employed. The LC held that the principle of reinstatement should neither impoverish nor enrich the employee but restore the position had it not been for the dismissal. The appeal was dismissed by the LAC whereas the Constitutional Court held that the LC was correct in its application of the law.
84. The respondent is ordered to pay the applicant’s salary from 1 July 2025 to 28 February 2026. In this matter, the applicant was only unemployed for eight months after the dismissal. Based on the applicant’s monthly salary of R23 837,50, per month, the total amount due for eight months is R190 700,00 (R23 837, 50, per month x 8 months = R190 700, 00). This amount excludes any salary adjustments applicable during that period.

Award

85. The dismissal of the applicant, Mr. Sbusiso Clement Makhaza, is found to be substantively unfair.
86. The applicant is reinstated with effect from 30 June 2025 on terms no less beneficial than those that applied prior to his dismissal. The applicant will resume with his duties at the normal time on Monday, 09 March 2026.
87. The respondent, Department of Higher Education and Training, is ordered to pay the applicant the total amount of R190 700, 00, this being his salary for the period 01 July 2025 to 28 February 2026, and which must be paid into the applicant’s bank account, the details of which are known to the respondent, by no later than 31 March 2026.

Signature:
Commissioner: Khuduga Tlale
Sector: Higher Education & Training