View Categories

09 May 2025 -ELRC627 24/25GP

Panelist: Kuvonakala Chavalala

Case No.:     ELRC627 24/25GP

Date of Award:     02 May 2025

In the ARBITRATION between:

Thibedi Walter Motshopi

(Union / Employee)

and

Department of Education Gauteng

(Employer)

DETAILS OF HEARING AND REPRESENTATION

  • This is an award between Thibedi Walter Motshopi (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on 19 November 2024, 11 December 2024, 24- 26 February 2025 and 15-16 April 2025.
  • Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that in all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator shall be mandatory. All the charges the employee faced were alleged sexual misconduct against learners.
  • The employee was initially represented by Mr Mohlabi who withdrew on the first sitting. Mr Chauke, an attorney made an application to represent the employee and such was granted. When the hearing of the evidence commenced on 11 December 2025, Adv Khosa on brief from Chauke attorneys represented the employee. On the next sitting, the employee indicated that he would re-engage the Union, however, he ended up representing himself after being given an indulgence to re-engage the union.  Ms. Mnisi represented the employer.
  • The employer submitted a Bundle of documents which we named Bundle R. The employee did not submit a bundle and bundle R was used as a common bundle.
  • Parties had to submit written closing arguments on or before 23 April 2024 and both did so.
  • The hearing was digitally and manually recorded.

ISSUES TO BE DECIDED

  • I am required to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

BACKGROUND TO THE ISSUES TO BE DECIDED

  • The employee is currently employed as a PL1 educator at Obed Mosiane Primary school. The employee was notified of the allegations on 01 October 2024 and he was placed on precautionary transfer since the notification of the allegations.
  • The allegations levelled against the employee are as follows:

Allegation 1

It is alleged that during the year 2023, at or near Obed Mosiane Primary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed TM, a grade 6 girl learner, by grabbing her on the waist and attempted to kiss her on the neck and or chick (sic).

In view of the above action, you are thus charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act, 76 of 1998 as amended.

Allegation 2

It is alleged that during the year 2023, at or near Obed Mosiane Primary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed TM, a grade 6 girl learner, by tapping her bums and said you want her to be your wife. You further said you will buy her a new cell phone.

In view of the above action, you are thus charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act, 76 of 1998 as amended.

Allegation 3

It is alleged that during the year 2023, at or near Obed Mosiane Primary School, you committed an act of misconduct in that, you sexually assaulted TM, a grade 6 girl learner by poking and touching her private parts using a walking stick and further said she should stop loving boys because they will finish her.

In view of the above action, you are thus charged with misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 as amended.

  • The employee pleaded not guilty to all charges.
  • The parties held a pre-hearing and agreed that the following were common cause issues: –
  1. The employee has been employed by the employer as a PL1 educator with PERSAL number 90470991, he was stationed at Obed Mosiane Primary School.
  2. Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
  3. All offences under section 17 of Employment of Educators, Act 76 of 1998 (as amended) (hereinafter referred to as  EE Act)prescribe a mandatory dismissal.
  4. The only issue in dispute is the commission of the misconduct

SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT

This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request. The names of the minor children will be omitted in order to safeguard their identity.

Employer’s case

The employer called six (6) witnesses. All learner witnesses testified under oath, they understood the meaning of taking an oath and testified with the assistance of an intermediary, Ms Shibisi who also took an oath. They all testified in camera.

First witness: Learner AK, a 14 year old girl testified as follows:

  • The employee was her class teacher in grade 6 in 2023. In September 2023 when they celebrated heritage day at school, an incident occurred involving the employee and  TM, the victim. The learners were in class singing songs. The tables and chairs were stacked up because it was not a normal school day.
  • The employee asked TM to mark the register and told her that he would buy her a phone. Another boy learner M told the employee that he should not say that to his girlfriend. He told TM that her body is attractive, boys want her body and she should only give her body to him.
  • The employee then chased all learners out of the classroom and said that only TM must remain with him in class. The learners protested but went out ultimately. They went behind the class to look through the window and see why the employee wanted to remain alone with TM. They saw the employee touching and squeezing TM’s bums. The employee was seated on the table while TM was standing in front of the employee. He also used his walking stick to poke TM on her private part.
  • The employee was reeking of alcohol on that day. He had initially asked her an another girl to go to his car to collect a bag and that bag had alcohol bottles in it.
  • They reported this matter to the Principal and the deputy principal on the same day. They were about 4 (four) learners when they went to report the matter. The principal said she wants to speak to TM and the other learners left.

Cross examination

  • The employee also kissed TM on the neck, she had forgotten to mention it. No one told her what testimony to bring about the incident. In fact, the principal warned them that they should not discuss the matter amongst each other as learners

Second Witness:  Learner BK, 14 year girl learner testified as follows:

  • The employee was her class teacher in 2023, teaching them Life Orientation. She was in the same class with TM. She witnessed the incident between the employee and TM. All learners were wearing civies on that day because it was a career day. The employee called TM to his table. He was calling her names like “sweety my babe”. He told her that boys will finish her while he on the other hand will take her of her and buy her a phone and pay lobola for her. The employee also poked TM’s private part with a crutch. The other learners were playing inside the class when the employee said those things. TM confided in AK, AK told them what had happened and the learners wanted to beat the employee up.

Cross examination.

  • It is correct that the employee chased all learners out of the class and he was left with TM. When they heard what had happened they wanted to beat the employee up.
  • It is correct that he said “sweety my babe” to most girl learners.

Third Witness: Learner AP, a 13 year old girl testified as follows:

  • The employee taught her Life Skills in 2023. On the day of the incident, the employee told TM that he wanted her to be his wife. He asked her who she stays with. The bell for break rang and he sent all leaners out. The boy learner M protested but ultimately went out of class. She, along with other learners stood at the window outside of the class wanting to see what the employee intended to do. The employee took his walking stick and poked TM on her vagina. He was saying that boys will finish her because all they want is her private part. He said he also wants it. TM cried and the learners started to protest and said what the employee was doing is not correct. AK even said ‘you are a dog’ to the employee. They had gone back in class from observing from the window.
  • Sir Shivambu arrived and asked what the noise was all about. And the employee said he was just reprimanding the learners.

Cross examination

  • She denied that they were making noise of celebration at the time Mr Shivambu passed. She does not recall Mr Mathlako and Ma’am Tshabalala passing by the class on that day.
  • She conceded that he would call most if not all girl learners ‘sweety my babe’. The tables and chairs were stacked up and the learners were not seated on chairs but standing around in class.
  • She denied that the employee only pointed at TM with a crutch on her upper body. She stated that they would have not made the noise, they only made the noise because of him poking her on her private part.
  • TM later told her that she and her mom had gone to the employee’s house to confront him about the incident.

Fourth Witness:  Learner DT, a 13 year old girl learner testified as follows:

  • In September 2023 she was in the employee’s class. On the day of the incident, the employee told TM to mark the register. The employee asked TM who she stays with at home and told her that he wants her to be his wife. He pulled her towards him wanting to kiss her and the learners started making noise telling him that he could not do that. He chased all the learners out and one boy learner, M remained but the employee insisted that he also goes out.
  • All the learners went out. When they asked TM what the employee had said, she did not say anything. They went back to class after break. TM was with one learner, F. The employee said that they were late and he hit TM on the bums and told her to sit on the desk in front of him. He then touched TM on her thighs and bums. He asked her why she loves boys and told her that boys only want her private parts and he also wants it and he would get it. He poked at her vagina with the crutch. The learners started complaining. He instructed the learners to go out. They went out and she went to call TM’s sister. TM went out of the class running and AK followed her. TM went to change into a jumpsuit and when she came back, the employee said he wanted to be alone with her. AK kept asking the employee why he had poked TM and the employee told her that she should not get involved in his matters. Sir Shivambu walked in and asked what the noise was about and the employee said he was just reprimanding the learners.
  • Some of the things that the employee did to TM happened while they were in class and some happened while they were outside of class. The boy learner M and other learners went to observe through the window and the saw the other things that he did.
  • Mr Shivambu and Ms Tshabalala are the only teachers that went to their class that day. Ma’am Tshabalala would often go to see the employee and the two would even kiss in front of the learners. She does not remember Ma’am Tshabalala saying anything in class that day.
  • The employee looked as if he was drunk that day and he was reeking of alcohol.

Cross-examination

  • She conceded that he calls all or most girls leaners ‘sweety my babe’. She conceded that some learners observed through the back window what the employee was doing when he remained alone with TM. She stated that her and the other learners wanted to look through the front window but the windows were too high and they could not see anything.
  • She did not go with TM to the principal when the matter was reported.
  • What made Mr Shivambu to come in was the noise from the commotion when the learners were confronting the employee on what he was doing.
  • She only heard from TM that her mother went to the employee’s house.

Fifth Witness: Ms Ethel Bopape gave evidence under oath as follows:

  • She is the principal of Obed Mosiane Primary School since 2010. She authored the letter reporting the incident on page 3 of the Bundle.
  • On the day of the incident, TM, in the company of other learners went to her office indicating that the employee had touched her inappropriately, attempted to kiss her and pointed at her private part with a crutch. She was about to leave for a meeting and she took the matter to Mr Shivambu, the deputy principal at the time. TM is the one who related the events to her but other learners were also confirming. She advised TM to inform her parents about the matter. TM’s mom never went to the school to formally lay a complaint.

Cross examination

  • She did not write in her report about the pointing or poking on the private part but it had been reported to her.
  • None of the learners mentioned it to her that ma’am Tshabalala and sir Mathlaku had come in to reprimand TM on the date of the incident.

Sixth Witness: Alex Rirhandzu Shivambu gave evidence under oath as follows

  • He was a deputy principal at Obed Mosiane primary School in September 2023.
  • He recalls standing by the classroom door where the employee was with learners because of high levels of noise coming from that class. The employee was leaning against the table in front of the classroom when he peeped in.
  • He is aware of the incident. It was reported to him by the principal. The learners did not report the matter to him directly. The principal was supposed to just escalate the matter and she did so.

Cross examination

  • There was heritage day celebrations at the school on the day in question. He confirmed that Life Skills syllabus would include education on how the learners bodies will change and the language that must be used should be learner and age appropriate.

THE EMPLOYEE’S CASE

Thibeli Walter Motshopi, the employee testified under oath and the summary is as follows:-

  • He started working at Obed Mosiane in 2014. He teaches Life Skills, English and Social Science.
  • On 22 September 2023 there was heritage day celebration at the school. Learners in his class were celebrating and they were noisy. Mr Mathlaku and Ma’am Tshabalala passed by his class. They commented that TM is busy jumping up and down while she does not do her school work. He commented that he has the same problem with her. The two educators left.
  • During break, he told the other learners to go so he could reprimand TM. He did not want to embarrass her in front of other learners. Other learners stood at the front windows to observe but the windows are too high. The other three learners said they stood at the back windows and they saw him. He and TM sat across the table in front of each other and his crutch could not reach TM. He did point at her across the table on her upper body.
  • TM’s scholar transport passes by his house so TM knew where he stayed.
  • He never poked TM. He researched the meaning of poking and it means that the crutch should have gone inside of her for him to have poked. The parent would have sent the learner to the doctor if there had been penetration. He never slapped TM’s bum.
  • Him teaching Life Skills means that he will use a language that is uncomfortable for the leaners.
  • The incident happened on the Friday, 22 September 2023. The letter reporting to the incident was only written on 27 September 2023. The principal never called him on the day of the incident. The following week on a Monday, he went to school to submit his sick note. The principal then told him of the report the learners had made and that the parents had not come to school yet. He informed the principal that TM’s mother had gone to his house  on a Sunday threatening to burn his house  and getting people to kill him.
  • After that, he was precautionarily suspended and was no longer reporting at the school.
  • On the first week of his precautionary suspension, he saw a certain lady whose child he taught. She was with another woman and they asked for a lift in his car because they were carrying heavy groceries. He gave them a lift. The lady whose child he had taught got off first and the other woman remained. The woman asked him if he knew her and he responded in the negative. She said she is TM’s mother. He asked if it is the very same TM whose case he is attending and she responded in the affirmative. She also asked him if he was still staying in the same house he was staying in when she went to confront him. They did not discuss anything else. Someone saw her with him and reported the matter to the school.
  • He always addresses girl learners as ‘sweety my babe’ and promises all learners to buy them a phones to keep them motivated.
  • He fails to understand why he is charged. More so, TM’s mom has not allowed her daughter to come and testify. With no key witness, there is no case against him.

Cross-examination

  • He conceded that he instructed the other learners to go out of the  class. He stated that his reason was to reprimand TM.
  • He was not drunk, any smell would have been coming from the night before because he was drinking.
  • He only used a crutch to point at TM’s upper body, he could not use his hand to point at her because he was seated.
  • TM’s mother when she went to his house, she complained that he had slapped her daughter’s bums and never mentioned any poking. She was angry and threatening to burn his house.
  • He only told TM to stop playing with grade 7 boys because they would use her. She cried because those words hurt her, not because he had done anything wrong to her.
  • He stated that he was advised during consultations in preparation of the case that if the victim is not at the arbitration hearing, there is no case against him. He denied that he was with TM’s mother because he was influencing her to drop the case and withhold giving consent for TM to come and testify. He agreed that in terms of the precautionary suspensions conditions, he was not supposed to have talked to her but he was not aware that she is TM’s mother.
  • He does not know why TM would lie but she definitely lied to the principal when she reported that he had inappropriately touched her and poked her. The other learners who testified are TM’s friends and they are supporting her lies. They are framing him. He does not know where other learners who are not her friend are now schooling otherwise he would have called them as witnesses.

Second Witness: Percival Bashimane Mathlaku testified under oath and the summary is as follows

  • He was an educator in Obed Mosiane Primary School in September 2023. He recalls the heritage day celebrations on 22 September 2023. He and Ma’am Tshabalala went to the employee’s class to observe because the learners were making noise. They found the employee talking to TM reprimanding her because she was not doing her school work. He also confirmed it because he was teaching TM Maths and she was slacking.

Cross examination

  • The other learners were in class. He does not recall seeing TM jumping up and around the class.
  • He as a teacher would not isolate a learner to reprimand her but he wont judge anyone who does that. He was not there when the employee chased other learners to reprimand TM.
  • He went to the employee’s class to observe the noise. The noise was not from TM and employee but other learners.
  • TM was at her desk where she normally sits. Other learners were sitting on their chairs and tables as well. The set-up of the chairs and tables was normal like any school day. When put to him that tables were stacked as testified by learners, he had no comment.

Third witness: Christine Tshabalala testified under oath and the summary is as follows

  • She was a teacher at Obed Mosiane Primary School. On 22 September 2023 the school was having heritage day celebrations. She and Mr Mathlako went to the employee’s class when they heard the noise coming from that class.
  • The employee was on his table and chairs and tables were stacked . Learners were just roaming around in class. Grade 7 boys were playfully chasing TM around class. Sir Mathlaku came shortly after her. She then made a comment and said “look at TM, she is not doing her work but she is busy running around with boys”. They all discussed that she was indeed slacking and at that time, TM was not next to them. The employee called TM and she and Mr Mathlaku left.

ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT  

  • The employee was charged under sections 18(1)(q) and 17 (1) (b) of the Employment of Educators Act (EE Act) which provide as follows:

17(1) An educator must be dismissed if he or she is found guilty of –

     b) committing an act of sexual assault on a learner, student, or other employee.

18(1)Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she:

(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;

  • The allegation against the employee is that he committed acts of sexual assault on TM, a girl learner at the school. The incidents were immediately reported to the principal on the same date.
  • All the learners (AK, BK, AP, DT) testified that the employee isolated and inappropriately touched learner TM (grabbing, kissing, poking with a crutch).  They stated that he made sexual remarks about TM’s body stating that she must not give her body to boys but to him alone. A bit of differences were there in the learner’s testimonies relating to the timing and the chronology of the incident. I find that these differences are not material at all. Further, I did not expect the detail in terms of the timing and chronology to be precise owing to the time-lapse and the ages of the learners; both at the time of the incident and testimonies. The testimonies of the learners  were consistent, detailed, and corroborated.
  • The employee relied on his own testimony and called two witnesses. The essence of the testimonies of the two witnesses was that TM was slacking in her work and they discussed her performance. This testimony was to support the submission that there was a need to reprimand her. The testimonies of the two witnesses of the employee differed materially on the aspect of whether the teachers spoke to TM and the set-up of the class. Mr Mathlaku stated that the employee was already reprimanding TM when he and Ma’am Tshabalala went to class, while Ma’am Tshabalala stated that they only discussed amongst themselves as teachers and the learner could not hear. Mr Mathlaku also stated that the set up in the class was as normal and all other witnesses including the employee testified that the tables and chairs were stacked. None of the learner witnesses saw Mr Mathlaku in their class on the said date. One learner testified to have seen Ma’am Tshabalala. It is therefore most probable that Mr Mathlaku was never in class on that date. The differences in his testimony and that of the employee and Ma’am Tshabalala indicate that Mr Mathlaku could have been coached to come and corroborate a version. That his why his version could not stand cross examination.
  • Ma’am Tshabalala’s testimony does nothing to assist the employee’s case. Whether she and the employee had discussed the learner’s performance is neither here nor there. The pertinent question relates to what actually happened when the employee was alone with the learner.
  • The testimonies of the learners and the employee were the same in these respects:
  • that he isolated the learner.
  • that he told her that boys want to use her.
  • that she cried.
  • that there were noises that attracted the attention of other teachers to his class.
  • that TM’s mother went to his house on a Sunday following the Friday to confront him and threaten him about the alleged sexual assault.
  • To an extent, the versions of the employee and that of the learners start out similar but only differ at a point where there is an allegation of an act of sexual assault.
  • The employee just denied that he tried to kiss TM, slapped her bum, and poked at her vagina with a crutch. He stated that he only pointed at her with a crutch while he was sited down. When asked why he could not use his arm to point at her, he had no explanation. He stated that the learners are not telling the truth and they are ‘framing’ him. It must be noted that no evidence was given regarding what the learners’ motive for telling lies would have been. It seemed that the employee and the learners enjoyed a normal teacher and learner relationship. They would thus have no motive to lie.
  • It was incumbent on the employee to provide some evidence regarding his allegation of vendetta against him. During arbitration, while the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties. In a case involving misconduct, once the employer has assembled out its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. This simply means that the employee may not sit and fold his arms because the overall onus is not on him.
  • I am guided in this regard by the case of Woolworths (Pty) Ltd v CCMA and Others (2011) 32 ILJ 2455(LAC) at Para 34 where the Labour Appeal Court held that video footage capturing an employee concealing merchandise on his person while working in a retail store constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.
  • In his testimony and in his closing arguments, the employee stated that without the evidence of TM, the case against him should not stand. He testified that he was advised that if TM did not testify, the case against him would not stand. The employer submitted during the first sitting of the case, cross examination of the employee and closing arguments that the employee had an influence on TM’s mother so that she could withhold consent for her daughter to come and testify. It is common cause that the employee and TM’s mother were seen together shortly after he was precautionarily transferred and this was reported to the school. From there, TM’s mother no longer wanted her daughter to testify.
  • I find it quite strange that an angry mother who was willing to take the law into her own hands by threatening to burn the employee’s house and have him killed would all of a sudden no longer be interested in releasing her child to come and testify against the employee. What is more strange is that the employee would forget the face of the person who threatened to burn his house and caused drama that even attracted the attention of the neighbours. It is highly improbable that he would randomly just give TM’s mother a lift. The probabilities favour the version that the employee influenced the mother of the child to withhold her consent.
  • Unfortunately for the employee, the absence of TM cannot have the result of blotting out the case against him. The evidence of the learner witnesses suffices as they were eye-witnesses and gave first hand testimonies. They testified as to what they saw with their own eyes. Granted, they testified also on testimony they had heard. They also stated which parts of their evidence they had heard from someone; for an example, that TM’s mother went to confront the employee. The probative value of such evidence lied on the employee. The employee himself confirmed that TM’s mother went to confront him and their evidence is thus accepted.
  • Looking at the totality of the evidence, its quality and cogent, it is my finding that the probabilities favour the version of the employer that the employee is guilty of allegation 1,2 and 3. His conduct is improper, disgraceful, and unacceptable and amounts to sexual assault. Legislation prohibits such conduct. I have particularly considered the EE Act as well as the SACE Code of Professional Ethics for educators (South African Council for Educators, as intended in the South African Council for Educators Act, 31 of 2000). Offences in section 17 of the EE Act are dismissible offences and no further discretion is required from the commissioner once a finding of guilt is made in that section. There can also be no gain-saying that the nature of the offence of sexual assault on a minor child automatically breaks the trust relationship between the educator and the employer.
  • In these circumstances based on the evidence and my conclusions above, the employee must be dismissed with immediate effect.
  • Section 120 (1) (c) of the Children’s Act 38 of 2005 (“the 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”. Section 121 provides that where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law. Section 120 (2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
  • In view of my finding of the serious nature of the employee’s conduct and the priority to protect the rights of children, I find that the employee is unsuitable to work with children. The employer would not be able to guarantee a safe education environment in the care of Mr Motshopi. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.

AWARD   

  • The employee is found guilty on all allegations.
  • The employee must be dismissed with immediate effect.
  • Mr Thibedi Walter Motshopi is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act 38 of 2005 (“the Act”).
  • The General Secretary of the ELRC must, in terms of section 122 (1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Children’s Act 38 of 2005, that Thibedi Walter Motshopi 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.
  • I make no order as to costs

Dated on the 02 day of May 2025

Kuvonakala Chavalala

ELRC Panellist