10 June 2026 – ELRC1392-25 26GP

Case Number: ELRC 1392-25 26 GP
Commissioner: M.A. HAWYES
Date of Award: 10th of June 2026

In the ARBITRATION between

Department of Education: Gauteng
(Employer)

and

Mr. M.Nketu

(Employee)

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 13th of April 2026, the 12th of May 2026 and finalised on the 26th of May 2026.
1.2 The matter was dealt with at the Katlehong Engineering School of Specialization at 309 Khumalo Street, Goba Section, Katlehong.
1.3 Mr. T. Monyatsi, a union official from SADTU, represented the Employee.
1.4 Ms. B. Matsinye, a labour relations officer, represented the employer.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 3rd of June 2026. The said arguments were timeously received and my award now follows.
1.6 Each party each made use of a bundle of documents. The employers bundle was supplemented during the course of the arbitration and ultimately consists of 22 pages. The Employees bundle consists of 3 pages.
1.7 Detailed notes and a digital recording was kept of the entire arbitration process.
1.8 The minor witness that testified at this hearing was assisted by an intermediary and interpreter.
1.9 The full names of the minor witness who testified at the hearing have been withheld and all references to the said witness in this award will be to her initials only.
ISSUE IN DISPUTE
2.1 Whether the Employee is guilty of one count of alleged sexual misconduct as contemplated in section 18(1)(q) of the Employment of Educators Act No. 76 of 1998 (as amended) (EEA).
2.2 The Employee was charged that, on 20 February 2026 and whilst on duty at Thutopele Secondary School, he conducted himself in an improper, disgraceful, and unacceptable manner by sexually harassing a Grade 11 female learner, KT, in that he sent her a WhatsApp containing pornographic videos, whilst he knew or ought reasonably to have known that it was wrong to do so.
BACKGROUND TO THE ISSUE
3.1 The employer currently employs the Employee at Thutopele Secondary School as a PL 1 educator.
3.2 The Employee pleaded not guilty to the charge preferred against him.
SURVEY OF PARTIES EVIDENCE AND ARGUMENT
4.1 EMPLOYERS EVIDENCE AND ARGUMENT
4.1.1 The Employer submitted that it had proved, on a balance of probabilities, that Mr Nketu intentionally sent two pornographic videos to Grade 11 learner KT and that his subsequent explanations were false and contradictory.
4.2 Evidence of Employer’s Witnesses
4.2.1 The Employer led the following witnesses, namely Principal Ms Thobejane, the complainant KT, Palesa, the sister of KT and Ms Lekalakala, a food handler at the school who described previous incidents involving the Employee. The Employee testified under oath and also led the evidence of one Mr. Motshwane, his neighbour.
4.3 Attack on the Employee’s Version
4.3.1 The Employer submitted that Mr Nketu’s defence was dishonest and improbable. It argued that:
4.3.1.1 He was not ill when he left school.
4.3.1.2 His claim that he was hospitalised from 20 to 23 February 2026 was contradicted by medical records showing only an emergency-room visit on 23 February 2026.
4.3.1.3 The medical documents produced by him were suspicious and unreliable.
4.3.1.4 His written apology and prior verbal admission constituted evidence of guilt.
4.4 Evidence of Mr Motshwane
4.4.1 The Employer contended that Mr Motshwane was not a credible witness. It argued that:
4.4.1.1 He claimed to have sent the videos at approximately 17h00, whereas KT received them at about 15h06.
4.4.1.2 He could not adequately explain how he selected KT’s number.
4.4.1.3 He contradicted his own affidavit and attempted to attribute its contents to SAPS officials.
4.4.1.4 His evidence contained several improbabilities.
4.5 Contradictions in the Defence Case
4.5.1 The Employer highlighted material inconsistencies between the versions of Mr Nketu and Mr Motshwane regarding:
4.5.1.1 Their relationship.
4.5.1.2 How they came together on the day in question.
4.5.1.3 Mr Nketu’s medical condition.
4.5.1.4 The sequence of hospital events.
4.5.1.5 When Mr Nketu learnt of the allegations.
4.5.1.6 When the phones were handed over.
4.5.1.7 The time at which the videos were allegedly sent.
4.5.2 The Employer argued that these contradictions showed that the defence had fabricated its version.
4.6 Legal Submissions
4.6.1 The Employer submitted that:
4.6.1.1 Sexual misconduct usually occurs without eyewitnesses and therefore credibility and probabilities are decisive.
4.6.1.2 The complainant’s evidence was corroborated by her sister and supported by the Principal’s evidence concerning Mr Nketu’s admissions.
4.6.1.3 The written apology should be accepted as voluntary and reliable.
4.6.1.4 The medical evidence produced by Mr Nketu should be rejected.
4.6.1.5 Mr Motshwane’s evidence should be rejected because of his contradictions and his inability to account for the 15h06 transmission of the videos.
4.7 Conclusion
4.7.1 The Employer submitted that it had proved that Mr Nketu was in possession of his phone when the videos were sent, that the videos were sent directly to KT and not to the group, that he intentionally selected and saved her number, and that his subsequent lies, contradictory explanations, and unreliable medical evidence demonstrated consciousness of guilt.
Accordingly, the Employer requested that Mr Nketu be found guilty of behaving in an improper, disgraceful, and unacceptable manner by sexually harassing a learner through the transmission of pornographic videos.
4.8 Employee’s evidence and argument
4.8.1 Introduction
4.8.1.1 The Employee, Mr Nketu, faces a charge arising from an allegation that he transmitted sexually explicit content via WhatsApp to a learner, KT, on 20 February 2026. Nketu has, throughout these proceedings, consistently denied being the author of the impugned message. The evidence has conclusively established that his phone was, at all material time, exclusively in the possession of a third party, his neighbor and cousin, Andrew Motshwane, while Mr Nketu was admitted as a patient at Botshelong Hospital.
4.8.1.2 The Employer’s case has been marked by reliance on inadmissible hearsay, credibility witnesses of questionable probative value, and a conspicuous failure to engage with the uncontested documentary evidence adduced by the Nketu. For the reasons set out below, the charge cannot be sustained on the balance of probabilities, and Mr Nketu is entitled to an unconditional finding of not guilty.
4.8.2 Applicable legal framework and proof
4.8.2.1 The applicable standard of proof in disciplinary proceedings is the balance of probabilities. The Employer bears the onus throughout. This trite principle was affirmed in:
Transnet Ltd v Chirwa [2008] 4 BLLR 307 (SCA): The employer bears the onus of proving misconduct on a balance of probabilities. A bare possibility is insufficient;
Edcon Ltd v Pillemer NO (2009) 30 ILJ 2642 (SCA): The adjudicator must weigh all the evidence and determine which version is more probable.
4.8.2.2 It is submitted that the Employer has dismally failed to discharge this onus.
4.8.3 The undisputed factual matrix
4.8.3.1 The following material facts are either admitted or uncontested on the evidence:
4.8.3.1.1 Mr Nketu left the school premises on 20 February 2026 at approximately 14:30, before the alleged transmission at 15:15.
4.8.3.1.2 Mr Nketu was unwell and immediately contacted Andrew, his neighbour and cousin-brother, to assist him in seeking medical attention.
4.8.3.1.3 Andrew took a taxi with Mr Nketu to Botshelong Hospital, where he was admitted that same afternoon.
4.8.3.1.4 Mr Nketu handed his phone to Andrew upon admission, given his dazed condition.
4.8.3.1.5 Mr Nketu remained hospitalised over the entire weekend and was discharged only on the Tuesday following.
4.8.3.1.6 Andrew has admitted that he was the person who sent the impugned WhatsApp message from Mr Nketu’s phone, having mistakenly believed he was communicating with his own girlfriend.
4.8.3.1.7 Mr Nketu himself admitted that the message originated from his phone, but in circumstances where the device was in Andrew’s exclusive possession.
4.8.4 Andrew’s admission is conclusive: the act cannot be attributed to Mr Nketu
4.8.4.1 The Employer’s entire case rests on the inference that because the message was sent from Mr Nketu’s phone, Mr Nketu sent it. This inference is wholly negated by Andrew’s clear admission that he was the author of the message. The law is clear that a person cannot be held responsible for acts performed by another using their instrument without their knowledge, authority or consent.
4.8.4.2 The employer must prove on a balance of probabilities that the Employee personally committed the act in question.
Assign Services (Pty) Ltd v CCMA & Others [2018] 39 ILJ 1911 (CC): Accountability for conduct must be established by evidence of the actor’s identity and intent, not merely the instrumentality involved.
4.8.4.3 In the present case, the uncontested evidence of Andrew’s admission, fortified by the medical evidence of hospitalization, shatters any reasonable inference that Mr Nketu was the author of the message. The Employer has adduced no evidence to contradict Andrew’s account or to explain why his admission should be disbelieved.
4.8.5 The employer’s witnesses testified to inadmissible hearsay
4.8.5.1 The Employer called multiple witnesses whose evidence, on examination, constitutes hearsay in its purest form, none of them witnessed the transmission of the message. Section 3 of the Law of Evidence Amendment Act 45 of 1988 governs hearsay evidence and permits its admission only in narrowly defined circumstances.
4.8.5.2 The sole witness capable of giving direct evidence regarding receipt of the message was KT herself. The remaining witnesses testified to what they were told by others. Of particular significance is that:
4.8.5.2.1 KT’s sister, Palesa, received the information approximately 24 hours after the alleged incident on Saturday, raising obvious concerns about the reliability and integrity of the communication chain.
4.8.5.2.2 The principal obtained Mr Nketu’s hospital admission records without his knowledge or consent during his admission, a procedure that raises serious concerns regarding privacy rights under the Constitution and the Protection of Personal Information Act 4 of 2013 (POPIA).
4.8.5.3 The applicable legal principles on hearsay in labour proceedings include:
Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC): Evidence must be assessed for reliability and probative value; hearsay that cannot be tested through cross-examination carries diminished weight.
CUSA v Tao Ying Metal Industries & Others [2009] 30 ILJ 545 (CC): Arbitrators and presiding officers must apply rules of evidence with due regard to fairness, and hearsay evidence that is not supported by corroborating direct evidence should be treated with significant caution.
Holtzhausen v ABSA Bank Ltd [2008] 29 ILJ 1239 (LAC): Second-hand accounts of alleged misconduct, untested against the primary witness, are of limited probative value.
4.8.5.4 It is submitted that the evidence of the employer’s witnesses, save for the hearsay of KT and Palesa, carries insufficient probative weight to establish any element of the charge.
4.8.6 The respondent’s documentary evidence stands unchallenged
4.8.6.1 Mr Nketu adduced documentary evidence in support of his version. That evidence was admitted into the record and has not been successfully challenged. The Employer’s attempts to dispute documents already admitted as evidence constitute a procedurally and substantively irregular approach.
4.8.6.2 The documentation includes evidence of hospitalisation at Botshelong Hospital and admission records corroborating the timeline of events, critically, confirming that Mr Nketu was hospitalised at the time the WhatsApp message was transmitted. This documentary evidence is corroborated by:
4.8.6.2.1 The undisputed fact that Mr Nketu left school at approximately 14:30, 45 minutes before the alleged transmission.
4.8.6.2.2 Andrew’s confirmation that he was in possession of Mr Nketu’s phone at the hospital.
4.8.6.2.3 Mr Nketu’s consistent account throughout the hearing.
4.8.6.3 It is well established in our law that where a party adduces credible documentary evidence that is consistent with their oral evidence and which the opposing party fails to challenge with substantive counterevidence, that evidence must be accepted.
4.8.7 The respondent’s credibility and consistency
4.8.7.1 Mr Nketu has remained entirely consistent in his account from the outset of these proceedings. He admitted what could be admitted, that the message originated from his phone and explained the circumstances fully. This measured approach to the evidence reflects the candour of a truthful witness.
4.8.7.2 The test for credibility as articulated in our courts requires an assessment of:
4.8.7.2.1 Internal consistency of the witness’s account.
4.8.7.2.2 Consistency with the proved facts and physical evidence.
4.8.7.2.3 The presence or absence of motive to fabricate.
4.8.7.2.4 The impression made under cross-examination.
4.8.7.3 The Employer, by contrast, presented witnesses whose evidence was fragmented, inconsistent in material respects, and, critically, based on second-hand accounts. The principal’s conduct in obtaining hospital records without the patient’s knowledge is itself indicative of an overzealous approach that has contaminated the Employer’s fact-finding.
4.8.8 The principal’s conduct and conflict of interest
4.8.8.1 The principal was subjected to cross-examination regarding her role and interest in the matter. Notably, by the time the principal visited the hospital and obtained admission records, the matter had already been reported to the Employer. The principal’s unilateral decision to gather evidence, apparently without authorisation, raises serious questions:
4.8.8.1.1 Whether the collection of Mr Nketu’s medical admission information without his knowledge violated his constitutional right to privacy (section 14 of the Constitution of the Republic of South Africa, 1996).
4.8.8.1.2 Whether this conduct amounts to a breach of POPIA in respect of the processing of special personal information (medical records).
4.8.8.1.3 Whether the principal had a personal interest in the outcome of the matter that compromised her objectivity as a witness.
4.8.8.2 An irregularity in the collection of evidence does not automatically render such evidence inadmissible, but it does materially affect the weight to be accorded to the evidence and the reliability of the investigative process. The Employer’s reliance on evidence obtained through arguably improper means must be viewed with circumspection.
4.8.9 The employer has failed to prove the charge on a balance of probabilities
4.8.9.1 The charge requires the Employer to prove that Mr Nketu transmitted the sexually explicit content to the learner. The Employer has failed to establish this on the evidence for the following cumulative reasons:
4.8.9.1.1 The undisputed evidence of Andrew’s admission places the act squarely on a third party in whose possession the phone was at the material time.
4.8.9.1.2 The hospitalisation records confirm Mr Nketu’s physical incapacity and location, rendering his personal transmission of the message impossible on the established timeline.
4.8.9.1.3 The Employer’s witnesses testified to hearsay, not direct evidence.
4.8.9.1.4 The Employer continuously sought to raise issues irrelevant to the charge, a tactic that diluted the proceedings but added no probative value to the case against Mr Nketu.
4.8.9.1.5 The Employer’s attempt to dispute documents already admitted as evidence is procedurally irregular and reflects the weakness of the Employer’s case on the merits.
4.8.9.2 The weight of authority is clear that where the Employer’s case rests on inherently unreliable evidence and the Respondent adduces credible, consistent, and corroborated evidence in rebuttal, the charge cannot be sustained.
4.8.10 Relief sought
4.8.10.1 In light of the foregoing, the Employee respectfully submits that:
4.8.10.1.1 The Employer has failed to establish the charge against Mr Nketu on the balance of probabilities.
4.8.10.1.2 The evidence adduced by the Employer is largely hearsay and carries insufficient probative weight to sustain the charge.
4.8.10.1.3 Andrew’s uncontested admission, corroborated by Mr Nketu’s documentary evidence of hospitalisation, conclusively negates the Employer’s inference of guilt.
4.8.10.1.4 Mr Nketu’s consistent and credible evidence demonstrates that the message was transmitted by a third party without his knowledge, consent, or authorisation.
4.8.10.2 The Employee accordingly prays for:
4.8.10.2.1 A finding that the charge of transmitting sexually explicit content directly by Mr Nketu to a learner has not been proved on the balance of probabilities.
4.8.10.2.2 An unconditional finding of not guilty on all charges before this hearing.
4.8.11 Conclusion
4.8.11.1 Justice requires that a person be held accountable only for what they have actually done. The evidence in this matter points, inexorably and exclusively, to Andrew as the author of the impugned message. The phone, Mr Nketu’s property, was a mere instrumentality in the hands of another. Mr Nketu was incapacitated in hospital, unable to transmit anything. The Employer’s case, built on hearsay and an unwarranted inference from mere ownership of the phone, cannot withstand scrutiny.
4.8.11.2 Mr Nketu is an educator. The allegations against him are grave and, if sustained, would destroy his career, his dignity, and his livelihood. The evidence simply does not support such a devastating outcome. The Commissioner is respectfully urged to find that the Employer has not proved its case and to find Mr Nketu not guilty.

4.9 ANALYSIS OF EVIDENCE AND ARGUMENT
4.9.1 The complainant’s evidence
4.9.1.1 There is no reason to doubt KT’s evidence that she received two pornographic videos at approximately 15h06 on 20 February 2026. Her evidence was corroborated by Palesa regarding the fact that she reported the incident shortly thereafter. I accept that KT genuinely received the videos and that she experienced distress as a result.
4.9.1.2 However, KT could not testify as to who physically transmitted the videos. Her evidence establishes receipt of the videos, but not the identity of the sender.
4.9.2 The Principal’s evidence
4.9.2.1 The Principal’s evidence concerning the Employee’s alleged oral confession and subsequent written apology is important. However, the Employee disputed that the statement amounted to an admission of guilt. Even accepting the authenticity of the statement, the apology is equivocal. It amounts to an acknowledgement that videos emanated from his phone and that he was sorry, but it does not necessarily constitute an admission that he intentionally sent pornographic material to a learner.
4.9.2.2 The Principal’s evidence regarding the Employee appearing healthy when leaving school cannot conclusively disprove that he later became ill.
4.9.3 Ms Lekalakala’s evidence
4.9.3.1 I attach little weight to Ms Lekalakala’s evidence. It related to previous alleged incidents and character evidence. It did not prove the present charge. The Commissioner is required to determine whether the Employee committed the misconduct charged on 20 February 2026 and not whether he has a propensity for misconduct.
4.9.4 The evidence of Mr Motshwane
4.9.4.1 Mr Motshwane was a poor witness. There were inconsistencies regarding his relationship with the Employee, the timeline, and aspects of his affidavit. Nevertheless, one aspect of his evidence remained consistent: namely that he sent pornographic videos from the Employee’s phone and that he did so at approximately 17h00.
4.9.4.2 The problem for the Employer is that discrediting Mr Motshwane does not automatically prove that Mr Nketu sent the videos. A rejection of the defence does not relieve the Employer of its onus.
4.9.5 Contradictions in the defence case
4.9.5.1 There are indeed material contradictions between the evidence of Mr Nketu and Mr Motshwane concerning:
4.9.5.1.1 When they met.
4.9.5.1.2 Whether Mr Motshwane was a cousin or neighbour.
4.9.5.1.3 The sequence of hospital events.
4.9.5.1.4 The date of discharge.
4.9.5.1.5 When the Employee became aware of the allegations.
4.9.5.2 These contradictions adversely affect their credibility. I am unable to accept their evidence without reservation.
4.9.5.3 However, credibility is only one leg of the enquiry. The probabilities must also be considered.
4.9.6 Probabilities
4.9.6.1 The Employer’s case rests substantially on the following inference:
4.9.6.1.1 The videos came from the Employee’s phone.
4.9.6.1.2 Therefore, the Employee must have sent them.
4.9.6.1.3 Therefore, he intentionally sent them to KT.
4.9.6.2 I find this reasoning problematic.
4.9.6.3 Firstly, ownership of the phone does not establish authorship of the message.
4.9.6.4 Secondly, no forensic evidence was presented showing:
4.9.6.4.1 That the Employee personally selected KT’s number.
4.9.6.4.2 That he had saved her number.
4.9.6.4.3 That there were previous inappropriate communications.
4.9.6.4.4 That he had groomed her.
4.9.6.4.5 That he communicated sexually with her before or afterwards.
4.9.6.4.6 That he requested secrecy or reciprocation.
4.9.6.5 Thirdly, there is no direct evidence of sexual intent.
4.9.6.6 The Employer argued that because KT was not the entire group recipient, the Employee must have deliberately selected her number. However, no technical evidence was adduced to establish that proposition.
4.9.7 Sexual intent
4.9.7.1 The charge before me is not merely sending inappropriate material. The charge alleges sexual harassment under section 18(1)(q) of the EEA. Sexual harassment inherently requires conduct of a sexual nature directed towards another person and which is unwelcome.
4.9.7.2 The Employer must therefore prove that the Employee himself engaged in the conduct and that he intended, or at least knowingly engaged in, conduct of a sexual nature towards the learner.
4.9.7.3 In this matter:
4.9.7.3.1 No sexual advances were proved.
4.9.7.3.2 No flirtatious messages were proved.
4.9.7.3.3 No requests for sexual favours were proved.
4.9.7.3.4 No pattern of grooming was proved.
4.9.7.3.5 No evidence was presented that the Employee expected or sought a sexual response from KT.
4.9.7.4 The Employee admitted that videos emanated from his phone but denied sending them. Even if one rejects his explanation, the rejection of an explanation cannot substitute for positive proof of sexual intent.
4.9.8 Hearsay evidence
4.9.8.1 I disagree with the Employee’s submission that the Employer’s case consisted mainly of hearsay. KT’s evidence was direct evidence regarding receipt of the videos. Palesa’s evidence was corroborative. The Principal’s evidence regarding the alleged admission was direct evidence.
4.9.8.2 However, the hearsay and character evidence add little to the ultimate issue, namely whether the Employee intentionally sexually harassed KT.
4.9.9 Finding
4.9.9.1 I am satisfied that:
4.9.9.1.1 KT received two pornographic videos from the Employee’s WhatsApp account.
4.9.9.1.2 The Employee’s version contains material contradictions and improbabilities.
4.9.9.1.3 Mr Motshwane was not an impressive witness.
4.9.9.1.4 The Employee’s medical evidence raises questions.
4.9.9.2 However, suspicion, even strong suspicion, is not proof.
4.9.9.3 The Employer was required to prove, on a balance of probabilities, that Mr Nketu intentionally sent pornographic videos to KT and thereby sexually harassed her.
4.9.9.4 On the totality of the evidence, I am not persuaded that the Employer has discharged that onus.
4.9.9.5 There remains a reasonable possibility that another person had access to the phone. More importantly, even if I were to reject the defence version as false, I am unable to find sufficient evidence establishing the element of sexual intent required by the charge.
4.9.10 Award
4.9.10.1 The Employer has failed to prove, on a balance of probabilities, that the Employee committed the misconduct contemplated in section 18(1)(q) of the EEA, namely sexually harassing a Grade 11 learner by intentionally sending pornographic videos to her.