10 June 2026 – ELRC615-25/26KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO.: ELRC615-25/26KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

GUNE M W RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 10 JUNE 2026

Applicant’s representative : MS N. CELE

Respondent’s representative : MR X. DUBE

DETAILS OF HEARING AND REPRESENTATION

[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, Truro House, 17 Margaret Mncadi Avenue, Durban. These proceedings were digitally recorded.
[2] Ms N. Cele, a Labour Relations Officer, represented the applicant (employer) and Mr X. Dube from SADTU represented Mr M.W. Gune, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 14 October 2025, 28 November 2025 but was postponed due to the building being closed; 29 January 2026, 13 February 2026, 9 March 2026 but was postponed as the building was closed due to protest action and 30 April 2026. Parties agreed to submit written mitigating and aggravating circumstances as well as their closing arguments by 9 May 2026 however the employee/respondent applied for an extension which was duly granted hence this matter was concluded on 18 May 2026; which submissions was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer and employee handed in bundles which were marked as bundle “A” and bundle “B” respectively.
[6] The nature of the process and all rights was explained to the parties.

ISSUES TO BE DECIDED
[7] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE

[8] Mr Gune is employed as an educator at Adams College.
[9] One learner made allegations of sexual misconduct against Mr Gune and the employer subsequently charged him with misconduct.
CHARGE

The employer preferred the following charges against Mr Gune: –
[10] Be advised that you, Mr M.W. Gune, duly appointed by the Head of Department of the KwaZulu-Natal Department of Education in terms of the Educators Act No. 76 of 1998 [“the Act”] as an educator at Adams College are hereby charged with misconduct as follows:
CHARGE 1
On or about June 2024 and March 2025, you allegedly committed an act of sexual assault on Learner A, a Grade 12 learner at Adams College. You thus committed an offence in terms of Section 17(1)(b) of the Act.
COUNT 1
You allegedly on or about June 2024, pushed closed your office door and took her hand, blocked it behind her back, threatened her with a small knife, pulled up her skirt and put your fingers on her vagina, rubbing it up and down for a long time, painfully. You thus committed an offence in terms of Section 17(1)(b) of the Act.
COUNT 2
You allegedly on or about March 2025 closed the door, grabbed hold of her arm, took out your penis and held her head by force to put your penis on her mouth and ejaculated on her. You again rubbed her vagina painfully. You thus committed an offence in terms of Section 17(1)(b) of the Act.
ALTERNATIVELY
On or about June 2024 and March 2025, while on duty, you conducted yourself in an improper, disgraceful and acceptable manner on Learner A, a Grade 12 learner at Adams College. You thus committed an offence in terms of Section 18(1)(q) of the Act.
COUNT 1
You allegedly on or about June 2024, pushed closed your office door and took her hand, blocked it behind her back, threatened her with a small knife, pulled up her skirt and put your fingers on her vagina, rubbing it up and down for a long time, painfully. You thus committed an offence in terms of Section 18(1)(q) of the Act.
COUNT 2
You allegedly on or about March 2025 closed the door, grabbed hold of her arm, took out your penis and held her head by force to put your penis on her mouth and ejaculated on her. You again rubbed her vagina painfully. You thus committed an offence in terms of Section 18(1)(q) of the Act.
PLEADINGS

[11] Mr Gune pleaded not guilty to all the charges.
SUMMARY OF EVIDENCE AND ARGUMENTS

What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE APPLICANT’S / EMPLOYER’S CASE
The applicant/employer called two witnesses to testify on their behalf.
LEARNER A

[12] She testified that she had been a learner at Adams College since 2021.
[13] She stated that on Friday, described as the last day of June 2024, Mr Gune entered her classroom and gave her his office key and instructed her to collect files from his office situated in the T-Block (“Matiz”).
[14] She proceeded to his office and began searching for the files. While she was doing so, Mr Gune entered the office. She believed he had followed her although she did not observe him doing so directly.
[15] Mr Gune asked whether she had found the files, and when she indicated that she had not, he instructed her to continue searching.
[16] She testified that Mr Gune left the office and returned shortly thereafter. On his return, he again asked about the files and she indicated she could not find them and requested to return to class.
[17] She stated that he moved closer to her at the doorway. She raised her hands in a protective gesture and became frightened.
[18] She testified that she suffers from asthma. As Mr Gune approached her, she became frightened and panicked. She began to cry and stated that she was unable to scream due to difficulty breathing.
[19] She testified that Mr Gune took hold of her right hand and placed it behind his back, thereby restricting her movement. Mr Gune lifted her skirt, tore her stockings, pulled her panty to one side and digitally penetrated her vagina. She stated that the conduct was painful and continued for some time. She further alleged that he had earlier lifted his T-shirt and had shown her a knife. He allegedly threatened her, stating that he knew her parents and family members, and warned that if she screamed, he would locate her family. After that, Mr Gune instructed her to “sort herself out” and return to class.
[20] After the incident, she stated that she returned to her classroom and retrieved socks from her school bag because her stockings had been torn. She changed into the socks in the school toilet to avoid being noticed by other learners and remained there crying for a prolonged period.
[21] She did not attend the subsequent accounting lesson. She testified that she was in Grade 11 Mix and that the incident occurred in the morning, approximately before 10h45. She confirmed that Mr Gune was not her class teacher. She further stated that the incident occurred during a period when the IsiZulu teacher was allegedly absent. She indicated that she attended some of the school periods but did not report the incident to anyone on that day.
[22] She testified that in March 2025, during break time, at approximately 11h25, she went to purchase an IsiZulu workbook. She proceeded to Ms Mbanjwa’s office in N-Block where she observed Ms Mbanjwa and Mr Gune in the office eating lunch. Ms Mbanjwa informed her that she was not selling the workbook and instructed her to give the money to Mr Gune and collect the workbook from beneath the desk. She bent down under the desk to retrieve the workbook while Mr Gune remained seated.
[23] She testified that after she stood up, Mr Gune questioned whether she “remembered anything”, which she understood as a reference to the June 2024 incident and pretended not to understand him, and he warned her in relation to remembering.
[24] She stated that she was unsure whether Mr Gune had locked the door or closed it but he approached her while she was standing near the desk. She further elaborated that he bent her over while restraining her hands, grabbed her hair, and forced his penis into her mouth, forcing her to perform oral sex. After he ejaculated, she spat the semen onto the floor. He then assisted her to stand and thereafter digitally penetrated her vagina, causing her pain. She stated that she was wearing socks on this occasion. She further testified that Mr Gune thereafter instructed her to “sort herself out”.
[25] She stated that she did not immediately report the March 2025 incident to anyone at school or at home, and only later mentioned it indirectly to a friend, who did not believe her.
[26] She confirmed that Mr Gune taught her IsiZulu in 2025 and that she did not experience academic difficulties in his subject.
[27] She confirmed that her written statement recorded both incidents and that she later disclosed the allegations to her aunt, Sibongile Ngwengwe on 2 August 2025, after behavioural changes were noticed, which she later repeated in the presence of another aunt. A criminal complaint was opened on 12 August 2025 and she was referred for medical examination.
[28] She testified that after reporting, Mr Gune contacted her aunt telephonically and made enquiries in the area, which she interpreted as attempts to locate her.
[29] She stated that following the incidents she became withdrawn, frequently missed school, lost interest in her studies, and engaged in self-harm.
Under cross-examination she testified that:
[30] Learner A was extensively challenged regarding the date, timing and circumstances of the first alleged incident. She testified that although she could not independently recall the exact date, she remembered that the incident occurred on a Friday in June 2024 during a scheduled isiZulu period. When referred to the June 2024 examination timetable and the fact that learners generally did not attend school after completing examinations, she accepted that the incident most likely occurred on 7 June 2024, being the only Friday on which she could have been present at school. She maintained, however, that she remembered the incident itself rather than the precise date on which it occurred.
[31] It was put to her that no isiZulu lesson could have taken place on 7 June 2024 because a Grade 11 Mathematics examination was scheduled for that morning from 10h00 to 12h00 and examination venues were being prepared. She disputed this and maintained that an isiZulu period was scheduled before the examination and that learners sometimes attended classes before examinations commenced. Although she initially estimated that the incident occurred before approximately 10h45, she later stated that it may have occurred at about 08h30 or thereafter. She repeatedly conceded that she could not remember the exact time.
[32] Learner A testified that her isiZulu teacher, Ms Nxumalo, was absent on the day in question and that Mr Gune came to the classroom because of her absence. This was challenged with attendance records showing that Ms Nxumalo had signed in and out on 7 June 2024 and with the proposition that she would testify that she had been present throughout the day and did not teach IsiZulu during the examination period. Learner A nevertheless remained adamant that Ms Nxumalo was absent and that this was when Mr. Gune came to her classroom.
[33] It was put to her that Mr Gune had arrived at school at approximately 07h10 and worked in the N1 office; he only left the office to collect examination papers after receiving a WhatsApp message from Ms Nyuzwa. Further, he had been invigilating examinations throughout the morning of 7 June 2024 and therefore had no opportunity to commit the alleged misconduct. She rejected this version and maintained that Mr Gune entered her classroom, instructed her to fetch files from his office and that the incident occurred as she had described. She stated that she had no knowledge of his movements after the incident.
[34] It was put to her that Mr Meyiwa, who was invigilating her on that particular day, will testify that the paper started at 10h00 on that day; she disputed this version.
[35] Regarding events following the first alleged incident, Learner A testified that she returned to the classroom, collected socks from her bag, went to the toilet, changed her torn stockings and cried. She stated that she missed the subsequent accounting period because she remained upset and spent that time in the toilet. Thereafter she returned to class where learners were preparing for the mathematics examination. She confirmed that she later wrote the examination but explained that she had omitted this fact from her statement because the incident itself, rather than the examination, was what had affected her most emotionally. She further testified that following the incident she became indifferent to school matters and that her emotional state was exacerbated by the recent death of her mother.
[36] Learner A was challenged regarding her evidence that learners attended isiZulu and accounting periods on 7 June 2024. Reference was made to the examination timetable, which reflected that the relevant Accounting and isiZulu examinations had already been written earlier that week. She maintained her version and explained that she had been referring generally to learners preparing for examinations rather than to formal lessons being conducted.
[37] She also maintained that Mr Gune had been wearing a white golf shirt on the day in question and rejected the respondent’s version that he had been wearing a checked shirt.
[38] In relation to her failure to report the first incident immediately, Learner A testified that Mr Gune had threatened her with a knife and threatened to harm people close to her if she disclosed what had happened. Following the death of her mother, she feared for the safety of her grandmother and therefore chose not to report the incident.
[39] Turning to the second alleged incident, Learner A testified that it occurred shortly before 11 March 2025. She recalled the approximate period because examinations were due to commence on 11 March 2025 and she had gone to obtain an isiZulu study guide before the examinations began. According to her evidence, she first searched for Ms Nxumalo but could not find her. She then went to Ms Mbanjwa’s office where she was allegedly instructed to give the money for the study guide to Mr Gune whereafter Ms Mbanjwa left the office.
[40] It was put that Mbanjwa would testify that she had never had an encounter with her regarding the study guide; she disputed this and adhered to her evidence.
[41] Learner A repeated her allegation that Mr Gune instructed her to place the money on the table and, while she was retrieving a study guide, referred to the previous incident. She alleged that he prevented her from leaving and sexually assaulted her. She estimated that the incident lasted less than 25 minutes. She maintained this version despite being confronted with the respondent’s denial and with evidence that study guides were not sold in the manner she described.
[42] Her evidence concerning the layout of the office area and the presence of learners nearby was also challenged. She testified that although learners were in the vicinity, they were not inside the office and therefore would not have witnessed the incident. She further confirmed that learners were seated in the T11 classroom, preparing for a Mathematics examination that was going to take place in that particular classroom.
[43] When questioned about why she entered and remained in the office with Mr Gune despite the first alleged assault, she explained that she had not disclosed the first incident to anyone, remained fearful because of his threats and urgently needed the study guide. She stated that Mr Gune had previously indicated that learners without study guides would not be permitted into class and that obtaining the guide was important to her.
[44] Learner A denied suggestions that she had fabricated the allegations because of personal difficulties, academic challenges or because Mr Gune had previously confiscated her earrings. She described the confiscation as a routine disciplinary matter. She further testified that family members later became concerned about changes in her behaviour and took her to traditional healers. She explained that she did not immediately disclose the second incident because she did not wish to burden her grandmother following her mother’s death and because she generally struggled to discuss her emotions openly.
SIBONGILE HAPPINESS NKOMO

[45] She testified that although she was not biologically related to Learner A, she regarded her as a daughter because Learner A’s grandmother worked for her family and the families lived near one another. She stated that she was the first person to whom Learner A disclosed the allegations against Mr Gune.
[46] According to her, during August 2025 Learner A’s grandmother expressed concern about changes in Learner A’s behaviour, including her reluctance to attend school. As a result, she invited Learner A to her home to discuss the matter. She had shouted at Learner A and during the discussion she questioned Learner A about her behaviour and whether there were problems at home, at school, or whether she had been abused. Learner A initially refused to speak, became emotional and cried before eventually disclosing incidents involving Mr Gune.
[47] She testified that Learner A described a first incident during 2024 in which Mr Gune allegedly sent her to an office to fetch files. While searching for the files, he allegedly approached her, unzipped her skirt, lifted it, tore her stockings and digitally penetrated her. Learner A further reported that Mr Gune threatened her with a knife, warned her not to tell anyone and threatened to harm her family and interfere with her academic progress if she disclosed the incident. According to Ms Nkomo, Learner A stated that she thereafter locked herself in a toilet and remained there until the end of the school day.
[48] Ms Nkomo further testified that Learner A disclosed a second incident during 2025. According to the disclosure, Learner A had gone to purchase an isiZulu workbook or textbook during break time. She was directed by Ms Nxumalo to obtain it from Mr Gune, who was in an office. Learner A allegedly told her that Mr Gune referred to the previous incident, stated that he liked people who did not remember such things, prevented her from leaving, kissed her and forced his penis into her mouth. According to the disclosure, Learner A again went to the toilet afterwards, cried and remained there until school ended before going home.
[49] She testified that Learner A also disclosed that she had attended counselling sessions after the death of her mother and following the incidents. She stated that she informed Learner A that she could not keep the matter confidential because the learner required assistance. At Learner A’s request, she first informed Mrs Mngwengwe, a trusted adult. Learner A subsequently repeated the allegations to Mrs Mngwengwe and thereafter to her grandparents. The matter was then reported to the police and Learner A was referred for counselling and psychological support at Prince Mshiyeni Hospital.
[50] She further testified that she later became aware that Learner A had engaged in self-harming behaviour and had expressed suicidal thoughts, which she had initially attributed to grief arising from her mother’s death.
Under cross-examination she testified that:
[51] She testified that the disclosure occurred on a Saturday after she returned home from work. She had observed that Learner A appeared withdrawn and no longer wished to attend school. When questioned about the reason for her behaviour, Learner A was initially reluctant to speak. Ms Nkomo stated that she persisted because she wanted to understand what was troubling the learner and eventually Learner A became emotional and disclosed allegations involving Mr Gune.
[52] She testified that Learner A initially disclosed one incident. Believing that Learner A was withholding information, she encouraged her to tell the full truth and not leave anything out. Learner A thereafter disclosed a second incident. Ms Nkomo stated that she was satisfied that the learner had then disclosed everything she was willing or able to reveal at that stage.
[53] Ms Nkomo confirmed that after hearing the allegations she informed Learner A that the matter could not remain secret and asked whether there was a trusted adult with whom it could be discussed. Learner A requested that the matter not initially be disclosed to her grandmother and instead suggested that Mrs Mngwengwe be informed.
[54] It was put to Ms Nkomo that she had effectively compelled Learner A to speak by telling her that she would not leave until she explained what was wrong, and that her questioning may have influenced or steered the learner’s responses. It was further suggested that Learner A may have fabricated allegations because she felt pressured to provide an explanation. Ms Nkomo rejected these propositions and maintained that she did not force, coach or influence Learner A to make allegations. She testified that her sole concern was to understand why Learner A no longer wished to attend school and that she believed the allegations were genuine.
[55] Ms Nkomo was also challenged on the fact that she had suggested possible explanations for Learner A’s distress by asking whether the problem was at home or at school and by encouraging further disclosure after the first allegation. It was suggested that this may have shaped or expanded the allegations. She rejected this interpretation and maintained that her questioning was motivated by concern for Learner A’s wellbeing.
[56] When asked why Learner A had chosen to disclose the allegations to Mrs Mngwengwe despite travelling with her daily and not previously confiding in her, Ms Nkomo suggested that Mrs Mngwengwe’s personal experiences with grief and counselling may have contributed to Learner A’s trust in her. She accepted, however, that this was merely her assumption.
[57] Ms Nkomo was further confronted with discrepancies between her account of Learner A’s disclosure and Learner A’s own testimony. It was put to her that Learner A had testified that she remained in the toilet only until the accounting period ended before returning to class, whereas Ms Nkomo’s statement recorded that Learner A remained in the toilet until the end of the school day. Ms Nkomo maintained that her understanding from the disclosure was that Learner A remained in the toilet until school ended.
[58] She was also challenged on her evidence that Ms Nxumalo was present during the events surrounding the second incident, whereas Learner A had testified that Ms Mbanjwa was present. She maintained that Learner A had informed her that Ms Nxumalo was involved.
[59] It was put to her that her statement indicated that Learner A had already been given money at home by her uncle to buy the workbook while Learner A had testified that her uncle arrived during break time and gave Learner A the money to purchase the workbook. She disputed this version and adhered to her recollection of what Learner A had disclosed.
[60] She confirmed that her written statement was prepared at the request of the employer representative and was based entirely on what Learner A had told her. She denied consulting with Learner A before drafting the statement and maintained that the contents reflected her recollection of Learner A’s disclosure.
THE RESPONDENT’S / EMPLOYEE’S CASE

The respondent/employee called four witnesses to testify on their behalf.
PHILLIP SIBUSISO MEYIWA

[61] He confirmed that he is employed at Adams College as an educator, teaching Creative Arts and has approximately 21 years of service at the institution.
[62] He referred to official school records; a June 2024 examination timetable and an attendance register/time book. He confirmed that these documents were official records of the school and teacher codes are used in the system. The examination timetable is issued formally and does not change once distributed. His attendance and signature appear in the time book, confirming his presence at work on the relevant date.
[63] He confirmed that on 7 June 2024, he was on invigilating duty. He was assigned to invigilate Mathematics Paper 1 for Grade 11 learners and that the invigilation arrangements included Grade 10 and Grade 11 classes, as learners are grouped. He confirmed that examinations normally start at 09h00, with invigilators reporting earlier from around 08h30–08h45.
[64] He observed no abnormal or irregular behaviour by learners during the examination session in question. Any irregularities would ordinarily be recorded in a designated incident/remark form, but no such report was made for that session.
Under cross-examination he testified that:
[65] He confirmed reliance on the timetable rather than independent recollection for specific details. Exam timetables, once issued, do not change.
[66] He stated that he had invigilated on 7 June 2024, based on the timetable.
PHILISIWE GLORIA NXUMALO

[67] She is an IsiZulu educator at Adams College with approximately nine years’ service. She testified that she taught the Learner A IsiZulu in Grade 11 during 2024. She was not Learner A’s class teacher; the class teacher was Ms Mkhwanazi.
[68] It was put to her that Learner A had alleged that she had called learners for an IsiZulu lesson on 7 June 2024 during an examination period and that she was not present at school on that day. She denied this version in its entirety. She denied calling learners for any IsiZulu lesson on that date. During the relevant period, learners were writing Mathematics examinations, not IsiZulu as IsiZulu had already been completed. She averred that she was present at school throughout the day and was performing official invigilation duties.
[69] She referred to the school’s attendance and examination records which reflected that she signed in at 07:45 and signed out at 15:00 and the signatures recorded next to those times were hers. She stated that she did not leave the school premises during working hours.
[70] She further testified that she was assigned invigilation duties on 7 June 2024 and specifically the first session venue was T3 and second session venue was H24.
[71] She explained that during examination periods, procedures are strictly followed, including room preparation and controlled seating times, although minor delays may occur due to logistical issues.
[72] Regarding the school layout (T11 office and classroom configuration), she explained that the office is located within or behind a classroom area, accessed through the classroom, and that learners are generally present in the space. She indicated that staff working in that area would typically lower their voices due to learners being present, and she disputed the suggestion that significant activity in the office would go unnoticed by learners in the classroom.
[73] She described Mr Gune as a helpful and collaborative educator who works closely with colleagues and supports learners.
[74] She confirmed that IsiZulu workbooks are generally sold at the beginning of the year (January–February) and are usually distributed early and mostly sold out by February.
Under cross-examination she testified that:
[75] She was part of the workbook distribution process, although administrative handling involved lists and collection of payments through learners or intermediaries.
[76] When questioned whether she sold IsiZulu workbooks directly to Learner A, she explained that Mr Gune had indicated he would not personally handle distribution. The process involved learners’ representatives collecting money and names, which were then reconciled by teachers before issuing books. She could not specifically recall Learner A approaching her directly regarding workbook purchase.
[77] She denied that Learner A had approached her in relation to workbooks while she was sitting with Mr Gune.
NOMFUNDO S’BUSISIWE MBANJWA

[78] She stated that she has been employed as an IsiZulu educator at Adams College for approximately six years and teaches Grades 10 to 12.
[79] She denied that Learner A had ever come to her office to purchase a Grade 12 workbook as alleged. She testified that she did not sell Grade 12 workbooks and that workbook sales generally took place during January and February. She averred that she only sold Grade 10 workbooks and did so during class periods rather than from her office. She therefore disputed Learner A’s version that she had directed the learner to Mr Gune in her office to purchase a workbook.
[80] She further testified that her office is situated in the N-block and that the area is typically busy during break times, with learners congregating, eating and socialising in the vicinity. She indicated that learners are frequently present outside her office area during breaks.
[81] She testified that she had worked with Mr Gune for approximately five to six years and described him as kind, dedicated and committed to his work. She stated that they had on occasion worked in the same area after school while completing administrative duties and capturing marks. She averred that Mr Gune had never made any sexual advances towards her and she had never observed any inappropriate conduct on his part.
[82] She testified that she had previously occupied office T11. She explained that the office is located inside a classroom and is accessed through the classroom itself. She stated that if there were a disturbance or commotion in the office, learners in the classroom would be able to hear it.
MBONGISENI WISEMAN GUNE

[83] He testified that he commenced employment at Adams College in April 2018 as an IsiZulu educator and also served as an evening study supervisor for female boarders. He denied all allegations of sexual misconduct made against him by Learner A.
[84] He taught Learner A IsiZulu in Grade 12 during 2025. He testified that he had not taught her in 2024 and did not know her personally before becoming her teacher.
[85] In relation to the allegation arising from 7 June 2024, he testified that he was present at school throughout the day and was engaged in examination-related duties. He stated that he had arrived at school and signed the attendance register. He then proceeded to office N1 where he continued marking Grade 12 IsiZulu examination scripts. At approximately 09h40 he received a message via the school WhatsApp group instructing invigilators to collect examination papers. He invigilated an examination in venue N1 from approximately 10h00 until 12h00. After submitting examination materials to the HOD, he had lunch and thereafter joined Ms Mbanjwa and Ms Nxumalo in a marking centre where they marked and moderated Grade 12 and Grade 10 IsiZulu examination papers until approximately 14h50. He signed out at 15h00 and left the school.
[86] He referred to the attendance records, invigilation schedules, a photograph allegedly taken on 7 June 2024 depicting the clothing he wore on that day, WhatsApp communications relating to invigilation arrangements to support his version that he was occupied with official examination duties on the date in question.
[87] Regarding the allegation that he sexually assaulted Learner A in March 2025 in Mrs Mbanjwa’ office; he denied that any such incident occurred. He disputed Learner A’s version that she attended an office to purchase a workbook and was left alone with him. He testified that he was not responsible for selling or distributing the relevant Grade 12 workbooks and that workbook sales normally occurred at the beginning of the academic year.
[88] He further testified that he had a professional relationship with Learner A as her IsiZulu teacher during 2025 but had no inappropriate relationship with her. He denied ever making sexual advances towards her or engaging in any conduct of a sexual nature.
[89] He also testified regarding the personal impact of the allegations, stating that they negatively affected his professional reputation, studies, emotional wellbeing and personal life. He described being arrested shortly before an important academic presentation and the distress he experienced as a result.
[90] He testified that no such incident ever occurred and further that Learner A was unable to identify a specific date for the alleged incident. He averred that he had never been alone with Learner A in circumstances that would have permitted such conduct.
[91] He further denied ever sharing lunch with Ms Mbanjwa as alleged by Learner A, ever selling study guides or workbooks in 2025 and ever being responsible for issuing Grade 12 study guides to learners. He testified that workbook distribution was handled by other educators. He also testified that workbooks were generally sold during January and February and would ordinarily be sold out by March. He stated that learners could obtain workbooks from external suppliers if unavailable at school.
[92] He further testified that a criminal case had been opened against him at KwaMakhutha Police Station but that the matter had subsequently been struck from the roll.
Under cross-examination he testified that:
[93] When questioned about why Learner A would falsely implicate him if the allegations were untrue, he stated that he could not know Learner A’s reasons and could only speculate.
[94] He confirmed that he taught Learner A in 2025 but not in 2024. He was not her class teacher. He denied that he had ever sent her to his office and he denied that he had sexually assaulted or harassed her. He denied committing any act of sexual assault against her.
[95] He acknowledged that in 2024 he had reprimanded Learner A for breaching school uniform rules by wearing earrings and had confiscated the earrings in accordance with school policy. He accepted that this incident may have caused resentment, although he conceded that this was only speculation on his part.
[96] He also referred to evidence concerning a traditional healer that had emerged during the proceedings as another possible explanation, although he acknowledged that he was speculating.
[97] He maintained throughout cross-examination that none of the incidents described by Learner A had occurred and denied each allegation put to him.
ANALYSIS OF EVIDENCE AND ARGUMENT

[98] Where there is an allegation of misconduct, the employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[99] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[100] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[101] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[102] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[103] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra 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 the state or any other person having sufficient interest in the protection of children.”
[104] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[105] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[106] In Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA 4/11) (2013) ZALAC 29 (handed down on 7 November 2013) the Court held it is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee, through the latter’s movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however, strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question.
[107] Learner A was the only direct witness to the alleged incidents. Her evidence was detailed regarding the nature of the assaults and she remained adamant throughout cross-examination that both incidents occurred. She did not waver on the core allegations that Mr Gune digitally penetrated her during the first incident and forced her to perform oral sex and digitally penetrated her during the second incident.
[108] Her evidence regarding the disclosure process was substantially corroborated by Ms Nkomo, who testified that Learner A disclosed both incidents in August 2025 and repeated the allegations consistently to other family members. The delayed disclosure is not, in itself, unusual in matters involving sexual misconduct, particularly where threats, fear and trauma are alleged.
[109] However, several material difficulties emerged during cross-examination.
[110] In respect of the first incident (June 2024), Learner A initially stated that the incident occurred on the last Friday of June 2024. Under cross-examination, she accepted that based on the examination timetable, the only Friday on which she could have been present at school was 7 June 2024.
[111] Her version thereafter became problematic because she maintained that there was a scheduled IsiZulu period and that Ms Nxumalo was absent. Documentary evidence established that examinations were underway on 7 June 2024. Ms Nxumalo’s attendance records reflected that she was present at school. The examination timetable showed that IsiZulu examinations had already been completed. Mr Gune’s invigilation schedule reflected that he was allocated examination duties.
[112] Although an inability to recall dates is understandable, the difficulty is that the surrounding circumstances relied upon by Learner A to place the incident on that day were contradicted by objective records.
[113] There were also inconsistencies concerning what occurred after the incident. At times she testified that she attended some periods thereafter. At other times she stated she missed accounting and remained crying in the toilet. She later clarified that by “periods” she meant preparation for examinations rather than formal lessons. While this explanation partially resolves the contradiction, it nevertheless demonstrates uncertainty regarding events immediately after the alleged assault.
[114] In respect of the second incident (March 2025), Learner A could not identify the date but maintained that it occurred before examinations commenced.
[115] Her evidence was challenged by Ms Nxumalo’s evidence that workbooks were generally sold during January and February, Mr Gune’s evidence that he was not responsible for workbook sales, Ms Mbanjwa’s denial that Learner A ever came to her office to purchase a workbook and Ms Mbanjwa’s denial that she left Learner A alone with Mr Gune.
[116] The allegation that the incident occurred in an office area during break time, when learners were allegedly moving around nearby, raises questions regarding opportunity. However, this factor is not decisive because sexual misconduct can occur even in environments where other people are present nearby.
[117] Learner A made several concessions where appropriate, including accepting that she could not remember dates and times. This tends to support her honesty regarding matters she genuinely could not recall.
[118] However, the principal difficulty is not merely memory of dates. The objective records contradicted important aspects of her version relating to the existence of an IsiZulu period; Ms Nxumalo’s alleged absence; the examination timetable and the circumstances under which the first incident allegedly occurred. These contradictions affect the reliability of her recollection of surrounding events. Nevertheless, her evidence concerning the actual assaults remained consistent throughout.
[119] Ms Nkomo was not a witness to either incident. Her evidence constitutes corroboration only of the disclosure and not of the assaults themselves.
[120] She impressed as a witness who was genuinely concerned about Learner A’s wellbeing. Her evidence supports the proposition that Learner A made allegations before disciplinary proceedings commenced.
[121] However, her evidence revealed several difficulties. She actively questioned Learner A and persisted until Learner A disclosed information. She admitted she encouraged Learner A to continue disclosing because she believed the first account was incomplete. Her statement differed from Learner A’s evidence regarding whether the learner remained in the toilet for the remainder of the day. Her statement referred to Ms Nxumalo being present during the workbook incident whereas Learner A testified that Ms Mbanjwa was present. These discrepancies demonstrate that Ms Nkomo’s recollection of the disclosure was imperfect. While her evidence corroborates that a complaint was made, it cannot corroborate whether the allegations were true.
[122] Mr Meyiwa was a satisfactory witness. His evidence was limited and largely documentary. He relied upon official examination records showing that examinations were scheduled on 7 June 2024; he was invigilating Mathematics Paper 1 and no irregularities were recorded.
[123] He fairly conceded that his recollection depended on the documentary records rather than an independent memory of the day. His evidence supports the reliability of the examination timetable but does not directly establish where Mr Gune was throughout the day. His evidence was not materially shaken under cross-examination.
[124] Ms Nxumalo’s evidence was significant because Learner A’s version depended heavily on her alleged absence on 7 June 2024. Ms Nxumalo testified that she was present at school throughout the day; she signed in and out; she was performing invigilation duties; no IsiZulu lesson occurred because examinations were underway and that IsiZulu examinations had already been completed. Her evidence was supported by attendance records and examination documentation.
[125] She also disputed the workbook-sale version and stated that workbook sales generally occurred at the beginning of the year. Her evidence was consistent and remained largely unchallenged on material aspects. The documentary evidence supports her version.
[126] Ms Mbanjwa denied every aspect of Learner A’s account concerning the second incident. She denied selling the relevant workbook; directing Learner A to Mr Gune and leaving Learner A alone with Mr Gune.
[127] She further testified that the area around her office was busy during break times. Her evidence was internally consistent and was not materially contradicted by documentary evidence. However, as a colleague of Mr Gune, caution must be exercised before treating her evidence as entirely independent. Even so, there is no basis to reject her evidence as dishonest.
[128] Mr Gune denied all allegations. His evidence regarding 7 June 2024 was detailed and supported by the attendance records; invigilation schedules; WhatsApp communications and examination records.
[129] He consistently maintained that he was occupied with examination-related duties throughout the relevant period.
[130] Regarding the second incident, he denied selling workbooks; being alone with Learner A and engaging in any inappropriate conduct.
[131] A notable feature of his evidence is that it was largely corroborated by documentary records and by the evidence of Ms Nxumalo and Ms Mbanjwa.
[132] While his evidence cannot be accepted simply because he denies the allegations, the objective records lend support to his version.
[133] Several probabilities favour the employer’s case. Learner A disclosed the allegations before disciplinary proceedings commenced. She described conduct that would be unlikely to be fabricated in such detail without some underlying experience. There was evidence of emotional distress and behavioural changes observed by family members.
[134] However, significant probabilities favour the employee’s version. The first incident is tied to a date that appears inconsistent with the examination timetable. Objective records contradict Learner A’s evidence regarding the alleged absence of Ms Nxumalo. The existence of an IsiZulu period on the relevant day is improbable given the examination timetable. Independent witnesses contradicted the workbook-purchase version central to the second incident. No corroborating witness placed Learner A alone with Mr Gune during either alleged incident.
[135] The issue is not whether Learner A deliberately lied. It is possible for a witness to be honest yet mistaken regarding important details. The question remains whether the employer has proven the allegations on a balance of probabilities.
[136] Having considered the evidence as a whole, the credibility of the witnesses, the objective documentary evidence, the probabilities and improbabilities, and the principles set out in Masilela v Leonard Dingler (Pty) Ltd, I find that the employer has not discharged the onus of proving the allegations on a balance of probabilities.
[137] Although Learner A testified sincerely and consistently regarding the alleged assaults, her version concerning the surrounding circumstances of both incidents was materially contradicted by objective documentary evidence and by the evidence of multiple witnesses. These contradictions are not confined to minor details but relate directly to the opportunity for the alleged incidents to have occurred.
[138] The employer’s case ultimately rests upon the uncorroborated evidence of Learner A, which is substantially undermined by the examination records, attendance records and the evidence of Ms Nxumalo, Ms Mbanjwa and Mr Meyiwa.
[139] Where mutually destructive versions exist, the arbitrator must determine which version is more probable. In this matter, the respondent’s version is supported by objective records and independent witnesses, whereas the applicant’s version is affected by significant inconsistencies and improbabilities.
[140] Accordingly, I am unable to conclude that the employer has established, on a balance of probabilities, that Mr Gune committed the acts alleged in Charge 1, Count 1 and Count 2, or the alternative charges.
[141] Mr Gune is therefore found not guilty on the charges levelled against him.
AWARD