Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 211-25/26 FS
Date of award: 11 March 2026

In the Inquiry by Arbitrator between:

SADTU obo Patrick Mohlolo Rampai Employee

and

Department of Education – Free State Employer

DETAILS OF HEARING AND REPRESENTATION

1. The Inquiry by Arbitrator proceedings in terms of section 188A of the Labour Relations Act, 66 of 1995, as amended, (“LRA”) read with the ELRC Practice Note: 1 of 2018, was held on 8 July 2025, 11 February 2026 and 12 February 2026.
2. The matter was arbitrated at the Respondent’s provincial office in Bloemfontein. On 11 February 2026 the Learner and the Intermediary joined proceedings via MS Teams from Dr Viljoen Combined School due to a Court order that prohibited the Employee from being near the Learner.
3. Parties were present throughout and duly represented. The Employee was represented by Mr Desmond Serape, SADTU (South African Democratic Teachers’ Union) officials. The Employer was represented by Ms Lindiwe Cweba, Labour Relations Officer.
4. The proceedings were digitally recorded, and handwritten notes were kept.
5. Interpretation was conducted by Ms Mpho Kubu, and Ms MA Mphatane was the appointed Intermediary. ISSUE TO BE DECIDED
6. The dispute has been referred to the ELRC as an Inquiry by Arbitrator in terms of section 188A of the LRA, as amended, read with the ELRC Practice Note: 1 of 2018.
7. I was required to determine whether the Employee is guilty of the charge as quoted below (bundle “A1”), and if so, determine the appropriate sanction:

“Charge 1
You have contravened Section 17(1)(b) of the Employment of Educators Act, No 76 of 1998, in that on 02/10/2024, you committed an act of sexual assault when you had sex with a grade 12 learner of Dr Viljoen Combined School where you are employed without her consent.”

BACKGROUND TO THE ISSUE

8. The Employee (hereinafter referred to as “Rampai”) was informed of the charges against him on 21 May 2025.
9. Rampai entered a plea of ‘not guilty’ to the charge levelled against him. He confirmed he had adequate notice of the hearing and time to prepare, had received the charge sheet and were ready to proceed.
10. At the time of the Inquiry by Arbitrator, Rampai was still an Educator at Dr Viljoen Combined School in Bloemfontein, but he reported to the district office due to a Court Order. He taught the subject of Tourism at the time of the incident. The Learner was a leaner at the same school at the time of the incident and in grade 12.
11. When the Learner led evidence, on 11 February 2026, she was 19 (nineteen) years old.
12. The matter had been postponed multiple times and for various reasons in between these two dates. The agreed dates on 26, 28 and 29 August 2025 were postponed due to the illness of Ms Cweba. The agreed dates of 4 and 5 November 2025 were postponed due to the illness of the Employee. The agreed dates of 19 and 20 January 2026 were postponed due to the illness of the Employee.

Competency finding of the Learner to testify

13. There was no need to establish the competency of the Learner to testify, as she was 19 (nineteen) years old at the time when she gave evidence on 11 February 2026. SURVEY OF EVIDENCE AND ARGUMENT
    Documentary:
14. Bundle “A1”, “A2” and “A3” was submitted into evidence by the Employer, and “B1” and “B2” by the Employee. Its veracity was not disputed, and it was accepted as it purported to be. CCTV footage was also used by the Employer. Evidence from the Employer:
15. The Employer called five witnesses to testify. The Applicant was the only witness that testified in his defense. The testimonies, under oath, are fully captured on the record of proceedings, and a copy of the digital recording is available on request from the Bargaining Council. I therefore do not deem it necessary to repeat it in this award and only a summary of the relevant evidence is captured below.
16. The 1st witness, Jakoba Dalena Hendrika Pretorius (“Pretorius”), testified she occupied the old classroom of Rampai with her grade 3 learners, and that she was in her classroom on 2 October 2024. Rampai entered the classroom with the Learner and indicated to her that the Learner would write an examination in the stoor room adjacent to the classroom. She was not made aware of the arrangement in advance. She was not asked to keep an eye on the Learner. Her colleague, Steyl, arrived later, and she told her about the Learner in the storeroom. The storeroom was located directly behind her desk. At some stage the Learner left the storeroom in search of a calculator and returned shortly thereafter. Rampai was not with the Learner the entire time of the examination, but he did check up on the learner once. Her class went to reses and she locked the classroom. She forgot that the Learner was still inside. Upon her and Steyl’s return, she discovered that the Learner was no longer in the classroom. According to her, Rampai was not supposed to have a key to her classroom anymore. She heard no noise from the storeroom. It has never happened before that a Learner wrote an examination in a storeroom.
17. The 2nd witness, Megan Rene Steyl (“Steyl”), testified that she was not in the classroom on 2 October 2024 when Rampai brough the Learner in, but Pretorius made her aware of the situation later. The arrangement was out of the ordinary, so she called Principal Keller to find out if Keller was aware of the unusual situation. Keller indicated that she had no knowledge and was not in favour of the situation, but that, if the Learner had already started to write, she must not be disturbed and allowed to finish the examination. The Learner left the storeroom at some stage in search of a calculator and returned with it. Rampai came to check on the Learner once. She left the classroom just before reses and forgot that the Learner was in the storeroom. Upon her and Pretorius’ return to the classroom they realized the Learner was locked inside, but she did not check up on her. Neither she nor Pretorius had a key to the storeroom.
18. She became aware of the allegations of sexual assault against Rampai the following day when the South African Police Service (“SAPS”) arrived at the school and arrested Rampai. With reference to the CCTV footage, she testified that her and Pretorius’ desks were next to the storeroom, but that she did not hear any noise from the storeroom on the day in question. She confirmed that “A2” was a photo of the storeroom.
19. The 3rd witness, B.B.M (“Learner”) testified that her first period was Tourism, taught by Rampai. She approached Rampai and asked when she would be able to write her supplementary examination, as she missed the examination due to illness. Rampai told her to follow him outside; she thought they were going to the office or staffroom. She saw him return from his vehicle from which he fetched papers, and she met him downstairs. She followed him back upstairs to his old classroom. At the classroom Rampai spoke to an Educator and she entered the adjacent storeroom with Rampai. Rampai did not ask the Educator to keep an eye on her. She asked whether she was actually writing in a storeroom, whilst he wiped the chair and table clean, and he answered in the affirmative. At that stage the storeroom was not locked, only closed, and it was around 08h00. She sat down, he opened the examination paper, and he asked her for her cellular phone. She handed it over, and he started a physical body search on her, explaining that he was looking if she had any notes on her. She denied Rampai’s version that he never touched her but only asked her to empty her pockets. After the body search, she sat down again, she was given the examination paper and answer book. He did not explain the paper to her. He then bent down and kissed her on her lips, but she pushed him away. She denied Rampai’s version that he never kissed her on the lips. He said he would return in an hour. She did not tell the two Educators in the adjacent classroom that Rampai had kissed her, because she thought pushing him away made it clear that she was not interested in his advances.
20. She started writing the examination as quickly as she could, so that she could get out of the storeroom; it was a three-hour examination paper. One time she left the storeroom in search of a calculator and returned to continue. Rampai returned to the storeroom to check on her. As he left, he told her he would return and that she owed him one round. She knew what he meant by that, being sex. She started to panic and tried to write as fast as she could. The grade 3 learners and Educators left the classroom for reses. She was done with the examination paper but had left some spaces open for answers to return to. She left the storeroom to use a stapler on one of the Educators’ tables and realized that the classroom was locked, and that she was alone. She went back to the storeroom to try and answer some of the questions she left unanswered.
21. She heard the classroom door open, and she exited the storeroom to find Rampai entering the classroom. She gave him her answer book, and said she needed to leave. He checked her answers. He told her that she had miscalculated one of the answers, and he gave her the correct answer. She denied the version that she solicited correct answers from Rampai. She denied Rampai’s version that he did not assist her with answers. She gave the answer book back and repeated that she had to leave. The grade 3 learners were still on reses. Rampai told her that she should not go and started to touch her buttocks and breasts. She denied Rampai’s version that he never touched her buttocks and breasts. She repeatedly told him to stop and that she had to leave. He said that she could not leave. Rampai started to unzip her trousers. She denied Rampai’s version that he did not unzip her trousers. He pulled down her trousers and complimented her underwear. Throughout she said no and told him she had to leave. Rampai turned her around and bent her over the table. She froze for a minute and during that time Rampai penetrated her with his penis. She denied Rampai’s version that he did not penetrate her. She did not consent to sex and kept saying “no”. Rampai did not fully undress but only unzipped his pants and exposed his penis. Rampai did not use a condom, and his semen fell on the floor (“R3”). She denied Rampai’s version that his semen did not fall on the floor. She denied the version that she seduced Rampai. She confirmed that “B1” an “B2” were photos of her but denied that she ever sent it to Rampai and could not speculate how Rampai got possession thereof.
22. When he was finished, she dressed herself, collected her belongings and asked him for a letter so that she could go home. She took the letter that Rampai wrote to the office and went home. She did not report the incident to the school that day, because she was in shock.
23. When she arrived home (between 12h00 and 13h00), she told her friend’s sister what had happened, who advised her to go to the clinic. She was scared and waited for her mother to get home. When her mother arrived, they went to SAPS and a case of rape was opened against Rampai. She denied the version that she made up these allegations because Rampai had rejected her advances. She maintained that she did not ask to be sexually assaulted. The SAPS or the Prosecutor was in possession of her J88 and the DNA results of her rape kit.
24. The 4th witness, Tanya Keller (“Keller”), the Principal of Dr Viljoen Combined School, testified that Steyl called her on 2 October 2024 to make her aware that a Learner was writing an examination in the storeroom of Rampai’s old classroom. She mentioned to Steyl that it was unusual and that she was not aware of any such arrangements, but that she knew the Learner had missed the examination. Steyl informed her that the Learner had already started to write, so she advised that the Learner be allowed to continue and not be interrupted.
25. Rampai was an HOD (Head of Department) and the Head of Safety at that stage and knew that he was not following the correct procedure in a Learner writing a supplementary examination. Mrs Kruger must be involved in all arrangements of this kind, and a Learners would always write an examination in the presence of an Invigilator, and the Invigilator may not be an Educator that teaches the subject that the examination is written on. Such examinations were always written in pre-identified and approved venues, never in a storeroom. Rampai knew these rules very well as he has been with Dr Viljoen Combined School since 2021 or 2022. Before every examination the rules are explained again to all Educators and discussed almost daily in staff meetings.
26. She confirmed that Rampai was arrested at the school on 3 October 2024 by plain-clothed officers. She found the Learner’s parents, Constable Jessica du Preez and the Deputy Principal in the latter’s office, and Constable Du Preez confirmed Rampai’s arrest on allegations of sexual assault. That was the first time she was made aware of the allegations of sexual assault.
27. The 5th witness, Relebohile Magnificent Mabale (“Mabale”), the mother of the Learner, testified that she arrived home on 2 October 2024 around 19h00 and found out from her Nanny, who is the Learner’s friend’s sister, that something had happened to the Learner at school. The Learner disclosed to her what had happened, and she was very emotional about the incident. She and her husband took the Learner to the Parkroad Police Station. A case of rape was opened, and the following day the Learner went for a physical exam and a rape kit at National Hospital, and a J88 was also completed. She requested the J88 and the DNA test results for the arbitration, but it was not availed to her, because the Learner was an adult, and had to requests those herself. She confirmed that the criminal trial has not yet been finalized.

Evidence from the Employee:

28. The Employee, Patrick Mohlolo Rampai (“Rampai”), testified that he had taught the Learner Tourism at Dr Viljoen combined School. He had never assaulted the Learner and did not have any sexual relations with her.
29. On 2 October 2024 his first class was Tourism at 08h00 for grade 12D. The Learner approached him and asked when she would write her supplementary examination. He indicated that he would look for a venue, so he collected the question paper from his vehicle. The hall had classes inside due to classroom construction, so it would be too noisy for her to write. He took her to his old classroom and found Pretorius inside. He explained that a Learner would write an examination in the storeroom and requested that she keeps an eye on the Learner. Inside the storeroom he asked if the Learner would be comfortable to write there, and she confirmed that she would. He cleaned the table and chair and opened the window of the storeroom. He read the rules and instructions on the paper to her and asked if she had any notes on her and requested her to empty her pockets. He did not physically search her, as only a male can search a male, and a female can search a female. She handed over her cellular phone to him. He did not kiss her and had no physical contact with her. She started to write at approximately 08h15, and he told her that she had three hours to write, and that the grade 3 Educator would keep an eye on her. He then left the storeroom.
30. He returned later to check in on her and asked her how she was progressing. She indicated that she was halfway through. She asked for explanations for some of the questions to which he indicated that he was not allowed to do so. She requested him to give her answers to some of the questions, to which he responded that he could not assist her. She indicated that, if he assisted her, she would give him one round. He did not understand what she meant and asked for clarity. She said that he must not pretend that he did not know what she meant. He told her to finish her examination, and she repeated her offer. He denied the Learner’s version that he had asked her for one round. He told her that it was inappropriate and that she was a child. He left the storeroom.
31. He returned to the classroom just before the lapse of the three-hours examination timeframe, and found the classroom locked. He unlocked the classroom and the Learner exited the storeroom. He asked if she was finished and she said that she was not. They re-entered the storeroom and the Learner closed the door. He checked her answer book and saw many unanswered questions, and she stated that she needed more time and that she did not know some of the answers. He told the Learner that it was better to write something than to leave spaces open, and that she had approximately ten minutes left. She continued to write but asked for assistance again, to which he responded that he was not allowed to assist her. She pulled his pants (waist) and said if he assisted her, she would give him one round. He said no and that it was inappropriate. She stated that no one would know. When she finished, she handed over the answer book. He closed the window, and as he was approaching the door, she asked if he was sure he did not want one round so that she could pass the examination. He again told her it was inappropriate.
32. Outside the classroom, she told him that she was not feeling well, and that she sought a letter from him to excuse her so that she could go home. He did not give her the letter at that time, only later. It was not his semen on the floor (“A3”) because he did not ejaculate. He confirmed that he returned to the storeroom afterwards, because he forgot the question paper inside, and not to clean the floor, as alleged.
33. He could not recall the date when the Learner sent him the photos (“B1” and “B2”) via WhatsApp, but it was prior 2 October 2024. It came from her number, as seen on “B1” and confirmed by her. When he asked her why she sent the photos she stated that there were more where that came from. He did not take a screenshot of the WhatsApp, because she sent it with the “view once” function and he deleted the photos later. He took the photos from his one phone with another phone of his. He only submitted the photos in evidence on 11 February 2026 because a friend helped him to retrieve it. The Learner made sexual advances towards him throughout 2024. He confirmed that he did not report this, or the photos, to the Principal.
34. The procedure for examinations, as testified to by Keller, was not a formalized procedure, and other Educators also deviated from the procedure. He had deviated from the procedure because the marks were due that Friday and he was under pressure. He could not find a suitable venue, so he used the storeroom. He confirmed that he was not present during the entire examination. Mrs Kruger was his subordinate, and he was part of management, and as such, he could take managerial decisions when necessary.
35. The allegations against him were false and untrue, and devastated him. He was arrested on allegations of rape and was detained for six months. He did not know why, if the Learner was lying, she would pursue a criminal case. When asked why he failed to put the majority of his version to the Employer’s version, he stated that he waited for his opportunity to testify to get his version on record. ANALYSIS OF EVIDENCE AND ARGUMENT
36. Parties submitted their written closing arguments on 18 February 2026. Same was duly considered but will not be repeated herein.
37. The Employer must prove on a balance of probabilities that the Accused is guilty of the charge levelled against him. On 4 September 2025, the Department of Employment and Labour published Notice 3470 of 2025 in the Government Gazette. The Notice indicated that the Code of Good Practice: Dismissal was issued by the Minister of Employment and Labour after consideration by the National Economic Development and Labour Council (NEDLAC) in terms of section 203(2A) of the LRA to take effect on the date of publication of the Code. The publication of the Code further repealed the Schedule 8 Code of Good Practice on Dismissal and the Code of Good Practice Based on Operational Requirements published in the Government Notice 1517 in Government Gazette 20254 of 16 July 1999.
38. The amended Code of Good Practice on Dismissal states that the following should be considered when deciding whether a sanction for misconduct is fair-
    (a) Existence of the rule or standard
    (b) Valid and reasonable rule or standard
    (c) Awareness or reasonable expectation of awareness of the rule or standard
    (d) Importance of the rule or standard in the workplace
    (e) Breach of the rule or standard
    (f) Actual or potential harm caused by the employee’s contravention or a rule or standard
    (g) Consistency
    (h) Dismissal an appropriate sanction.
39. Notwithstanding the fact that this is an Inquiry by Arbitrator, I will apply the same criteria when deciding whether the Accused, Rampai, has made himself guilty of the charge against him, and if so, on the appropriate sanction.

Existence of the Rule:

40. Section 17 of the Employment of Educators Act, 76 of 1998, as amended, (“the EEA”) contains this rule. Any sexual contact between an Educator and a Learner is prohibited.
41. The Employee, Rampai, was appointed in terms of the EEA as an Educator.
42. The rule exists.

Valid and reasonable rule:

43. This aspect was not placed in dispute by Rampai. In fact, Rampai testified that any sexual contact with a Learner was inappropriate and prohibited.
44. It is worth mentioning that a rule against any inappropriate actions and/or conduct between an Educator and Learner is reasonable in the education environment, for the protection of both Leaners and Educators, and is sensical.
45. This rule further forms an intrinsic part of the employment relationship, as governed by the EEA, in terms of which Rampai was appointed.
46. The rule is valid and reasonable.

Awareness of reasonable expectation of awareness of the rule:

47. This aspect was not placed in dispute by Rampai, and on his own version, he confirmed that any sexual contact with a Learner was inappropriate and prohibited.
48. Further the EEA is very clear in section 17 and section 18 as to the existence of the rule. Rapai was appointed as an Educator in terms of the EEA, and reasonably ought to have been aware of the rule.
49. Rampai was aware of the rule.

Importance of the rule in the workplace:

50. The rule against any inappropriate actions and/or conduct between an Educator and Learner is reasonable in the education environment, for the protection of both Leaners and Educators.

Breach of the rule:

51. Pretorius, Steyl and Keller led corroborative evidence as to the unusualness of a Learner writing an examination in a storeroom. Keller led uncontested evidence that Rampai had deviated from the formal procedure in place for the writing of examination.
52. Pretorius and the Learner led corroborative evidence that Rampai did not ask Pretorius to keep an eye on the Learner whilst she was writing the examination, whereas Rampai’s evidence is contradicting and uncorroborated.
53. The majority of Rampai’s evidence was not put to the Employer’s witnesses under cross examination. It was held in Small v Smith 1954 (3) SA 434 (SWA) and in a plethora of subsequent judgements that, if any version is left unchallenged during cross-examination, that the witness’s testimony is accepted as correct.
54. The Learner was an exceptionally good witness. She remained unwavering under cross-examination, her version remained unchanged, and no contradictions were found in her testimony. She further made concessions on basic aspects that she was reasonably expected to make.
55. Rampai was found to be less credible as a witness. He failed to put the majority of his version to the Employer’s witnesses, he refused to make concessions on basic aspects he was reasonably expected to make, and he embellished as he continued to testify.
56. The photos (“B1” and “B2”) were not screenshots taken from WhatsApp to show the date on which it was allegedly sent to Rampai, or whether it was, in fact, sent to Rampai by the Learner herself. The evidence merely shows two photos, only one thereof showing it was from the Learner’s confirmed number, on a cellular phone, and the photos taken from that phone by another phone. The evidence does not prove, on a balance or probabilities, that the Learner sent the photos to Rampai herself.
57. The evidence from Rampai on why he only submitted the photographs into evidence on 11 February 2026 further supports the finding that, on a balance or probabilities, the photos were not sent by the Learner to his phone. If Rampai had the photos prior 2 October 2024, he would have been able to submit it into evidence earlier. Rampai’s evidence that he did not have access to the photos earlier because it was sent with the “view once” function, but that he deleted it later is further nonsensical as the “view once” function does not save the photos on a device, so he could not have deleted it later. This version of his was contradictory.
58. If it is accepted that the Learner did, in fact, send these photos to Rampai, which version is not accepted, a reasonable Educator that has, according to Rampai, rejected all sexual advances from the Learner due to inappropriateness, would not have put himself in a position where he would be alone with the Learner in fear of false allegations of a sexual nature.
59. Rampai did not only fail to take reasonable steps to avoid being in a situation with the Learner where he could be accused of unbecoming conduct, he had created the situation himself.
60. The Learner’s version of events on 2 October 2024 is found to be more probable than the version of Rampai, on a balance of probabilities. Rampai’s version of events lacks the proverbial “ring of truth”.
61. On the CCTV footage it can be seen that Rampai locked the classroom door behind him when he entered the empty classroom for the third time. Rampai would have had no reason to lock the classroom door if he and the Learner were in the classroom, except if he had planned on illicit conduct, in which case a locked door would ensure privacy and a warning about people entering the classroom. The Learner testified that she heard the classroom being unlocked and opened, whilst she was inside the storeroom.
62. Keller led undisputed evidence on the correct procedure to facilitate an examination, specifically supplementary examinations. This is further proof of Rampai’s planning of illicit conduct. He failed to follow the proper procedure to ensure the Learner had an Invigilator present during the entire time of the examination, and that said Invigilator is not the subject teacher of the examination taken. Again, Rampai put himself in a position where allegations of unbecoming conduct could be made. These were not the actions of a reasonable Educator that, according to Rampai’s version, had rejected the Learner’s unwanted sexual advances throughout 2024.
63. Rampai could not give convincing justification for why he did not report the Learners alleged unwanted sexual advances throughout 2024, the photos or her alleged proposals throughout the taking of the examination on 2 October 2024. This confirms that Rampai’s version lacks the proverbial “ring of truth” as his conduct, if to be accepted as more probable, which it is not, were not that of a reasonable Educator in the same situation.
64. Rampai’s practiced and well-timed emotional display during his testimony did not impress or convince me but rather supported the evidence that he was a planner.
65. Cweba, who was the photographer of “A3” did not testify on the photo. The photo is unclear and did not prove any aspect. The evidence was unreliable and not accepted.
66. Rampai seems to have believed that, without DNA evidence, he could not be found guilty, and that it was his word, as a respected HOD and Head of Security, against a Learner. The standard of proof in criminal cases is beyond reasonable doubt, whereas in labour matters the standard of proof is on a balance of probabilities.
67. Rampai failed to establish a reasonable defense against the allegations against him or a reasonable explanation for a possible motive that the Learner would have to lie.
68. I find that the Learner had no motive to lie and make false allegations of sexual assault against Rampai. The Learner involved the SAPS, and the criminal trial is ongoing. She subjected herself to a rape kit and a J88 voluntarily. These are not the actions of a person whose lies can be uncovered easily.
69. The Employer was able to prove, on a balance of probabilities, that the Employee was guilty of Charge 1 as levelled against him.

Actual of potential harm caused by the Employee’s contravention of the rule:

70. Rampai was a HOD and Head of Security. He was in a position of trust. He abused his position to get the Learner in a vulnerable position so that he could take advantage of her.
71. The harm caused by the Employee’s action was the emotional consequences of sexual assault that the Learner has to live with, and the possible health and physical consequences, as she testified that he did not use a condom when he sexually assaulted her.
72. An educational environment should be a safe and secure environment, focused on teaching and learning. Learners should not go to school and fear for their safety from the very people entrusted with this responsibility.
73. The harm caused by Rampai’s actions is immeasurable, both physically, emotionally to the Learner, and reputationally to the School.

Consistency:

74. I had no evidence that the rule has been inconsistently applied.

Appropriate Sanction:

75. The appropriate sanction in this instance is the immediate dismissal of Patrick Mohlolo Rampai.
76. I am further finding that the Accused, Patrick Mohlolo Rampai, is unsuitable to work with children, and in terms of section 120 of the Children’s Act (Act 38 of 2005) based on the evidence led before me during this arbitration, a finding in this regard is made. AWARD
77. The Accused, Patrick Mohlolo Rampai is found guilty on Charge 1.
78. I find that summary dismissal is the appropriate sanction under the circumstances.
79. I further order that Patrick Mohlolo Rampai is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act, 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005., that Patrick Mohlolo Rampai is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B or the register.

Minette van der Merwe
ELRC Panelist