THE INQUIRY-BY-ARBITRATOR BETWEEN

THE HEAD OF DEPARTMENT:
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR ISHMAEL LEFULEBE MOKEMANE EMPLOYEE

Case No: ELRC960-24/25FS
Dates: 12 February 2026
Venue: Provincial Office of the Department of Education, Bloemfontein

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Head of Department: Free State Department of Education (hereinafter ‘the employer’), and Mr Ishmael Lefulebe Mokemane, ‘the employee’.
2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was 17 July 2025, and resumed on 15 January and 02 February 2026 at the Provincial Offices of the employer in Bloemfontein. The employer was represented by Mr Teboho Mokoena, its Labour Relations Officer. Mr BE Matseletsele, an Official from the South African Democratic Teachers Union (SADTU), represented the employee. Mr Masilo Hlujane was the last Interpreter. Mrs MA Mphatane was the Intermediary.
3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with Section 138(7) of the LRA. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

4. I am called upon to decide whether the employee misconducted himself, per the allegations levelled against him. If I find that he did commit the misconduct(s), I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

5. It is common cause that the employment relationship commenced in January 2002. The employee was employed as an Educator and specialised in the subjects of Engineering Graphics and Design. The employee was based at the employer’s Leseding Technical School situated in Welkom. Following alleged acts of sexual misconduct between February and June 2024, the employee was suspended, and the said suspension was subsequently lifted in December 2024.
6. The employer requested this Inquiry with the Council around 10 December 2024.
7. The allegations levelled against the employee are as follows:

Charge 1
You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by saying to her “Ako shebe feela hore sebono sa hao se kae”..

Alternative Charge to Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed her by saying to her “Ako shebe feela hore sebono sa hao se sekae”..

Charge 2
You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by sniffing her on the neck while she was bending to the drawer in your office, collecting the files of other learners from your class.

Alternative Charge to Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed her by sniffing her on the neck while she was bending to the drawer in your office, collecting the files of other learners from your class.

Charge 3
You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around March 2024, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by saying “Le etsa hantle, for you to obtain good marks, you have to give me what I want” while she was cleaning your office with another learner.

Alternative Charge to Charge 3
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around March 2024, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed her by saying “Le etsa hantle, for you to obtain good marks, you have to give me what I want” while she was cleaning your office with another learner.

Charge 4
You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around June 2024, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by touching her right thigh, whispered in her ear and asked if she knows what do hairy girls do. [sic]

Alternative Charge to Charge 4
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around June 2024, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed a Learner (the learner) by touching her right thigh, whispered in her ear and asked if she knows what do hairy girls do. [sic]

8. The employee (hereinafter the teacher) pleaded not guilty to the charges. He was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. His rights and obligations were also correctly explained to him at the commencement of the Inquiry.
9. For this award, the learners’ names shall be kept confidential. The female learner against whom the alleged misconduct was committed was in Grade 11 at the time of the alleged incidents and was 17 years old. It is alleged that the incidents occurred in the teacher’s class and office.
10. The teacher denied the allegations against him. It was common cause that the teacher and the learner knew each other and that the teacher was also a subject teacher of the learner.

SURVEY OF EVIDENCE AND ARGUMENT

11. This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all submissions in reaching my conclusions.

Documentary Evidence

12. The parties handed in the following evidence:
    Employer: Documents Bundle A
    Teacher: Documents Bundle R

Employer’s Case

13. The Learner testified as the first witness for the employer. In relation to Charge 1, she testified that during February 2024, she went to the teacher’s office to hand in documents of her classmates, when the teacher asked her about her face, and she blamed the changes in her face on junk food. The learner stated that whilst walking out of the office, the teacher told her in Sotho that ‘look at how big your buttocks are’. Whilst emotional, the learner stated that she did not respond to the teacher’s remark and left the classroom before returning to class.
14. On charge 2, the learner testified that it was also in February 2024 when the teacher told her to go to his office and to fetch files. She stated that, to reach the files in the teacher’s office drawer, she had to bend. The learner stated that whilst in that bending position, she suddenly heard someone breathing down her neck. She stated that the teacher placed his nose on her neck, told her she smelled good, and instructed her to bring that scent to him so he could apply it to his body. The learner stated that she left the office and the classroom after a friend asked what was wrong; she could not answer, and then walked out on her friend.
15. On charge 3, the learner testified that the teacher asked her to sweep his classroom. She stated that she asked her friend to assist her, which, in fact, occurred. The learner stated that whilst she was outside and her friend was inside the classroom, the teacher went to her and told her that “in order for you to get good marks, you must give me what I want”. She stated that she immediately dropped the rubbish box she was holding and left.
16. As regards charge 4, the learner testified that they were in class and working on a perspective topic when she and ‘IL’, also a female learner, sought assistance from the teacher about the topic. She stated that the teacher went to her desk, where she was sitting, and stood at her right side, rather than between her and ‘IL’. The learner stated that instead of the teacher assisting both of them (she and ‘IL’), the teacher then bent towards her, touched her thigh and whispered in her ear, and told her, “I know what hairy ladies can do”. She stated that she immediately left the class. The learner stated that she never told ‘IL’ about it, and that the teacher also never asked her to be in a relationship with her, and that she told her English teacher about the remark.
17. In cross-examination, the learner stated that she told her cousin at home about the incidents, and whilst crying, she stated that she never told the teacher that she was uncomfortable about the way she was speaking to her. She stated that she reported the incidents to her English teacher, who, in turn, reported them to the principal. The learner stated that she could not readily say ‘no’ to adults when given instructions.
18. Learner ‘IL’, who was a 20-year-old learner at the time, testified as the employer’s second witness. On charge 3, she confirmed that the teacher did utter the words. She stated that she remembered sweeping the teacher’s classroom and could not explain why the teacher made those remarks. ‘IL’ stated that the learner threw the rubbish box and broom down and left, and she picked them up and put them behind the classroom door, and left as well.
19. On charge 4, ‘IL’ testified that she saw how the teacher touched the learner’s thigh and whispered in the learner’s ear. She stated that they were working on a ‘perspective drawing topic’ when the teacher approached, stood on the learner’s right, and touched the learner’s thigh.
20. In cross-examination, ‘IL’ stated that she did not perceive the remarks made under charge 3 serious, and that she witnessed the act of the teacher under charge 4, which she regarded as a form of abuse.

Employee’s Case

21. Mr Ishmael Lefulebe Mokemane, the Teacher, testified as the first witness in his case. He denied having committed the offence alleged in charge 1 and stated that he believed there was a personal vendetta against him. The teacher stated that he was warned by a friend about a conspiracy theory alleging that he was being targeted for removal because he was transferred to the school and had accepted a post that would otherwise have been a promotional post for someone else. He stated that it later transpired that it was the learner’s English teacher, Ms Selekwe, who conspired against him. The teacher stated that he also had a fight with Mr Ngcinca, and that the learner was coached on how to fabricate the lies against him.
22. The teacher denied all the allegations under charge 2 and stated that they were warned about the learner and how dangerous the learner was. He stated that the learner once smacked a teacher in the face.
23. The teacher denied having uttered the words under charge 3 and stated that a group of teachers together with Mr Ngcinca used the learner to fight their personal battles against him. As for charge 4, the teacher stated that the allegation is a made up story, and that the learner is trying to act like a hero as influenced by teachers.
24. In cross-examination, the teacher stood by his testimony and admitted to not having put his version about the smack and office cleaning to the learner, during the learner’s cross-examination.
25. Ms Relebohile Joseph ‘Ms Joseph’, a Tertiary Student, testified as the second witness of the teacher. She stated that she was a former learner of the school back in 2024, and that the teacher gave him EGD as a subject. Ms Joseph stated that she was aware of an old rumour that the teacher impregnated a learner before, and that the teacher also had a relationship with the learner. She testified that one Ms Phoshe questioned her about the rumours, as well as the employer’s representative in this case about her relationship with the teacher and Mr Mahlatsi.
26. Ms Joseph denied ever having being in a guesthouse with the teacher, and stated that she used to go to the teacher for assistance on EGD even though other learners used to get a wrong impression about it. She stated that a friend of hers told her that the learner was spreading rumours about her (Ms Joseph) that she was seeing the teacher romantically. Ms Joseph stated that the rumours escalated to a point of a strike on the school premises, and that she later learned that the learner opened a sexual harassment case against the teacher.
27. In cross-examination, Ms Joseph admitted that she was not under duress when questioned by the employer’s representative at school, and that her questioning revolved around rumours concerning her. She conceded that her testimony was based on rumours and hearsay evidence, and that she had no relationship with the learner.
28. Mr Atang Sifuthi ‘Mr Sifuthi’, a Former Learner of the employer, testified as the third witness in the teacher’s case. He stated that he was also a former learner of the teacher in 2024, and sat in the same row as the learner in the teacher’s class. Mr Sifuthi stated that he never saw the teacher touching the learner or whispering in the learner’s ear.
29. Mr Sifuthi stated that the teacher’s office was never unattended, and that the teacher has never sent a single learner to his office. He elaborated on the learner’s past relationships with others, and confirmed that there were rumours that the teacher was harassing the learner. Mr Sifuthi stated that he once had an opportunity to speak to the learner about the rumours, and that the learner told him that she was warned by Mr Ngcinca that she (the learner) and another one were targets of the teacher. He stated that he launched his own investigation against the learner, and found that the learner wanted to have some sort of a romantic relationship with the teacher.
30. In cross-examination, Mr Sifuthi stated that although he was sitting two seats away from the learner in class, and did not see anything, does not mean that nothing happened. He conceded that the learner did not play victim, but was a victim.
31. Mr TO Lepitla ‘Mr Lepitla’, a Colleague of the teacher, testified as the fourth witness of the teacher. He stated that there were seven teachers (including the teacher) who shared the same office, and he had never seen girls entering the office. Mr Lepitla stated that three ladies would normally clean the office, and would not know what was happening in the office whilst he was in class. He stated that there was bad blood between Mr Ngcinca and the teacher because of a post which Mr Ngcinca wanted and which the teacher was appointed to. Mr Lepitla speculated that Mr Ngcinca and Ms Pam might have been the ones to spread rumours against the teacher.
32. Ms Nokwenzani Betty Molete ‘Ms Molete’ also a Former Learner at the same school, testified as the last witness of the teacher. She testified that she was also a former learner of the teacher, and befriended the learner. Ms Molete stated that she was surprised to hear the allegations made by the learner because the learner used to admire the beautiful cars of the teacher. She stated that Mr Ngcinca once called them in as girls and warned them about the teacher and even wanted them to open cases against the teacher, something which she refused to do.
33. In cross-examination, Ms Molete admitted to having heard the rumours that the teacher was making the learner’s life difficult, and admitted that the learner once told her directly that the teacher wanted her (the learner).

ANALYSIS OF EVIDENCE AND ARGUMENT

34. I shall now proceed to determine the charges levelled against the employee, in light of the evidence led at the Inquiry, and the onus which was on the employer to prove the allegations on a balance of probabilities:

Charge 1
You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by saying to her “Ako shebe feela hore sebono sa hao se kae”..

Alternative Charge to Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed her by saying to her “Ako shebe feela hore sebono sa hao se sekae”..

35. And so the learner testified on how the teacher commented about her face, and how the teacher told her in Sesotho that “look how big your buttocks are” when she was busy walking out of the office. The teacher denied the allegation and stated that the learner was coached to fabricate this story and that Mr Ngcinca and Ms Selekwe orchestrated the entire matter against him. The problem with the teacher’s defence is that neither did he call witnesses to corroborate his belief towards Mr Ngcinca and Ms Selekwe, nor did he summon the two to appear before this Inquiry to account for their deeds.
36. The learner became emotional when she gave this testimony. On a balance of probabilities, I find the learner’s version more probable under this charge than that of the teacher, because no evidence was led on why the learner would make up such a story.
37. Since there was no physical contact between the teacher and the learner under this charge, but mere an uttering of words by the teacher to the learner, it is my finding that charge 1 is not proven, and that the teacher cannot be found guilty of sexual assault under section 17 of the Employment of Educators Act 76 of 1998 as amended (hereinafter the EEA).
38. Alternative charge to charge 1 appears to be a competent charge under which the teacher may be found guilty on, based on the fact that the words uttered by the teacher to the learner amount to harassment with sexual connotations attached to it. I therefore find the teacher guilty on Alternative charge to charge 1, under section 18 of the EEA.

Charge 2
You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by sniffing her on the neck while she was bending to the drawer in your office, collecting the files of other learners from your class.

Alternative Charge to Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around February 2024 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed her by sniffing her on the neck while she was bending to the drawer in your office, collecting the files of other learners from your class.

39. It is the learner’s testimony under this charge that the teacher sent her to his office from the classroom, just to sneak on her in the office, and to put his nose on her neck whilst bending over to collect files from the teacher’s drawer, and that the teacher told her how nice she was smelling and wanted the same product to use on himself too. The teacher denied the allegations and stated that they (all the teachers) were once warned about how dangerous the learner was, and how the learner once physically assaulted a teacher.
40. The teacher’s witness, Mr Lepitla, tried to portray a picture that the office was never unoccupied and that no girls ever had access to that office. However, Mr Lepitla admitted that he was not always in the office, and was in his class during other periods, which makes it probable that the alleged incident could have taken place while he was in class. I am not persuaded by the applicant and his witnesses that he was never alone with the learner in his office.
41. The learner’s version sounds convincing in that the teacher never denied having sent the learner to fetch files from his drawer in his office. I therefore find it probable that the teacher has committed the act of having sniffed on the learner’s neck and having commented on the learner’s smell. However, the evidence does not prove sexual assault under section 17 of the EEA. I find the teacher guilty of Alternative charge to charge 2 under section 18 of the EEA. Charge 3
    You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around March 2024, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by saying “Le etsa hantle, for you to obtain good marks, you have to give me what I want” while she was cleaning your office with another learner.

Alternative Charge to Charge 3
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around March 2024, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed her by saying “Le etsa hantle, for you to obtain good marks, you have to give me what I want” while she was cleaning your office with another learner.

42. It is also the learner’s evidence under this charge that whilst the teacher got her to sweep his classroom (with her friend), the teacher made another remark at her and told her that “in order for you to get good marks, you have to give me what I want”. This version of the learner is well corroborated by ‘IL’, who overheard the teacher making those remarks to the learner. The teacher denied the allegations and stated that a group of unidentified teachers worked together with Mr Ngcinca and used the learner to fight their personal battles with him.
43. I am again not persuaded by the teacher’s defence that the learner and ‘IL’ are not truthful as to what transpired that afternoon in his class. The learner’s version is corroborated by ‘IL’ and that of the teacher not. Therefore, I accept the learner’s version as probable, and find the teacher guilty of Alternative charge to charge 3, under section 18 of the EEA, based on the fact that no sexual conduct or act has taken place, other than words uttered by the teacher to the learner, and which amounts to sexual harassment. Charge 4
    You have contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998 in that around June 2024, you committed an act of sexual assault on a Learner (the learner) when you sexually harassed her by touching her right thigh, whispered in her ear and asked if she knows what do hairy girls do. [sic] Alternative Charge to Charge 4
    You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that around June 2024, you conducted yourself in an improper, disgraceful or unacceptable manner when you sexually harassed a Learner (the learner) by touching her right thigh, whispered in her ear and asked if she knows what do hairy girls do. [sic]
44. The learner testified on how the teacher touched her thigh and whispered in her ear and told her that “he knows what hairy girls do”. The touching of the thigh part of the charge and the whispering in the ear were well corroborated by ‘IL’, as she was sitting adjacent to the learner. She also confirmed it under cross-examination. The teacher characterises this allegation as a fabricated account and questions why the learner repeatedly referred to Mr Ngcinca in her written statement.
45. The teacher called Mr Sifuthi, a former learner who was apparently in the same class as the learner, and who was also sitting in the same row as the learner, and who did not see the whispering and the touching of the thigh taking place. However, the same Mr Sifuthi regarded the learner as a victim and conceded that, just because he did not see what happened, did not mean it did not happen.
46. The teacher’s cross-examination of the learner focused largely on the manner in which the learner reported the incidents instead of the allegations levelled against him. The same was the case during the cross-examination of ‘IL’, where the teacher’s focus was on ‘IL’s views and responses rather than the allegations. He admitted during his cross-examination that he did not put certain parts of his version, like the smacking of the teacher and the actual cleaning of the office, to the learner during the learner’s cross-examination.
47. The teacher called Ms Joseph as a witness. Ms Joseph did not rebut the allegations of the learner against the teacher, other than to give me a history of her relationship with the teacher, and how everyone suspected that she had a romantic relationship with the teacher as well. Ms Joseph mentioned how a rumour also went around about how the teacher had impregnated another learner in the past. Now, instead of vindicating the teacher from the current allegations, Ms Joseph’s testimony seems to suggest that the learner was not the only one who might have possibly had a relationship with the teacher, but she, too.
48. Mr Lepitla tried to paint a picture that it was impossible that the alleged incidents in the teacher’s office could have taken place, because the office was always occupied, and Mr Ngcinca and others were plotting against the teacher. However, these assertions are not established through evidence. Since ‘IL’ was sitting closer to the learner than Mr Sifuthi, and taking into account the concessions of Mr Sifuthi, it is my finding that the touching of the thigh and the whispering in the learner’s ear has taken place.
49. However, I am not persuaded that there was sexual penetration which has taken place, or a touch on any of the learner’s sexual organs. The evidence before me does not support a guilty finding on Charge 4, but rather a guilty finding on the alternative charge to Charge 4, under section 18 of the EEA.

VERDICT

50. The teacher is acquitted on the main charges (Charges 1, 2, 3 and 4), and found guilty of the 4 Alternative Charges of contravening section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that he conducted himself in an improper, disgraceful or unacceptable manner by sexually harassing a Learner.

SANCTION

51. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:
    Misconduct
52. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct
    if he or she –
    (a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
    (b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
    (c) without permission possesses or wrongfully uses the property of the State, a school, a further education and training institution, an adult learning centre, another employee or a visitor;
    (d) wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, a further education and training institution or an adult learning centre;
    (e) in the course of duty endangers the lives of himself or herself or others by disregarding set safety rules or regulations;
    (f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
    (g) misuses his or her position in the Department of Education or a school, further education and training institution or adult learning centre to promote or to prejudice the interests of any person;
    (h) accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer;
    (i) fails to carry out a lawful order or routine instruction without just or reasonable cause;
    (j) absents himself or herself from work without a valid reason or permission;
    (k) unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution;
    (l) performs poorly or inadequately for reasons other than incapacity;
    (m) without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours;
    (n) without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward;
    (o) without authorisation, sleeps on duty;
    (p) while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol;
    (q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
    (r) assaults, or attempts to or threatens to assault, another employee or another person;
    (s) incites other personnel to unprocedural and unlawful conduct;
    (t) displays disrespect towards others in the work-place or demonstrates abusive or insolent behaviour;
    (u) intimidates or victimises fellow employees, learners or students;
    (v) prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation;
    (w) operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed;
    (x) carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer;
    (y) refuses to obey security regulations;
    (z) gives false statements or evidence in the execution of his or her duties;
    (aa) falsifies records or any other documentation;
    (bb) participates in unprocedural, unprotected or unlawful industrial action;
    (cc) fails or refuses to –
    (i) follow a formal programme of counselling as contemplated in item 2(4) of Schedule 1;
    (ii) subject himself or herself to a medical examination as contemplated in item 3(3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998); or
    (iii) attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3(8) of Schedule 1;
    (dd) commits a common law or statutory offence;
    (ee) commits an act of dishonesty; or
    (ff) victimises an employee for, amongst others, his or her association with a trade union.
    (2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
    (3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
    (a) counselling;
    (b) a verbal warning;
    (c) a written warning;
    (d) a final written warning;
    (e) a fine not exceeding one month’s salary;
    (f) suspension without pay for a period not exceeding three months;
    (g) demotion;
    (h) a combination of the sanctions referred to in paragraphs (a) to (f); or
    (i) dismissal, if the nature or extent of the misconduct warrants dismissal.
    (4) Any sanction contemplated in subsection (3)(e), (f) or (g) may be suspended for a specified period on conditions determined by the employer.
53. Having considered the veracity of the misconduct committed by the teacher on the 17-year-old learner, over a period of time (February to June 2024), it is my view that the misconduct committed is serious and warrants an appropriate sanction in the form of dismissal. The learner led uncontested evidence that she had to walk away from the teacher and even out of class every time these sexual harassments took place. ‘IL’ also attested to that when the incident at the sweeping of the classroom took place.
54. I therefore deem the sanction of dismissal appropriate as enunciated by section 18(3)(i) of the EEA.

CHILD PROTECTION REGISTER

54. The employer addressed me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the learner.
55. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.
(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

56. It is common cause that the learner was 17 years of age at the time when the incidents took place. Having found the teacher guilty of having sexually harassed the learner, I hereby do find him unsuitable to work with children. Based on these findings, I will order that the teacher’s name be reported to the Director-General of the Department of Social Development for listing in Part B of the Child Protection Register.
57. In the premise, I make the following award:

AWARD

58. Mr Ishmael Lefulebe Mokemane is found guilty on the four charges of contravening section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that he conducted himself in an improper, disgraceful or unacceptable manner by sexually harassing a Learner.
59. The sanction of dismissal is imposed with immediate effect on the teacher.
60. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.
61. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the 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 Mr Dibabeng Israel Nyokong is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

This is done and dated on 12 February 2026, at Kimberley.

David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator