13 April 2026 – ELRC585-24/25KZN

IN THE ELRC INQUIRY
BY ARBITRATOR BETWEEN:

DEPARTMENT OF EDUCATION (KZN) Employer
and
MLUNGISI GODFREY KHANYI Employee

ARBITRATION AWARD

Case Number: ELRC585-24/25KZN

Date of arbitration: 7 February 2025 to 27 February 2026

Date of award: 10 April 2026

ELRC Arbitrator: Mandlakhe F. KHAWULA

      DETAILS OF HEARING AND REPRESENTATION

The inquiry was initially set down for 7 February 2025 and was finalised on 27 February 2026. It was held at the Department of Education in Pongola.
The employee, Mr. Mlungisi Godfrey Khanyi (employee) was present and represented by Mr. S. Acheampong (Acheampong), a SADTU Union Representative. The employer, the Department of Education, KwaZulu Natal (DOE), was represented by its Employee Relations Assistant Director, Ms. N.S.Z. Nxumalo who was the initiator. The parties provided a bundle of documents each.
The proceedings were digitally recorded.
Mr. S. Mthembu provided interpreting services while Ms. H.Z. Mabaso assisted with the intermediary services.
Parties requested to submit written closing arguments in writing. I directed them to do so on or before 10 March 2026. The employee party requested an extension period to submit the arguments which I granted. Notwithstanding the indulgence, the employee party failed to meet the deadline of 13 March 2026 and only submitted its closing arguments on Friday 19 March 2026. I was therefore forced to apply for an extended period to submit the award. The application was granted; the award was then due on 05 April 2026. ISSUE TO BE DECIDED
I am required to determine whether the employee is guilty of sexually assaulting a learner, if found guilty to impose a sanction in accordance with Section 17 (1) (b) or (c) of Employment of Educators Act 76 of 1998. BACKGROUND
This is an inquiry by arbitrator in terms of Section 188A of the Labour Relations Act 66 of 1995 (LRA). Due to the age of the learner who is the complainant in this matter, she will be referred to as ‘KM’. The charge against the employee was as follows.
“It is alleged that on 19 November 2023, at or near Simandlangentsha Primary School, you committed an act of sexual assault on a learner, KM. You thereby contravened Section 17 (1) (b) of the Employment of Educators Act 76 of 1998, as amended.
Alternatively
It is alleged that on or about May 2023 to November 2023 at or near Simandlangentsha Primary School, you had sexual relationship with a learner, KM of the school where you are employed. You thereby contravened Section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended”.
It is alleged that at the time of the said incident, KM was 13 years old doing grade 7 at Simandlangentsha where the employee was her class teacher. However, at the commencement of the inquiry, she was 15 years old, attending school at Dwaleni High School as a grade 8 learner. The employee pleaded not guilty to sexual assault and the alternative charge of having a sexual relationship with a learner by the name of KM at a school where he is employed. SUMMARY OF EVIDENCE AND ARGUMENTS The Employer’s case
As it is only required that an award with brief reasons be issued, the following is a summary only of the relevant evidence tendered under oath and arguments. I shall be referring to the employee as the accused employee or employee interchangeably.
The employer party led the evidence of four witnesses, Ms. Nonhle Msimango (Msimango) who is KM’s mother; KM who is the complainant or victim; Mr. A.N. Mkhonza (Mkhonza or Principal), the Principal at Simandlangentsha Primary School and Mr. W.R. Manana (Manana) the Circuit Manager.
Msimango testified that KM is her daughter. On 20 November 2023, when she (Msimango) arrived home from work at about 18h00, at the gate, she met with KM who looked very sad and scared with tearful eyes. When she questioned her, she noticed that she was hiding something from her. She then asked KM as to why she did not come to her the day before, which was a Sunday to pick up money for cosmetics. Instead of answering, she was sweating. She asked if she had a boyfriend which she denied. Msimango lost her temper and struck her with a belt. KM told Msimango that if they go to her friend S, she will get the truth. They went to S’s place. S told her that KM is dating the accused employee. S further told her that she thought she (Msimango) knew about it because Mkhonza was aware. S told her that she, together with her school mates, SG, MG and others approached Mkhonza and informed him that KM was dating the accused employee. Mkhonza asked them why they said so, SG told him that the accused employee was giving KM special treatment, he was giving KM money and SG further told Mkhonza that she saw them kissing after school. Mkhonza warned them against telling this story. Mkhonza instructed them to call KM and the accused employee to his office. After they had met with Mkhonza, KM told them that they both denied that they were dating. However, KM told them that she denied because they were already dating. S told Msimango that they often see KM going to the accused employee’s place of residence after school. She said that one of the days was when they had to wear traditional attire at school. On the day they saw her, S was with her sister. S told Msimango that she shouted at KM and the accused employee telling them that she would report them at school. Immediately, KM left the accused employee’s place. When Msimango asked KM what she was doing at the employee’s place, KM told her that the accused called her as she was walking along the street to return the traditional attire from where she had borrowed it. Msimango asked KM if what S had said was true, KM confirmed. S’s sister also confirmed.
S further told Msimango that subsequent thereto, Mkhonza convened a meeting of all grades 7 in the school hall. The accused employee was also present. In the meeting, Mkhonza asked the learners about the rumors that there is a teacher who is dating a learner at this school. Some learners raised hands and confirmed that there is a learner who is dating a teacher. One of the learners told the meeting that KM is dating the accused employee. Mkhonza asked as to why the learners say they are dating, the learner’s response was that even KM’s mathematics exercise book is written “I love you K”, (the accused employee’s surname is Khathi). S also stood up and once again told Mkhonza that she saw KM and the accused employee kissing. The accused employee was also giving KM special treatment. She was not receiving same punishment as other learners and even no punishment at all. Even the accused employee’s table was taken care of by KM. Should there be anything he does not find on the table, the accused employee would ask KM. The accused employee would sometimes give KM pocket money. Mkhonza stopped the learner from divulging more information. S further told Msimango that one day KM menstruated and felt bloated while in class. She with the assistance of another learner MG accompanied KM to the toilet. MG went back to report same to the accused employee. The employee told KM to show him and KM complied. Then, the employee allowed KM to go home in the company of S and MG but insisted that she should come back.
Msimango testified that on or about the period between September and October 2023, KM told her grandmother that she felt like committing suicide. Msimango asked the accused employee to speak to KM. This was prior to her discovering the issue of the accused employee sexually assaulting KM. Msimango and KM’s grandmother tried to ask KM to at least tell them why she felt like committing suicide. KM’s response was that she does not know. She testified that because of work commitments, KM stays with her mother who is KM’s grandmother. She then asked her mother to take good care of KM.
Msimango testified that after obtaining the necessary information she alluded to above from S and her sister, she went to the accused employee’s place which is not far from S’s residence. When they arrived, they found the accused employee’s son who is approximately 15 or 16 years old who told them that his father had just gone out. He was not sure when exactly he would come back. Msimango left a message with him that he should tell his father to phone her before she goes to the police. Within 30 minutes at 08:35pm, the accused employee phoned her. She asked him as to what she had done to him that he may hurt her so much with her child that she is bringing up as a single parent. The accused employee sounded very panicking. His excuse was that he might have been attacked by a demon. He begged her saying that he would do anything she wanted because if she proceeds with action against him, his professional certificate would be torn apart. After a short conversation of 3 minutes 18 seconds, she dropped the call. At 08:33pm, the accused employee called again, she told him that she had nothing to discuss with him. The call lasted for 6 seconds. At 08:46pm, the accused employee called again, the phone rang for 35 seconds, but she did not answer. The employee called again at 08: 47pm, she still did not answer. He called again at 08:53pm, she still did not pick it up. He again phoned at 08:57pm, she answered, the employee repeated what he said earlier that he would lose his job. He pleaded that he would do anything, she should not get him arrested. He told her that he does not know what tempted him. He sounded like he was crying. She dropped the call. At 10:37pm she called him, and before he could even answer she dropped it. She testified at that moment, she was confused, her mind was all over. At 11:03, she called and dropped the call again. At 11:03, she called again, they spoke for 17 minutes and 15 seconds. He asked him to explain. She told him that he started contacting her in early 2023, telling her that KM was at a stage of growing up. He said it seemed like KM was dating because he found a letter in her bag as he was searching. The letter was from a certain Thabo. According to Msimango, he verified the said information with Thabo. He agreed that KM was his girlfriend. He asked him if they were also having sex, he said no, KM is just a girlfriend, they were very young to be involved in sexual intercourse. She told the accused employee that she assessed KM and found that she was a virgin. She had knowledge of how to assess virginity. She was taught by a lady responsible for the young girls’ virginity assessment in the area which is part of their culture. The accused employee started to persuade her again. After that She blocked the accused employee’s calls.
On Tuesday 21 November 2023, she begged KM to explain what happened. She was not brave to check her virginity by herself since she was suspicious. She, in the company of her boyfriend Mr. Lindokuhle Ndlovu (Lindokuhle) took KM to the clinic. After the assessment, the nurse informed them that the hymen was not there. The nurse advised them to go to the police station. The police would refer KM to the doctor. On the same day, they went to Pongola Police Station. The police officer told them that KM did not want to talk, she was just biting her nails and playing with her fingers. They went back home without opening a case.
The following day, 22 November 2023, she phoned Mkhonza the principal. She related the story that she discovered that KM and the accused employee were in an intimate relationship. Mkhonza’s response was that he appreciates that she ended up finding out herself. He conceded that he knew about them. He informed Msimango that in June 2023, learners told him that the accused employee and KM were in a love relationship. It was S and SG, in fact it was 4 or 5 of them. Mkhonza told her that SG told him that the employee was giving KM preferential treatment and favours. This started when the classroom keys were taken away from S and given to KM. SG warned that KM would be the accused employee next target. S told Mkhonza that one of the learners told her that she saw the employee hugging KM in Ms. Thabede’s classroom. Mkhonza said he did not take SG seriously because she is a dramatic child. However, he asked S and SG to go call the employee and KM. Before they left, Mkhonza informed them that this issue must remain among themselves and whoever talks about it, will be the one to answer. When Mkhonza questioned the employee and KM about same, they denied that they were in a love relationship. He then let them go. He called the HOD Ms. Thabede, he related the same story of KM and the employee. They agreed with Thabede to convene a meeting of grade 7 learners to a school hall. All educators were present including the accused employee. Another learner told the meeting that KM has an exercise book which is written on multiple times that “I love K”. Learners then explained the issue of favours the employee was doing for KM. During the discussion with Mkhonza, it came up that the employee was once suspected of having a love relationship with a learner by the name of HM. Mkhonza told her that they did not take HM seriously because she was troublesome. They thought she was lying. There was a meeting with HM’s parents, the accused employee and HOD. During the meeting, HM told them that the employee gave her R200.00, which she refused to take. HM told them that the employee would touch her bums and ask her to accept his love proposal. Msimango stated that she asked Mkhonza what led him not taking the matter seriously if the child had reported it. In respect of KM as well, he said he knew about it as early as June 2023, but he never informed her about it as a parent. Mkhonza apologized but further told her that he was happy that the matter had come to her attention. In the same month the accused employee was arrested. Mkhonza refused to continue with the meeting they had arranged, stating the reason that she had already opened a case against the employee and had been arrested.
On 27 November, the circuit Manager Manana, visited her. He assisted her with writing a statement . She testified with reference to her statement directing the hearing to a J88 report which was completed by the doctor that KM had sexual intercourse. She stated that the criminal case of statutory rape against the employee was opened on 23 November 2023. KM only saw the doctor the following day. At the time she was 13 years old. The case is in the High Court. It was only on 22 November 2023 that KM confirmed that he had sexual intercourse with the accused employee. She told her that the employee forced her to have sex with him. Even when she was crying, he did not have any sympathy on her, he forced himself on her. He forcefully pulled her and inserted his private part into her vagina. After he was done, he told her not to tell anyone. He wiped himself. While dressing up, she noticed a fluid going down her thighs. As she was about to go out of the gate, she noticed that there was blood flowing down her sandals. When she arrived home, she noticed that her panty was full of blood and there was no one at home. When she took a bath at home, she felt pain from her vagina. Msimango asked KM why she kept quiet for such a long time. Her response was that she did not want to hurt her and that she was afraid of the accused employee. She then questioned her about the issue of suicide letters she was writing. KM told her that she was afraid that for the whole year the employee would touch her bums and squeeze her breasts. She thought he would end up doing same to her. She could not engage in discussion any further, she started crying. She did not go back to the same school. She stated that KM’s boyfriend, according to S was his brother MD. However, Msimango stated she only knew TB.
Under cross examination she was asked as to why she did not take KM to the mother who assesses virginity when she discovered that she had sexual intercourse. Her response was that the lady passed away in mid-2023. It was put to her that when she checked her, there was a possibility that the hymen was not there. She disagreed. She conceded that when she suspected that she was sexually assaulted by the employee, she did not assess her but when observing her abnormal behavior, she took her to the clinic.
The second witness KM testimony confirmed that of Msimango to its entirety to the extent that I see no need to repeat it. I will only deal with parts that are not covered in Msimango’s evidence. KM stated under oath that the accused employee was his class teacher. In February 2023, she was keeping the class keys. She was responsible for cleaning the accused employee’s table. She was responsible for anything that was missing on the table. During one of her birthdays, she informed the employee about it, the employee in the presence of S and SG gave her a gift of R20.00. Other learners complained that he does not do same to them on their birthdays. It was not the first time that the employee would give her money, he had done it many times. It started in the same year 2023. When he gave her money, they were outside the classroom. On other occasions, he would tell her that she would find money on the table, she must take it. When he called her outside the classroom, the employee started to propose love from her. During May or June 2023, she accepted his proposal. From there on, they were lovers until the time when he raped her. When she was at Ms. Thabede’s classroom, the employee hugged her. The employee was giving her preferential treatment. One of the school procedures or rules is that female learners should braid their hair. The employee was responsible for ensuring that the rule is followed. The employee would reprimand learners who did not braid their hair but not her. She conceded that even though it was true, they denied when Mkhonza questioned her and the employee in his office about the rumors that they were in an intimate relationship. She further testified about what happened during the meeting at the school hall corroborating the evidence of Msimango. She conceded that S said she would be the employee’s next rape target. She testified that in the meeting, another learner by the name of SS told the meeting that she (KM) and the employee were dating. She further said that even KM “mathematics exercise book was written “I love you K”. She conceded that when asked about the said writing, her response was that “K” stands for her name. However, at that time she was already in love with the accused employee. She lied to Mkhonza because she was scared. She testified that in September 2023, on her way back from returning the traditional attire to Mhlakeni where she had borrowed it, the accused employee called her to his residence. She confirmed that on that day S saw them and that got the employee worried that S would talk about it. She further testified regarding the letter the accused employee told her to write about the good and bad things about her mother . She averred that the issue of suicide came to her thoughts when the employee was proposing love to her. Her problem was that her mother trusted the employee and she was scared to tell her that the employee was proposing love to her.
Sexual assault
She testified that on Friday 17 November 2023 while at school, the accused employee requested her to visit him at 2pm on Sunday after church. On 19 November 2023, she went to the employee’s place. Instead of going to church on Sunday, she went to S’s residence. At about 2:30pm, she told S that she was going home but proceeded to the accused employee’s cottage. The employee told her to enter the house. As she was doing so, the accused employee’s son exited the house. The accused employee told her to go to the bedroom. In the bedroom, the employee asked what she would say if he took off her clothes. She told him, “You are joking Sir.” He said he was not joking. She saw his facial expression changed. He grabbed her by force. He pulled off her jacket; he grabbed and pulled off her pants and they got torn. At that time, they fought over her pants. She was also crying asking him to let her go. Eventually, she was overpowered and he managed to pull off her pants. He lifted her and threw her on the bed. He opened her thighs. He inserted his penis into her vagina. She cried telling him that it was painful, but he continued. After that he wiped himself with a towel. As she stood up, she saw something that looked like blood going down her legs. He asked her not to tell anyone. She left for home where she took a bath and slept. The following morning at school, the employee greeted her and asked if she was ok. From school, she went to her mother’s place where she rents accommodation. She noticed that there was something wrong with her. She asked her to explain. She told her that she was fine. Subsequently, her mother Msimango took her to S’s place. S informed her mother everything about her dating the accused employee and that the principal Mkhonza knew about it. They went to the accused employee’s residence as per Msimango’s earlier testimony.
The following day at school the accused employee told her that he heard that her mother was looking for him. He asked what she wanted. She told him that S told her the truth. He then asked if she also told the truth, she said no. The following day at school, the accused employee called her, S and MG and told them that they should not tell anyone that he was in a love relationship with her (KM).
Clinic and Police Station visit
On 23 November 2023, her mother took her to the clinic. The nurse examined her and informed them that her vagina was forcefully penetrated. They proceeded to the police station where she denied that the employee had sexual intercourse with her. They left the police station without opening a case, however, the following day, her mother persuaded her asking who she slept with. She then shared the story as alluded to earlier that the accused employee raped her. She stated that initially, she denied because she was scared to talk. The following day she went to the police station with her grandmother. At that time, Msimango had already opened a criminal case against the accused employee. The police took her to Etshelejuba Hospital where they took blood samples for examination. They gave her tablets, and they went home.
She conceded that she knew TB as her boyfriend, they were dating and around February or March 2023, they were dating. She explained dating to mean that if he asks for a hug, they hug, it ends there but no sex. She testified that MD was not her boyfriend, he only proposed love from her in November 2023. Msimango got to know about TB because in August 2023, the accused took her school bag from class, searched it and found a card written “love TB”. He then asked her to give him Msimango’s cell number, she gave it to him. Msimango questioned her about TB and also chastised her. Msimango also went to confirm with TB if they were dating, he agreed. When her mother discovered, dating TB ended. They went back home where she administered vaginal testing on her. They also went to the lady who is culturally responsible for vaginal examination in the area. The lady confirmed that she was still a virgin.
She testified that after the rape incident, she went for counselling where she attended for the whole of 2024. Her Counsellor was Ms. Dlomo a social worker. She stated that her love relationship with the accused employee ended the day he raped her. She no longer trusts him. Before he slept with her, she trusted him.
Under cross examination, she testified that it was not the accused employee who reported the rumors that they were in a love relationship. She testified that she went to the employee’s residence on 3 occasions. When she was asked to explain what happened when she got to the employee’s house on 19 November 2023. She provided exactly the same explanation. She was asked as to why she took so long to report the incident of sexual assault. She said she did not know how to tell her mother; she was scared. However, it took her less than a week to do so.
The third witness, Mr. Andrew Mkhonza, whom we referred to earlier as Mkhonza, testified that he is a principal at Simandlangentsha Primary School. On 22 November 2023, Msimango phoned him asking if he was aware that the accused employee had sexual relationship with KM and also told him about the incident of sexual assault. He promised to escalate it to his superiors. He did not report immediately because Msimango told him that he should wait until she finds something concrete. Before he could even report as promised, the Circuit Manager Manana came to the school. He (Manana) told him about the same incident. He testified that he started hearing the issue of KM and the employee love relationship around July or August 2023 when schools reopened. Initially, Mkhonza denied that the learners S and SG visited his office to inform him about the love relationship between KM and the employee. However, when he was directed to Manana’s investigation report , he conceded. He conceded that during or about August 2023, he called a grade 7s meeting to discuss the issues in question. The issue of differential treatment, exercise book written “I love you k”, accused employee giving money to KM were raised, and the only accused educator was the accused employee. In fact, there were 3 issues that were discussed in the meeting. He admitted that the writing was strange because the employee’s surname starts with “K”. He only spoke to the accused employee, when he was about to escalate the matter, Manana came to the school about same. He conceded that even though he started hearing about the matter in August, he did not escalate it. He testified that he was not aware that the employee was administering corporal punishment. The accused employee was aware of the code of conduct against corporal punishment. He stated that educators are not allowed to have sexual relationships with learners. In 2023, it was compulsory that female learners must braid their hair. He was aware that learners said KM would be the accused employee’s next target of rape. He had to deal with the fear of rape. He testified that he would not allow a teacher who is found guilty of sexually assaulting learners to come back to his school.
Under cross examination he conceded that the learners S, NB and SG informed him as early July 2023 about KM and the accused employee suspicion of love relationship.
The last witness of the employer party, Manana testified that he received allegations of misconduct against the accused employee. He investigated the matter and produced a report . He received a complaint from KM’s mother Msimango. After his superiors had given him a go ahead, on 3 May 2024, he commenced with the investigation. He interviewed KM, Msimango, Mkhonza, MG and S who are learners at Simandlangentsha. He did not interview the accused employee as he had already been arrested. The complaint was that of sexual assault against KM which took place on 19 November 2023 . Manana testified on what KM told her about how the accused employee sexually assaulted her. He related the incident exactly as was explained by KM. Therefore, there is no need to repeat. He testified also about how the accused employee proposed love from KM and the involvement of S, SG, NB and other characters. He testified about everything that took place at school including the meeting at Mkhonza’s office, the meeting of grade 7s at the school hall, the exercise book written “I love you K”. Manana testified that his conclusion was that Mkhonza tried to protect the accused employee. Mkhonza denied any knowledge of incidents that occurred at his school. He denied even calling learners to the school hall to discuss the report he received from the learners. He never reported any of the incidents that took place to his superiors. Manana testified that the department would institute disciplinary action against Mkhonza because he had a duty to report. If the accused employee is found guilty of sexual assault, he would not allow him to come back to their schools. The employer party submitted detailed closing arguments. I do not intend to regurgitate the whole document, I will refer to those parts that are relevant to my analysis.
The employee’s case
The employee party led the evidence of 3 witnesses, the employee, Ms. Nomcebo Gamede and The employee’s son.
The employee testified that he is a grade 7 E class teacher. He has known KM since 2023 as her class teacher. There is no rule as to who keeps the keys to the classroom. He gave the keys to S to keep enabling the cleaners to work. He decided to keep the keys with him so that the learners would clean the classroom 15 minutes before they left. However, KM ended up keeping the keys because in May 2023 he heard the lady that is responsible for the cleaning of class Ms. Musa Mvubu (Mvubu) shouting at S that she was arriving at school with keys very late. She then gave the keys to KM because she was always early. The employee stated that he did not object to the keys being given to KM.
Proposing love and preferential treatment
He testified that it is not true that he proposed love from KM. His relationship with her was like any other learners. It is not true that he gave KM preferential treatment compared to other learners. KM was troublesome like any other learners. She was taller compared to other grade 7 learners. That made her look older than other learners in class. Together with other boys who are 15,17 and 18 years old, as a sign of respect, he would not reprimand them in front of younger learners. He would call them outside the classroom and reprimand or just talk to them so that they would not be embarrassed. Then, because of KM’s height, he would group her with these boys. If she misbehaves, he used to call her outside of class and talk to her.
In respect of the rule that female learners must braid their hair, he confirmed the existence of the rule. However, in November when they prepare for the farewell function and examination, female learners have the right to do any hair style. So, in November 2023, KM came to school having not braided. He did not reprimand her.
Regarding the issue of money, he stated that around April 2023, on her birthday, KM reminded him that it was her birthday. It was in the classroom and all learners were present. Two or three days thereafter, during the break outside of the class, he gave her money, the amount he could not remember. However, he does not dispute that it might have been R20.00. KM’s friends S and MG were present. Initially, the accused employee testified that he never gave KM money except the R20.00. He stated that during lunch time, sometimes he would leave change on the desk. If he had left food, any child whether boy or girl would ask for it and not KM only. The same applies to money that is left on the table. There was no money that he would leave on the table for KM. The accused further testified that on many occasions, KM would also ask for money he had left on the table, and he would give it to her. He is not aware of any disciplinary code that prohibits educators from offering gifts to learners.
Letter from KM ‘s bag
The employee testified that it is not true that he took letter from KM’s bag. Ms. Mathenjwa was the one who took the letter from KM because she wrote it in Mathenjwa’s class while she was teaching.
He testified that in July 2023, learners informed him that SG told S and KM that KM should stay away from him because he would rape her. He reported this to the principal Mkhonza. SG and S were invited in the principal’s office as per his request. When questioned about same, they started pointing at each other. Principal Mkhonza told them to come with their parents. Only SG came the following day with her grandmother.
He conceded that a grade 7s meeting was convened in the school hall where a learner said she saw Km ‘s exercise book written “I love K”. KM told the meeting that “K” was reference to her name.
Hugging
The employee denied having hugged KM. He testified that he had never been with KM in Ms. Thabede’s class. He had never hugged KM.
Telephone calls 20November 2023
He testified that on 20 November 2023 at 20:30pm, he received a call from Simelane, his neighbor from the cottage who looks after his residence if he is not there. He told him that he saw two women coming out of his cottage shouting. However, The employee’s son was able to tell him that it was KM and a lady that was unknown to him. However, the lady told him that he (the employee) must phone her before she goes to the police. It came to mind that it must have been KM’s mother. He phoned her asking what the call was about. She asked if he was in an intimate relationship with KM. He was confused. She told him that if she had a firearm, he would have told the truth. She then dropped the call. He phoned; she dropped the call again. He phoned about 4 times she did not pick up the phone. He phoned again at 20:57pm, she told him that she was at the police station opening a case against him. He asked her what he had done because he told her that he was coming. He told her that he would wait for the police. At 11:00 and 11:03, she phoned asking him to tell the truth. On 22 November 2023, Mkhonza called him to a school management team meeting to discuss the report made by Msimango.

Sexual assault 19 November 2023

The accused employee testified that at Ncotshana he lives in cottage with his son. On 17 November 2023, he left for his homestead at Magengeni. He came back on Monday 20 November 2023. On this day his neighbour from the cottage Mr. Simelane phoned informing him that he saw two females coming out of the employee’s residence. He said he did not know who they were. He asked him to give the phone to his son. He came back on Monday 20 November 2023, after 9 pm. When he arrived, it was hot, Simelane was outside. The employee’s sontold him that yesterday, there is a lady who came in the company of KM. The employee’s sonknew KM because they were together at school.

On his way back to the cottage on 20 November 2023, the employee had a telephone conversation with KM’s mother. He denied having sexual relationship with KM. He was arrested on 24 November 2023 for raping KM.
It is not true that KM had been to his cottage on 3 occasions. It was once on 26 October 2023. She came to ask him to persuade her mother to pay for her farewell because she only bought a dress. He told KM that he would not be able to assist because he created a group WhatsApp where all parents receive information. He further told her that coming to his cottage would put him into trouble. He denied that KM visited him on the cultural day.
Under cross examination he testified that he did not tell KM to come collect the class keys at his cottage. He conceded that indeed keys were broken but no one reported that to him, he only saw learners standing outside in the morning. It was put to him that such version was never put to KM. It was put to him that the version that in November female learners were allowed to do their hair the way they wanted was an afterthought, it was never put to KM. His response was that he was advised to wait for his turn to testify. He conceded that on several occasions, when other learners were sweeping, he would call KM outside the class. He testified that He reprimanded KM outside the classroom because she looked older because of height, he conceded that she was only 13 years old.

The second witness, the educator’s son , testified that the employee is his father. He has been staying with him from a young age. He is a student at Khulumeluzulu High School. He testified that he knows KM. They used to go to the same school at Simandlangentsha. He testified that KM never visited them even once. On 19 November 2023, he was at the cottage. He is always there except if he is at school. On 19 November 2023, KM never came to the cottage. It is not true that KM came at the cottage, and his father asked him to give space. He does not know KM’s mother. On this day, there were people at the cottage other than him. He does not remember if they were in their rooms or outside. On 20 November 2023, the lady who was in the company of KM asked if his father was there. He told her that he left on Friday. She told him that he must tell his father to phone her failing which she would go to the police. The lady was shouting. As she continued talking, he went back to the house. There was no one else there, but after they had left Simelane arrived. It was hot and most of the time, if it’s hot, people would sit outside. The only person who was outside was Simelane. Anyone who came on 20 November 2023 would have seen Simelane, he was seated outside the house and the door was opened.
The employee arrived late on Monday after 9pm towards 10 pm. He told him that there was a lady who came with KM. She said he must phone her before she goes to the police. When Simelane came asking what the ladies wanted. He told him exactly what they said. Simelane took his phone, they phoned the accused employee, but the employee arrived at 10pm. It is not true that the employee raped KM. He testified that he loves his father, he can protect him with all he has if he is in danger. Even if he is the one who puts himself in danger, he would still protect him, but he would not do anything that is not right.
Under cross examination, he reiterated that KM never visited their place even once. It was put to him that he came to the cottage and spoke to his father. He said he did not know. It was put to him that this was his father’s evidence, he said it’s not true that this is what his father said. If his father said that, even he would be lying because he (the son) is always at the cottage. He insisted that he was telling the truth because he was always in the cottage. It was put to him that KM had visited on 2 occasions and if this is true it means he is not always in the cottage. He insisted that he was always there. He was asked why he did not see her then, he said he saw her once when he came with the lady. When KM and her mother entered the cottage gate, he said he was inside the house, he was asked how he saw that Simelane was outside. He said, Simelane left their room after 7pm news because he was there to watch the news. He then went and sat outside his room. He saw him because after washing the dishes, his son went out to throw water. He was then able to view Simelane. It was put to him that he never mentioned this in his evidence in chief. He conceded that at the time KM and her mother entered the gate, Simelane might have been in his room doing something.

46. The third witness, Nomcebo Gamede (Gamede) testified that she is the employee’s wife. The employee is correct to call her a fiancée. She is not employed but she only does hair braiding. The employee takes care of her and children. She struggled to explain her relationship with the employee. She does not live with the employee. They both stay in the same area at Magengeni. The employee is a Pastor at Swedish Free Church. In order to take part in the church affairs, they had to go for engagement. They have known each other for 17 years. On 19 November 2023, she was at the employee’s home at Magengeni. He was also there. On 17 November 2023, she did not see him because he was at work. On 17 November 2023, she never saw him because on certain Fridays, he does not come. She changed her version to say if 17 November 2023 was a Friday, the employee was at home at Magengeni. His parents were both there. On 25 November 2023, he was arrested. They discussed the charges that were leveled against him. The employee told her that he was arrested for raping a grade 7 child. She was shocked because she knew the manner in which he conducted himself. She never heard that he had another woman. At home he spends time with her, but she does not know when he is not with her. He told her that he was innocent of rape, he never did it. He does not know why they lied against him. On 19 November 2023, she was with him. Had he told her that he raped a child, she would not have continued having a relationship with him.

47. Under cross-examination she conceded that she is aware that this is not the first with school children. She testified that the accused employee did not inform her that there was learner who warned KM to stay away from him because he would rape her. When asked again if the employee would tell her everything, she said yes. She was reminded that earlier on she said he does not, why is she changing evidence, she said she has no reason. She insisted that on 19 November 2023, the employee was at home at Magengeni. She was asked as to why the employee never went to work on 20 November 2023. She said her mother was sick. She was asked why she seemed to remember everything that happened on 19 November 2023. She said it is because of the incident in question. When I asked her what they would be doing on what she called special weekends other than cooking nice meals. She said nothing. It was put to her that the reason why she could remember what happened on the weekend of 19 November 2023, is because she had time to rehearse what she would present at this hearing. She said she never rehearsed. She testified that the engagement ceremony was on 14 February 2014. They are still engaged. She stated that the reason why she does not wear a ring is because the employee told her that he feels guilty that he has not paid any lobola for her. He first wanted to lobola her, then continue wearing a ring. She conceded that on the day of the engagement she knew that she was not getting married, it was not a wedding day. However, when I asked her a question for clarity, she stated that when she put on a ring, she was getting married. She conceded that the employee had not paid any lobola for her. She testified that she did not know the difference between a wife and a fiancée. time that the employee has been accused of a case of similar nature. He told her that when the rape case surfaced, he was told that he had relationships

The employee party submitted detailed closing arguments which I will not record on my survey as the document is readily available, however I will refer to those parts that are assisting me on my analysis.
ANALYSIS OF EVIDENCE AND ARGUMENT

I am called upon to determine on the balance of probability if the employee is guilty of the act of misconduct for which he was charged. I will provide brief reasons for my finding as the law requires. The charge relating to the act of misconduct that is levelled against the employee is fully stated in paragraph 7 of this award.
It is prudent to mention as the employee party correctly argued that in cases of this nature, the onus of proof rests with the employer to prove on the balance of probability that the employee is guilty of the offence. However, in Compass Group Southern Africa (Pty) Ltd v CCMA and Others, the Court pointed out that once the employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defence. If the employee fails to put up a defence or fails to prove his defence, the employer’s prima facie proof of misconduct becomes conclusive proof, and the employer has then discharged the overall onus that always rested with it.

I noted that the act of misconduct alleged, invites legal and factual debate. Therefore, as stated above, while the employer is burdened with the onus of proof, the employee is expected to present evidence that is reasonably possibly true. The employee is charged in terms of section 17(1)(b), alternatively Section 17 (1) (c)of the Employment of educators Act 76 of 1998, as amended, of which ( b ) stipulates 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 employee, while (c) is concerned with having sexual relationship with a learner.
At the commencement of this arbitration, the representative of the employer submitted that she intended to call S and MG the learners who were classmates and friends to KM. Their parents refused. Initially their statements were not obtained because their parents did not allow them to testify, however they were subsequently interviewed by the Department investigator, Manana. Parents did not provide any reasons for such refusal save to say that they do not want their children to be involved in a case that had to do with a teacher. However, after more persuasion, S and MG submitted their affidavits . Mr. Acheampong, for the employee party, argued that in terms of Section 3 (4) of the Law of Evidence Amendment Act 45 of 1998, hearsay evidence is generally not admissible in civil or criminal proceedings, and he further listed all the exceptions to the rule. Even though the affidavits of S and MG are hearsay evidence, I ruled that they must be admitted into evidence as it is in the interest of justice to do so. The Court in Kapa v S 2023 (4) BCLR 370 (CC) held that hearsay evidence is inadmissible unless of course the Court is of the opinion that it is in the interest of justice for it to be admitted considering the factors referred to in Section3 (1(C) from (i) to (vi). The reason why S and MG had failed to appear in person has been dealt with above. It was not out of their own will. Both parties agreed that these witnesses are important in this case. I also hold the view that the evidence of the said witnesses is important in this case. It is in the interest of justice that I accept their affidavits into the record.

I now turn to deal with sexual assault. There is overwhelming evidence in this case that points to the fact that the sexual assault against KM did not come as a surprise. There were red flags that the school management in the leadership of Mkhonza had ignored. Mkhonza conceded that multiple learners reported or informed him that KM was in a love relationship with the accused employee. KM was receiving money from him, preferential treatment, her mathematics exercise book contained repeated inscription “I love you K,” which Mkhonza in his testimony found it suspicious given that the accused employee’s surname begins with “K” and lastly, learners warned that KM should play far from the accused employee because he would rape her, in fact the warning was that KM will be the next target of rape by the accused employee. There is further evidence that prior misconduct was also reported by another learner, HM, who alleged sexual harassment by the accused employee in the form of unwanted touching and a rejected monetary inducement of R200.00. If regard is had to these learners’ accounts against the accused employee, clearly, they are mutually reinforcing and consistent across different witnesses. Their testimony coupled with physical evidence, for example, the exercise book with the inscription “I love you K”, points to grooming behavior. Sexual grooming is generally understood as a deliberate process by which an adult or sexual predator manipulates a child or a vulnerable person and often their family, to build trust and emotional connection for the purposes of sexual abuse. Grooming indicators include trust building e.g. preferential treatment and monetary gifts to make the child feel special; isolation thereby creating opportunities to be alone with the child, in this case giving KM class room keys so she arrived early and left late; affectionate gestures such as hugging and kissing; secrecy, encouraging the child to keep the relationship secret; escalation, the normalization of sexual topics and moving from seemingly harmless gestures to physical contact and eventually sexual assault. Under the South African Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, (SORMA) Section 18 and 24, sexual grooming is a distinct offence involving the psychological manipulation, preparation, or inducement of a child or a person with a mental disability to perform, witness or to become prepared for sexual act. Clearly, in South African Law sexual grooming is explicitly criminalized. Principal Mkhonza’s verification process in his endeavors to solicit the truth in the meeting held both in his office and school hall about the alleged love relationship between KM and the accused employee, adds credibility, as allegations were repeated in a formal setting with the accused employee present. The prior complaint by HM demonstrates a pattern of predatory conduct, that the accused employee has previously targeted learners in a similar way. I am of the view that the prior warning of being a rape target given to KM which the accused employee confirmed, reflects the perception among the peers that the accused employee’s behavior was escalating towards sexual assault. The cumulative evidence establishes a coherent pattern of grooming and predation by the accused employee. I am surprised that only the young learners were able to see the danger and confronted the situation but not the school management. They submitted credible evidence.
Even before I deal with the actual sexual assault which allegedly took place on 19 November 2023, the allegations of sexual assault perpetrated against KM are consistent with this trajectory of misconduct. The evidence presented so far including hearsay evidence is therefore in line with and supportive of the charge that the accused employee sexually assaulted KM. KM testified that when learners were cleaning the classroom, the accused employee would call her outside. While alone, he would propose love from her. It is important to mention that assigning KM the classroom keys was not an administrative convenience as has been portrayed, but a deliberate tactic. It ensured regular one on one encounters with KM, a hallmark of grooming behavior. KM’s testimony shows a clear escalation from proposal of love to intensified preferential treatment. The escalation from proposal to acceptance, created a context in which sexual assault became the culmination of the accused employee’s predatory conduct. The repeated giving of money, including on her birthday, demonstrates a sustained effort to build dependency and emotional leverage. This is consistent with grooming and exploitation. The accused employee’s concession that he gave KM money on multiple occasions corroborated her testimony and undermines his defence. Therefore, taken together with corroborative learners’ testimony, Mkhonza verification and prior misconduct involving HM, KM’s evidence firmly aligns with and substantiate the charge that the accused employee sexually assaulted her.

Alibi

The accused employee testified that on 19 November 2023, he was not at the cottage where the sexual assault is alleged to have occurred hence raising an alibi as his defense. KM’s evidence was that on Friday 17 November 2023, while at school, the accused employee requested that she pay him a visit on Sunday 19 November 2023. On her arrival at the cottage where the accused employee resides, he sexually assaulted her. The accused employee led the evidence of two witnesses, The employee’s son and Gamede, who testified that the accused employee was not at the cottage on 19 November 2023. The employee’s son’s version was that he left on 17 and came back on 20 November after 9pm. The two witnesses are closely related to the accused employee, a son and a fiancée respectively. In South African law and evidentiary practice, the cautionary rule applies when evaluating the testimony of certain categories of witnesses whose evidence may be influenced by bias, interest, or relationship to the accused. This principle finds expression in S v Haupt 2018 (1) SACR 12 (GP) where the Court reaffirmed that the cautionary rule applies to categories of witnesses whose evidence may be suspect. The Court in S v Jackson 1998 (1) SACR 470, emphasised that the cautionary rule in sexual assault cases must not be applied rigidly or mechanically, or as a set formula but in a way that ensures fairness and justice. I am therefore of the view that in casu, bearing in mind the close relationship between the accused employee, Gamede and The employee’s son, the application of the cautionary rule is inevitable.
To understand what happened on 19 November 2023, I had to scrutinise the evidence of the accused employee, Gamede, The employee’s son, KM, Msimango KM’s mother and to a certain extent S. The accused employee’s version was that Simelane phoned him first and told him about the two women who were shouting, he then asked him to give the phone to his son. This implies that, even though they were not together, they were in close proximity hence the accused employee asked Simelane to hand over the phone to his son who then related the incident of KM and Msimango’s visit to the cottage to the accused employee. Clearly, at that time Simelane must have known what the women had said. The employee’s son’s version makes Simelane a late arrival who only learned the details from him, then took out the phone and called the accused employee. Surely, these two contradictory accounts cannot both be true as they are mutually exclusive. Again, The employee’s son’s version was that when his father arrived after 9pm on the same day 20 November 2023, he again told him the same story about KM and her mother shouting and demanding a phone call before going to the police. In my view, logic dictates that if The employee’s son’s father (accused employee) had already heard the story earlier via the phone call, there would be no need for The employee’s son to repeat it later. The repetition suggests that the phone call may never have occurred, and that the accused employee was actually present at the cottage when KM and her mother came and had just gone out as per Msimango’s evidence that when they arrived on 20 November 2023, The employee’s son told them that he had just gone out, he does not know when he would arrive. This evidence of Msimango was never contradicted and therefore stands. Common sense dictates that a person who has just gone out is a person who is around but had just gone out. It therefore follows that the information that The employee’s son provided contradicts the alibi by placing the accused employee at the cottage that day. Therefore, his evidence at this hearing that he told Msimango and KM that his father left on Friday is rejected as untrue.
Another material contradiction in the evidence of The employee’s son was that KM has never been at the cottage even once while the accused employee’s version was that KM had been to the cottage once. When this contradiction was put to him under cross examination, he went further to say, it is not true that this is what his father said, whoever said that is lying, even if it is his father. He categorically denies any visit, even contradicting the accused employee. His willingness to call his father a liar is a clear demonstration of desperation and bias. His denial is extreme and desperate. As if it was not enough, The employee’s son claimed that he is always at the cottage and only leaves when going to school. It is highly unlikely that a teenager would never leave the cottage except for school. Normal social, recreational, and family activities make this claim improbable. This claim appears crafted to bolster the alibi by suggesting that he would have noticed KM if she had ever visited. Beside the fact that his father’s admission that KM had once been at the cottage throws his evidence out of the window, this assertion is unrealistic, untruthful and undermines his credibility as a witness. It is more probable that he was not always present and therefore cannot reliably testify about KM’s visit.
His testimony appears rehearsed to protect his father but collapses under scrutiny. His testimony cannot be relied upon; it is false and unreliable as it is inconsistent with KM’s credible evidence that she had been at the cottage on 3 occasions and his father’s admission. KM’s account of 3 visits is detailed, consistent, and corroborated by the evidence of witnesses including the grooming behaviour. KM’s version of events explains the escalation or progression from grooming, acceptance of love proposal to sexual assault on the third day. The accused employee’s admission of one visit aligns more closely with or partially supports KM’s account, while The employee’s son’s denial is implausible and therefore rejected. If regard is had to the noted contradictions between the evidence of the accused employee and The employee’s son, a logical conclusion is that they show poor co-ordination of the alibi. The illogical repetition of the same story by The employee’s son strongly suggests fabrication. In the light thereof, a reasonable inference to draw under the circumstances is that the accused employee was indeed at the cottage when KM and his mother Msimango came but had just gone out.
I now turn to deal with the evidence of Gamede. When Gamede described her status, she claimed to be both wife and fiancée shifting under questioning. Her explanation that they got engaged in 2014, but she is not wearing a ring because the accused employee suggested that she should not wear it at least until such time that he pays a lobola (bride price) is questionable and appears contrived to justify the absence of a visible sign of engagement. The inconsistent description of the relationship and the reason why she does not wear a ring undermines her credibility. It appears tailored to present stronger bond with the accused employee, but inconsistencies weaken her reliability.
Regarding the issue of the accused employee’s presence at his homestead at Magengeni between 17 and 20 November 2023, in her evidence in chief, she initially testified that she did not see the accused employee on 17 November 2023 because he was at work. This was a volunteered information not prompted by cross examination. When I asked for the purposes of clarity where she was on 17 November 2023, she said she was at the accused employee’s residence at Magengeni having arrived on Friday 17 November 2023, the accused employee was not there, he was at work but on 19 November 2023, he was there. She once again volunteered this information, I never asked where the accused employee was. When she said that, I observed very concerned and disapproving facial expression from the accused employee and Acheampong. Possibly, Gamede noticed same because she immediately changed her version. She stated that if it was a Friday the accused employee was at home at Magengeni because he normally comes back on Fridays. Her volunteered statements that on 17 November 2023, the accused employee was not at Magengeni but at work were spontaneous and unpressured, which often reflects truthfulness. The later change of version, made after observing the accused employee and Acheampong reaction appears rehearsed and tailored to protect the accused employee. The probability is that the first version is more probable, while the later correction is contrived. Therefore, Gamede’s evidence is unreliable due to contradictions, shifting versions and visible bias. In view thereof, I reject the version of the Gamede that during the weekend between 17 And 20 November 2023, she was with the accused employee at Magengeni. This version was fabricated to protect the accused employee.
In the light thereof, it is my finding that the defence witnesses The employee’s son, the employee and Gamede presented contradictory, improbable and unreliable evidence. Their testimony collapses the alibi and confirms the accused employee’s presence at the cottage on 19 November 2023. KM’s consistent and corroborated account stands as the most credible version.
In the light of the evidence presented to me in totality. It is my finding on the preponderance of probability that the accused employee is guilty of sexually assaulting KM in accordance with charge 1 as set out in the charge sheet.
In Diholo v Gauteng Department of Education and Others (JR 1775) (2023); ZALC JHB/2023/117, the Court confirmed that educators found guilty of sexual misconduct, specifically sexual assault on a learner, fall under mandatory dismissal provisions to protect the integrity of the employment relationship and the safety of learners. In terms Section17 (1) (b) of the Employment of Educators Act 76 of 1998, once guilt is proven, dismissal follows automatically. Therefore, the submission of mitigating and aggravating circumstances is not necessary and not permissible because the statute removes discretion, the sanction is predetermined by law.
Sanction
The accused employee Mr. Mlungisi Godfrey Khanyi is dismissed with immediate effect in terms of Section 17 (1) (b) of the Employment of Educators Act 76 of 1998.
The General Secretary of the ELRC must serve a copy of this award to the South African Council for Educators (SACE) for the deregistration of the accused employee as an educator.
The accused employee’s name shall be entered into the National Register for Sex Offenders in terms of Section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
The accused employee Mr. Mlungisi Godfrey Khanyi is declared unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005. The General Secretary must in terms of Section 122 (1) of the same Act notify the Director General of the Department of Social Development in writing of this finding.