Case Number: ELRC1292-25-26GP
Commissioner: E Maree
Date of Award: 12 June 2026

In the inquiry between

Gauteng Department of Education

(Employer)

And

NAPTOSA obo Mandla Kheswa

(Employee)

Employer representative: Mr. B. Setsiloane

Employee representative:

Mr. S. Mtshubungu

Details of hearing and representation

1. The inquiry by arbitrator regarding alleged acts of misconduct, set down in terms of Section 188A of the Labour Relations Act, 66 of 1995 ‘’the LRA’’ and Collective Agreement 3 of 2018, the ‘’CA’’ was heard on 27 March 2026 and 14 May 2026 at the Department of Education, 17 Simmonds Street, Johannesburg.
2. The employee was represented by Mr. S. Mtshubungu an official from NAPTOSA while the employer was represented by Mr. B. Setsiloane a Labour Relations Officer.
3. The arbitration was electronically recorded, and handwritten notes were taken. The process was also assisted by an intermediary, Ms. G. Wenzel and council interpreter Mr. M. Seale.
4. The parties have agreed to submit written closing arguments relating to mitigation and aggravation on or before 4 June 2026. Both parties duly complied.

Issues to be decided

5. I must determine if the employee is guilty of the charges of misconduct levelled against him. In the event of a finding of guilt, the appropriate sanction must be determined.

Background to the dispute

6. The employee, who had been an educator for 5 years, is employed as such at Brakpan High School.
7. The charges levelled against the employee are quoted verbatim hereunder. Due to the fact that the charges relate to allegations of sexual misconduct, and the learners were minors, at the time of the alleged misconduct they will not be identified but referred to as ‘’the minor’’, ‘’KN /PN/’’ or ‘’the learner’’. The identity of the learners was confirmed in the pre-hearing minutes.
8. The applicant taught history and was the educator in this subject for both learners during 2025 when they were in Grade 11.

Allegation 1

‘’it is alleged that on or around 27 October 2025, while on duty at Brakpan High School, you conducted yourself in an improper in that requested to touch the breasts of a Grade 11 learner KN in exchange to give her the history Grade 11 question paper for November 2025 examination.

In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

Allegation 2

‘’it is alleged that on or around 18 August 2025, while on duty at Brakpan High School, you conducted yourself in an improper manner in that you sexually harassed PN by hugging and touching her buttocks.

In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

9. The employee admitted that the notice was received timeously on 13 February 2026 that he was informed of the right to be represented and was indeed represented by an official from NAPTOSA. The employee also acknowledged that he understood the charges and pleaded ‘’not guilty’’.
10. It was accepted that there was sufficient time to prepare and that all rights including but not limited to the right to have an interpreter was explained.
11. On 27 March 2026, the respondent called two (2) witnesses, Mr. Mervis Freddie Nkopane (the Principal) and Daniĕl Nakedi (the parent of KN). Both witnesses led evidence and was cross-examined.
12. The matter was then postponed to 14 May 2026 in order to inter alia be presented with the evidence of the two learners.
13. However, before the evidence commenced. Mr. Mtshubungu indicated that the applicant wished to amend his plea to one of ‘’guilty’ to both allegations. The applicant, Mr. Kheswa, confirmed that he wishes to do so. He also again confirmed that he understood both allegations and that they were of a serious nature. He confirmed that he changed his plea to ‘guilty’ of his own free will and was not forced nor induced to do so.

Survey of evidence and argument

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

14. Based on the plea of guilty, the evidence of the two witnesses will not be reflected but will only be referred to in the analysis, if necessary.

Analysis of evidence and Arguments

15. The onus in this matter was on the employer to prove, on a preponderance of probabilities that the workplace rules were contravened, and that the employee was guilty of the allegations against him.
16. The applicant pleaded guilty to both allegations and as such is found guilty.
17. It was submitted in aggravation by Mr. Sebiloane that the applicant pleaded guilty to the charges and admitted that ‘’he has no defence and has no choice but to plead guilty . This was based on ‘’the damning evidence’’ given by the father of one of the learners.
18. It was further argued that the mere plea of guilty ( as per case law) does not show that an accused person is a candidate for rehabilitation in the absence of any evidence to support such notion. The plea of guilty does not diminish the seriousness of the misconduct .
19. During the investigation, the employee showed no remorse and it should be remembered that the victims are children who had to be protected by the employee and had to feel safe in his presence. The applicant was in loco parentis and instead of fulfilling his duties as such, he took advantage of them and exploited them inside the school environment where they must be protected and feel safe.
20. In conclusion it was argued that the learners suffered shock, trauma and emotional distress and that their negative experience impacted on their educational performance as well as their socialization at school. The school enlisted the services of a psychologist to assist the learners. The Constitution states that the best interest of the child are of paramount importance in every matter concerning the child. The employee must be dismissed.
21. It was submitted in mitigation that the mitigating statement is written ‘’with deep regret and humility regarding the incident. I acknowledge that my actions were inappropriate and contrary to the professional standards expected of an educator. I sincerely apologise to the learners, the school, and the Department of Education for this lapse in judgment’’
22. The employee stated that he is a first-time offender and that in 7 years of service as an educator, had never before faced disciplinary action. The incident is an isolated lapse and does not reflect his lifelong commitment to nurturing learners with respect and professionalism.

23 It was submitted that at the age of 29, he continued to uphold the values of discipline, respect, and learner support. He is a parent of 2 children, a 7 year old and a 1 year 11 months old. One of his responsibilities is taking care of his sister and mother, who are financially dependent on him. These responsibilities remind him daily of the importance of patience, compassion, and respect in all human interactions.

24. In conclusion it was stated by the employee that he would better himself and ensure this never happens again, and he is committed to:
    · Attending counselling: This is to enhance self-awareness and understanding of one’s behaviour, which will lead to better decision-making and problem-solving.
    · Policy compliance: Strictly following the Employment of Educators Act and PAM guidelines on learner discipline.
    · Positive discipline: Using constructive, non-violent methods to manage classroom behaviour.
    · Professional development: Attending workshops and training on classroom management and learner support.
    · Reflective practice: Continuously evaluating my conduct to align with professional standards and values.
25. His long service, dedication, first-time offender status, and current family responsibilities should be considered as mitigating factors in this matter. A lenient sanction may still serve justice and he remain committed to positive discipline, learner support, and the values of the teaching profession.
26. The evidence of Mr Nakedi, the parent of one of the learners, was that she reported the incident to him and that he advised her to report the incident at school. He stated that he entrusted his daughter to the care of the school and its educators and that hearing of such incident ‘’was a hard pill to swallow’’ and made him sad. He left his daughter in their care to be safe and to be taught and not to be seen as a sexual object by educators.
27. Mr Nakedi also stated that he met the employee through the son of his neighbour ( who facilitated the meeting at the request of the employee) and was told ‘’I can do what you want me to do for the charge to disappear’ and he told the employee ‘’I do not want anything, just confess what you did’’. The employee refused to admit, started crying and said ‘’I can lose my job, home, car, family’’. He told the employee that other girls also complained about him and the employee did not respond to this.
28. Mr. Nakedi stated that the whole community is aware of the incident that also had a negative impact on his daughter. He stated that she cries which is not ‘’in her character’’ but due to the case. She also told him that the employee was at school and that she cried when she saw him. The school arranged therapy for her. During cross-examination he reiterated that she ‘’used to be bubbly, happy and used to watch cartoons’’ but since the incident she ‘’had changed, cries, is emotional and shout at us’’.
29. During cross-examination it was put to Mr. Nakedi that the employee did not know him and that the neighbours son (who was also at the meeting) would testify as to what was said. It was put to Mr. Nakedi that he asked the employee for money for ‘’the alleged incident’’. Mr Nakedi vehemently denied this and said ‘’No, it looks like I sell my daughter! I am not a pimp! I do not sell her! She is victimised at school and I stand up for her’’
30. It was undisputed that the meeting was facilitated by the son of Mr. Nakedi’s neighbour at the request of the employee.
31. The evidence and the version of the employee as put to the witness, is disturbing. In this version put, the employee states that Mr. Nakedi wanted money for ‘’the alleged incident’’ but did not deny that he facilitated the meeting through the son of Mr. Nakedi’s neighbour.
32. This claim of his ‘innocence’’ and ‘’the alleged incident’’ is clearly not true, as he changed his plea to one of guilty on both charges involving two learners on separate occasions on 18 August 2025 and 27 October 2025.
33. This flies in the fact of his claim in mitigation that ‘’the incident is an isolated lapse and does not reflect his lifelong commitment to nurturing learners with respect and professionalism’’.
34. It is also deplorable that he attempted to change the narrative by claiming that Mr. Nakedi asked him for money.
35. This version does not show remorse and the sudden change of plea to one of guilty, followed by mitigation wherein it is amongst others claimed that ‘’I continued to uphold the values of discipline, respect, and learner support’’ does not mitigate the seriousness of the misconduct. The incidents definitely do not show any respect towards learners. Mr. Nakedi testified that he left his daughter in the care of the school/educators to be safe and to be taught and not to be seen as a sexual object by educators. The conduct of the employee shows that he indeed treated the learners as sexual objects. It cannot be argued by an educator, entrusted with the care of learners, that his conduct was ‘’a lapse of judgment’’. As educator and an adult, he must know better and act accordingly.
36. The evidence of Mr. Nakedi regarding the change in his daughter, following the incident, was not disputed.
37. The employee did not initially approach the hearing with clean hands or any form of remorse. He came prepared with untruths, denials and false versions put to the witness.
38. Only after the hearing was postponed did he seemingly realise the strength of the case against him and decided to change his plea. This does not show remorse but desperation.
39. In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the Court stated as follows in paragraphs 78 & 79:

(78) In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.

(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.

40. In Department of Home Affairs and another v Ndlovu and others (2014) ILJ 3340 (LAC) it was held that in order to proof that the sanction of dismissal was appropriate the employer must present evidence to prove the breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or the circumstances.
41. The rule breached relate to serious misconduct in that the applicant admitted guilt on charges relating to a request to touch the breasts of a Grade 11 learner in exchange for giving her the History question paper for the November examination and for sexual harassment of another Grade 11 learner by hugging her and touching her buttocks.
42. The importance of this rule revolves around the protection of learners entrusted to the care of a school and its educators. They need to be taught and be protected and not be subjected to the actions of predators intent to misuse them and destroy their dignity, self- respect and to leave scars that might never heal.
43. The rule also exists to protect the employment relationship that is based on trust. The employee had the duty to diligently fulfil his obligations as an educator towards his employer, the school and its leaners. This he failed to do.
44. The nature of the misconduct destroys the employment relationship despite long service and/or clean disciplinary record.
45. The applicant is an educator and placed in a position where a high premium of trust was placed on him to act in an exemplary manner, and to protect those entrusted to his care. It is expected of him to act as a leader towards the learners who look up to for teaching and guidance not only on academic level but in other aspects of life. He failed in this and his actions show a callous disregard towards learners, the school, his employer and the community in which he operated. As husband and father of two you children, he should be a shining example of acceptable and ethical conduct and his misconduct must have had a negative impact also on those entrusted to his care.
46. South Africa is plagued by gender based violence and hardly a day goes by when women and/or children are killed, raped, assaulted or subjected to sexual or other forms of harassment. This is a scourge that must be wiped from the face of the earth and a good starting place is our schools, where in some of them children are not free, safe or protected but treated as sexual objects for the gratification of educators.
47. The applicant initially showed no remorse but approached the hearing with mala fides and a concocted version. He later changed his plea to one of guilty and submitted his mitigation. He pleaded for leniency amongst others due to his clean record, long service, family responsibilities and his claim that this was a ‘’lapse of judgement’’.
48. These factors do not outweigh the seriousness of the misconduct and the impact such had on the learners, the school, employer and community.
49. Based on the position of trust that the employee as educator occupies, the seriousness of the offence and its impact, does not convince that a lesser sanction would have rectified the errant behaviour.
50. The employee had been employed for a substantial number of years (almost 9 years) and was fully aware of and trained in his duties, responsibilities and the employer’s policies and procedures. He was trusted to be a leader of the learners he had to educate and to be an example of how to act. I am not convinced that an adult male teacher is unaware of how to act towards leaners and that his conduct towards the two learners must be regarded as ‘’a lapse in judgement’’.
51. It is clear that the nature of the misconduct warrants dismissal as such had destroyed the relationship of trust beyond repair.

Award

52. I therefore make the following award:

53.1. “The employee, Mandla Kheswa is found guilty of the charges levelled against him that reads as follows

Allegation 1

‘’it is alleged that on or around 27 October 2025, while on duty at Brakpan High School, you conducted yourself in an improper in that requested to touch the breasts of a Grade 11 learner.KN in exchange to give her the history Grade 11 question paper for November 2025 examination.

In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

Allegation 2

‘’it is alleged that on or around 18 August 2025, while on duty at Brakpan High School, you conducted yourself in an improper manner in that you sexually harassed PN by hugging and touching her buttocks.

In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the
Employment of Educators Act, 76 of 1998, as amended.

53.2. I find that the sanction of summary dismissal is fair and appropriate in the circumstances therefore in terms of section 188A(9) of the LRA I direct that the employee Mr M. Kheswa be summarily dismissed.

53.3. It is also found that Mandla Kheswa is unsuitable to work with children in terms of Section 120(1)(c) of the Children’s Act 38 0f 2005.

53.4. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director-General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(1)© of the Children’s Act 38 of 2005 that Mr Mandla Kheswa is unsuitable to work with children for the Director-General to enter his name as contemplated in section 120 part 8 of the register

53.5. The award must also be issued to The South African Council of Educators (SACE) for appropriate action.

Signed and dated at Pretoria on 12 June 2026

Council Commissioner