IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – FREE STATE PROVINCE “the Employer”

AND

N LAMANI “the Employee”

SECTION 188A INQUIRY BY ARBITRATOR RULING

CASE NUMBER: ELRC1114 – 24/25FS
DATE AWARD SUBMITTED: 06 October 2025
NAME OF COMMISSIONER: Coen Havenga

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days and the last day of the inquiry took place on 20 August 2025 at the offices of the Employer in Bloemfontein. The parties requested opportunity to submit written closing arguments which were duly received and form part of the record.
2. The Employer is the Free State Department of Education, represented by Ms Cweba, L. The accused Employee is Mr Lamani, N, (“Lamani”), represented by Ms Tjele, B, a full-time shop steward of SADTU.
3. Mr Mogayane, H, acted as interpreter, and the intermediary was Ms Twala, ME.
   Issue to be decided
4. I am required to determine whether Lamani is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Lamani is unsuitable to work with children.

Background and charges

5. Lamani, an educator employed at Nkgopoleng Secondary School (“the School”), is charged with three allegations of misconduct.
6. Charge 1 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that on 12 September 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he hugged and kissed a grade 12 learner (“Learner ED”) in his office.
7. Charge 2 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that on 27 September 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he kissed and touched the breast of a grade 12 learner (“Learner KM”)in his office.
8. Charge 3 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that during the 1st term of 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he kissed a grade 12 learner (“Learner IM”) in his office.

Plea

9. Lamani pleaded not guilty to charge 1, 2 and 3 and denied all the allegations against him.
10. He disputed the admissibility of the Whatsapp messages contained in the Employer’s Bundle B.

Summary of evidence

11. The Employer submitted the documents contained in Bundles A and B.
12. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of the evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses. The fact that I have not captured all of it herein should not be misconstrued that I have not taken all the evidence presented into account. My findings are, accordingly, within the context of all the evidence provided by the parties during the arbitration hearing.
13. The matter relates to allegations of sexual misconduct towards learners. In accordance with the protection of the rights of minors and victims of sexual offences afforded them in the Constitution of the Republic of South Africa, the identity of the learners and other minor witnesses will not be disclosed. I will refer to the minor and other witnesses for the Employer as Learner ED (charge 1), Learner KM (charge 2), and Learner IM (charge 3) in this award. The witnesses testified from a room with a one-way glass, which was separate from where the Employee was seated, with the assistance of an interpreter and an intermediary.

Employer’s case

14. Learner ED, currently a 21-year-old female who was a learner in grade 12 in the School in 2024, testified under oath that during July or August 2024, Lamani asked her to come to his office to talk to him about something. She thought it was about the matric camp, and how he was going to assist her to go on the camp. He gave her the office key and went in another direction.
15. When she reached his office, there were two other girls as well, and they went into the office. After Lamani came, the two girls left his office, and she stayed behind because Lamani called her to the office. He asked her where she was staying. He picked up some papers he was marking, and ED also stood up to leave the office. When she was about to exit, he closed the door, pushed her towards the door, and kissed her. In shock she responded to the kiss, then she pushed him away and got out. Outside the office he said that she must text him. She said she will do that. She wanted to tell someone at home, but she was afraid because she did not have evidence. He threatened another girl with his lawyer if she told anyone what he did.
16. She then became friendly with him on his request, and they started to communicate on Whatsapp as reflected in Bundle B. He told her the kiss just happened. B12 reflects that he asked her to visit him in his apartment. She asked him to send money for transport to test what he would do. She did not edit the Whatsapp messages. She created the impression that she was participating willingly. She took screen shots of the conversations as proof to counter later allegations that she framed him.
17. She continued with attending school, but the incident weighed heavily on her mind. She became anxious in his classes. She would go to the bathroom to cry. She became quiet in his classes and lost interest in attending school.
18. Note: On advice of the intermediary, the hearing stood down for 15 minutes to allow the witness to recover from the distress caused by testifying.
19. Lamani made her life miserable. She reported him because she could see that he did not merely make mistake when he kissed her. Two girls told her that he did the same to them. ED then decided to stand up for herself.
20. She reported the incident to the principal. Lamani gave her the key to his office when they went in different directions earlier. He found her and the other two girls in the office.
21. It was a French kiss, but not a long one. He did it in his office after he closed the door. They were standing, and he came to her to kiss her.
22. During cross-examination ED testified that the other two girls saw her entering Lamani’s office. It could have been 12 September 2024, she is not sure of the exact date. His number appears on the messages, as well as on the “cash sent” which he sent her. She did not manipulate the Whatsapp messages. Lamani set his phone to default 24 hour disappearing messages. She started to screen shot the messages after he kissed her. Before that they had a learner/teacher relationship. Her guardian knew there was a teacher helping learners to go to the camp. She did not blackmail him, she was being silly when she asked him for money. He traumatised her by kissing her. She teased about the money. She did check whether he wanted to be in a relationship, to get evidence of his conduct.
23. The other two girls left her alone in his office. A female teacher asked her what happened in the office, and ED told her that he kissed her and touched her in an improper way. She did not want to involve the female teacher therefore she did not testify this before. She did not want to disclose her name. It is not true that she only wanted money from Lamani. He is the one that kissed her and that is why there is a case. She had to text him to gather evidence of what he has done to her. She did not collude with any teacher against Lamani.
24. IM and KM are her school friends. KM was in her class, and IM came to her to tell her what Lamani did to her. KM came back from Lamani, and she was shaking when she entered the classroom. She had tears in her eyes. After ED reported her incident, IM came to ED and said she heard ED went to the principal, and that Lamani did the same to her for two months. Lamani took her phone away after she reported him and kept it for three days. IM then also reported Lamani to the principal.
25. ED denied that she only wanted to extort money from Lamani.
26. Learner KM, currently a 22-year-old female who was a learner in grade 12 in the School in 2024, testified under oath that during the spring classes she met Lamani on the steps. He asked her to come to his office after she took the dish back. She did go to his office later, and he was alone there. He asked whether she was alone and told her to close the door, which she did. There were two desks in his office, and he was sitting on one. She stood in front of the other desk. He stood up and held her. He put his hand on her breast and started to kiss her. KM was scared. Afterwards Lamani said she must text him. She said he will have to wait until after school as she did not have data. She was crying when she went back and met her friend. The other learners said she smelled like the cologne that Lamani used. She kept on saying that nothing was wrong. Later she met Lamani in the passage, and he asked her why she did not text him. She later told her friend ED what happened.
27. She did text Lamani after school, by sending three dots. He sent her a voice message but deleted it before she could listen to it. He then called her and said someone said she was having an affair with him. She stayed off from school the following days until the principal called her. She told the principal what happened when she returned to school. She did not attend the classes of Lamani until she finished school.
28. Lamani hugged and kissed her on the mouth in his office. It was a deep long kiss. He touched her breast.
29. During cross-examination KM testified that the kissing and touching of her breast happened during the spring classes. She did not remember the exact date, but it was on a Friday. She was scared and cannot remember what he was wearing.
30. Lamani did not catch them smoking cannabis at school. They did smoke, but it was outside the school premises. Someone told him about it and came to ask them about it. He reported it to the principal, and they were called in by the principal. She did not smoke cannabis during exam time. She was not suspended. She did not dispute that she smoked cannabis.
31. KM denied that she and ED were framing Lamani. Many teachers found her smoking, not only Lamani. She had no agenda against him.
32. Ms Nozizwe Thoka (“Thoka”) testified under oath that she is the principal of the School. The parents of ED came to her office with ED. ED told her that Lamani kissed her. Thoka was shocked and called two deputy principals and another educator to take minutes. ED told her another learner, KM, was also kissed by Lamani. KM wrote a statement later. Thoka referred the matter to the Department. IM also reported that Lamani kissed her as well.
33. During cross-examination Thoka testified that Lamani was a hardworking educator with good grade 12 results. ED and KM told her what Lamani did. ED and KM were good learners. Lamani did bring KM and K to her before when they smoked cannabis. Learners make mistakes, so she called the parents and referred the learners to SANCA.
34. Learner IM, currently a 20-year-old female who was a learner in grade 12 in the School in 2024, testified under oath that during the 1st term in 2024 Lamani proposed love to her several times, which she did not accept. He then started to text and call her. There were rumours that she was having an affair with him. As time went on Lamani called her into his office, closed the door, and kissed her. It was a normal kiss on her mouth. She pulled back and he stopped. It happened once and she thought he only made a mistake, and she did not report it. He texted her and asked her to come to his office during an evening class. She then realised it was serious and took a decision to report it. he continued to text her. She told Modise, a relative, about it. He said if IM did not report it, he was going to report it. She then blocked Lamani and reported him. She did not have the text messages as Lamani set his phone to make the messages disappear. He also asked her to go to his place.
35. During cross-examination IM testified that that he kissed her during the 1st term. On request of Lamani’s representative, she showed her phone and Lamani’s number appeared under the “blocked” contacts. Modise is the father of her child. Modise and Lamani had a good relationship. They visited each other. When he called her to his office, he stood up when she entered and closed the door and then kissed her. No one would have seen it because he closed the door. Lamani did take her phone once in class because she was playing with it. She was not angry because she knew she would get it back. She only found out that the other girls also reported him after she reported him to the principal. They did not discuss the matter. They did not have an agenda to frame him and make him lose his job. She in fact delayed reporting him because she did not want him to lose his job. She did not lie, he knew it happened.

Employee’s case

36. Mqebelo Daniel Lamani, the Employee, testified under oath that he had a teacher – learner relationship only. He complied with the SACE Code of Conduct. He denied all the allegations in charges 1, 2 and 3. He shared his office with his HOD. He did not send learners to his office often. He mostly sent boys to avoid such allegations. He assisted needy learners with cosmetics. He asked for donations. One cannot see the numbers of participants in a Whatsapp group. ED gave him attitude in the class. KM smoked cannabis and he reported her to the principal. He did not allow learners to use cell phones in class that is why he took IM’s phone. He gave it to the finance clerk and learners had to pay R100 to get it back. IM did pay to get her phone back. He is still good friends with Modise. He would not do such a thing to his girlfriend. The learners accused him falsely.
37. During cross-examination Lamani testified that he confiscated several phones. He was the group administrator of the Whatsapp group. He admitted that the message on B1 meant he wanted to go on a date with a learner. He agreed that is not how a teacher should speak to a learner.
38. The Whatsapp messages were created with artificial intelligence.

Summary of arguments

39. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

40. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
    a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) If the rule or standard was contravened, whether or not –
    i. The rule was a valid or reasonable rule or standard;
    ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    iii. The employer has consistently applied the rule or standard.
    iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.
41. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
42. All the allegations in the charges against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, and the evidence deduced by the Employee in defence, were considered and weighed against the abovementioned standard of proof.
43. It is not disputed by the Employee that the actions he had been charged with constitute misconduct. He merely denied committing the alleged misconduct as set out in the three charges below.
44. Charge 1 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that on 12 September 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he hugged and kissed a grade 12 learner (“Learner ED”) in his office.
45. Charge 2 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that on 27 September 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he kissed and touched the breast of a grade 12 learner (“Learner KM”) his office.
46. Charge 3 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that during the 1st term of 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he kissed a grade 12 learner (“Learner IM”) his office.
47. I am mindful of the fact that the Employee is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
48. In respect of the all the allegations the Employee disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
49. The Employee’s defence in respect of the alleged hugging and kissing and improper, disgraceful, and unacceptable conduct is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies, instigated by the learners because ED wanted to extort money from him, because he reported KM for smoking cannabis and because he took IM’s phone away in class.
50. I take cognisance of the fact that ED, KM and IM are single witnesses in respect of what allegedly transpired in the presences of the Employee in his office. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. Even if the rule is not applicable in civil proceedings or arbitration proceedings, I must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
51. It must be remembered that the Complainants were learners at the time of the incidents, and that the incidents took place during 2024, while the arbitration hearing only commenced in June 2025. Naturally, the lapse of time would affect the memories of witnesses, and I assessed the evidence against this backdrop, especially the recollection of specific dates and what clothes the Employee was wearing at the time.
52. It has been shown that children who are sexually abused, concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details like dates, or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners.
53. The Constitutional Court has held that that the sexual assault of children has the inherent effect of rendering child victims unable to report the incident, sometimes for several decades, and that they should not be penalised for the consequences of their abuse by blaming them for the delay. The Courts have accepted that feelings of fear and shame often prevent children from reporting such incidents immediately and that the victims often distance themselves from reality and transfer responsibility onto themselves. In 2007 the law was amended to provide that no inference may be drawn from the length of any delay between the alleged commission of such offence and the reporting thereof. The fact that a child does not tell another teacher at school about an incident that occurred at school but only tells a parent or grandparent later at home, or visa versa, is therefore no indication that the child has fabricated the evidence. Sometimes children would due to feelings of shame not tell a parent or teacher but rather tell a close friend.
54. The above is aptly relevant in this case where the complainants delayed the reporting of the incidents. I also reject the arguments of the Employee that evidence of the ED should be discredited because she did not call a witness that saw them together.
55. I find no material discrepancies or inconsistencies in the evidence of ED, KM and IM that would negatively affect their credibility. The Employee objected to the WA screenshots being admitted as evidence. However, the complainants were the authors of those texts and testified to the authenticity and veracity thereof. I find the Employee’s allegation that she could have created it by using AI, improbable. He could not substantiate his suspicion and could not explain how they would have done it with AI. The Employee never put this version that they used Ai to the complainants in cross-examination. This is a material aspect of this case in relation to the authenticity of the WA messages. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The same principle will therefore apply in this matter.
56. I find the WA messages to be credible, and it is admitted as evidence. The content of those messages corroborates the versions of the complainants in all material aspects. They stood steadfast by their versions. They described the kissing, hugging and touching of breasts in detail.
57. The Employee version is that it is all a fabrication of lies, instigated by the learners because ED wanted to extort money from him, because he reported KM for smoking cannabis and because he took IM’s phone away in class. I find his defence highly improbable. If he argues that ED wanted to extort money from him, there must have been some incident that would provide leverage for such extortion, which in fact support the probability of the version of ED that he did kiss and hug her. KM openly admitted to smoking cannabis, and the principal testified that all learners make mistakes. The humane manner in which the principal dealt with the issue, makes it highly improbable that it would trigger a response of revenge with KM. The same applies to IM’s phone being taken away. It was a common practice, and it was not disputed that she knew she would get it back, therefore I find it highly improbable that such action by the Employee would trigger a fabricated campaign against the Employee to get rid of him. It would have been an elaborate fabrication involving three learners, friends, and parents with the intent to punish the Employee, which I find highly improbable.
58. I find the Employee’s version that the three complainants decided to falsely accuse him highly improbable. It is common knowledge that learners develop infatuations with educators, but it is the duty and responsibility of such educators to not take advantage of such vulnerable learners. The Employee failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. The Employee could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.
59. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainants’ version has been materially the same throughout the inquiry. I find it improbable that they would make up such a detailed version of events without any reason. The Employee’s version that it is a fabrication is not plausible.
60. Therefore, after consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the Employee committed the misconduct as contained in charges 1, 2 and 3. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding

61. The accused employee, Mr Lamani, N, is found guilty of the following misconduct:
62. Charge 1 – contravention of the provisions of section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that on 12 September 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he hugged and kissed a grade 12 learner (“Learner ED”) in his office.
63. Charge 2 – contravention of the provisions of section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that on 27 September 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he kissed and touched the breast of a grade 12 learner (“Learner KM”) his office.
64. Charge 3 – contravention of the provisions of section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that during the 1st term of 2024 while on duty, he conducted himself in an improper, disgraceful, and unacceptable manner when he kissed a grade 12 learner (“Learner IM”) his office.

Sanction

65. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
66. Lamani’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behaviour does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual contact with learners at a school and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the complainants being female learners to be lured into an office to be kissed, hugged and groped by the breast by an educator.
67. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of summary dismissal is fair and appropriate in the circumstances.
    Sanction
68. In terms of section 188A(9) of the LRA I direct that the employee, Mr Lamani, N, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005

69. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
70. The parties were given the opportunity to submit arguments in this respect. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Lamani’s conduct, and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.
71. Mr Lamani, N, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Lamani, N, 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.

COEN HAVENGA
Senior ELRC Arbitrator
06 October 2025