14 July 2026 – ELRC1340-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
SEBOKENG
CASE NO.: ELRC 1340-25/26 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

MOKHELE STEVEN MOLELEKI EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 28 April 2026 and 22 June 2026
Closing Argument: 29 June 2026
Mitigating / Aggravating Factors: 29 June 2026
Date of Award: 13 July 2026
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Enquiry by Arbitrator.

                                                           AWARD

DETAILS OF HEARING AND REPRESENTATION

The enquiry was held on 28 April 2026 and 22 June 2026, at the employer’s Sedibeng West District Offices, Sebokeng, and virtually. Ms. Keitumetse Mamosadi represented the employer. Mr. S.J Bacela, SADTU union official, represented the educator. The proceedings were recorded digitally. The employer’s bundle is marked ‘E’. The Educator did not present documentary evidence.

ISSUE TO BE DECIDED

I am required to determine if the Employee had committed a sexual assault offence against a learner as proffered by the Employer. If I find in favour of the Employer, I will determine the appropriate sanction.
The educator disputes touching the learner’s bums. ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
1. The Employer levelled one count of misconduct against the employee in
  terms of Section 17 (1)(b) of the Employment of Educators Act, Act 76 of 1998
  (“Act”): –
  Allegation 1: It is alleged that during the first term of school, or any time incidental thereto, as an educator at Lefika Primary School, you committed an act of sexual assault in that you touched the bums of a Grade 7 female learner, MM, at the school, whilst you knew or ought to have known it was wrong to do so.

EVALUATION AND SUMMARY OF EVIDENCE

The following issues are common causes between the parties:

4.1 The Educator has been employed at Lefika Primary
School since 2015. He has been employed as an educator since 1992;
4.2 He is a PL1 educator;
4.3 The educator knows and taught the learner Grade 7 EMS in 2025. The learner
progressed to High School in 2026.

MM testified that she was born on 18 November 2011 and is 14 years old. She was 13 years old when the incident occurred in 2025. The incident occurred on Wednesday after lunch. It was a Sesotho period (another teacher’s period; the teacher was not there). Sir came into their class holding papers under his armpit. The learners were playing, some standing outside.
She was standing in the doorway, facing outside, as Sir was exiting the classroom. She felt his hand touching her bum and quickly removed his hand. She asked him, “Are you a rapist?” When she looked back, Sir was standing behind her and still holding papers in his left armpit. Sir pointed out to her friend, NM, who was standing beside her, that she was the one who touched her. NM pointed at Sir that he was the one who touched her bum.
She felt an adult hand touch her. Sir was the only adult in proximity when the touching occurred. Initially, she was not aware that it was Sir touching her bum when she remarked, “Are you a rapist?” When she turned, she noticed Sir was standing behind her. She read out her E8 statement.
According to her observation, NM could have been the only one who witnessed the touching. However, she was unsure about the other learners. She became emotional and sobbed when asked to express how she felt about the Sir’s misbehavior. She felt violated. She demonstrated that whilst standing behind her, Sir squeezed her bums with both his hands.
During cross-examination, she stated that she could not see who was standing behind her when the touching occurred because she was facing outside. When she looked back, it was Sir standing very close behind her. NM and other learners were standing beside her on her left, facing outside. She informed her mother about the incident only at the end of July 2025. She did not think about reporting to the principal.
PM testified that she is NM’s mother. She works in Mpumalanga and returns home when she is off. NM informed her, whilst crying, that Sir touched her bum. She informed her that she did not inform her on the phone to avoid stressing her. She waited for her return to tell her personally. She informed her sister, MM’s aunty, about the incident.
During cross-examination, she stated that she was standing by the door facing outside. Sir touched her bum from the back and pointed at NM.NM pointed at Sir that he touched MM.
Aunt NM testified that she is MM’s aunt. E4 is her statement. E4A is the English version. Her sister, MM’s mother, informed her that Sir had squeezed MM’s bum. She informed Mr Nthateng. Mr Nthateng returned with information that Sir told her that he did not remember the incident. She believed MM because there was no reason to fabricate lies about Sir.
During cross-examination, she stated that she was standing by the door facing outside. Sir squeezed her bum from the back and pointed at NM.NM pointed at Sir.
Khafa Paul Mantsoe testified that he is the school’s principal. When the school reopens, Mr Nthateng informed him about the incident. Both Sir and the learner explained their version. He had a good relationship with Sir. During cross-examination, he testified that MM demonstrated to him how Sir squeezed her bums whilst she was standing by the classroom door.
Thateng Khunong Simon testified that he is an educator at the school. E5 is his statement. He received a WhatsApp voice note from NM’s aunt informing him that Sir touched her bum. Sir informed him that he did not remember touching MN’s bums. During cross-examination, he said that he had never met the aunt.
Seipati Elizabeth Matoane testified that she is an educator at the school. Ms Mofokeng informed her that Sir told her that he received a complaint from a learner’s parent that he touched her bum. She verified the information with Sir. They called the learner and enquired what happened.
The learner explained that she was standing at the doorway when someone touched her bum from behind. She asked, ‘Are you a rapist’. When she looked around, she saw Sir standing behind her. He pointed out to NM that she is the one who touched her. NM said it was Sir. Her cry prompted them to call NM, who confirmed the information. They informed Sir what the learners told them. During cross-examination, she stated that MM did not mention how many people were standing at the door.
In closing the employer’s case, the representative submitted that NM‘s parent refused to allow her to testify.
Steven Moleleki Mokhele testified that on the day of the incident, he stood up and walked towards the door. He put the documents under his armpit. About five learners were standing by the door. When he approached the door, they gave him way by moving away. In the midst of moving, they pushed each other, and NM touched MM. When MM asked who touched her, he pointed at NM and walked out. He did hear MM asking, ‘Are you a rapist’. He does not know why MM singled him out of all the people who were standing at the door.
During cross-examination, when asked why he did not challenge the Principal’s testimony, his E3 statement, and that he told the principal that he might have touched MM by mistake, he responded that he was not afforded such opportunity.
He told Matoane that he did not remember what happened on that day. He denied touching the learner. He told the principal that he did not touch MM. He does not know why MM fabricated the story against him. He never had issues with her. He saw NM touching MM. He pointed out to MM that she had touched her.
He told the Principal that he saw NM touching MM. He does not know which of MM’s body parts NM touched and how she touched MM. He could not demonstrate how the touching occurred. He did not tell his colleagues that he saw NM touching MM.

CLOSING ARGUMENTS

The employer argued that Ms Matoane corroborated MM’s version that she emotionally narrated Sir touched her bum while standing at the doorway of the classroom. MM informed them that she was taught not to allow anyone to touch her private parts. She was emotional and crying when she narrated. She reacted to the touching by referring to the culprit as a “rapist.”
NM confirmed to them that she saw Sir touching MM’s bum, instead, he pointed at NM, indicating that she was the one who touched the bum. They interviewed the girls separately; hence, they believed them. The Principal, Mr Thateng, and the aunt’s version that the aunt first reported to her via WhatsApp voice note were not disputed.
MM’s mother explained that she reported the incident to her when she went home from Mpumalanga. She resides there for work.MM could not share the incident with her siblings due to its intensity.
Mr Mokhele defended himself with many contradictory lies. He lied to his colleagues that he did not remember the incident. Later, he changed to the fact that NM touched MM and that he might have changed by mistake. Based on the evidence presented and Mr Mokhele twisting the truth, it is highly probable that he touched MM’s bums intentionally. He could not provide a motive behind MM’s sexual harassment claim against him. The employer has discharged its burden of proving the charges against Mr Mokhele.
Mr Mokhele argued that MM did not see who touched her. Her evidence is that she only became aware of the alleged incident after being informed by NM. Meaning her identification of Mr. Mokhele is not based on her own observation but on what another person told her.
NM, the only person who allegedly witnessed the incident and informed MM that Mr. Mokhele was responsible, did not testify. The employer therefore failed to call the most crucial witness. As a result, the evidence implicating Mr. Mokhele amounts to hearsay, which cannot, on its own, be relied upon where it remains untested through cross-examination.
The circumstances under which the incident allegedly occurred create reasonable doubt. It is a common cause that several learners were gathered at the classroom doorway. The doorway was crowded, making accidental contact a real possibility. In such circumstances, it would have been difficult for anyone to identify who made contact with NM.
Mr. Mokhele consistently testified that he was carrying papers under his armpits while moving through the doorway. This evidence was not challenged. It is naturally impracticable that a person carrying papers under one armpit would use both hands to touch a learner’s buttocks.
Sexual harassment allegations are undoubtedly serious and must always be treated with the utmost seriousness. However, the seriousness of the allegation cannot replace the requirement for reliable and credible evidence. A finding of guilt cannot be based on speculation, assumptions, or hearsay.
The absence of the key witness, MM’s inability to identify the person who touched her, the crowded doorway, and the inconsistency about the use of two hands all cast reasonable doubt on the employer’s version. Therefore, he respectfully requests that he be acquitted.

ANALYSIS OF EVIDENCE AND ARGUMENTS

It is not in dispute that someone had touched MM’s bum whilst she was standing by the classroom doorway. This is so because Mr Mokhele admitted that he was in the vicinity of the crime scene and saw the touching. Furthermore, he allegedly saw the transgressor. It is further common cause that Mr Mokhele came to the classroom and exited with the documents under his armpit. Therefore, the issue in dispute is whether or not Mr Mokhele is responsible for touching MM’s bum.
The Employer avers that Mr Mokhele is the one who touched MM’s bum. He denies touching MM’s bum and avers that it was NM who touched MM. In consideration of the testimony presented before me, I must determine if Mr Mokhele touched MM’s bum.
MM’s version of how the incident occurred is consistent with what she told her mother, the two educators, and the principal. There is no contradiction in their narrative. The consistent version is that she felt someone squeezing her bum from behind. She did not see the culprit. However, her reaction to the unknown culprit was “Are you a rapist?” Mr Mokhele, who was standing closely behind him, pointed at NM that she was responsible for the touching. NM pointed out to Mr Mokhele that he was responsible for the touching. Mr Mokhele corroborated this version, save for denying that she heard MM’s utterance of ‘Are you a rapist’.
Mr Mokhele did not dispute that MM’s reaction to the touching was that ‘are you the rapist’. He only averred that he did not hear the utterance. Therefore, I accept the undisputed version that utterances are factual. Additionally, the reference to the utterances has been consistent as stated supra.
The utterance supports her version that the touching was intimate and not innocent. She said her bum was squeezed. MM’s demonstration of how the touching occurred from behind aligns with her reaction. She said she felt bigger hands squeezing her bum.
Mr Mokhele argued that he could not have touched the bum because he had documents under his armpit, contrary to MM’s version that he touched her with two hands. The defence is not persuasive because the touching was quick and the documents were under one of his armpits, not both. This could not have hindered the short squeeze.
She could not have reacted in the manner she did if the touching was innocent. Mr Mokhele contends that she did not hear MM’s utterance of ‘are you a rapist’. Strangely, he pointed at NM immediately after the touching. The question is what prompted him to point at NM if he was not responding to the ‘are you a rapist’. MM neither asked who touched her nor any other question except for the rapist one.
The link between MM’s rapist question and Mr Mokhele’s pointing at NM is overwhelming. Therefore, the most plausible inference I could draw from the MM’s question and Mr Mokhele’s pointing at NM is that he heard MM’s rapist utterance and hid behind NM.
Furthermore, NM could not have pointed at Mr Mokhele if there was no such utterance relating to the touching. The evidence presented proves that NM and Mr Mokhele witnessed the touching. Whereas MM only felt the touch but did not see the transgressor.
Mr Mokhele’s argument that solely because NM, as an eyewitness, did not testify that she/he saw him touching MM, the employer failed to prove its case is misdirected. It is not only NM’s testimony that can assist in determining if Mr. Mokhele is the transgressor or not. The employer explained the challenges of securing NM to testify.
It is common cause that NM pointed at him as the culprit. Even in the absence of NM’s testimony that she saw Mr Mokhele touching MM’s bum. Mr Mokhele did not provide a plausible explanation for why she pointed at him if he was not the culprit.
Circumstantial evidence is persuasive and admissible to prove a relevant fact. The court held in NUM v Mogale Gold, A Division of Mintails (SA) (Pty) Ltd [2015] 10BLLR 1016 (LAC) held that the test for evaluating circumstantial evidence is to establish the most probable inference to be drawn from the proven facts.
Mr Mokhele’s contention is not only that he saw NM touching MM’s bum, but he also pointed out NM as the culprit when the touching occurred. However, he struggled and failed decimally to demonstrate and explain how NM touched MM. The most plausible inference I could draw from his failure to provide details and demonstrate what he allegedly saw (NM touching MM’s bum) is that he did not see NM squeezing MM’s bum because he is the culprit. Hence, he could not explain or demonstrate what he did not see.
Furthermore, if he saw NM touching MM’s bum in the manner that prompted her to ask if the culprit was a rapist, he could have reprimanded NM as a in loco prentice. He was responsible for intervening and not brushing it away by pointing to NM and exiting the classroom. He could not have intervened because he was the culprit.
He contends that the doorway was crowded and the touching resulted from the pushing when they made way for him. I find it probable that he took advantage of this movement to squeeze MM’s bum, believing he would be concealed. MM would not know the culprit.
Mr Mokhele’s version is clouded with inconsistencies. His version was that he did not see the incident, he did not remember anything, NM was responsible for the touching, and he might have touched her by mistake. Thus, exposing him as an unreliable witness and his testimony as not credible. He could not explain why MM would fabricate such a damning story against him. His version is that he never had issues with MM. In addition, he failed to explain why NM pointed him out as the culprit.
In the evaluation of the employer’s consistent testimony presented, admissions and Mr Mokhele’s inconsistencies, I am satisfied that the employer has proved on the balance of probabilities that Mr Mokhele had sexually assaulted MM. Therefore, the employer has discharged its onus in proving on the balance of probabilities that Mr Mokhele had committed an offence. I find him guilty of contravening Section 17. (1) (c) of the Act. Mitigating Factors
Mr. Mokhele has dedicated his career to the teaching profession since 1992, rendering more than 34 years of service. During this lengthy period, he has maintained a clean disciplinary record and has never been found guilty of any form of misconduct. His long and flawless service demonstrates that the present allegation is entirely out of character.
He has cooperated fully with the disciplinary process, attended all proceedings and conducted himself respectfully throughout. The surrounding circumstances that the incident occurred at a crowded doorway should be considered in determining an appropriate sanction.
Mr. Mokhele is the father of five children who depend on him for financial support. Dismissal would have severe consequences not only for him but also for his dependents, who rely on his income for their daily needs.
The purpose of discipline is not merely to punish but also to correct behavior where suitable. In determining the sanction, his exceptionally long service, flawless disciplinary record, his family responsibilities, and whether dismissal is a fair and impartial response in all the circumstances should be considered. The substantial mitigating factors justify a sanction less severe than dismissal Aggravation factors
The employer requests protection of the learners’ safety at Lefika Primary School, where they cannot afford to have Mr Mokhele’s presence at any other school. He cannot be trusted with children. Hence, he was placed on precautionary transfer pending the case. Children’s rights are of paramount importance such that the Department cannot sacrifice careers over the safety of the future.
As outlined by Section 17 1(b) of the Employment of Educators Act 76 of 1998 (’ Act ’), the pronouncement of a guilty finding enforces a mandatory dismissal sanction against Mr Mokhele. The concept of in loco parentis places teachers in the position of biological parents, a natural element within the profession. However, a learner such as MM questions herself as to how she is perceived by her parent, Mr Mokhele, at school.

SANCTION

Section 17 (1) (b) of the Act carries a mandatory sanction of dismissal for a sexual assault of a learner. I have found Mr Mokhele guilty of this offence.
In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court
held that “The interests of the community cannot be ignored in determining an appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility who cannot leverage their power and the esteem
with which they may be regarded to satisfy their sexual lust”.
In light of the seriousness of the offence and the mandatory sanction it carries, I have no discretion to impose any other sanction, regardless of mitigating factors. For this reason, the mitigating and aggravating factors become academic.
He committed the offence against a young girl. The parents and the Community have entrusted him with the care and protection of learners. However, he shamefully destroyed that relationship of trust. MM expected care and protection from her educator, contrary to his turning her into his predator. He abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction as mandatory in terms of the Act.
Furthermore, I find Mr. Steven Moleleki Mokhele unsuitable to work with children. I invoke Section 120(4) of the Children’s Act No 38 of 2005 to declare him, on own accord, unsuitable to work with children.
The attention of SACE is drawn to the fact that Mr Steven Moleleki Mokhele had sexually assaulted a 13-year-old Primary School girl.
FINDING
The Employee, Steven Moleleki Mokhele, is found guilty of a count of sexual assault of a minor learner in terms of Section 17 (1) (c) of the Act, which imposes a mandatory sanction of dismissal.
The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120 (4) of the Children’s Act No 38 of 2005, that Steven Moleleki Mokhele is unsuitable to work with children, for the Director General to enter his name in Part B of the National Child Protection Register.
The ELRC is directed to forward a copy of this award to SACE.