IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT EMPANGENI
CASE NO.: ELRC638-24/25KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

MBUTU E RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 13 JULY 2026

Applicant’s representative : MR T. M. MCHUNU
:

Respondent’s representative : MR S.M.E. SITHEBE

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, read with Collective Agreement 3 of 2018. The inquiry was held at the offices of the KwaZulu-Natal Department of Education, Corner Maxwell and Hancock Streets, Empangeni. The proceedings were digitally recorded.
[2] Mr T.M. Mchunu, a Labour Relations Officer, represented the applicant (employer) and respondent (employee) was initially represented by Ms Z. Khanyile from NATU and subsequently by Mr S.M.E. Sithebe, an attorney from SME Sithebe Attorneys Inc. The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 15 April 2025 but was postponed due to the respondent’s representative being unwell; 3 June 2025, when NATU withdrew from representing the respondent and the respondent launched an application for legal representation; 15 August 2025; 16 September 2025; 27 October 2025, but was postponed due to the applicant’s witness being unwell; 21 November 2025, but was postponed due to the non-appearance of the respondent’s representative; 19 January 2026; 16 February 2026, when the respondent launched an application for subpoenas; and 8 May 2026. The parties agreed to submit written submissions on aggravating and mitigating circumstances, together with their closing arguments, by 20 May 2026. The respondent subsequently applied for an extension of time, which was duly granted. The proceedings were accordingly concluded on 12 June 2026. The written submissions were duly considered.
[4] In keeping with the ELRC Policy, the identities of the minor witnesses (learners) are not disclosed in order to protect their identity.
[5] The employer and the respondent each handed in a bundle of documents, which were marked Bundle “A” and Bundle “B”, respectively.
[6] The nature of the proceedings and the parties’ rights were explained to them.

ISSUES TO BE DECIDED
[7] I am required to determine whether the respondent is guilty of the allegation against him and, if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[8] Mr Mbutu is employed as an educator at Gonzaga Primary School.
[9] A learner made allegations of sexual misconduct against Mr Mbutu, following which the employer charged him with misconduct.
CHARGE
The employer preferred the following charge against Mr Mbutu: –
[10] Be advised that you, Mr Mbutu duly appointed by the Head of Department as an Educator in terms of the Employment of Educators’ Act 76 of 1998 as amended (hereinafter referred to the Act), on the establishment of Gonzaga Primary School under Kind Cetshwayo District Office, you are hereby charged with misconduct in terms of the Act. The acts of misconduct that it is alleged you committed is as follows:
COUNT 1
In that on or about 5 March 2024 and in that at or near Gonzaga Primary School, you committed an act of sexual assault on a learner (Learner A) a Grade 6 learner. By doing so you contravened Section 17(1)(b) of the Act.
PLEADINGS
[11] Mr Mbutu pleaded not guilty to the charge.
SUMMARY OF EVIDENCE AND ARGUMENT
What follows is a summary of the witnesses’ evidence and does not purport to be a verbatim account of their testimony.
THE APPLICANT’S / EMPLOYER’S CASE
The employer called three witnesses to testify on their behalf.
LEARNER A
[12] Learner A testified that she attended Gonzaga Primary School from Grade R until after the incident, following which she transferred to another school.
[13] She testified that during March 2024, after the morning break, she remained in the classroom because she was unwell while the other learners were instructed by the respondent, Mr Mbutu, to collect firewood. According to her evidence, the respondent called her to the staff room. When she entered, he closed the door, came towards her, placed her on a table, removed her clothing and then his own, and raped her. She testified that she attempted to scream, but the respondent covered her mouth with his hand.
[14] Learner A testified that immediately after the incident she reported the matter to Ms Ntsele, a Grade 3 educator. Ms Ntsele informed Ms Majola and Ms Ndlovu. She stated that she told the educators that Mr Mbutu had touched her but did not disclose that he had raped her because she was frightened and did not know how to explain what had happened. According to her evidence, the educators then called Mr Mbutu, who apologised to her and stated that she was like his own child and a learner.
[15] She testified that she did not immediately report the incident at home because her mother was absent and she did not know how to tell her father.
[16] According to her evidence, on the following day the principal, Mr Mdlalose, called her to his office, where she recounted the incident. He informed her that he would contact her mother and arrange a meeting.
[17] Learner A testified that after her mother had been contacted by the school, her mother questioned her about the incident. She initially denied any knowledge thereof but later disclosed to both her parents that Mr Mbutu had violated her, describing the incident as Mr Mbutu having “slept with her without her permission”.
[18] She testified that on the following day her father attended at the school and questioned the principal regarding the allegation that she had been raped. According to her evidence, the principal stated that he had not been informed of that allegation, whereupon she disclosed the full details of the incident to the educators.
[19] Thereafter, her father reported the matter to the police and she was taken for a medical examination.
[20] Learner A confirmed that she had been unwell on the day of the incident, suffering from a headache, which was the reason she remained in the classroom while the other learners went to collect firewood.
Under cross-examination she testified that:
[21] Learner A testified that the respondent instructed the other learners to collect firewood while she remained behind because she had a headache. He then called her to the staff room, where he closed the door, embraced her, placed her on a table, removed her skirt, hat and panty, removed his own clothing, and had sexual intercourse with her without her consent.
[22] She testified that she attempted to get up during the incident, but the respondent restrained her by pressing her down with his hands.
[23] She stated that after the rape she experienced pain in her vagina, which persisted while she walked home from school but gradually subsided. She did not notice any bleeding, did not inspect her underwear for blood or stains, and observed nothing unusual when she later washed herself.
[24] Learner A testified that when the respondent removed her clothing and his own, she did not know what was going to happen because she had never previously experienced or witnessed anything of that nature.
[25] She testified that she first reported the incident to Ms Ntsele. However, because she was frightened, she was unable to explain what had actually happened. Although she did not expressly tell the educators that she was scared, they observed that she was frightened because she was crying.
[26] She readily conceded that in her initial reports to Ms Ntsele, Ms Majola, Ms Ndlovu and Mr Mdlalose she did not disclose that she had been raped.
[27] She testified that she initially reported only that Mr Mbutu had touched her shoulder and waist area. She explained that her initial reports were incomplete because she was frightened, did not know how to explain what had happened, and had never previously experienced or discussed anything of that nature. She testified that she first disclosed the rape to her mother because she trusted her the most. She further testified that Mr Mbutu apologised, although he did not specify what he was apologising for.
[28] When referred to Ms Majola’s statement, Learner A agreed that she had told Ms Majola that she did not like what Mr Mbutu was doing. She disputed, however, that she had told Ms Majola that Mr Mbutu had touched her only on her head and shoulders. She maintained that she had reported that he touched her shoulder and waist area.
[29] When referred to Ms Ntsele’s statement, she agreed that she had told Ms Ntsele that she was uncomfortable with what Mr Mbutu was doing. She disputed, however, that she had reported that Mr Mbutu merely brushed against her body, including her breasts. She maintained that she had reported that he touched her upper body and waist area and had demonstrated this to Ms Ntsele.
[30] Learner A reiterated that her initial reports to the educators were incomplete because she was frightened and unable to articulate what had occurred. She confirmed that she disclosed the full account only to her mother.
[31] She confirmed that Mr Mbutu’s daughter is her half-sister.
[32] Learner A further confirmed that the account she gave to her mother differed from the version she had initially provided to the educators because she disclosed everything that had happened to her.
[33] She confirmed that she had never previously been exposed to or engaged in any sexual activity before the incident.
[34] Learner A disputed the respondent’s version that he merely sent her to fetch a stapler from the staff room while he remained in the classroom; that she returned with a stapler without staples; that he merely touched her on the head and shoulder while reprimanding her for failing to complete the errand; that he instructed her to obtain staples from another educator; or that it was the first time he had sent her on a classroom errand.
[35] She testified that she did not know whether Mr Mbutu regarded her as family.
[36] When it was put to her that Mr Mbutu denied that any undressing or sexual contact had occurred, she maintained that he was not telling the truth.
DR ZIPHOZONKE MHOLNIPHENI NGUBANE
[37] Dr Ngubane testified that he is employed as a Medical Officer in the Department of Obstetrics and Gynaecology at Newcastle Provincial Hospital.
[38] He testified that he examined Learner A at Ekombe Hospital on 13 March 2024. Learner A was accompanied by her mother and members of the South African Police Service. The history presented to him was that the child was suspected of having been sexually assaulted by her teacher approximately one week earlier.
[39] He testified that the examination took place approximately one week after the alleged incident. By that stage Learner A had urinated and bathed. She had not yet commenced menstruation and was 11 years old at the time. She did not provide any history regarding the use of a condom or lubricant, although she appeared physically well developed for her age.
[40] During the gynaecological examination, Dr Ngubane observed no external injuries. He found that the vaginal opening appeared to measure more than 10 millimetres, noted a small amount of whitish vaginal discharge, and was unable to identify any hymenal tissue.
[41] Dr Ngubane testified that, in his opinion, it was abnormal for a child of Learner A’s age to have a vaginal opening exceeding 10 millimetres. He explained that the hymen is a thin membrane situated at the entrance to the vagina and that, in his opinion, it should ordinarily have been visible during the examination. Because he was unable to identify the hymen and observed an enlarged vaginal opening, he expressed the opinion that these findings were consistent with penetration.
Under cross-examination he testified that:
[42] Dr Ngubane conceded that he had not asked Learner A how long the alleged assault had lasted and was therefore unable to express any opinion regarding its duration. He further accepted that his suggestion that the perpetrator had sufficient time to commit the assault was based on an assumption that the incident occurred in an empty classroom rather than on information provided by Learner A.
[43] Regarding his clinical findings, Dr Ngubane testified that his conclusion that the vaginal opening exceeded 10 millimetres was based solely on visual observation. He did not use any measuring instrument or objective method to determine its size, and the notation in the J88 reflected his clinical estimate rather than an actual measurement. Although unable to state the precise measurement, he estimated that the opening may have been approximately 15 to 20 millimetres. He nevertheless maintained that, in his opinion, a vaginal opening greater than 10 millimetres in a child was abnormal and consistent with penetration.
[44] Dr Ngubane accepted, however, that an enlarged vaginal opening could result from causes other than penetration, including injury, sporting activities or other physical activity. He clarified that his earlier evidence regarding variation according to age related to the hymen rather than the vaginal opening, but maintained that, in his opinion, the vaginal opening would generally not exceed 10 millimetres unless it had been dilated.
[45] With reference to the hymen, Dr Ngubane confirmed that the J88 recorded “hymen open (no hymen)”. He explained that he was unable to identify any hymenal tissue during the examination and therefore recorded that no hymen was visible. He agreed that a single incident of sexual intercourse would not ordinarily result in the complete absence of the hymen and that the hymen would usually remain visible, although its appearance might be altered. He further accepted that some females are born without a hymen and that he could not exclude that possibility in Learner A’s case. He also testified that, in the absence of any visible injuries, he considered the possibility that Learner A may previously have been sexually active.
[46] Dr Ngubane testified that he observed a whitish vaginal discharge. He was unable to determine its cause and stated that it was not suggestive of a sexually transmitted infection. In his opinion, it could have been associated with the onset of puberty or ovulation. Although Learner A had not yet commenced menstruation, he accepted that vaginal discharge can occur in children who have not yet started menstruating, albeit uncommonly.
[47] Dr Ngubane agreed that first-time penetration frequently results in tears or bleeding, with such injuries generally remaining visible for approximately 72 hours depending on their severity. He further accepted that forceful penetration may result in significant injuries or scarring that remain visible for a longer period. However, he confirmed that when he examined Learner A, he observed no injuries, tears, scars or clefts.
[48] When asked whether first-time penile penetration would necessarily leave visible scarring, Dr Ngubane declined to express a definitive opinion. He explained that penile size varies considerably and that he was therefore unable to state that visible scarring would necessarily be present in every case.
Under re-examination he testified that:
[49] Dr Ngubane testified that, in cases of rape, injuries such as tears, lacerations or hymenal remnants are commonly observed, although their severity varies. He explained that minor lacerations may heal within two to three days, whereas deeper lacerations may take considerably longer to heal and may leave visible scarring.
[50] He confirmed that the timing of the examination was an important consideration. As Learner A was examined approximately one week after the alleged incident, he accepted that any minor injuries that may previously have been present could have healed before the examination.
[51] Dr Ngubane testified that he could not state with certainty what had caused the enlarged vaginal opening. In his opinion, the finding was consistent with the possibility that Learner A had previously been sexually active, had been penetrated by an object, including a penis, or had otherwise experienced penetration before the examination. He further explained that the vaginal opening is elastic and that its appearance may change over time. Nevertheless, having regard to his overall clinical findings, he remained of the opinion that penetration had occurred.

LEARNER A’S MOTHER
[52] She testified that she is the biological mother of Learner A. She knows the respondent, Mr Mbutu, as an educator who taught both her and Learner A. She further testified that Mr Mbutu is the father of her eldest child.
[53] She testified that one evening, after returning home from work, Learner A requested to speak to her privately about something that had been troubling her.
[54] According to Learner A’s mother, Learner A told her that during the previous week Mr Mbutu instructed the other learners to collect firewood while directing her to remain behind in the classroom. Learner A further told her that the respondent sat next to her desk, touched her breasts and thereafter instructed her to accompany him to the staff room.
[55] Learner A’s mother testified that Learner A told her she initially did not comply with the instruction but later went to the staff room after another learner came to fetch her. Upon arriving there, she remained at the doorway until the respondent instructed her to come closer. Learner A then told her that the respondent again touched her breasts and removed her underwear, whereupon she became emotional, started crying and was unable to continue describing what had occurred.
[56] Learner A’s mother testified that, because Learner A was distressed and unable to continue, she asked her to speak to her elder sister, Nomcebo Thulile Mbutu. She testified that Nomcebo later informed her that Learner A had disclosed that the respondent had raped her.
[57] She testified that she did not question Learner A further because, after hearing that the respondent had removed her underwear, she inferred what had occurred.
[58] Learner A’s mother further testified that Learner A’s account reminded her of an incident which she alleged had previously occurred between herself and the respondent. She stated that the conduct described by Learner A was substantially the same as that which she alleged the respondent had previously perpetrated against her.
Under cross-examination she testified that:
[59] Learner A’s mother confirmed that Learner A first disclosed the alleged incident to her approximately one week after it had occurred. She further testified that Learner A informed her that she had reported the incident to Ms Ntsele on the day it occurred.
[60] She testified that, according to Learner A, she remained in the classroom because she had a headache while the other learners were instructed to collect firewood. She confirmed that Learner A occasionally suffered from headaches.
[61] Learner A’s mother readily conceded that she was not present when the alleged incident occurred and that her evidence concerning the incident was based entirely on what Learner A and Nomcebo had told her.
[62] When it was put to her that there was a discrepancy regarding whether Learner A had followed the respondent directly to the staff room or had gone there after another learner fetched her, she replied that she could only recount what Learner A had told her and that Learner A was best placed to explain any inconsistency.
[63] It was put to Learner A’s mother that Learner A’s initial report to the educators concerned inappropriate touching rather than rape. She testified that Learner A had never told her what she had reported to the educators and that she therefore did not know whether Learner A had reported rape or only inappropriate touching. She nevertheless maintained that Learner A told her that the respondent had touched her breasts and removed her underwear before becoming too distressed to continue, whereafter Nomcebo informed her that Learner A had disclosed that the respondent had raped her.
[64] Learner A’s mother testified that Learner A disclosed the incident to her on a Tuesday evening and that she reported the matter to the South African Police Service on the following Wednesday. She explained that she did not report the matter on that Tuesday evening because she returned home from work at approximately 18h30.
[65] She confirmed that she did not attend the meeting convened by the principal and that Learner A’s father attended in her place. She testified that, when she questioned him as to why the school had not reported the matter to the police, he informed her that it was the responsibility of the parents to do so.
[66] Learner A’s mother testified that Learner A explained that she had been afraid to disclose the incident because she regarded her as strict, that she shouted at her, and that she sometimes disciplined her physically.
[67] Regarding her relationship with the respondent, Learner A’s mother testified that they had been involved in a relationship from 1993, when she was in Grade 7, until approximately 2002. She stated that the respondent had been her teacher while she was still a learner.
[68] She denied the respondent’s version that their relationship commenced when he was still a learner. She further denied that she fabricated the allegations against him out of bitterness following the breakdown of their relationship.
[69] It was put to Learner A’s mother that she was using Learner A to make false allegations against the respondent in order to harm him and jeopardise his employment. She denied the allegation.
[70] Learner A’s mother also disputed the respondent’s evidence regarding the Zulu customary practices applicable to their relationship. She denied that she remained bound to him through customary processes or that he had ended the relationship. She maintained that she ended the relationship because she no longer loved him.
Under re-examination she testified that:
[71] Learner A’s mother testified that she had been married since 2014. She confirmed that she remains married and, when asked whether she wished to resume or reconcile her relationship with Mr Mbutu, she replied that she did not.
THE RESPONDENT’S / EMPLOYEE’S CASE
EDWARD MBUTU
[72] The respondent testified that he is a qualified educator who has been employed at Gonzaga Primary School for approximately 32 years, teaching Grades 4 to 7. He confirmed that Learner A was a Grade 6 learner in his class during March 2024.
[73] He testified that on 4 March 2024 he was teaching his Grade 6 class when the school cook requested learners to collect firewood. He stated that this was a common occurrence, taking place approximately four times per week whenever authorised in terms of the school’s daily programme.
[74] The respondent testified that he selected learners from his class to collect the firewood but did not send Learner A because she frequently complained of headaches and was often unwell. Instead, he instructed her to fetch a stapler from Ms Ndlovu. When she returned with a stapler but no staples, he instructed her to enquire from Ms Gwala, Ms Majola and Ms Ntsele whether they had any staples.
[75] He testified that, while leaving the administration office carrying Grade 6 test papers, he encountered Learner A returning without the staples. He told her to leave the matter as he would obtain staples from the principal on his return. According to him, while speaking to her, he briefly touched her on the head and shoulder before they both returned to the Grade 6 classroom.
[76] He denied that the touching was rough, aggressive or intended to assault Learner A. He testified that it was a routine and comforting gesture, explaining that he frequently touched learners lightly in the course of teaching without any improper intention.
[77] The respondent testified that, after distributing the test papers, a learner informed him that Ms Ntsele wished to see him. He found Ms Ntsele, Ms Ndlovu, Ms Majola and Learner A present. According to him, Ms Ntsele informed him that Learner A alleged that he had touched her roughly on the head and shoulder.
[78] He testified that he immediately apologised if his actions had caused Learner A any discomfort. According to him, Learner A appeared satisfied with the apology and returned to class, whereupon he regarded the matter as resolved.
[79] He testified that Ms Ntsele instructed him to report the incident to the principal. As the principal was attending another school and returned only at approximately 13h15, he reported the matter later that afternoon at approximately 14h45.
[80] He further testified that Ms Majola reported the incident to the principal on the following day, 5 March 2024.
[81] The respondent denied that he called Learner A to the staffroom, locked the staffroom door, placed her on a table, removed either her clothing or his own clothing, sexually assaulted or raped her, or covered her mouth to prevent her from screaming. He denied that any sexual contact took place.
[82] He testified that he believed the allegations had been fabricated as a result of the influence of Learner A’s mother and another educator employed at the school.
[83] The respondent testified that he had been in a romantic relationship with Learner A’s mother for approximately 15 to 18 years and that they have a child together. According to him, he ended the relationship because she had been unfaithful. He stated that she remained resentful because he had ended the relationship and she was using Learner A to make false allegations against him.
[84] He further testified that another educator employed at the school, with whom he had an ongoing dispute arising from union-related matters, had also influenced Learner A. According to him, the educator, who was a member of NATU, blamed him for not obtaining a principal’s post after her application allegedly failed to reach the relevant selection panel. He denied any involvement in that recruitment process.
[85] The respondent testified that on 13 March 2024 Learner A’s father and aunt attended the school and met with Ms Ndlovu, Ms Majola and the principal. He stated that it was only after they had left that he was informed that Learner A alleged that he had raped her on 4 March 2024. He testified that he was arrested on 14 March 2024.
[86] He described the layout of the school and testified that the staffroom was situated in an elevated block accessed by steps. According to him, only he and Ms Ndimande occupied desks in the staffroom. He further testified that the staffroom remained unlocked during school hours, that the cleaner retained the key during the school day, and that educators did not have access to a key capable of locking the staffroom during teaching hours.
[87] The respondent accordingly disputed Learner A’s evidence that he locked the staffroom door before the alleged assault, maintaining that this would not have been possible because educators did not have access to the key during school hours.
[88] He testified that the allegations had adversely affected his personal life, reputation and standing within both his family and the community. He further testified that, despite the allegations, his wife had continued to support him.
Under cross-examination he testified that:
[89] The respondent testified that he commenced teaching at Gonzaga Primary School in 1993 despite holding only a matric qualification and not then being registered with SACE. He confirmed that Learner A had been one of his learners and described her as a child who was frequently ill. According to him, because of her condition she was ordinarily excused from collecting firewood or water and would remain in the classroom while the other learners performed those tasks.
[90] Regarding the events of 4 March 2024, he testified that he remembered the date because colleagues informed him that allegations had been made that he had touched Learner A roughly. He maintained that although Learner A was generally unwell, she did not specifically inform him that she was ill on that day. When it was put to him that Learner A had testified that she was sick on the day in question, he accepted that she had been ill but maintained that her condition was not so severe as to prevent her from walking or carrying out simple tasks.
[91] The respondent testified that he sent Learner A to fetch a stapler from another classroom. When she returned and informed him that she had found the stapler but that it was without staples, he instructed her to enquire from other teachers, including Ms Gwala, Ms Majola and Ms Ntsele. He acknowledged that one of the classrooms she visited was further away than the staffroom and required her to walk past the kitchen to the Grade R classroom. He nevertheless maintained that this was not inappropriate because she was sufficiently well to move around and later completed her weekly tests. He explained that the stapler was required to staple memorandum and documents intended for submission to the principal rather than the learners’ test papers.
[92] The respondent conceded that no one witnessed the physical contact between himself and Learner A. He testified that the incident occurred as they crossed paths at the classroom doorway while he was leaving and Learner A was entering. According to him, he touched her only once with one hand and denied any improper conduct. He confirmed that he apologised to Learner A in the presence of Ms Ntsele, Ms Ndlovu and Ms Majola because he believed that he may have touched her head too roughly while she was suffering from a headache. He denied that the apology constituted an admission of any inappropriate or sexual conduct.
[93] He emphatically denied sexually assaulting Learner A. He testified that he had never touched her private parts and maintained that his only physical contact with her was a single touch with one hand.
[94] The respondent testified that the allegations were fabricated. He alleged that Learner A had been influenced by her mother and Ms Ndimande, a teacher at the school, whom he claimed had colluded to implicate him falsely. In support of this contention, he stated that Learner A’s mother reported the alleged assault several days after the incident despite its seriousness, which he believed demonstrated that the allegations had been fabricated.
[95] He admitted that he had previously been involved in a romantic relationship with Learner A’s mother. He testified that the relationship commenced in 1992 while they were both learners and continued after he became a teacher. He acknowledged that during 1994 and 1995 he was employed as a teacher while she remained a learner. He denied her allegation that he had raped her. He further confirmed that he never paid lobola but only paid damages in respect of their child.
[96] He was unable to recall precisely when the relationship ended. When it was suggested that it had ended around 2002, he accepted that this could be correct but disputed that his inability to recall the exact date rendered Learner A’s mother’s version more probable. He maintained that the relationship ended on bad terms and alleged that she wished the relationship to continue after he had ended it.
[97] When asked why Learner A’s mother would still be jealous approximately 22 years after the relationship had ended, he maintained that he believed she still wanted the relationship to continue.
[98] Regarding Ms Ndimande, he stated that they had not enjoyed a good relationship for many years. He denied having played any role in the appointment of the school’s principal or participating in the interview process and accepted that the hostility between them was unrelated to that appointment. He stated that their poor relationship pre-dated those events and arose from other issues, including his good relationship with SADTU principals.
[99] He further alleged that Learner A’s mother and Ms Ndimande acted together against him because they were close associates who frequently attended social functions together. According to him they had been waiting for an opportunity to make allegations against him. Although he accepted that Ms Ndimande was absent from school on the day of the alleged incident, he speculated that she became aware of the allegations upon her return the following day.
[100] The respondent testified that he became aware of the rape allegation after Ms Ndlovu informed him that Learner A’s father and aunt had attended the school, met with the principal and teachers, and alleged that Learner A had been raped. He accepted that he thereafter became the suspect but continued to deny any wrongdoing.
[101] When referred to the medical evidence, including findings said to be consistent with penetration and an enlarged vaginal opening, the respondent rejected any suggestion that his admitted physical contact with Learner A could have caused those findings. He maintained throughout that no sexual assault occurred on 4 March 2024 and denied any involvement in the findings recorded in the medical evidence.
MAVIS NOMPUMELEO HLEKISILE NTSELE
[102] She testified that she was employed as a Post Level 1 educator at Gonzaga Primary School. She confirmed that the respondent, Mr Edward Mbutu, was her colleague, teaching learners in the Intermediate Phase (Grades 4 to 7), and that Learner A was a Grade 6 learner at the school during 2024.
[103] She testified that on 4 March 2024, shortly before 13h00, Learner A approached her classroom and requested to speak to her privately. They went outside the classroom where Learner A reported that Mr Mbutu had touched her. When asked to demonstrate how she had been touched, Learner A touched Ms Ntsele’s arm. Learner A further reported that the incident occurred while the other learners had gone to collect firewood and she had remained alone in the Grade 6 classroom with Mr Mbutu.
[104] Ms Ntsele testified that Learner A further reported that, after the incident in the classroom, Mr Mbutu instructed her to follow him to the staff room. Learner A stated that she remained behind briefly before following him and alleged that, upon arriving at the staff room, Mr Mbutu hugged her. She thereafter left the staff room, ran and immediately reported the incident to Ms Ntsele.
[105] Ms Ntsele testified that she called Ms Majola to join them, whereupon Learner A repeated the same account in her presence. Ms Majola thereafter informed the senior educator, Ms Ndlovu, and Learner A again recounted the incident in the presence of both educators.
[106] She testified that Mr Mbutu was thereafter called to respond to the allegations. According to her, he denied touching Learner A and stated that he had instructed her to go to the staff room to fetch a stapler for him. She testified that this was the explanation he provided regarding the incident.
[107] She testified that the discussion concluded at the end of the school day and that Ms Majola indicated that she would report the matter to the school principal, who was not present at the school that day.
[108] She stated that she did not observe any physical signs suggesting that Learner A had been sexually assaulted or injured. Learner A was walking normally, was dressed in her school uniform and appeared physically normal when she reported the incident. Notwithstanding those observations, she maintained that Learner A made the allegations described in her evidence.
Under cross-examination she testified that:
[109] Ms Ntsele confirmed that the incident about which she testified occurred on 4 March 2024, notwithstanding that the disciplinary charge reflected the date as 5 March 2024. She further confirmed that she was not familiar with the statutory definition of sexual assault contained in the Employment of Educators Act.
[110] She testified that, in her opinion, the manner in which Learner A described being touched was inappropriate. She accepted, however, that Learner A appeared physically normal when making the report and that she observed no visible signs of distress, unhappiness or injury.
[111] When referred to her sworn police statement, Ms Ntsele confirmed that the signature appearing thereon was hers and that the statement had been read back to her before she signed it under oath. She disputed portions of its contents, particularly the reference to the incorrect date of the incident and the statement that Learner A had reported that Mr Mbutu brushed her body, including her breasts. She maintained that Learner A had never mentioned her breasts when making the report to her and explained that she had not personally drafted the statement.
[112] Ms Ntsele confirmed that Learner A reported that Mr Mbutu had hugged her tightly against his chest, which she regarded as inappropriate.
[113] She testified that the respondent’s apology was conditional. According to her, he stated: “If I touched you in a bad way, I apologise.” She agreed that he did not admit touching Learner A inappropriately but apologised conditionally in relation to the physical contact.
[114] She confirmed that Learner A specifically requested to speak to her privately before reporting the incident.
[115] She reiterated that she had asked Learner A to demonstrate how she had been touched rather than where she had been touched, whereupon Learner A rubbed Ms Ntsele’s arm in an up-and-down motion to illustrate the manner of the alleged touching.
Under re-examination she testified that:
[116] Ms Ntsele clarified that the respondent’s words were: “I am sorry, my child, if I have touched you in a bad way.” She testified that she understood the apology to relate to the manner in which Learner A alleged she had been touched, although the respondent did not explain what he had intended by the physical contact.
[117] She testified that although she signed the police statement after it had been read back to her, she remained adamant that no reference had been made to Learner A alleging that Mr Mbutu had touched her breasts. She stated that had such wording been included, she would have insisted that it be corrected before signing the statement.
NOMSA THANDIWE MAJOLA
[118] Ms Nomsa Thandiwe Majola testified that she was employed as an educator at Gonzaga Primary School during March 2024 but is presently employed at another school.
[119] She testified that on 4 March 2024 Ms Ntsele called her out of her classroom. Outside she found Ms Ntsele with Learner A. She observed that Learner A appeared neat, was wearing her school uniform and appeared physically normal. She further observed that Learner A’s eyes were not red, which she regarded as unusual because Learner A reportedly suffered from a medical condition that often caused redness of her eyes.
[120] Ms Majola testified that Ms Ntsele asked Learner A to repeat what had occurred. Learner A reported that Mr Mbutu had touched her. When asked to demonstrate how she had been touched, Learner A rubbed Ms Ntsele’s arm in an up-and-down motion. Ms Majola then asked whether Mr Mbutu had done anything further to her, Learner A replied, “No, I managed to run away.”
[121] She further testified that Learner A reported that Mr Mbutu had called her to the staff room, where the touching allegedly occurred.
[122] Ms Majola testified that she thereafter called Mr Mbutu to join the discussion in Learner A’s presence. Learner A again stated that Mr Mbutu had touched her. According to Ms Majola, Mr Mbutu asked Learner A whether he was touching her for the first time and remarked that he had been surprised when he did not see her in the classroom. She testified that he was holding assessment papers at the time, looked through them and remarked, “Oh, it is better you have written,” before instructing Learner A to return to class as it was home time.
[123] Ms Majola testified that she could not recall Mr Mbutu apologising during the discussion.
[124] When it was put to her that Learner A had testified that Mr Mbutu called her to the staff room, removed both their clothes and raped her, Ms Majola testified that she had no knowledge of those allegations. She stated that no allegation of sexual penetration was reported in her presence.
Under cross-examination she testified that:
[125] Ms Majola confirmed that she had not witnessed the incident herself and that Learner A had demonstrated the alleged touching by brushing Ms Ntsele’s arm. She explained that educators commonly touch learners lightly on the arm or shoulder when addressing them and, based only on what Learner A had reported, she could not herself determine whether the touching complained of was appropriate or inappropriate.
[126] Ms Majola initially testified that she could not recall Learner A reporting that Mr Mbutu had hugged her. However, when referred to her signed written statement, she accepted it recorded that Learner A had reported that Mr Mbutu hugged her and pressed her against his chest. She attributed her inability to recall that detail to the passage of time, diabetes and the medication she was taking.
[127] When referred to her sworn police statement, she confirmed that the signature appearing thereon was hers, that the statement was read back to her and she confirmed its correctness before signing it.
[128] When referred to the portion of her statement recording that Mr Mbutu apologised to Learner A, while stating that he normally touched learners on the hands and shoulders, Ms Majola testified that she could no longer remember every detail of the discussion in sequence but did not dispute that her statement contained those words.
[129] Ms Majola testified that Learner A told her she was afraid to tell her mother because her mother shouted at her. She further stated that Learner A also said she was afraid of her older sister, who would beat her when she got into trouble.
[130] Ms Majola testified that Learner A told her that she had initially been in the Grade 6 classroom before being called to the staff room. When it was put to her that this differed from Ms Ntsele’s evidence, she explained that Learner A may have provided Ms Ntsele with additional information before she joined the discussion.
ANALYSIS OF EVIDENCE AND ARGUMENT
[131] The respondent is charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA). The employer bears the onus of proving the misconduct on a balance of probabilities. It is not required to prove the allegations beyond reasonable doubt.
[132] Section 17(1)(b) of the EEA provides 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.
[133] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[134] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[135] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[136] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra 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 the state or any other person having sufficient interest in the protection of children.”
[137] The proper approach to resolving factual disputes is well established. In Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie SA and Others 2003 (1) SA 11 (SCA), the Supreme Court of Appeal held that credibility, reliability and probabilities are interrelated and must ultimately be weighed together in deciding which version is more probable. That approach has consistently been applied in labour matters, including Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (2020) 41 ILJ 444 (LC), and Workforce Staffing (Pty) Ltd v Mjoli and Another (2024) 45 ILJ 1627 (LAC). Those authorities make it clear that credibility findings cannot be divorced from the objective probabilities and that the evidence must be evaluated holistically.
[138] In cases involving mutually destructive versions, the enquiry is whether the party bearing the onus has established that its version is more probable than the competing version. In allegations of sexual misconduct, which frequently occur in private, the evidence of the complainant, the respondent and the objective facts must be evaluated together. Consistent with S v Jackson 1998 (1) SACR 470 (SCA), Learner A’s evidence must neither be approached with suspicion merely because she is the complainant nor accepted uncritically. It must be evaluated against the same standards applicable to every witness.
[139] The principal issue for determination is therefore whether the employer has established, on a balance of probabilities, that the respondent committed an act of sexual assault upon Learner A.
[140] Although the disciplinary charge refers to 5 March 2024, the evidence consistently establishes that the incident occurred on 4 March 2024. The charge alleges that the misconduct occurred “on or about” 5 March 2024. The respondent was throughout aware of the incident relied upon, conducted his defence on that basis, fully answered the allegations and suffered no prejudice. The discrepancy in the date is therefore not material.
[141] Learner A was the only witness who testified directly regarding the alleged sexual assault. In assessing her evidence, I have considered her demeanour, the consistency of her version, the inherent probabilities, the corroborating evidence and the manner in which she responded during cross-examination. Having done so, I find her to have been a credible and reliable witness.
[142] Learner A testified in a straightforward manner consistent with her age. She answered questions candidly, readily made concessions where appropriate and remained consistent on the essential allegation that it was the respondent who sexually assaulted her. She did not exaggerate her evidence or seek to embellish her account.
[143] I attach considerable significance to the fact that Learner A readily acknowledged that she did not initially disclose rape and that her first report was confined to inappropriate touching. Rather than detracting from her credibility, this concession demonstrates candour. Her explanation that she delayed disclosing the penetration because she was frightened, embarrassed and had no idea how to explain the rape to the educators is plausible and accords with judicial experience concerning the disclosure of sexual offences by children.
[144] The respondent placed considerable emphasis on Learner A’s failure to disclose penetration immediately after the incident. In my view, that fact does not undermine her credibility. The evidence establishes that she made an immediate complaint of inappropriate sexual conduct and consistently identified the respondent as the perpetrator. Her later disclosure of penetration was accompanied by a reasonable explanation. Progressive disclosure by child complainants is not inherently improbable and must be evaluated in the context of the evidence as a whole.
[145] Although the respondent identified inconsistencies regarding the sequence of events and aspects of Learner A’s initial complaint, those inconsistencies relate to peripheral matters rather than the central issue. They are not unusual where a child recounts a traumatic incident after the passage of time. Importantly, Learner A remained consistent throughout that it was the respondent who committed the misconduct. No evidence was presented establishing any motive for her to falsely implicate him.
[146] Neither Ms Ntsele nor Ms Majola witnessed the incident. Their evidence therefore does not corroborate the commission of the assault itself. It does, however, materially corroborate that Learner A made an immediate complaint shortly after the incident, consistently identified the respondent as the person involved and initially reported inappropriate touching rather than penetration. Their evidence therefore lends support to Learner A’s explanation regarding her progressive disclosure.
[147] I found both Ms Ntsele and Ms Majola to be generally credible witnesses. Both made appropriate concessions where their recollection was imperfect and neither attempted to embellish Learner A’s account. Although there were some inconsistencies between their oral evidence and aspects of their written statements, those inconsistencies relate largely to peripheral matters and the passage of time rather than the substance of Learner A’s complaint.
[148] Ms Ntsele testified that the respondent offered a conditional apology after the complaint had been raised. According to her, he stated: “I am sorry, my child, if I have touched you in a bad way.” Ms Majola could not independently recall the apology but accepted that her contemporaneous statement recorded it. The alleged apology does not constitute an admission of guilt. It is, however, a factor which must be considered together with the remainder of the evidence when assessing the probabilities.
[149] Learner A’s mother did not witness the incident and her evidence is hearsay insofar as the assault itself is concerned. Nevertheless, her evidence is relevant in explaining the circumstances under which Learner A later disclosed penetration. Significantly, the evidence establishes that Learner A had already reported the respondent’s conduct before speaking to her mother, thereby materially undermining the respondent’s allegation that the complaint was fabricated through her mother’s influence.
[150] Dr Ngubane testified as an expert witness. I found him to be objective and balanced. He readily acknowledged the limitations of the medical evidence, including that the examination took place approximately one week after the incident, that no objective measuring instrument was used and that alternative causes for his findings could not be excluded.
[151] Despite those limitations, Dr Ngubane remained of the opinion that the enlarged vaginal opening and absence of identifiable hymenal tissue were findings consistent with previous penetration. The medical evidence cannot identify the perpetrator, determine when the penetration occurred or independently prove the misconduct. It is, however, consistent with Learner A’s allegation and must be considered together with the remainder of the evidence.
[152] The respondent denied the allegations and maintained that he merely touched Learner A on the head and shoulder as a comforting gesture. He further alleged that the complaint had been fabricated through the influence of Learner A’s mother and Ms Ndimande.
[153] It is common cause that Learner A and the respondent were alone in the classroom for a period while the other learners were collecting firewood and that some physical contact occurred between them. Whether the respondent thereafter offered a conditional apology is disputed.
[154] The respondent’s explanation does not satisfactorily account for the objective evidence. It does not explain why Learner A immediately sought out Ms Ntsele, requested to speak to her privately and complained of inappropriate conduct. Nor does it explain why she repeated that complaint to Ms Majola shortly thereafter or why she consistently maintained her allegations throughout these proceedings.
[155] The respondent’s allegation that Learner A fabricated the complaint through the influence of her mother and Ms Ndimande is speculative and unsupported by any objective evidence. The chronology of events materially undermines that defence because Learner A made her initial complaint before speaking to her mother and before Ms Ndimande became involved.
[156] The objective facts established by the evidence are that Learner A and the respondent were alone for a period during the relevant time; some physical contact between them is common cause; Learner A made an immediate complaint to Ms Ntsele identifying the respondent; she repeated that complaint shortly thereafter to Ms Majola; Ms Ntsele testified that the respondent offered a conditional apology; and the medical findings are consistent with previous penetration, although not conclusive.
[157] The respondent’s version requires acceptance that an eleven-year-old learner fabricated allegations of sexual misconduct, consistently maintained those allegations throughout the subsequent investigation and arbitration proceedings, and did so without any discernible motive. It further requires acceptance that the complaint was orchestrated by Learner A’s mother and Ms Ndimande despite the fact that the initial complaint preceded their involvement. Those probabilities are inconsistent with the objective evidence.
[158] Conversely, the employer’s version is supported by Learner A’s credible evidence, her immediate complaint, the corroborative evidence of Ms Ntsele and Ms Majola concerning the first report, the common-cause physical contact between the respondent and Learner A, the evidence relating to the respondent’s conditional apology and the medical evidence consistent with previous penetration. Although the employer’s case is not without discrepancies, those discrepancies relate to peripheral matters and do not materially affect the central issue requiring determination.
[159] Evaluating the evidence holistically, I have considered the credibility and reliability of each witness together with the objective probabilities. I have not accepted Learner A’s evidence merely because she is the complainant, nor rejected the respondent’s evidence merely because he denied the allegations. Applying the principles set out in Stellenbosch Farmers’ Winery, Masilela, Old Mutual v Makanda, Workforce Staffing and S v Jackson, I am satisfied that the employer has discharged the onus resting upon it.
[160] I accordingly find that the respondent’s version is not reasonably probable. The employer has proved, on a balance of probabilities, that the respondent committed an act of sexual assault upon Learner A.
[161] The respondent is therefore found guilty of misconduct as contemplated in section 17(1)(b) of the Employment of Educators Act.
[162] In Mudau v MEIBC & Others [2013] 13 ILJ 663 [ LC] the court held that the task of an arbitrator in terms of section 188A is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged with and if so whether there exists a basis in fairness to terminate the employment relationship.
[163] Section 17(1) of the Employment of Educators Act prescribes dismissal as the mandatory sanction where an educator is found guilty of committing an act of sexual assault upon a learner.
[164] In addition, educators occupy a position of trust and stand in loco parentis to learners while they are under their care. They are expected to safeguard learners’ physical and psychological well-being and to provide a safe educational environment. Mr Mbutu had a legal and moral obligation to safeguard and protect Learner A and not breach the trust placed in him as in loco parentis.
[165] The misconduct committed by the respondent constitutes a fundamental violation of the trust reposed in educators and is wholly incompatible with the duties of a teacher. Learners are entitled to attend school in an environment that is safe and free from abuse. The respondent’s conduct destroyed the trust relationship irretrievably and is inconsistent with the standards required by the Employment of Educators Act, the SACE Code of Professional Ethics and the constitutional obligation to protect the best interests of children.
[166] In the circumstances, dismissal is not only the prescribed sanction but is also fair, appropriate and justified. The respondent is accordingly dismissed.
AWARD
[167] The employee, Mr E. Mbutu, is found guilty of contravention of section 17(1)(b) of the Employment of Educators Act.
[168] The employee, Mr E. Mbutu is dismissed with immediate effect.
[169] The employer, the KZN Department of Education must inform the employee, Mr E. Mbutu of his dismissal immediately on receipt of this Award.
[170] Mr E. Mbutu is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[171] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr E. Mbutu’s name as contemplated in section 120 in Part B of the register.
[172] The ELRC must also send a copy of this Award to the South African Council for Educators (SACE) to consider revoking Mr E. Mbutu’s SACE certificate.

ELRC Commissioner: P. Jairajh