IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MBOMBELA

Case No. ELRC765-25/26MP

In the matter between

MPUMALANGA DEPARTMENT OF EDUCATION Employer

And

MAKHUBELA HENDRY JABULANI Employee

ARBITRATION AWARD (ENQUIRY BY ARBITRATOR)

Details of hearing and representation

1. This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 as amended. The hearings took place on 22 – 23 April, and 23 June 2026 at the Department of Education, MAXSA Building, Enhlanzeni District Offices, Mbombela, Mpumalanga Province at 9:00AM. The employee, Makhubela Hendry Jabulani, was represented by Ishmael Mgwenya from South African Democratic Teachers Union (SADTU), while the employer, Mpumalanga Department of Education, was represented by Thulasizwe Miya, its official. The proceedings were digitally voice recorded and Skhumbuzo Luthuli was the interpreter. The intermediary was Padi Mule. The parties handed in bundles of documents I marked as Bundle R for the employer and BUNDLES A and B for the employee.

Issues to be decided.

2. This was an Inquiry by Arbitrator. I must decide whether the employee is guilty of the misconduct levelled against him or not. If found guilty, I must determine an appropriate sanction. Background and common cause issues
3. The employee, Makhubela Hendry Jabulani, is currently employed by Mpumalanga Department of Education as a Departmental Head (DH) at Valencia Combined School (the school). He was charged with two (2) charges of misconduct and one (1) alternative charge in terms of sections 18(1)(q) and 18 (1) (dd) of the Employment of Educators Act, 76 of 1998 as amended (the Act).
4. Charge 1: That you committed misconduct in terms of Section 18(1)(q) of the Employment of Educator’s Act 76 of 1998, in that while on duty on the 2nd June 2025, you conducted yourself in an improper, disgraceful or unacceptable manner by hugging tightly and touching the lower back of HM.
   Charge 2: That you committed misconduct in terms of Section 18(1)(q) of the Employment of Educator’s Act 76 of 1998, in that while on duty on the 2nd June 2025, you conducted yourself in an improper, disgraceful or unacceptable manner by touching the body of HM as if searching her and kissing her.
   Alternative
   charge: That you committed misconduct in terms of Section 18(1) (dd) of the Employment of Educator’s Act 76 of 1998, in that you contravened a common law or statutory offense by harassing HM on 2nd June 2025.

Summary of the employer’s evidence.

Two witnesses/complainants testified to the employer. The first witness/    complainant of the employer was Willie Kariel White. Willie Kariel White testified  under oath and in English that: 

5. He is the principal of Valencia Combined School (the school). He is working with the employee as a Departmental Head (DH). On the 4th of June 2025, one of the learners, HM together with her mother and aunt came to the school. The learner, her mother and aunt indicated to him that they wanted to lodge a case of sexual harassment against HM. He called the chairperson of the School Governing Body (SGB). They asked the learner, the mother and aunt to give them an overview of what happened, of which they (learner, mother and aunt) did (page 8 of Bundle R).
6. HM was one of the learners from whom a cell phone was confiscated. She (HM) alleged that there was arrangement that she get the cell phone from the employee. During her (HM) interactions with the employee, he (employee) touched her. According to the report the touching happened on the day of the search and inside the employee’s classroom. HM explained that she went to the employee’s office to check how she could get her cell phone back. HM indicated to him that the employee was a powerful person in the school who would be able to pursue him to release the cell phone without fine.
7. The previous two days, he authorized the DH, Mr. Zulu, Fakude, a female teacher and a security officer to search for cell phones from learners. That search team came back with cell phones and other items from learners.
8. During the cross-examination, he testified that when the parents of HM came to his office, he did not check the cell phone and he was not asked to retrieve it (cell phone) by the parents. HM indicated that the employee touched her inappropriately. At the end the parents said they would go and open a criminal case against the employee. He did not go deeper with which part of HM’s body the employee touched, because it does not matter where to touch. The second witness/complainant of the employer was HM. HM testified under oath and in English that:
9. She is attending school at Valencia Combined School doing grade 10. Last year, 2025 she was in grade 9. On 02 June 2025 she bypassed the school rules by going with her cell phone. She was using the cell phone during the employee’s period since he (employee) was not in the class. Then, ten (10) minutes to break time, Mr. Ngomani, Mr. Zulu and Fakude came in and confiscated her cell phone. During break time, she was in tears and consulting with her friends when the employee came through the corridor from his office to them. As the employee was walking towards them (HM and her friends), her friends informed the employee that HM’s cell phone was confiscated. The employee then said she should come to him (employee) after break.
10. After the first break she went to the employee’s office accompanied by her friends, AS and CK. She went inside the employee’s back office where he (employee) was seated. The employee indicated to her to take a seat, of which she did. The employee was asking her about her parents and she indicated to him (employee) that her cell phone was confiscated. Mam Kwinika was coming in and out while she was explaining to the employee her home situation. The employee was advising her what to do and indicated that he (employee) would get her cell phone back. She then started to cry again and told the employee that she had to leave his office, since she had to write Technology test.
11. As she stood up, the employee stood up with her as well. That is when he came to her and hugged her saying he does not really hug students as it is not allowed. Within the employee’s hug, his (employee’s) hand lower down towards her lower back. Her lower back she meant her buttocks. She did not ask for the hug and was shocked. After that the employee let her go and indicated that she should come back to check if he had her cell phone or not. She has been in the employee’s office for an hour.
12. She went back to the employee’s office accompanied by AS after second break, as the employee told her to come back. AS left her and went to Afrikaans period. She was standing at the door of the first office as she was scared of coming in. The employee called her to get inside the back office where he was. She got inside the employee’s back office and he (employee) explained to her that he could not get her cell phone back. The employee stood up and she did the same as well wanting to open the door. She took her bag and as she was to open the door, the employee came towards her. The employee took her arms and push her against the shelves so that she could not move. Then the employee forcefully kissed her. The employee then let her arms go and started to search underneath her school dress (tunic) saying she always bring bad things at school. She then pushed the employee away, opened the door and left. Before the incident, her relationship with the employee was that of a learner and teacher. The employee was one of her favourite teachers.
13. When she got home, she texted the employee asking him to help get her cell phone as she was disparate to get it (cell phone). The cell phone fee was seven hundred and fifty rand (R750.00) and it was huge amount for her. She asked the employee to borrow her four hundred rand (R400.00) to pay for her cell phone. The employee did not give her the R400.00.
14. During cross examination, she testified that the employee asked why she was in tears and her friend CK responded by saying she (HM) was in tears because her (HM’s) cell phone was confiscated by Fakude, Zulu and Ngobeni. The break time was at 9:48 to 10:18. The employee never said she must come alone, but he said it when he was touching her arms (shoulder). When she was having conversation with the employee, he (employee) told her to close the door, of which she slightly did. Mam Kwinika entered the employee’s office about three (3) to four (4) times before she was hugged. The employee delayed her to go and write Technology test by hugging and touching her lower back. The employee told her that he was not allowed to hug learners but he would hug her. The employee touched her inappropriately in the first meeting and in both the meetings the inappropriate touching happened when she was about to leave the employee’s office. In the second meeting she spent fifteen minutes (15minutes). She does not recall Mr. Ndlovu entering the employee’s office when she was there during the second meeting. Item 158 at 11:07, it was reported that a cell phone was found with her (page 5 of Bundle A). She was in the employee’s office at that time, 11:07.

Summary of the employee’s evidence.

Four witnesses testified for the employee. The first witness was the employee,  himself. Hendry Jabulani Makhubela testified under oath and in English that:

15. He is an employee at Valencia Combined School. He is employed as a DH: senior phase. He was responsible for discipline for the senior phase. At the time of the incident, he was serving as a data administrator for the school.
16. On 02 June 2025 at about 9:50, he encountered two learners by the names of HM and CK coming from his class. As he passed by, he noticed that learner HM was in tears. He asked HM and CK what was wrong with HM. CK responded by saying HM’s cell phone (iPhone 13, Pro-Max) was confiscated. He left the learners to go and attend to the social workers on the phone. When he returned, the learners were no more there.
17. He went back to his office. He was busy on a call with his sister at around 10:28 when HM entered his office. He immediately hung up his sister’s call. CK was standing at the door of the office when HM entered it (office). He was in the front office and then moved to his back office. He asked HM how she bypassed the security personnel with a cell phone and she (HM) indicated that learners give grades 1 to 3 cell phones because they (grades 1-3) were not searched. He then told HM that she would not get her cell phone back or else she should come with her parents to come and pay seven hundred and fifty rands (R750.00) for the cell phone fee.
18. At 10:36 he made a call to Mr. Zulu who was one of the departmental heads he was serving with in the senior phase. His call with Mr. Zulu lasted for three (3) minutes. Immediately after the call he had nothing to discuss with HM. HM was already told to leave his office. At 10:48 HM was already out of his office. At 11:07 he registered the incident of HM’s cell phones in a school’s disciplinary platform.
19. After the end of period number 7, HM came to his office alone. HM indicated to him her plan of getting her cell phone back. She (HM) proposed that he pay the cell, phone for her and she would pay him his money back. He dismissed her and said she should go and tell her parents about that (the issue of confiscated cell phone). During the time of him typing the letter to HM’s parents, she (HM) was already gone from his office. That was the last time he interacted with HM.
20. Later that day, HM texted him on WhatsApp at 15:24 wherein she said “Hi Mr. Makhubela, I am HM the girl with phone problem”. He responded by saying “Hey HM”. HM texted him again borrowing money (R400.00) from him. He responded by saying he was not coming to school the following day. He did not want to be harsh to HM. He was surprised when HM suggested that he put the money into a bank account.
21. At the first meeting HM left his office at 10:40. She (HM) spent 10-11 minutes in his office. He was served with the suspension letter on Monday the 9th or 10th of June 2025. He was not at work when HM and her parents came to the school. It is not true that he promised HM money for the cell phone fee. HM never cried when she was with him. He did not hug the learner, HM. In the second meeting, it was untrue that he touched HM’s buttocks, thigh and kiss her (HM).
22. During cross-examination, he testified that he did not invite HM into his office. Ms. Kwinika came two to three times to his office while he was with HM. He did not spend a lot of time with HM. He told HM to leave his office. He denies the allegations that he touched HM’s buttocks. He did not search HM. He never had a relationship with HM before. He has a hostile previous relationship with HM. He agrees that he had a prior judgement to HM. He would not speculate the reason why HM made these allegations against him. The second witness of the employee was Siyambonga Rudolph Ndlovu. Siyambonga Rudolph Ndlovu testified under oath and in English that:
23. The employee was his colleague while he was working at Valencia Combined School in 2025. He is currently working at Makwakwaza Secondary School. He left Valencia Combined School on 09 February 2026. He was sharing an office and a class with the employee. On 02 June 2025, at the beginning of period 10, he was preparing some files for moderation. He later, during that period 10 went to the office. He found HM in the office with the employee and he just grabbed his stuff and left. He spent not more than a minute in the office. The learner was seated next to the door and she was separated with the employee by a table. There was no space for one to move unless one shift the table. The employee was on his laptop. The doors of the offices were open. He came back to the office after five to ten minutes and found that HM was no longer there.
24. During cross examination, he testified that there was a cupboard where they put files and papers facing the main entrance when entering the back office. He does not know how much time HM spent in the employee’s office. He could not testify to whether the employee committed the misconduct or not. The third witness of the employee was Venus Nyiko Kwinika. Venus Nyiko Kwinika testified under oath and in English that:
25. The employee is her colleague, supervisor and mentor. On 02 June 2025, she went to the employee’s office at break time (9:48). She found HM seated at the door on the left chair. The employee was opposite HM with his computer opened. She went back and forth to the employee’s office for four times while HM was there. She went to the employee’s office for the fifth time at the beginning of period six (6) and could not find him (employee). Every time she went to the employee’s office, she found HM and the employee seated at the same positions.
26. Then during period 7, HM came to her class. HM came to the class fifteen (15) minutes late. She asked HM why she (HM) was late and she (HM) said she was in the employee’s office. She did not see anything unbecoming from HM.
27. During the cross-examination, she testified that she did not hear what the employee and HM were talking. The table’s size was a double desk where two learners could sit and it is moveable. It was not impossible for the employee to move the table and go to HM. She could not comment on the alleged incident and the allegations leveled against the employee. The fourth witness of the employee was Charles Siyambonga Zulu. Charles Siyambonga Zulu testified under oath and in English that:

28. He knew the employee as a colleague since 2024. On 02 June 2024, it was a fundraising day where learners wear their own clothes. They decided to do random search for wrong items from learners. They went to the employee’s class at around 9:48 (period 4) where they search all learners and confiscated two (2) cell phones. Around 10:18 he received a call from the employee telling him to lock up the cell phones they confiscated. He informed the employee that he was taking those cell phones to Mr. Ngomane J.A. After second break, at around 13:00, the employee called again. The employee said he (employee) has HM with him and wanted to know if the cell phones have been locked up. (employee)
29. During cross-examination, he testified that on 02 June 2025, the employee called telling him to lock up the cell phones they confiscated from learners. The employee said he (employee) had one of the learners, HM. It was at the end of the first break when the employee called. The employee called him again after second break and said HM was back to his (employee’s) office. The employee checked if he put those cell phones in the safe. Analysis of the evidence and arguments
30. The employer was required to prove on the balance of probability that the employee is guilty of all the allegations. I have considered the closing arguments of the parties together with the oral evidence led, in determining the outcome of this matter. The employee was charged with committing an act of misconduct in terms of Sections 18(1) (dd) and 18(1) (q) of the Employment of Educators Act, 76 of 1998 in that he conducted himself in an improper, disgraceful or unacceptable manner by hugging tightly, touching the buttocks, and forcefully kissing HM, a grade 9 learner at Valencia Combined School on 02 June 2025.
31. It is common cause that the employee was an educator at the school and HM
    was a learner at the same school in 2025. The testimony of the employer’s witness, HM showed that the employee tightly hugged, forcefully kissed and touched the buttocks of HM. It is common cause that HM went to the employee’s
    office on two occasions. The purpose of HM going to employee’s office was to persuade him to get her confiscated cell phone back. During the first occasion (first break) HM testified that the employee tightly hugged her. She testified that the employee told her that he normally does not hug learners as it was not allowed for an educator to do that, but proceeded to do same. HM testified that the employee stood up with her and get closer to her and hugged her. This evidence is more probable. The testimony of the employee that at the time HM was in his office, Mam Kwinika has been in and out of the office does not hold water. The in and out of Mam Kwinika could not have precluded the employee from hugging HM. The hugging of this nature does not need more time. It is possible that a person can take a minute to hug someone.
32. It was the testimony of HM that she went to the employee’s office again during the second break. The purpose of going to the employee’s office was the same, persuading him (employee) to get her cell phone back. HM testified that during this time the employee pushed her against the shelves and forcefully kissed her. HM testified that the employee stood up and she also stood up as she wanted to open the door and leave the office. HM went further to testify that the employee touched her buttocks disguising it as searching her. The employee is a male person and was not allowed to search HM who is a female learner. The testimony of the employee was trying to portray a picture of an office where its door was open and his colleagues were coming in and out of it while he was with HM. This to me does not preclude the employee from pushing HM against the shelves and kiss her. The employee’s witnesses testified that they could not comment and testify whether he (employee) committed that misconduct or not. My understanding is that perpetrators of the misconduct of this nature would make sure that nobody sees them when committing the misconduct.
33. The employee did not dispute the fact that HM visited his office twice on the 2nd of June 2025. HM was trying to persuade the employee to get her confiscated cell phone back. The inference one could make is that the employee took an advantage of the desperation of HM to get her cell phone back. It is my belief that the employee created an impression to HM that he wanted to help her get her cell phone back. The employee has barely denied the incident. I did not hear the employee testifying that he under no circumstances find himself with HM alone in the office. Even the employee’s witnesses testified that he (employee) was found with HM in his office when Mam Kwinika and Ndlovu visited the office. If HM was framing the employee, she would not have related the incident to her parents and friends.
34. In view of this, I find the employee guilty of charge 1 and charge 2. It is my belief that the employer has on the balance of probabilities proved that the employee conducted himself improperly, disgracefully or unaccepted by hugging, touching the buttocks of HM, and forcefully kissed her on 02 June 2025. The employee has sexually harassed HM. The evidence of the employer outweighs that of the employee on a balance of probabilities.
35. In view of the above analysis, it is therefore my finding that the employer has on
    balance of probabilities proved that the employee has committed misconduct as charged in terms of section 18(1) (q) of the Employment of Educators Act, 76 of 1998.
36. Having found the employee guilty as charged in terms of section 18(1) (q) of the Employment of Educators Act, 76 of 1998, I find that the sanction of dismissal would be appropriate, irrespective of the mitigating factors, which I have considered. The interest of the learner should prevail, as provided for in section 28 of the Constitution of the Republic of South Africa 108 of 1996. Hugging, kissing and touching of a learner’s buttocks is tantamount to sexual assault of a learner. This conduct by an educator is not acceptable in a school environment. Educators play the role of a parent at school. They must ensure that learners are educated and protected from sexual misconduct.
37. The employer has in its closing arguments submitted that the employee is not suitable to work with children. Section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions 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”. The employee was found guilty as charged. Considering the above, I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005.

Award

38. I find that the employee, Makhubela Hendry Jabulani, is guilty of charge 1 and
39. I impose the sanction of dismissal with immediate effect.
40. Mr. Makhubela Hendry Jabulani is found to be unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
41. The General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 38 of 2005, notify the Director General: Department of Social Development in writing of the findings this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Makhubela Hendry Jabulani 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.

VICTOR MADULA ELRC PANELIST
14 July 2026