IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT LUSIKISIKI
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EASTERN CAPE APPLICANT
AND
MADODA DWAYISA RESPONDENT

ARBITRATION AWARD

CASE NO ELRC1220-24/25 EC
DATE/S OF HEARING 24 MARCH 2025 & 23 APRIL 2025
DATE AWARD SUBMITTED 13 MAY 2025
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The inquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 (LRA) as amended read together with ELRC Resolution 3 of 2018. The matter was held on 24 March 2025 and 23 April 2025 at Lusikisiki College of Education at 09h00. Mr Khwezi Dalasile an official represented the Applicant [department of Education Eastern Cape]. The Respondent – Madoda Dwayisa was in default.
2. On 24th March 2025 at 10h15, after waiting for the Respondent who was not in attendance, I perused the file and satisfied myself that both parties were properly notified of the proceeding on 07 February 2025 on the emails. The Respondent was contacted by Mr Lebohang Moshe and Mr Dalasile his phone was not answered. Mr Mnguni Xolilizwe from SADTU was also contacted by Mr Dalasile, he indicated that he had no knowledge of case, Mr Dwayisa was their member. He had no knowledge of his whereabouts. He also contacted Mr Dwayisa with no success. Mr Ndumiso Dwayisa [ brother of Madoda Dwayisa] was also contacted, he confirmed that Madoda was his younger brother, he was alive. They last spoke over the weekend. He had no knowledge of his whereabouts. He also tried to contact him with no success. The matter was then postponed to 23 April 2025 to give the Respondent an opportunity to avail himself.
3. On 23rd April 2025 all parties were in attendance with the exclusion of the Respondent. I perused the file and satisfied myself that he was notified on 02 April 2025. Mr Dalasile indicated that he received no correspondence from the Respondent. The Respondent had the contact details of Mr Dalasile. They had communicated before when charges were shared with the Respondent. The matter proceeded in the absence of the Respondent.
4. The proceedings were electronically and manually recorded.
5. The proceedings were conducted in English and there was Xhosa interpreter, and an intermediary. Both witnesses of the Applicant were minors and for purposes of this award their names will not be revealed. We will refer to them as TK and PM.
   ISSUES TO BE DECIDED
6. I am required to determine following:
   [a] whether the employee is guilty of the charges proffered against him by the employer. If I find him guilty on all or any of the charges, I should decide the appropriate sanction. Charges were read on record. The employee was not in attendance. A plea of not guilty was entered on his behalf.

BACKGROUND OF THE DISPUTE

7. The employee is employed as an educator at Toli Senior Secondary School, OR Tambo Coastal District.
8. The employee is charged with the charges mentioned:
   Charge 1
   You contravened section 17 (1)(c) of the Employment of Educators Act, 76 of 1998, which inter alia reads as follows: “Having a sexual relationship with a learner of the school where he or she is employed”. In that on or about the 11th of August 2024 you sexually assaulted a grade 10 learner at your school ( Toli SSS).

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case

9. The Employer led evidence of two witnesses. Their evidence is summarised below. TK testified as follows: She was 16 years old, doing grade 11 at Toni SSS. The Respondent was known to her. He was the HOD [ Head of department] for commercial subjects. She also mentioned that they were a group of friends, they liked applying Vaseline on their faces. Their faces were always shiny because of the Vaseline. The educators complained about them. Mr Dwayisa was amongst the educators who complained. In relation to the incident of 11 August 2024, she mentioned that it started on facebook, they exchange texts with the Respondent. The name Respondent used on facebook was Kayfas D. At around 21h00 Respondent asked for her homestead, she directed him. When he arrived next to Mahobenis tavern, he phoned her. She woke up and proceeded to him. She also picked up that the Respondent was drunk. On her way to the Respondent, she notified two of her friends. On arrival he found the Respondent waiting outside the car. They got inside the car. There was alcohol and food. She was offered pizza and coke. She drank the coke declined the pizza. He proposed love to her. He requested oral sex, and she refused. The music was very loud in the car. When she looked at the windows there were people standing there. She became dizzy. The Respondent drove the car. They reached his place of residence. They went to his bedroom. They engaged in sexual intercourse. They woke up at 3AM. They proceeded to her homestead. She prepared for school. At school the Respondent checked on her. It was on Thursday when she told Miranda what happened on 11 August 2024.
10. On Friday other students found her crying, she told them to ask from Miranda. The students were Melisa, Pamela. Miranda was the one who told other students about the incident of 11 August 2024. Afternoon Friday they contacted the Respondent. She told him all she could recall on the night they were together. He told her that he did not want other people to know about it. He apologised for everything. Melisa insulted him. Melisa suggested that the matter be reported to the school principal. The matter was first reported at her home and later to the school principal by the family members. The matter was also reported to the South African Police service [SAPS]. She was also taken to Thuthuzela hospital. Statement was taken from her by the social worker. She attended Court proceedings twice with her aunty. She had no knowledge of the status of the case.
11. PM testified as follows: She was 17 years old, doing grade 11 at Toni SSS. TK was her friend. She was aware of the incident that occurred on 11 August 2024. Miranda told her everything in that TK and the Respondent proceeded to the Respondents place of residence at night. They made love to each other. At 3AM they woke up and proceeded to TK ‘s homestead.TK confirmed the story of Miranda. TK also told her about facebook chats. The conversation between TK and the Respondent was also recorded. There was also a time when TK spoke with the Respondent in their presence, the phone was on loudspeaker. The Respondent pleaded TK not tell anyone about what happened between the two of them.
12. At Mr Xesi’s office, the Respondent pleaded that the matter should not be reported and remain between them. The matter was reported to the family of TK.
13. The employer’s case was closed after the testimony of PM.
    Employee’s Case
14. Mr Madoda Dwayisa did not attend the case on both days. There was no evidence from the side of the Respondent.

ANALYSIS OF SUBMISSIONS AND ARGUMENTS

15. In MUDAU v MEIBC & OTHERS [2013] 13 ILJ 663 [ LC] the Court held that “the arbitrators mandate in terms of section 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties”.
16. Section 17(1)(c) of Employment of Educators Act [EEA] of 76 of 1998 provides that “ an educator must be dismissed if he or she is found guilty of having sexual relationship with a learner of the school where he or she is employed.”
17. It is common cause in these proceedings that the Employer led evidence of two witnesses. Their evidence is on record it will not be repeated however reference will be made where relevant.
18. In these proceedings the evidence of these witnesses was undisputed as mentioned that the Respondent was indefault.
19. The first witness TM placed the Respondent on scene. Her evidence was corroborated by PM. It is also clear from the evidence of TM that alcohol played a huge role in the commission of this offence.
20. In relation to the evidence placed before the Council I have no reason to reject the evidence of the two witnesses. The Respondent was afforded an opportunity to be part of the proceedings but he choose not to participate. Phone calls were made to his family members, all that did not yield positive results. Having considered all the evidence holistically from the Employer it follows therefore that Dwayisa had a sexual relationship with the learner TM and thus making him guilty of charge 1.[ contravention of section 17(1)( c) of EEA ]. SANCTION
21. It is trite that a person convicted of section 17 offence of EEA 76 of 1998 must be dismissed.
22. Dismissal is mandatory upon conviction of section 17 offence. There is no discretion to impose lesser sanction than dismissal.
23. In NEHAWU v UNIVERSITY OF CAPE TOWN 2003 the Court held “ the Arbitrator is expected to have regard to the interests of both parties in coming to a conclusion whether the conduct of the Employer to dismiss the Employee was fair or not”.
24. In MIYAMBO v CCMA & OTHERS [2010] 10 BLLR 1017 (LAC) the Court held “ in deciding on an appropriate sanction, a Commissioner must consider all relevant circumstances. However the role of trust relationship remains predominant.”
25. The question that needs to be answered, is can Dwayisa be trusted with learners? How did he prove himself amongst learners? This incident occurred in August, but it was only reported in September 2024 because the Respondent was busy pleading with TK and her friends that they do not report the matter. It must remain amongst them. The Employer had argued that the Respondent be dismissed. The misconduct he committed goes beyond mere sexual exploitation of a learner, but it was a criminal conduct, and such characters had no place in the schooling environment. It is clear on the evidence of two witnesses that Dwayisa cannot be trusted with learners. His conduct towards TK has left scars that cannot be mended. The department has no space for employees like Dwayisa as correctly stated by Mr Dalasile.
26. Section 28 [2] of the Constitution Act 108 of 1996 provides that in any decision that must be taken involving children,” the interests of the children enjoy paramount importance.”
27. I am satisfied that I have weighed up the interests of both parties.
28. Section 120 [2] of the Children’s Act 38 of 2005 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.” In the current matter I make the finding on my own accord.
29. In the circumstances I hereby make the following award:

AWARD

30. The Employee [ Madoda Dwayisa ] is found guilty of contravention of section 17 (1)(c) of the EEA.
31. The Employee [Madoda Dwayisa] is dismissed with immediate effect. The Employer [ Dept of Education- Eastern Cape] must inform Dwayisa of his dismissal.
32. Mr Madoda Dwayisa is found unsuitable to work with children in terms of section 120 [4] of the Children’s Act 38 of 2005. The General Secretary of the ELRC, must in terms of section 122(1) of the Act notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Children’s Act 38 of 2005, that Mr Dwayisa Madoda is unsuitable to work with children, for the Director General to enter his name as contemplated in in section 120 in part B of the register. Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education