IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
LANGA, S The Educator

Inquiry by Arbitrator

Case Number: ELRC637-25/26KZN

Date of award: 13 May 2026

J KIRBY
ELRC Arbitrator

DETAILS OF THE INQUIRY

1. The Inquiry by Arbitrator was held at the Masibumbane High School, Ulundi. The hearing of evidence commenced on 20 February 2026 and was finalized on 28 April 2026.
2. The Employer was represented by its employee, Ms Mazibuko, who called two witnesses and submitted a bundle of documents, which was marked as exhibit A.
3. The Educator, S Langa, was represented by Mr Mdunge, an official of NATU.
4. The alleged misconduct that is the subject matter of this dispute is of a sexual nature. In order to preserve the privacy of the learner involved I shall refer to her as the Learner. The Inquiry by Arbitrator was initially scheduled to commence on 21 November 2025, on which date I was advised by the representatives that the Learner was 21 years old and thus she would have been at least 19 years old at the time of the alleged misconduct. Ultimately, the Learner did not testify.
5. The services of an interpreter were utilized as required.
6. The proceedings were digitally recorded.

EXPLANATION OF THE EDUCATORS’ RIGHTS

7. At the commencement of the hearing, I explained the following rights to the Educator, who confirmed that he was aware of and understood these rights:
   7.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, I stressed the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
   7.2. The right to give evidence and to call witnesses.
8. The Educator confirmed that he had been given written notice of the alleged misconduct. He had had sufficient time to prepare for this Inquiry.
9. It was explained to both parties, who indicated that they understood that:
   9.1. Should I find the Educator guilty of contravening a provision of section 17 of the Employment of Educators Act 76 of 1995, I would be compelled to dismiss him;
   9.2. In the event of me finding him guilty of a lesser offence, a separate hearing in respect of sanction would not be held and any evidence relevant to the sanction would need to be presented prior to a finding on the merits of the case having been given;
   9.3. They could make closing arguments after all evidence had been heard; and
   9.4. In terms of section 120 of the children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Educator is unsuitable to work with children. It was further explained that as with the question of sanction, a separate hearing would not be held.

THE CHARGE, PLEA AND PLEA EXPLANATION

10. The Educator was charged with one count of misconduct (at page 4 of exhibit A) in that:
    “Charge 1
    It is alleged that in 2024 you committed an act of sexual relationship with the Learner of Nsimbini Secondary whilst you were employed in the same school who was doing grade 12, thereby contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998.
11. The Educator pleaded not guilty to the charge and in amplification of his plea:
    11.1. He agreed that the Learner had been in grade 12 at the Nsimbini Secondary School, at which he taught, during 2024;
    11.2. He stated that the Learner ceased being a learner at the end of the 2024 academic year, after which they had commenced a romantic relationship;
    11.3. A child was born from the relationship during 2025.

THE EVIDENCE ON BEHALF OF THE EMPLOYER

12. M P Zulu (Zulu) is the principal of Nsimbini Secondary School (the School.)
13. The Educator had been based at the School until June 2025, when, on his request, he had been transferred to Masibumbane High School.
14. The Learner had been at the School for 6 years. She had repeated grade 12 in 2024 after which she had left the School. The Learner’s mother is recorded in the School’s records as the Learner’s guardian.
15. Sometime in January 2025 he had been approached by two gentlemen who identified themselves as Ngubanes. They were unknown to him and they did not indicate their relationship with the Learner. With reference to his written statement (at page 12 of exhibit A) he stated that in passing to be the Learner’s parents they alleged that the Learner was in a love relationship with an educator. They did not identify the educator.
16. As the gentlemen were unknown to him and as the Learner’s mother was registered with the School as her guardian he had told them to return to the School with her. They never did.
17. Days prior to the visit of the Ngubanes, the Learner’s mother had come to the School to collect the Learner’s senior certificate. She had not mentioned anything about her daughter having been in a relationship with an educator.
18. As the two gentlemen had not returned with the Learner’s mother, he had not reported their allegation to anyone.
19. Under cross-examination Zulu stated that he was unaware of any relationship between the Educator and the Learner.
20. Jim Michael Gana (Gana), the acting DCES for Nongoma, was mandated to conduct a preliminary investigation into the alleged relationship between the Educator and the Learner. This was after a complaint had been laid with the Employer. He had initially interviewed Zulu. He had then met with and interviewed the Educator, after which he had interviewed the Learner and finally he had interviewed her mother. In addition, he had had a telephonic interview with T L Ngubane, who had initiated the complaint. The investigation report is at pages 7-17 of exhibit A.
21. Evidence of what was said to Gama by the learner and her mother (and the content of their written statements) was provisionally admitted on condition that they themselves would later testify.
22. In the course of his investigation:
    22.1. The Learner had informed him that she and the Educator had commenced a relationship during 2024 as a result of which she had fallen pregnant and given birth to a girl on 3 April 2025. They are still in together and intend to marry;
    22.2. The mother of the learner had stated that the learner had approached her in September 2024 and told her that she had missed her menstrual cycle for the second time and suspected that she had been impregnated by the Educator, with whom she was in a relationship;
    22.3. He had called the Educator to arrange to meet. The call had gone to voicemail but the Educator had called him back. He had suggested that they meet at 8 am the following day but the Educator had said that he would come to his office that day. He said he would walk to his office. When he had not arrived, he had called the Educator again but the call had gone to voicemail again. The Educator had called him at 6:35 pm and told him that he was on his way. After the Educator had still not arrived for a considerable period, he had taken his assistant to Steers to get something to eat. Whilst there the Educator had called and subsequently joined him at Steers;
    22.4. He had introduced himself to the Educator and told him the purpose of the meeting. The Educator had responded by saying “eish” and that Ngubane had already told him that he would ensure that he was dismissed. He had then handed his diary to the Educator and told him to write down what he knew. He wrote approximately 1 ½ pages;
    22.5. The interview had taken place on 12 August 2025. The statement written by the Educator is at pages 14-15 of exhibit A and includes that:
    22.5.1. He had been asked about a pregnant learner. He and the Learner had agreed that he would pay labola and also her study fees. Since the birth of their child, he had supported both the child and Learner;
    22.5.2. He had been approached by the father of the learner during November 2024. The father wanted to be paid a lump sum of R120 000. His offer to pay the amount by way of monthly instalments was not accepted. When he had told them in January 2025 that he could not make the payment he had been told that they would report him. He was told that SACE would be informed as well as social media;
    22.5.3. He had asked whether the R120 000 was for labola and they had said it was not but was rather for punishment; and
    22.5.4. His aim was to pay labola and to continue to support the child;
    22.6. They had been respectful of one another and after the interview he had given the Educator a lift part of the way back to his school. He had then returned to collect his assistant;
    22.7. Sometime after the meeting he had met the Educator and his trade union representative. The representative was unhappy that the interview had been held at the garage. He had apologized in this regard and a new meeting was set up for 29 August 2025. The Educator had been accompanied to the meeting by his trade union representative, S S Mthethwa, the local NATU chairperson. The Educator had given a second statement that was not included in the Respondent’s bundle of documents.
23. Under cross-examination Gana:
    23.1. Disputed having forced the Educator to make his statement;
    23.2. Stated that after he had obtained the Learner’s statement, she had directed him to a creche where both the Learner’s mother and child were. The mother had come to the car and written her statement whilst the Learner played with the child;
    23.3. Disputed that he had compelled anyone to make a statement;
    23.4. Stated that he had no reason to prejudice the Educator. He had had no prior dealings with him;
    23.5. He had contacted and reminded the Learner of the hearing, the day prior to the hearing.

THE EDUCATOR

24. The Educator stated that he had met the Learner in the latter part of December 2024. They had exchanged cellular phone numbers and had so communicated over a period of time until they had commenced a romantic relationship in February 2025.
25. It had been the Learner who had informed him that she had been a Learner at the School.
26. He had been contacted by Gana who had told him that he wanted to discuss a crucial issue with him. As he did not have transport he had walked to the meeting, which took place at a garage. Gana had told him to write a statement that agreed with what the Learner and her mother had already told him. Gana had said that were he to admit, it would make things easier for him. He felt that he was being forced to make such a statement. He had made a written statement.
27. Prior to the interview he had not been informed by Gana that he was entitled to be represented by a trade union representative. After the interview he had contacted his trade union and a second meeting with Gana had been arranged. At this meeting he had given a second statement to Gana. In this statement he had stated that he did not know the Learner whilst she was at the School as it was a big school and he had not known all the learners.
28. The child he had with the Learner had been born in November 2025.
29. Under cross-examination the Educator:
    29.1. Stated that when he had stated in his plea explanation that he knew the Learner from the School, he had meant to say that he had learnt from her that she had been a learner at the School at which he taught. He had been unaware that she had been a learner at the School until so informed by her;
    29.2. Agreed that it had not been put to Gana that he had felt compelled to give the incriminating statement as he believed that he could give his version when he testified; and
    29.3. Agreed that in his plea explanation it had simply been stated that the child had been born in 2025 without giving the month.

CLOSING ARGUMENTS

30. The submissions on behalf of the Employer include that:
    30.1. There was no evidence to support the claim by the Educator that he had been forced to make his statement that he gave to Gana;
    30.2. The evidence of the Educator that he had not known the Learner whilst she was at the School contradicted his plea explanation that she had been at the School during 2024 and had given birth in 2025; and
    30.3. It is probable that the Learner and her mother had decided not to testify as the Educator had now made the payment referred to in his statement.
31. The submissions on behalf of the Educator include that:
    31.1. The hearsay evidence of Gana in respect of his interviews of the Learner and her mother and their subsequent written statements ought to be excluded;
    31.2. The evidence of the Educator that his relationship with the Learner had only commenced in December 2025 could not be disputed by the Employer;
    31.3. The Employer had failed to discharge its burden of proving the guilt of the Educator.

ANALYSIS OF EVIDENCE

32. The Employer bears the onus of proving the guilt of the Educator on a balance of probabilities.
33. The Applicant is charged with having contravened section 17(1)(c) of the Act in that he had a sexual relationship with a learner who was at the same school at which he was employed. The essential elements of the misconduct that the Employer is accordingly required to prove is that whilst the Educator and Learner were at the School they had a sexual relationship.
34. The Inquiry was scheduled to proceed on three different occasions. The Learner and her mother did not attend on any of them. The hearsay evidence of Gana in respect of his interviews of them was provisionally allowed on condition that they would testify. They did not testify and as such the hearsay evidence of Gana shall be excluded and disregarded.
35. Two witnesses testified on behalf of the Employer. Beyond his evidence that the Educator had been employed and that the Learner had done grade 12 at the School during 2024, Zulu did not implicate the Educator in any wrongdoing.
36. The only other witness who testified on behalf of the Employer was Gana, who had conducted the internal investigation for the Employer and who testified that had interviewed Zulu, the Educator, the Learner and her mother. As already indicated, his evidence relating to his interviews of the learner and her mother is excluded.
37. With regards to his interview of the Educator, he stated that after he had introduced himself to the Educator and explained the purpose of the meeting, the Educator had made a written statement in his own handwriting. In essence the Educator confessed to having had a sexual relationship with the Learner, from which a child had been born.
38. It was put to Gana under cross-examination that the Educator had felt compelled to provide the said statement and as such its content cannot be relied upon. The only reason advanced on the Educator’s behalf as to why he felt so compelled was that Gana had told him that it would be better for him to give a statement consistent with those of the Learner and her mother. On the other hand, Gana denied that he had forced the Educator in any way to make the statement. His evidence that he had had no prior dealings with the Educator and had no reason to have him falsely implicate himself was not challenged. I also reject the reason advanced on behalf of the Educator that Gana had told him to give a statement consistent with that of the Learner and her mother. I do so as Gana’s evidence that he had interviewed the Educator prior to him having interviewed the Learner and mother was not challenged. (The written statements included in exhibit A support this evidence by Gana in that the Educator has dated his statement 12 August 2025 (at pages 14-15 of exhibit A) and the statements of the Learner and her mother are both dated 15 August 2025 (at pages 17 and 16 of exhibit A respectively.) At the time of him interviewing the Educator, he thus did not have any statements he could compel or unduly influence the Educator to replicate.
39. The Educator in any event, does not dispute that he had a sexual relationship with the Learner. He submits, however, that such a relationship only commenced in February 2025 after the Learner had left the School. I need to determine whether the Employer has established that the sexual relationship had commenced whilst the Learner and Educator were at the School. No direct evidence in this regard was led by the Employer. I thus need to determine whether the Employer led evidence from which I can infer that they had had a sexual relationship whilst they were both at the School. In this regard, I find that two aspects of Gana’s evidence are relevant. Firstly, his evidence that the Educator had stated at the time of his interview on 12 August 2025 that he had supported both the Learner and child since its birth was not challenged. Secondly, Gana had testified that when he had interviewed the Learner’s mother on 15 August 2025, the Learner had played with the child who had been at the creche with the Learner’s mother. Once again this evidence of Gana was not challenged. In light of him having not challenged this evidence of Gana that clearly indicates that the child had been born sometime before 12 August 2025, I reject his evidence that the child was born in November 2025 as a fabrication that was concocted to fit into his narrative that he and the Learner had only commenced a sexual relationship after she had ceased to be a learner at the School.
40. Given the gestation period of 9 months, the evidence thus suggests that the learner fell pregnant sometime before November 2024. The Employer is not required to establish when the child was conceived but is only required to prove on a balance of probabilities that the Educator had a sexual relationship with the Learner whilst she was at the School. Considering the totality of evidence, I find that it is highly probable that the Educator had a sexual relationship from sometime prior to November 2024 during which period the Learner was a grade 12 learner at the School and at which the Educator was employed.
41. I accordingly find that the Employer has established on a balance of probabilities that the Educator is guilty of having committed serious misconduct by contravening the provisions of section 17(1)(c) of the Act in that he had a sexual relationship whilst he was employed by and the Learner attended Nsimbini Secondary School.

FINDING

42. The Educator, S T Langa, is found guilty of one count of having contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998.
43. In terms of section 17(1) of the said Act, the sanction is dismissal.

INQUIRY IN TERMS OF SECTION 120 OF THE CHILDREN’S ACT 38 OF 2005, AS AMENDED

44. In that the Learner was not a child as defined by the abovementioned Act, an inquiry was not held.

J Kirby
Arbitrator 13 May 2026
ELRC637-25/26KZN