IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
Mafuleka, L M The Educator

Inquiry by Arbitrator

Case Number: ELRC 50-25 KZN

Date of award: 02 October 2025

J KIRBY
ELRC Arbitrator

DETAILS OF THE INQUIRY

1. The Inquiry by Arbitrator was held at the Mkhuze office of the Employer and the hearing of evidence occurred on 26 May 2025 and 15 September 2025. On conclusion of the evidence the representatives requested an opportunity to submit written closing arguments. They were granted 7 days within which to do so. The representations on behalf of the Employer were timeously received though no representations were submitted on behalf of the Educator.
2. The Employer was represented by its employee, Ms Nxumalo, who submitted a bundle of documents, marked as exhibit A, and called two witnesses to provide oral evidence.
3. The Educator, L M Mafuleka, was represented by Mr Dlamini, a trade union official. He testified and called two other witnesses to provide oral evidence. A document, marked exhibit B, was also submitted on behalf of the Educator.
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.
5. The Council had arranged for an intermediary, Ms Mabaso, to assist the Learner. At the time of testifying, however, the Learner was no longer a child and she testified without the assistance of Ms Mabaso, who nevertheless remained in attendance throughout the Learner’s testimony.
6. The services of an interpreter, Mr Mthembu, were utilized.
7. The proceedings were digitally recorded.

EXPLANATION OF THE EDUCATORS’ RIGHTS

8. 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:
   8.1. 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
   8.2. The right to give evidence and to call witnesses.
9. The Educator confirmed that he had been given written notice of the alleged misconduct. He had had sufficient time to prepare for this Inquiry.
10. It was explained to both parties, who indicated that they understood that:
    10.1. A separate hearing in respect of sanction in event of a finding of guilty would not be held. Evidence in mitigation and aggravation of sentence would need to be presented prior to a finding on the merits of the case having been given;
    10.2. They could make closing arguments after all evidence had been heard; and
    10.3. 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, PLEAS AND PLEA EXPLANATIONS

11. The charge of misconduct faced by the Educator is at page 1 of exhibit A and reads as follows:
    “Charge 1
    It is alleged that on or about April 2024 to August 2024 at or near Jevu Secondary School, you had a sexual relationship with the Learner of the school where you were employed. You thereby contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended.”
12. The Educator pleaded not guilty and offered the following plea explanation:
    12.1. He did not have a relationship with the Learner;
    12.2. A third party, who would be called as a witness, was in a relationship with the Learner;
    12.3. This third party made use of the Educator’s cellular phone to send messages to the Learner.

THE EVIDENCE ON BEHALF OF THE EMPLOYER

13. The Learner had been in grade 12 at Jevu Secondary School (School)during 2024. She left the School in about August 2024 as a result of rumours that she was pregnant began circulating in the School.
14. She had turned 18 on 8 May 2025.
15. The Educator and the Learner’s mother were educators at the School.
16. The Educator had “proposed love” to her in April 2024 and they had begun a sexual relationship in May 2024. In about June 2024 she believed that she was pregnant.
17. When she had informed the Educator of her pregnancy, he had told her that she had to have an abortion as both her mother and his church would disapprove. Although she had not wanted to have an abortion she had initially agreed to do so.
18. After having discussed the issue with a lady friend she had decided against an abortion but she did not notify the Educator, who had advised her to take a concoction of Grandpa headache powder and coca cola to bring about the abortion.
19. The Educator’s attitude to her had changed once he had been informed that she was pregnant. Whereas he had previously initiated contact by way of WhatsApp messages, he had stopped doing so and only responded to messages sent by her. Following this change, she no longer trusted the Educator and started to take photographs or “screenshots” of their communication. This was necessary as her WhatsApp had been set so that the messages would disappear after a prescribed period.
20. Extracts of communication on her WhatsApp account are at pages 1-4 of exhibit A. The profile photograph and number are those of the Educator. At page 2 of exhibit A is a message sent to her from cellular phone number that includes the following, “… delete everything … contact me when everything is all rights. When I say everything I mean everything.” At page 3 of exhibit A is a record of an exchange of messages between the number and the Learner in which the person using the phone number states, “I wanted you to come sleep over, leave Monday morning…It means you have to come late and leave in the morning” to which the Learner replies “no problem.” There are also a series of messages between the Learner and the phone number concerning the Learner’s anxiety that she might be pregnant.
21. Her mother had gone through her cellular phone and uncovered messages including those referred to above. The Learner had then confessed that she had been in a relationship and that she might be pregnant. Her mother had then reported the matter to the School.
22. The Learner suspects that she suffered a miscarriage in July 2024, sometime after her mother had become aware of the relationship. She started seeing a counsellor in August 2024. She continues seeing her and at the date of her testimony she had seen the counsellor approximately 10 times.
23. The Learner knows Zungu. He is a learner at another school.
24. They had been in a relationship since 2023 though this relationship had been interrupted for a period of time until he had contacted her about one month prior to her testimony.
25. She had reported the matter to the police but they had not taken it any further as they stated that she was above the age of consent.
26. Under cross-examination the Learner stated that:
    26.1. The name Noluthando associated with the cellular phone number was a name chosen by her after the Educator had told her not to use his name on her phone. This had happened at the same time as he had told her to activate the disappearing messages facility;
    26.2. She had first had sex with the Educator in May 2024 after he had first approached her during April 2024;
    26.3. During the period that she was in a relationship with the Educator, she had not seen Zungu;
    26.4. After she had told her mother about the relationship with the Educator and her suspicion that she might have been pregnant, her mother had obtained a pregnancy test for her to take and which had indicated that she was not pregnant.
27. Bhekizitha Douglas Myeni (Myeni) has been principal of the School since 2013. He knows the Educator as a colleague from the School. The mother of the Learner had brought the allegation to him that the Educator was in a sexual relationship with her daughter, who was a grade 12 learner at the School.
28. Once he had been told the allegation, Myeni arranged to meet the Learner at her residence the following day, 7 August 2024;
29. When they met he had told the Learner that he had been told of the allegation of a relationship between her and an educator and he had asked for the name of the educator involved. The Learner had given him the name of the Educator and described him as the educator teaching history for grade 12. The Educator was the only educator who fitted this description.
30. On 8 August 2024 he had met with the Educator. He told the Educator that he had received allegations concerning him. The Educator had asked about what the allegations were. He had told him that they concerned an alleged sexual relationship with a grade 12 learner. Myeni had given him the Learner’s name after the Educator had then asked for the name of the learner. The Educator had then asked from whom the information had been received and when Myeni had told him that it came from the Learner’s mother, he had confessed to having been in a sexual relationship with the Learner. Myeni recorded the meeting in the school logbook and copy of the entry dated 8 August 2024 is at page 6 of exhibit A and includes the following:
    “I met with L M Mafuleka on related to allegation of sexual relationship between him and a grade 12 learner…Mr Mafuleka agreed that there was a sexual relationship between him and (the Learner.) He indicated that the relationship started in May 2024…”
31. The Educator was aware of the Code of Conduct.
32. Under cross-examination Myeni:
    32.1. Stated that when he had investigated a prior allegation of similar misconduct involving both the Educator and another, they had both denied that they were involved but in the present case he had admitted to having a sexual relationship with the Learner;
    32.2. Submitted that if the Educator now disputed his guilt he could not be trusted not to offend again. During his interview of the Learner, he had obtained names of those whom she said were aware of the relationship. He had then interviewed the Learner’s roommate who had told them that the Learner would return to the room at 4 am and tell him that she had been helping the Educator with marking.

THE EDUCATOR

33. In his evidence in chief the Educator denied having been in a relationship with the Learner (and any other learners.)
    33.1. Under cross-examination the Educator:
    33.2. Stated that he had two cellular phones. The one with number was not in daily use by him and he would leave it at his home. Anyone who came to his home would have access to the phone. He knew Lindo Zungu from church and he was also a friend of his younger brother. He did not know how had come to be in possession of the phone;
    33.3. Agreed that the PERSAL records at page 5 of exhibit A are his numbers;
    33.4. Did not dispute that it was his phone number but averred that that did not mean that the phone could not be used by others;
    33.5. Submitted that Lindo Zungu had confessed to him to having used the phone to contact the Learner. This had occurred shortly before the first arbitration hearing in May 2025;
    33.6. Disputed that he was a participant in the WhatsApp messages reflected on pages 1-4 of exhibit A but agreed that the profile photograph of the participant associated with phone number is his;
    33.7. Submitted that the printouts at pages 1-4 of exhibit A might have been manipulated so as to falsely incriminate him;
    33.8. Maintained that he had not admitted to Myeni that he had been in a sexual relationship with the Learner. He submitted further that he was part of a group not liked by Myeni but could offer no real response as why this version had not been put to him so that Myeni could respond.
34. Zungu is 18 years old and still a learner (but not at the School.)
35. He had made use of the Educator’s cellular phone. He was a friend of the younger brother of the Educator and it was him who had told him that he could use the phone. He had even “stolen” the phone for a period of time as he did not have his own phone.
36. The Learner had been his girlfriend since 2023 and the WhatsApp messages reflected on pages 1-5 of exhibit A are between him and the Learner. The Learner had been unaware that he was making use of the Educator’s phone. He had created the WhatsApp profile on the Educator’s phone without his knowledge.
37. He and the Learner had been in a sexual relationship but he had used protection and thus he was surprised when she had told him that she was pregnant.
38. Under cross-examination Zungu:
    38.1. Denied that he and the Educator were close but admitted that they went to the same church and that he would sometimes sleep over at the Educator’s home;
    38.2. Stated that he had not changed the Educator’s profile photograph so it was possible that the Learner realized that he had been using the Educator’s phone.
39. Gumede had previously been a learner at the School.
40. The Learner had been in a relationship with her brother.
41. Under cross-examination Gumede:
    41.1. Agreed that Myeni had contacted her in respect of her alleged relationship with the Educator;
    41.2. Agreed that she had told the Learner that she was in a relationship with the Educator but submitted that she had not been telling the truth.

CLOSING ARGUMENTS

42. As already indicated, closing arguments were only received on behalf of the Employer.
43. I have considered these submissions, which I summarize below:
    43.1. The evidence of both the Learner and Myeni was credible and reliable. In this regard, Myeni had recorded his meeting with the Educator in the School’s logbook. He would not have done so if the meeting had not occurred as he had testified;
    43.2. It was not denied by the Educator that it was his cellular phone number recorded in the WhatsApp messages referred to by the Learner. He also did not dispute that it’s a photograph of himself that appears as the profile photograph associated with the cellular phone number;
    43.3. The messages referred to by the Learner were between herself and the Educator. The evidence of the Educator’s witness, Zungu, should be rejected. He never gave a plausible explanation as to why he would want the Learner to delete the messages; and
    43.4. The Employer has proven the guilt of the Educator who has shown himself to be somebody who is not fit to work with children.

ANALYSIS OF EVIDENCE

44. The Employer bears the onus of proving the guilt of the Educator on a balance of probabilities.
45. Section 17(1)(c) of the Employment of Educators Act 76 of 1998 provides that an educator must be dismissed if he is found guilty of having a sexual relationship with a learner of a school where he is employed.
46. It is not in dispute that the Learner was a learner and the Educator was an educator at the School during the period April-August 2024. It remains for me to determine whether the evidence establishes that they were in a sexual relationship during this period.
47. The evidence of the Learner is that she and the Educator had started a relationship in April 2024 and which had developed into a sexual relationship in May 2024. The sexual relationship had continued for a period of time before she had informed him that she suspected that she might be pregnant. On him having been so informed the Educators’ attitude to her had changed and he had asked her to delete the WhatsApp messages by which they had been communicating. These messages are indicative of them having been in a sexual relationship. The learner had not deleted the messages as requested and her mother had come across the messages and reported the matter to Myeni, the School principal.
48. Myeni testified that on learning of the alleged relationship he had interviewed the Educator. Myeni testified that on being told that the interview concerned an alleged sexual relationship with a grade 12 learner, the Educator had asked for her name. It was on having been given the name of the Learner that the Educator had admitted to having had a sexual relationship with her. This version initially was not disputed by the Educator. It was only when the Educator gave evidence that he intimated that Myeni might be biased against him. In this regard the Educator had testified that Myeni had bullied him. Not only was this version not put to Myeni but it was also not put to the Learner that she had allowed herself to be used by Myeni to falsely implicate the Educator. The evidence of Myeni was further that he had recorded his meeting with the Educator in the school logbook. The content of that recording is consistent with his evidence in all respects.
49. The evidence of the Educator was to deny that he had been in a relationship with the Learner and to submit that it was only shortly before the commencement of the arbitration that he had learnt that Zungu, a learner, had used his cellular phone to communicate with the Learner by WhatsApp. In essence, the defense of the Educator is that it was Zungu and not the Educator who had been in a sexual relationship with the Learner and who had sent the incriminating WhatsApp messages to her. Zungu supported this version. In effect the content of the messages were not disputed but the version put forward by and on behalf of the Educator was that it was not the Educator who was in communication with the Learner but rather Zungu.
50. I need to weigh the probabilities of the version of the Learner as opposed to that put forward by and on behalf of the Educator. The Learner testified that it was after she had notified the Educator that she thought that she might be pregnant, that he had asked her to delete all records of their communication. This is easily understandable as the messages are clearly highly incriminating of an improper relationship between the Learner and the Educator. On the other hand, Zungu testified that he had told the Learner to delete the massages. Zungu was unable to substantiate this request. There was no risk to him posed by the messages; they were sent from the cellular phone number of the Educator and the “profile photograph” was that of the Educator and not of him. He was in no way incriminated by the messages and the only person that those messages implicated was the Educator. I find that the WhatsApp communication was between the Educator and the Learner and that the version put forward by and behalf of the Educator is a fabrication.
51. Having found that these messages were between the Educator and the Learner, I need to consider the reliability and credibility of the Learner and Myeni as witnesses.
52. The Learner’s evidence was consistent in all respects. She had been in a sexual relationship for a number of months with the Educator; when she advised him that she might be pregnant his attitude to her changed; she was upset with this change and at some stage her mother had discovered the incriminating messages and reported the matter to Myeni. Myeni’s evidence that the Educator had confessed to having had a sexual relationship with the Learner once he had been provided with her name, was not challenged under cross-examination. Myeni had also made a contemporaneous record of this in the school logbook. During his testimony I gained the impression that he was simply relaying a factual report of his involvement in this matter. There was no indication that he was attempting to embellish his evidence or to falsely implicate the Educator. It was only under cross-examination that the Educator had challenged the evidence of Myeni and implied that he was motivated by a dislike of him. As already indicated above, not only was this version not put to Myeni, but it was also not put to the Learner. This version of the Educator is rejected and I find that the evidence of both the Learner and Myeni to have been reliable and credible.
53. Lastly, I turn to the evidence of Gumede. She seems to have been called as a witness by the Educator to testify that the Learner had been in a relationship with her brother. Under cross-examination she also admitted to having told the Learner that she had had a relationship with the Educator but testified that she had been lying when she said so. Gumede’s evidence in no way advanced the case for the Educator.
54. Having regard to all of the above, I am satisfied that the Employer has established that during the period May to August 2024 the Educator had a sexual relationship with the Learner, who during that period was a learner at the school at which he was employed. As such and in accordance with the provisions of section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended, I am obliged to dismiss the Educator.

FINDING

55. The Educator, Lindokuhle M Mafuleka, is found guilty of having contravened section 17(1)(c) of the Employment of Educators Act 76 of 1998, as amended in that he had a sexual relationship with a learner at the school at which he was employed during the period May-August 2024.
56. The Educator is dismissal.

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

52. Section 120(1)(c) of the Children’s Act provides 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.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
53. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing. The parties were again reminded of this inquiry after the conclusion of the Inquiry.
54. No submissions were made on behalf of the Educator whereas it was submitted on behalf of the Employer that the Educator ought to be declared to be a person unsuitable to work with children. I have had regard to the evidence presented during the inquiry by arbitrator. The Educator has been found guilty of having had a sexual relationship with a learner, who was child at the relevant time, for a number of months. The Educator had given no indication that he has any insight into the wrongfulness of his conduct. On the contrary, he called two witnesses who themselves were almost still children, to testify on his behalf.
55. In terms of section 120 of the Children’s Act 38 of 2005, as amended, I find that the Employee, Lindokuhle Mafuleka, is unsuitable to work with children.

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

56. Lindokuhle M Mafuleka is found unsuitable to work with children in terms of section 120 of the Children’s Act 38 of 2005, as amended.
57. The General-Secretary of the ELRC must in terms of section 122(1) of the Children’s Act 38 of 2005, as amended, notify the Director General of the Department of Social Development in writing of the finding of this forum made in terms of section 120 of the Children’s Act 38 of 2005, as amended, that Lindokuhle M Mafuleka is unsuitable to work with children, for the Director General to enter his name in part B of the register as contemplated in section 120 of Children’s Act 38 of 2005, as amended.
58. Lindokuhle M Mafuleka is advised that in terms of section 121 of the Children’s Act 38 of 2005, as amended, he may have my finding in terms of section 120 of the said Act, reviewed by a court.

J Kirby
Arbitrator 02 October 2025
ELRC 50-25/26KZN