15 October 2026 – ELRC1254-25/26EC

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Case Number: ELRC1254-25/26EC
Commissioner: Sally-Jean Pabst
Date of Award: 15 October 2026

In the arbitration between

NAPTOSA obo MS ALINDIWE NYAWUZA
(the Applicant)

and

EASTERN CAPE DEPARTMENT OF EDUCATION
(the Respondent)
DETAILS OF HEARING AND REPRESENTATION

This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (the LRA) – an alleged unfair dismissal relating to misconduct. The matter was arbitrated on 13 August 2026, 14 August 2026, and concluded on 10 September 2026.
The Applicant, Ms Alindiwe Nyawuza, attended with her representative, NAPTOSA union official, Mr Anton Adams. Mr Sakhiwo Kralo represented the Respondent, the Eastern Cape Department of Education.
ISSUE TO BE DECIDED
I have to determine on, a balance of probabilities, whether the dismissal of the Applicant was procedurally and substantively unfair.
The Applicant disputes the substantive fairness of her dismissal – specifically the appropriateness of the imposed sanction of dismissal – in light of her challenge to the guilty finding to the following charge levelled against her:
“It is alleged that you contravened Section 17(1)(d) of the Employment of Educators Act 76 of 1998 which inter alia reads as follows: An educator must be dismissed if he or she is found guilty of – seriously assaulting, with the intention to cause grievous bodily harm to a learner, student or other employee, in that on or during the 15th of May 2025, at Ithembelihle Technical High School, you are alleged to have assaulted one of your learners, S. M., for late coming by beating him with a duster on the fingertips.”
Substantively, the Applicant admits to inflicting corporal punishment, but disputes serious assault with the intention to cause grievous bodily harm on a learner.
The Applicant also challenges the procedural fairness of her dismissal in that the process leading up to her dismissal was about 6 to 7 months – not expeditious as required, in that the alleged offence was on 15 May 2025, the charge was brought against her only in August 2025 and the disciplinary hearing in September 2025.
If an unfair dismissal is confirmed, I must determine the appropriate remedy in terms of section 193, read with section 194, of the LRA – this in light of the Applicant’s expressed wish to be retrospectively reinstated.
BACKGROUND
The Applicant served as a Post Level 1 Educator in the service of the Respondent at Ithembelihle Technical High School from August 2022 – this had been her first appointment as educator.
At the time of her dismissal on 19 January 2026 the Applicant had no disciplinary warnings on file, and earned a monthly salary of R31,722.00.
A pre-arbitration conference had been conducted leading up to the arbitration, minute of which included in the matter file. The parties submitted into evidence a combined bundle of documents, all of which was agreed between the parties as being what it purports to be. The proceedings were conducted in English, with a language interpreter utilised by the parties. An intermediary facilitated the testimony of three learners from Ithembelihle Technical High School on camera. The arbitration was digitally recorded, and after the conclusion of the evidence the parties submitted closing arguments in writing via email.
SURVEY OF EVIDENCE AND ARGUMENT
In terms of section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities. In terms of s138(7)(a) of the LRA I therefore only include evidence I found particularly relevant in making a decision on the matter, by means of a brief summary.
Respondent’s Evidence
The Respondent’s evidence, in summary, maintains that dismissal was justified under section 17(1)(d) of the Employment of Educators Act 76 of 1998 (the Act), relying on the Applicant’s guilty plea and the seriousness of the learner’s injury. The school’s principal testified that the Applicant admitted inflicting corporal punishment, and that the incident was reported after the principal found out about the injury. Three learners described two lashes each for lateness, followed by two further lashes for incomplete homework, using a chalkboard duster on their fingertips. The injured learner, Mr S. M., and his mother described swelling, pain, medical treatment, hospitalisation and surgery. The investigator relied on the principal’s report, photographs of the learner’s hand, and the Applicant’s admission. The Respondent contended that the guilty plea attracted mandatory dismissal. During cross-examination, however, learners acknowledged corporal punishment by other educators, and the injured learner expressed his belief that the Applicant had not intended to injure him.
The Respondent’s first witness Ms Pumla Mavikela testified under oath that she is the school Principal of Ithembelihle Comprehensive School, since 2008. She did not witness the Applicant inflicting corporal punishment on the (then Grade 11) learner, Mr S. M. on 15 May 2025. The register teacher, Ms Debe, reported the incident to her, and so she in turn asked Ms Nyawuza for a written report. Ms Nyawuza wrote in the report that she had punished S. M. by beating him with a duster for arriving late for class. Ms Mavikela said she subsequently learned that other learners who had been late were also struck (corporal punishment inflicted). She maintained that corporal punishment was not normal or permitted at her school. (Shouldn’t the identity of the learner witnesses be hidden given that, according to your paragraph 10, the learners testified on camera?)
Regarding the investigation, she saw the learner’s injured finger at school only. Under cross-examination, she acknowledged that the photographs did not identify the learner by his face or contain identifying dates. She acknowledged that much of her evidenced report came from what others had told her, that she did not visit the learner in hospital, and that she could not give a medical diagnosis or establish the injury’s cause. She denied pressuring Ms Nyawuza to plead guilty.
She testified about the learner contacting Ms Nyawuza, her apology and her offer to assist with treatment. She met with the Applicant and the learner’s parents on 23 May 2025. She described the mother as angry. The learner’s father had asked her to wait before reporting the matter because of the consequences for Ms Nyawuza, but Ms Mavikela had replied that she is duty bound to report it. The parents only wanted the learner’s medical needs addressed and agreed to the Applicant assisting their son by getting him the necessary medical treatment.
The Respondent called Ms N. M., to testify under oath that she is the mother of the learner Mr S. M.. Her son was in Grade 11 when the incident occurred and Grade 12 when she testified. She explained that her son initially complained of a painful right-hand index finger and told her that he accidentally slammed the finger in a door at school. After swelling and pus developed, she took him to a clinic. She later received a telephone call from the Applicant, who disclosed that she had struck S. M. with a board duster on his fingertips. She said her son had told this lie because he feared her reaction.
Ms N. M. recollected how herself and her husband had met with the Applicant, Ms Nyawuza, and the school Principal. Herself and her husband both accepted Ms Nyawuza’s apology and decided that they would continue giving medical practitioners the account of the door slamming their son’s finger because they felt sorry for the Applicant and she would arrange the necessary medical treatment for their son.
Ms N. M. described going with Ms Nyawuza to Dr Mabenge in Kwazakhele on 23 May 2025. The doctor opened and pressed on the infected finger, so she left the room because her son was crying. She testified that the finger later worsened, and so Ms Nyawuza took him to another doctor in Newton Park, who referred her son to be admitted for treatment at Livingstone Hospital around 29 May 2025. She recalled S. M. remained approximately four days in hospital – that a hospital doctor phoned her about the possibility of amputation, but fortunately the subsequent surgery succeeded, and her son’s finger was not amputated.
Ms N. M. stated that she attributes the injury to the striking, but she acknowledged that she has no medical training to know the actual cause of the injured finger. Ms Nyawuza paid all the medical treatment and doctor’s consultations. The Applicant also often visited and brought her son lunch in hospital. She said her son’s finger is now shorter, but his hand works normally.
The Respondent’s next witness Mr S. M. testified under oath that he was 17 years old and in Grade 12 when he testified, and 16 and in Grade 11 during 2025. The Applicant taught welding, and in Ms Nyawuza’s welding class on 15 May 2025 eleven learners were late for class. They all lined up to hold their fingertips together and upwards, and was struck by the Applicant with the wooden side of a board duster on the fingertips. Mr S. M. described being given two strikes for arriving late, followed “about 5 minutes later” by two more for unfinished homework. He maintained that the strikes were on his fingertips, not on his knuckles. He explained that he did not immediately realise that he had been injured, but his finger became painful and swelled up, so he asked Ms Nyawuza’s phone number from a classmate and contacted her via WhatsApp to tell her about his finger – he sent the pictures in evidence to her – to which Ms Nyawuza apologised to him and phoned his mother after that.
S. M. testified that he himself invented the door story of slamming his finger in a school door, that Ms Nyawuza did not ask him to conceal the striking. He decided to keep giving that story to the medical doctors, and Ms Nyawuza also gave the door explanation to the Newton Park doctor and hospital staff, as he did. He described the treatment by Dr Mabenge as very painful, that he later fainted and felt very ill at home, he developed a body rash, then the referral to Livingstone Hospital, surgery and the possibility of amputation. He recollected Ms Nyawuza paying for all the medical treatment, that she also took him to hospital to be admitted, and that Ms Nyawuza regularly visited him in hospital. His mother and brother also visited him there.
Mr S. M. identified the evidenced photographs as being the photographs he had sent to Ms Nyawuza – that these pictures are indeed of his own finger when it was swollen and painful. He testified that at his school other educators also punish learners by striking them – that educators Mr Mnaganiso and Ms Faku also use corporal punishment to discipline learners. S. M. testified he is sure that Ms Nyawuza had not intended to injure him when she struck him on the fingertips with the board duster.
Ms M. N. testified under oath for the Respondent that she was one of the 11 learners struck on the fingertips by the Applicant for late coming during the incident described earlier by Mr S. M.. She was 20 years old and in Grade 12 when she testified, and she had been in Grade 11 during 2025 when the Applicant taught her welding. She described two duster strikes for lateness and, “less than 5 minutes later”, two more for unfinished homework, on the fingertips. She did not recall how many learners were punished for homework. She was fifth in the queue to be given the duster strikes. S. M. showed the learners his injury the following day. She could not recall its exact appearance, but S. M. attributed it to the Applicant’s punishment rather than a door.
She testified that Mr Mnaganiso also from time-to-time struck learners, but that this had been on a different day, and not like Ms Nyawuza had on the fingertips, but rather “on the palm of our hands”. She denied that the school principal had ever also struck learners before. When questioned about intentional punishment, she described the Applicant’s reason for striking them as their lateness.
Mr S. M. testified under oath that he currently is aged 19 and in Grade 12, and that when the incident occurred during 2025 he had been in Grade 11. He described how 11 learners lined up and received two strikes for lateness, that “after 5 minutes she asked homework” followed shortly afterwards by two further strikes for unfinished homework. The witness could not recall how many learners received the second round of strikes. He insisted they were struck on the fingertips, not on the knuckles. He later noticed S. M. wearing a black glove and saw a swollen, discoloured finger, which he described as the thumb.
Mr S. M. testified that S. M. told him that he had lied to his mother about what had happened. To this, the witness had encouraged S. M. to rather tell his mother the truth, and to inform Ms Nyawuza. For this reason, he had given S. M. the Applicant’s cellphone number.
When questioned about the similar “five minutes later”-descriptions given by the two previous testifying learners, Mr S. M. responded denying that they had been “trained to answer the same” or had discussed their testimony. He explained that the reference to “five minutes” was an estimate rather than a measured interval.
The final witness of the Respondent, Mr Gideon Vuyani Fani, testified under oath that he is an Employee Relations Officer / Investigator with approximately 37 years’ service in the employ of the Respondent. He had been instructed to investigate after receiving the principal’s report, and his written report in evidence is dated 28 August 2025, and records an investigation date of 30 July 2025.
Mr Fani explained the charge under section 17(1)(d) arose from the principal’s report that the Applicant had struck approximately half the class on their fingertips with a duster. He had also considered the photographs, and his observation of the learner’s finger some 2 to 3 months after the injury, and Ms Nyawuza’s admission that she had struck the learners. He did speak to Ms Nyawuza, and to the learner. He accepted that he took no written witness statements and did not interview the parents or the classmates of the learner who witnessed the striking. He did not gather evidence from the other learners about an intention to cause grievous bodily harm, but his position was that Ms Nyawuza had already admitted the incident so he “did not have to collect evidence”.
Mr Fani testified that the Applicant personally pleaded guilty in her disciplinary hearing, and that she was represented by a union. He understood section 17 of the Employment of Educators Act no 76 of 1998 (the Act) to require dismissal upon a guilty finding. He said the Applicant’s rights and the consequences had been explained, but in re-examination he acknowledged that the disciplinary chairperson had not asked the Applicant why she pleaded guilty.
Applicant’s Evidence
The Applicant, in summary, admits to striking the learners’ fingertips with a duster – that she inflicted corporal punishment – but she maintains that she struck each learner once and she disputes intention to cause grievous bodily harm, as the charge states. She disputes that the subsequent medical complications were attributable to her conduct, challenging the absence of medical evidence establishing causation. She testified that corporal punishment is commonplace at the school, and that she had received inadequate guidance on alternative methods to reprimand learners. She expressed deep remorse and described arranging and paying for medical treatment, also assisting the learner with hospital care. She acknowledged giving medical practitioners the door-injury explanation after this was the account the learner had invented and given to his parents initially. She alleged that the principal and her former union representative pressured her into pleading guilty, and that she understood the plea as admitting the striking rather than intentional grievous bodily harm, and that because corporal punishment is commonplace at the school she did not expect to be dismissed after admitting to striking the learners as she did. Her case challenged the investigation, disciplinary delay, consistency of discipline and appropriateness of dismissal specifically in light of mitigating factors not considered in sanctioning. She wishes for retrospective reinstatement.
Ms Nyawuza testified under oath in terms of her case that she was turning 30 that year. Ithembelihle was her first teaching appointment, where she taught welding. She admittedly struck approximately half of the class with a board duster – once only – on each learner’s combined fingertips on 15 May 2025. Ms Nyawuza disputed that her dust board strike on S. M.’s fingertips caused the later severe condition. She said each learner was struck once only though, on the fingertips, for late coming. She denied a second round of strikes for homework.
The Applicant testified that it was only a week after that she heard from S. M. via WhatsApp about his painful swollen finger. S. M. then also alerted her that he had told his parents that he slammed his finger in a school door as explanation.
She described attending a meeting with the school principal and both S. M.’s parents, where the school principal took notes and she told the parents that she had struck their child once on his fingertips with a duster. The parents expressed sympathy for her situation and said they will not submit a complaint to the authorities against the conduct of the Applicant.
After herself and S. M.’s mother had taken the learner to Dr Mabenge in Kwazakhele, she became very worried when the learner’s condition got worse, so she took him to another doctor in Newton Park. Thereafter she assisted with S. M.’s admission to hospital, and she visited him until he was discharged. She acknowledged explaining the injury to the Newton Park doctor and hospital staff, as the learner S. M. had, using the door-injury account. She described really caring and having a good relationship with the learners in her class, for which reason she was worried about S. M. and assisted with his treatment. She explained she voluntarily paid all the medical expenses and assisted because she cared and was concerned about him.
Ms Nyawuza disagreed when it was suggested during cross examination that her dust board strike on S. M.’s fingertips caused his later severe condition. She testified that she had previously taken another learner for medical attention, also. She acknowledged explaining the injury to the Newton Park doctor and hospital staff, as the learner S. M. had, using the door-injury account, which was not the true version, she knows this.
The Applicant testified to knowing that other educators of Ithembelihle Comprehensive School from time-to-time strike learners, and that the principal had never addressed this practice since when she started teaching at the school – she started at the school in August 2022. This was the first school she was employed at, after her training to become an educator. She does not recall having been given alternative ways to – what she describes as “reprimand” – learners who misbehave. During her practical training in 2022 she was taught to use a board duster on learners’ fingertips, or to pinch learners, in reprimand. She received no alternatives to this punishment, and this was how educators at her school reprimands learners, and she did not know that corporal punishment had been abolished since 1996. Ms Nyawuza expressed deep remorse and became tearful, that she now understands corporal punishment is not permitted, and she will never again do this to a learner if given a chance to teach again.
Ms Nyawuza testified that the school principal and her former union representative pressured and misled her into pleading guilty. When challenged about not putting her allegation of coercion to the principal, she said she had not understood that she could challenge testimony before her own turn to speak comes. That although she admits she inflicted corporal punishment on the learners, she hoped to get a stern warning because she did not understand that the charge as levelled against her was one of intentionally inflicting grievous bodily harm – purposefully injuring a learner – and that this charge must necessarily be followed by dismissal if she is guilty of this. She said the chairperson did not explain this to her before her plea.
She denied that Mr Fani interviewed her about the incident, saying their brief conversation concerned only confirming her plea in terms of her written report stating “On the 15th of May I punished one of my learners by beating him with a duster, his name is S. M., due to late coming.” and then obtaining her signature on the Notice of Disciplinary Hearing document. She described herself as disturbed and nervous at the time.
She maintained that she pleaded guilty to having struck the learner, not to admitting the full allegation of intentional grievous bodily harm. That the disciplinary chairperson did not ask her why she pleaded guilty, nor explain the meaning of “grievous bodily harm” – she did not understand the charge although there was an isiXhosa interpreter used during the hearing.
ANALYSIS OF EVIDENCE AND ARGUMENT
It is trite that an arbitration is a hearing de novo. The Applicant’s dismissal is not in dispute, and the onus is therefore, in terms of Section 192 of the LRA, on the Respondent to prove that the dismissal of the Applicant was fair. Section 188 of the LRA further states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities. The Applicant challenged both procedural and substantive fairness.
Procedural fairness
The Applicant contends that she waited many months – an unreasonable long time – for the investigation and charges, and before her case was heard. Although it is indeed most unfortunate that she had had to wait several months for her disciplinary hearing, no evidence before me suggested the Applicant or her union followed up during those months – alternatively that she lodged a grievance in this regard after a reasonable time lapsed. Therefore, considering the Applicant did not raise concern at that time as to the progress of the investigation, I tend to consider this challenge rather an afterthought than a true infringement of her right to fair labour practices. I do not agree it amounts to procedural unfairness.
Substantive fairness
Moving to the substantive fairness of the Applicant’s dismissal, the Applicant disputes the harshness and appropriateness of her dismissal in light of her contention that she is not guilty of the charge as it relates to the intention to cause grievous bodily harm to a learner, as stated in the charge below and levelled against her:
“It is alleged that you contravened Section 17(1)(d) of the Employment of Educators Act 76 of 1998 as amended which inter alia reads as follows: An educator must be dismissed if he or she is found guilty of – seriously assaulting, with the intention to cause grievous bodily harm to a learner, student or other employee, in that on or during the 15th of May 2025, at Ithembelihle Technical High School, you are alleged to have assaulted one of your learners, S. M., for late coming by beating him with a duster on the fingertips.”
Although the Applicant pleaded guilty to the charge because she admittedly applied corporal punishment, she contends she was not guilty of intentionally injuring the learner, but this charge was not explained to her properly, nor that guilt of this specific charge carries a mandatory dismissal sanction. The Applicant testified that other educators in the school from time to time administered corporal punishment – that it was commonplace and acceptable, and the school principal did not warn any educator during her tenure not to administer corporal punishment.
In assessing the testimony and evidence, it is clear that the versions of the parties are not materially different. The conflicts I noticed from my summary were, inter alia, one strike versus two rounds, fingertips versus knuckles (with Ms Nyawuza herself describing fingertips in her testimony), also whether Mr Fani properly questioned the Applicant, what Ms Nyawuza had understood when pleading guilty, and other minor details regarding the timeline.
The testimony of the three learners were the same in all aspects that mattered – essentially nothing turns on the minor differences in testimony, such as whether it had been S. M.’s thumb, or his finger. Interestingly, as specifically raised during cross examination by the Respondent, I noticed all three learners testified without prompt ‘after 5 minutes’ in reference to how long after the first round of strikes they received a second round of strikes for incomplete homework. It was suggested by the Applicant party that this may well be a ‘rehearsed’ account. In assessing this, I do not find that this oddly specific correlation between the testimonies of the three learners affects their credibility, as it remained common cause that Ms Nyawuza indeed inflicted corporal punishment on learners in her class on 15 May 2025. The Applicant denies there had been this second round of strikes that day, but this disputation of whether or not Ms Nyawuza inflicted corporal punishment once, or twice, is in my view merely a factor in terms of aggravation, seeing as the Applicant admits that she did strike the learners – the second round would only serve in aggravation of the first round of strikes.
The evidence lead by Mr Fani showed that a full and objective investigation was not done after it had been established simply that the Applicant had indeed administered corporal punishment. I see that noteworthy considerations in mitigation was, on face value, not considered in sanctioning. Mr Fani could not have realised the fact that S. M. remained adamant that Ms Nyawuza did not purposefully injure him, or that corporal punishment in the school was commonplace.
If Mr Fani had asked these questions before deciding on the charge, he might well have decided to rather recommend charging the Applicant with section 18(1)(dd) of the Act which covers committing a statutory offence. By not interviewing and properly investigating, and therefore not establishing that the particular practice of corporal punishment was commonplace in the school, the witness Mr Fani did not consider that the intention to injure was absent. The fact too that S. M.’s parents even refused to formally complain to the Department or Education or any of the doctors who treated their son, and his mother did not tell any one of at least three medical practitioners she spoke to directly that her son’s finger was actually injured through corporal punishment. This so, particularly even though the parents clearly from the evidence attributes their son’s finger injury directly to the punishment that was inflicted on him in class by the Applicant. Holistically considering the testimony of especially the most important individuals in the picture – S. M. and his parents, and the 2 classmates who testified – regardless of the three learners’s might unsurity about the second round of strikes administered for homework, their testimony left me clear on two very important points. Firstly, corporal punishment is commonplace in their school, and secondly Ms Nyawuza punished them for late coming without intention to injure. This, as aforementioned, echoed by S. M.’s parents’ acceptance of the Applicant’s apology and refusal to report the incident to the authorities, is in the same vein of evidence for me to consider the sanction of dismissal may well not have been appropriate in terms of the specific charge in terms of section 17.
In my view the operative part of the charge levelled against Ms Nyawuza was one of harmful intent, and the Applicant having inflicted the punishment on all 11 learners already suggests the punishment was not in anger and not with malice, but an admittedly inappropriate outdated attempt at correcting the behaviour of the learners – and it was the express testimony of S. M. that they were all punished because they arrived late for class. The Applicant nevertheless inflicted corporal punishment, to which I must add that a ‘not guilty’ finding on the proffered charge absolutely does not condone the misconduct. Simply, no intention to grievously harm or injure have been proved in light of the prevailing circumstances. I can accordingly not find, on a balance of probabilities, that the Applicant is guilty of the misconduct in the charge as provided for in section 17(1)(d) of the Employment of Educators Act no 76 of 1998, but I do consider she misconducted by inflicting corporal punishment in terms of section 18). I will explain below why a section 18 finding is competent and causes no unfair prejudice to the Applicant.
In EOH Abantu (Pty) Ltd v CCMA and Others [2019] ZALAC 57, at paragraphs 15–17, the Labour Appeal Court held that a competent finding need not appear as an alternative in the disciplinary hearing charges levelled against an employee. The employee must, however, have understood the conduct alleged, and must have had a fair opportunity to defend him- or herself. The court specifically requires the question to be asked, whether advance notice of the alternative charge and finding would have produced a different defence from the employee – thus whether the Applicant in this matter would have been better prepared if she had been able to prepare also with this alternative charge, or differently prepared if the alternative charge was added to the existing charge or replaced the charge.
Here, I am confident that it is this same identified act that the Applicant had to answer to – that the act as prohibited corporal punishment does not introduce a different incident. In my view no different or additional arguments could have been proffered by the Applicant, had this charge been included. This so because the Applicant admitted to the physical punishment, she testified about her training, she confirmed the learner’s testimony about corporal punishment as commonplace school practice, also used by other educators, and the Applicant showed remorse about the learner’s finger injured. She also addressed corporal punishment and what she expected as disciplinary consequences, and impressed on me that corrective discipline not imposed on her prior to electing to dismiss her, would have been a fair decision by the disciplinary hearing chairperson had all the circumstances been considered..
Inconsistency in application of discipline by the Respondent does not make corporal punishment any less unacceptable, nor is it ever defensible, however it was common cause that the Applicant committed this offence, which does not address that clearly the Applicant’s expectation of the potential repercussions were skewed. I accept the evidence by the three learners, that at least three educators in this school reprimand learners by striking them. Were I to accept the testimony of the school principal that she does (or did?) not permit corporal punishment in her school, it can only be because this information may have been withheld from her – plausible deniability. Notable, the Respondent had the opportunity to bring witnesses to refute this, but did not.
The Respondent did not convince me that the Applicant was properly informed that the specific charge as set out in the Act section 17 carries a mandatory dismissal sanction, and even if she had been properly informed, in light of what I perceive as genuine care and compassion showed to the learner after Ms Nyawuza was informed of the swollen painful finger, I do not agree with the Respondent that dismissal was appropriate in these circumstances. Under the prevailing circumstances considered holistically, I find it excessively harsh, and as I observed the Applicant’s heartfelt remorse and hope to be given the chance to never apply corporal punishment again when given opportunity to formally educate children again, I am confident that progressive discipline was more appropriate than dismissal, here.
I consider that the Applicant contravened section 18(1)(dd) of the Employment of Educators Act read with section 10 of the South African Schools Act which in section 10(1) prohibits administering corporal punishment to a learner at school, during a school activity or in a school hostel, and section 10(2) makes contravening this prohibition an offence. The Applicant committed a common law or statutory offence by administering prohibited corporal punishment, and by assessing the appropriateness of the sanction of dismissal which the Respondent imposed I must consider factors as set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC). Although I am as commissioner duty-bound in terms of the LRA to determine whether the dismissal was fair, I am not afforded the power to consider afresh what I would do – what sanction I would rather impose. Rather, I must consider all of the relevant factors and circumstances, paying specific attention to:
a) taking into account the totality of circumstances;
b) the importance of the rule that had been breached;
c) the reason proffered by the employer as to why it imposed dismissal;
d) the basis of the Employee’s challenge to the dismissal;
e) the harm caused by the Employee’s conduct;
f) the impact that it had on the trust relationship;
g) the effect of setting a precedent;
h) whether training/instruction may result in the employee not repeating the misconduct;
i) the effect of dismissal on the Employee; and
j) the Employee’s service record.
In considering the above, and without having to deal with each of the above factors respectively, I can only find that the sanction of dismissal was not appropriate under the circumstances.
I consider the Applicant had short or limited experience as an educator, and that the testimony of the Respondent’s own witnesses confirmed that at least two other educators other than the Applicant in the same school applied corporal punishment without being disciplined or reprimanded. This provokes in me an understanding that the Applicant might well have hoped for a lesser sanction short of dismissal. I can reasonably understand Ms Nyawuza might well have been ‘surprised’ that she was dismissed after she pleaded guilty and was remorseful about inflicting corporal punishment, not with the intention to harm the learners.
That being said, the Applicant’s hands are not clean at all – this although I do not find the sanction of dismissal was appropriate under the circumstances. I find the Applicant to be guilty of the misconduct contemplated in terms of section 18(1)(r) read with 18(1)(dd) of the Employment of Educators Act.
There are fundamental constitutional provisions dealing with the interest of children. Chapter 2 of the Bill of Rights in South Africa’s Constitution Act no 108 of 1996, at section 28 states “Every child has the right … to be protected from maltreatment, neglect, abuse or degradation.” Section 28(2) & (3) further states “(2) A child’s best interests are of paramount importance in every matter concerning the child.”
This provision of the Constitution seek to ensure that children’s rights are protected, and their best interests nurtured in every sphere of our national life. Particularly within the education sector, there is a clear obligation on people working with children to treat them with the necessary care and to consistently act in their best interests. The South African Council of Educators (SACE) similarly emphasise the values and basic responsibilities resting on every educator to always conduct themselves professionally and act within the best interests of all children. It is therefore within this background that the conduct of the Applicant in this regard is viewed in a very serious light.
Based on the evidence set out during the arbitration and while taking into account the totality of the evidence and circumstances, also taking into account the Applicant’s short tenure and other mitigating factors such as the status quo, i.e. the example led by her colleagues, as well as the potential effect of a serious warning on Ms Nyawuza’s future conduct, dismissal was not a suitable sanction in this matter.
Relief
Having found the dismissal substantively unfair, I also consider in terms of paragraph 57 above, that the Applicant’s hands are not clean. In light of finding the Applicant guilty in terms of section 18(1)(r) read with 18(1)(dd) of the Employment of Educators Act, I consider re-employment appropriate in terms of section 193 of the LRA. The Applicant shall be re-employed with effect from 1 November 2026, with no backpay.
AWARD
The dismissal of the Applicant, Ms Alindiwe Nyawuza, by the Respondent, the Eastern Cape Department of Education, was procedurally fair but substantively unfair.
The Respondent must re-employ the Applicant with effect from 1 November 2026, on the terms and conditions that prevailed immediately before her dismissal.
The Applicant is not awarded any backpay for the period between her dismissal and her re-employment.
The Applicant must report for duty at Ithembelihle Technical High School in Gqeberha on Monday the 2nd of November 2026 at 8am.