Panelist: Ncumisa Bantwini
Case Number: ELRC1382-26-27EC

Date of Award: 11 September 2026

IN THE ELRC INQUIRY BETWEEN

THE HEAD OF THE
DEPARTMENT OF EDUCATION-EASTERN CAPE : THE Employer/Applicant

AND
GARY ALEXANDER : THE Respondent/Employee

DETAILS OF THE INQUIRY

1. This inquiry by Arbitrator was held at Bathandwa Ndondo Centre in Queenstown. The hearing of evidence commenced on 19 May 2026, 20 May 2026 and was finalized on 19 August 2026.
2. The Employer was represented by Mr. Thobelani Mlahleni who called 2 witnesses/minors. The dispute came before the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended, (the LRA) read with the ELRC Collective Agreement 3 of 2018.
3. Advocate Garvan Saaiman of NAPTOSA appeared for the Educator, Mr. Garry Bernad Alexander who was also in attendance.
4. The alleged misconduct that is a subject for matter of this dispute is of a sexual nature. In order to preserve the privacy of the 2 learners involved, I shall refer to them as learner A and learner B. During the inquiry by arbitrator, both learners testified.
5. The services of an interpreter and intermediary were used.
6. The proceedings were digitally and manually recorded.

EXPLANATION OF THE EDUCATOR’S RIGHTS

7. At the commencement of the proceedings, I explained the following rights to the Educator who confirmed that he understood and was aware of them.
8. The right to testify and question witnesses of the employer and to dispute any documentary evidence, 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
9. The right to give evidence and to call witnesses.

10. The Educator confirmed that he had been given written notice of the alleged misconduct. He had sufficient time to prepare for his inquiry.
11. It was explained to both parties, who indicated that they understand that, should I find the Educator guilty of contravening a provision of section 17 of Employment of Educators Act 76 of 1995, I would be compelled to dismiss him.
12. They could make closing arguments after all evidence had been heard and;
13. In terms of section 120 of the Children’s Act 1, as the arbitrator, acting on my own or application of the Employer or the Employer may make a finding that the Educator is unsuitable to work with children.

  
BACKGROUND OF THE DISPUTE 

         THE CHARGE, PLEA AND PLEA EXPLANATION

14. The Educator was charged with one count of misconduct (page 2 of the charge sheet).
15. Charge 1: It is alleged that you committed an act of misconduct as contemplated in section 17 (1) (b) of the Employment of Educator’s Act 76 of 1998 as amended which inter alia read as follows; Committing an act of sexual assault on a learner, student or other employees;
    • In that on more than three occasions, you lifted the skirt of Learner A and Learner B by touching their private parts using a pipe thus making them uncomfortable”
16. The Educator pleaded not guilty to the charges.
17. Parties agreed to submit written closing arguments on or before 28 August 2026. All arguments have been considered in the preparation of this award.

         SURVEY OF EVIDENCE AND ARGUMENT

          The Employer’s Evidence   

18. According to Mr. Mlahleni’s opening statement, the employer will call 2 learners to testify
    to prove that the Educator is guilty as charged.
19. Learner A testified that she is 13 years old and she is in grade 8 at Lous Rex Primary School. She knows the Educator as Technical and Creative Arts teacher. She testified that the Educator known as Mr. A, in class he would lift up her skirt, take a pipe and touch her private parts and he did that for 3 times when they changed periods in his class. She felt very uncomfortable, unsafe to be around him. She was too scared to tell her mother and went to Ms. Dick, the Mathematics teacher in 2025.
20. Ms. Dick reported the issue to the principal. They trust Ms. Dick and this happened to more than 5 Pupils at school in his class during the periods. In describing Mr. A, he is a very aggressive teacher who always shouts at them and a day would not go without him swearing and shouting at them in the class.
21. Under cross-examination, learner A testified that she was not alone when she reported the incident on a certain Friday but not in the same month. Mr. Alexander touched her; the whole class was present and could see what was happening. He touched her private parts more than 3 times in the class Infront of other learners.
22. When it was put to the learner that it is impossible that the Educator would touch her private parts in front of the whole class, her response was that he lifted his skirt using a pipe. He used to do this when she goes to him to get the notes in term 3 next to his desk. She would be standing on the left-hand side of the table and him using his left hand.
23. When it was put to her that the Educator will dispute all what she is saying about touching her, the learner said, it is true and the colour of the pipe he used is black and the other one is red, they are always in the classroom. She was scared to tell her parents as her mother would act inappropriately.
24. She reported the issue to Ms. Dick who promised to report the issue to the principal. Learner B and other girls were also touched by the Educator. The educator would sometimes reprimand her for not doing the homework. The learner disputed that she brought the allegations because Mr. Alexander refused them to attend the end of the year function. She disputed being rude. Learner B is her cousin and they were in the same class in 2025. They did not sit together and in 2025 she was a prefect. They used to sit in Ms. Dick’s class. The Educator is very cruel and he would reprimand the whole class and ask her to sit properly or close her legs. She would close her legs and move to the back of the class and the Educator would still look at her.

25. When the Educator’s version to the fact that the learner was instructed to sit at the back of the class because she does not sit properly was put to her, she confirmed it. The learner stated further that she reported the issue to Mrs. Dick and she did not go for counselling because she is just fine. She was a prefect in 2025 and she disputed that she was misbehaving and that she was not supposed to be reprimanded by the Educator. The Educator never threatened her or her cousin at any stage.
26. When it was put to the learner that the educator is strict and not rude, her response was that the Educator would punish them in class even if the learner is late by one minute, he is very strict. She used to sit against the wall in class and learner A was moved to the back of the class as she used to sit at the front. She also used to sit in the front row but she moved to the middle. The learner did not respond when it was put to her that it is impossible for Mr. A to touch her while sitting in the middle of the class as there are tables and desks blocking him. The learner stated that her performance was good and no one told her that the educator may lose his job There was another table in front of Mr. A’s table.
27. Under re-examination, the learner stated the Educator touched her private parts more than 3 times and she reported the issue to Mrs. Dick. The whole class was told not to attend the end of the year function and the Educator spoke badly about Mrs. Dick, that is the reason why he she reported the issue to her (Mrs. Dick). The Educator never told her to sit at the back because he was looking under her skirt.
28. The second learner B testified as follows:
29. She is 13 years old doing grade 7. The whole class did not attend the end year function and the educator spoke badly about Mrs. Dick. She decided to move to the back of the class because the Educator would look under her skirt.

30. She knows the Educator as the Creative Arts Teacher at Lous Rex Primary School. When she goes to the Educator’s desk for marking, he would lift up her skirt with a pipe. He would put the pipe in between her legs and touch her private parts. This happened at the beginning of the term in 2025 and it happened more than 3 times. She felt unsafe and uncomfortable.
31. When this happened, she was scared to tell her parents as her father would go to school. During the 3rd term she went to Mrs. Dick to report the issue as the Educator said bad things about Mrs. Dick. She would describe the Educator as a rude and aggressive person. The Educator would just hit the whole class using his black pipe, the other pipe is red. Her parents eventually knew about this after telling her brother.
32. Under cross examination learner B testified as follows;
33. The Educator touched her private parts from the beginning of the 1st term in 2025. He would lift her skirt using a pipe or his left hand in the class sitting in his desk/table. She told her parents and Mrs. Dick in the 3rd term about the incident.
34. Mr. A used his red pipe to touch her; Mrs. Dick reported the issue to the principal. They never thought of writing a complaint. They did not tell Mrs. Dick that this issue is about the fact that the Educator refused them going to the end of the year function. She behaves well in class and the touching was in front of the whole class. He also touched 5 other learners.
35. When it was put to the learner that the Educator never touched her, her response was that he did, in front of the class because he is very aggressive and everyone is scared of him. She never received any counselling after the incidents. She did pass and always got between 50% and 69% in the Educator’s subject.
36. The learner testified further that she is aware of the school’s code of conduct as teachers always tell them about it. Her performance was good and she was never referred to counselling before or after the incidents. When they misbehave as the class, the educator would hit them with the pipe. He also touched 4 or 5 other girls in class.

37. Under re-examination, the 2nd learner stated that when they misbehave as the class, the educator would hit them with the pipe. He also touched 4 or 5 other girls in class. Even if he loses his job she does not mind because what he did to them was wrong. THE EDUCATOR’S CASE
38. Mr. Garry Bernard Alexander testified as follows;
39. He got suspended with effect from 05 November 2025 with full pay. He started at Lous Rex SSS in 2006 as SGB Teacher. He studied National Professional Diploma in Education (NPDE) and he was in the same school from 2006 to 2010. In 2010, he got a position at Olivette Private School, in 2013 until 2019 he taught at Royal Capital Private School. In 2019 he was approached by the principal of Lous Rex school and on 01 February 2020 he went back to the school holding a permanent position of HOD.
40. It is untrue that he was touching learners. In 2024, he had an operation and he was told by his doctor not to stress or shout. He had a whistle he was using when a child makes noise. He also has a very big pipe he would use to bang the table to make learners quiet as he cannot speak very loudly.
41. While they are busy writing notes on the board, the learner B would sit with her legs open and he would ask her to close her legs as he would go in the middle of the class. He asked her to move to the middle of the class.
42. He also told learner A to move to the back of the class as she would open her legs while sitting at the front of the class. He used to tell them they would catch cold. It would be impossible to use the left hand as he is right-handed and the pipe would be on the right hand. At some stage there was a meeting about end year function and a decision was that grade 7 class will not have a function as they misbehaved. He then told them that none of them will attend the end of the year function because of misbehaving.

43. He noticed that Ms. Dick was not talking to him even if he greets her, she would not greet him back. They started avoiding each other. He does use the pipe by banging it on the table when they are late. And he has never touched any of the learners. Generally, children do not like his class because of the Creative Arts work load and because he is strict.
44. Generally, he would say he is the most likeable teacher at the school. Touching learners would be impossible even because of the layout of the classroom, there is another table in front of his table with Afrikaans, Technology and Creative Arts boxes and it would not be possible to reach the learner. He moved boys to the front and girls at the back. He noticed that learner B does not listen even when he told her she will catch cold and still open her legs hence he moved her to the middle and moved learner A to the back of the class.
45. Learner B is very quiet learner and he taught her during and before the 3rd term The red pipe is 30cm and the black pipe is 1.5meters. He knows learner A’s mother and they are distant relatives to his wife. They are not friends but he knows her very well. There was never touching or lifting of the skirts of the learners.
46. After telling grade 7 C learners there will be no end of the year function, they were very angry and they were rude and misbehaving. This decision was not his, instead was from a committee. He said they did not deserve a function based on their conduct.
47. Mr. Alexander further testified that he is right-handed it is highly unlikely that he would use his left hand to lift the learners’ skirt, it never happened. Staff members were all surprised/shocked when they heard about the allegations. He never invited a learner to his house, he stays with his wife and she is a house wife. Only his grandchildren go to his house.
48. Under cross-examination, Mr. alexander testified as follows;
49. From 1991 to 2002, he was a policeman and it was his first job. He has the integrity of being able to protect the people. Being a policeman and a teacher, one has to be firm and be a disciplinarian. It is not true that he is aggressive and rude instead he can be described as being strict, there is no way he can be aggressive and rude dealing with children. He is the most likable teacher at the school and he is firm
50. He started using a pipe after he realized the whistle was not working when he wants to get attention form learners. Banging it on the table may be described as aggression but he has never been aggressive nor rude towards learners. When a question as to why would these 2 learners report him to Dick was posed, his response was that they must have been trained or coached to go to Dick. He is not saying they are trained liars. Lifting skirts and touching private parts never happened.
51. He knows learners generally are capable of saying something and deny it, they are capable of lying. Learners describe him as “fun” teacher, he is from high school and is a very hard-working teacher. When it come s to work, children did not like the work he give them. Children are not the same as they were 40 years ago. Mrs. Dick’s class is behind his and at some point, she was not greeting him and does not talk to him. He had also stopped greeting her, this was gradual. Mrs. Peter is the coolest teacher at school and he also noticed that she could not greet him anymore. He has a feeling that learners were coached to speak to Mrs. Dick about the allegations.
52. Mr. alexander stated further that he is not the perpetrator. Messrs. Dick and Peter are the 2 teachers he once disagreed with their pronunciation of some words when he was asked by the learners. He has 30 cm red pipe as well as 1.5m black pipe. He is the one who explained BELA Act to the learners. He would tap on their legs in the passage when the learners are not sitting properly. He moved learner A to the back of the class.
53. Under re-examination, the Educator stated that it is normal to tell the child to sit properly or close their legs. He has never refused children to go to the toilet, no matter how many of them who want to go to the toilet. The principal could have never approached him to go to Lous Rex Primary School if he had a problem with him. He was firm but not aggressive to children, he has compassion with children. He is a hard-working disciplinarian. Both learners must have been coached to say these things to Mrs. Dick. These 2 learners should have been traumatized if the allegations were true.
54. The first witness for the Educator, Ms. Clodia Sumiton testified as follows:

55. She knows the Educator as they work together sharing a classroom. The layout of the class is 4 walled with a table in front and a book shelf. The class has 4 rows with each row with 10 to 11 desks. There are 2 big tables for 2 Educators. Two learners can sit in one desk. She sits on the front on the right-hand side and learner move from 1 desk to each other. Friends like to sit with each other more especially with girls. Learner A is a very bubble girl; her behavior never changed throughout the year. She has a lot of friends, the mix in between classes. She had never complained about anything at any stage. She was shocked to hear about the allegations as she has never seen or hear about any improper behavior.
56. Learner B sits in the last row of the class and is a very quiet person. During the allegations, she remained very quiet and she never reported anything about the Educator. She is not sure if the 2 learners were subjected to counselling or not. The Social Worker came for all grade 7 learners.
57. During the second visit, she is not sure if the 2 learners were part of the second visit or not. No report was received from the Social Worker. With regards to the lay out of the class, the Educator’s table is facing where everyone can see. None of the other learners came to complain. Mr. Alexander is a very kind person; kids would come to him when struggling with something to eat most of the time. She was very shocked with the allegations.
58. Under cross-examination, the witness testified that most of the time, she is together with Mr. alexander in the class as his assistant. He was teaching grade 5 Afrikaans while she was teaching grade 4 Afrikaans. Her table is facing him the whole time.
59. Mr. Bongani Bart, the second witness testified that he is the Deputy Principal of the school. He first heard about the allegations in 2025 and he was shocked as he knew the Educator for many years.
60. At no stage was the Educator subjected to a disciplinary action. He is a good but a very strict Educator in terms of discipline. She has never taught the 2 learners in question. One of them is a prefect.
61. Under cross-examination the witness stated that this is the first complaint he has ever heard about the Educator.

The third witness, Ms. Roche Prince testified that she knows the Educator as a colleague since 2020 when they were teaching together at Royal Capital Primary School and at Victoria Park Primary Schools. She had never heard of any allegations /incidents of improper behavior about him until this one.

63. When the principal told them about the allegations, she was very shocked. She had taught the 2 learners at grade 4. She has seen both of them before and after the allegations and there is no change in their behaviors. She learnt a lot from Mr. Alexander while he was doing practical teaching programme. He never saw anything inappropriate happening. These 2 learners used to come to Mr. alexander to ask for assistance from him, he would help anyone including in sport and discipline. He noticed at some stage after the allegations that the 2 learners would avoid Colored teachers even outside the class.
64. Under cross examination, the witness stated that the 2 learners used to avoid Colored teachers when they were outside the class environment.
65. In closing, Mr. Mlahleni argued as follows:
66. According to section 17 (1) of the Employment of Educators Act, educators who are found guilty under this Act, should be dismissed. This takes into consideration the high prevalence of educator-on learner sexual misconduct in South Africa.
67. ELRC Collective Agreement 3 of 2018 provides that “Every child has a right to be protected from maltreatment, neglect, abuse or degradation”. The Constitution further draws a distinction between a children and adults, not out of sentimental consideration but for practical reasons relating to children’s greater physical and psychological vulnerability. The educator pleaded not guilty in both charges and did not show remorse of what he did. The employer representative finally argued that the educator should be found guilty of the charges levelled against him and must be dismissed.
68. In closing, advocate Saaiman argued as follows;

An Educator may not be condemned based on suspicion, speculation, emotion or inconsistent evidence. The law requires proof on a balance of probabilities. The law requires the employer to prove that misconduct occurred. If the evidence is unreliable, improbable, contradictory, or if the educator’s version is reasonable probable, the employer’s version must fail.

70. The employer’s version was based on 2 learners whose evidence was riddled with contradictions on material aspects. Both learners differed significantly about what occurred, how the conduct occurred, the circumstances around the events, sequence of events, reporting of the events and material details surrounding the accusation. Caution is required where witnesses contradict each other on the central issue.
71. There was no single piece of objective evidence that was produced to corroborate the 2 learner’s evidence. There was no documentary evidence, no adult witness, no video evidence, no medical record and no contemporaneous record to prove the alleged misconduct. This matter entirely depends on witness testimony and where there is contradictory witness evidence, probability becomes decisive.
72. Learners had a possible motive to falsely implicate the educator because he had disciplined them for poor behavior. This is the critical fact which is the basis of these allegations. The educator warned them that their continued poor behavior will lead to their exclusion in the grade 7 end year function, the allegations emerged after these disciplinary interventions. The educator was enforcing discipline and this is part of performing his duties. The timing of the allegations creates a reasonable possibility that resentment, anger or retaliation played a part in the accusations.
73. The educator was an excellent witness with consistent, clear and unwavering evidence. He denied the allegations and his evidence never changed. The educator has served learners without any established history of similar misconduct. The inquiry is asked to accept that there is absolutely no objective basis for concluding that he engaged in the shocking conduct alleged by the learners. The evidence falls far short of what is required for a finding of guilt. The charge sheet is defective and section 17 (1) (g) of the EEA does not have legal enforceability. The employer has failed to discharge its onus and that the educator be found not guilty on all charges and be absolved of the allegations against him.

ANALYSIS OF SUBMISSIONS AND ARGUMENTS

74. 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”.
75. Section 17(1)(c) of Employment of Educators Act [EEA] of 76 of 1998 mandates the dismissal of an educator for having a sexual relationship with a learner at the school where they are employed.
76. In Stellenbosch Farmers Winery Group Ltd v Martell, the Court held that a tribunal must make findings with reference to (a) credibility of the various factual witnesses; (b) their reliability and ( c) the probabilities. In the matter before the Council, I am required to make credibility findings of the destructive versions by both parties.
77. In these proceedings the onus is on the Employer to prove the guilt of the Employee who is charged with misconduct. The standard of proof that is applied in civil proceedings is balance of probabilities. It is different from the one applied in the criminal justice system which is beyond reasonable doubt. Therefore, proof on a balance of probabilities is sufficient, the same was confirmed by the Court in Early Bird Farms Ltd v Mlambo [1997] 5 BLLR 541 (LAC) .
78. Section 23 of the Constitution Act 108 of 1996 provides that everyone has a right to fair labour practice. It also outlines the rights for employees and employers.
79. The Employer in trying to prove its case relied on the evidence of 2 learners A and B. Their evidence is on record, it will not be repeated, reference will be made where necessary.
80. The Complainants in the matter, 2 minors are the only witnesses. In dealing with the evidence of a minor as witness, Courts have pronounced that it be treated with caution and requires careful evaluation. In S v Artman and another 1968 (3) SA 339 A, the court recognised the need for caution when assessing the evidence of children because they may be susceptible to suggestion, influence,reconstruction of events, misunderstanding, or group dynamics. This is important where no objective evidence exists to corroborate their allegations.
81. This principle also applies in the evidence of a single witness; it must be clear and satisfactory in every material or alternatively there must be a corroboration. [ In R v Mokoena 1956 [3] SA 81 CA] , SAMWU obo Petersen v City of Cape Town & others [2009] 30 ILJ 1347 [LC].
82. As mentioned above, the 2 learners were the only witnesses for the employer. With the evidence they adduced before the Council, their evidence was riddled with contradictions on material aspects.
83. There was no documentary evidence, no adult witness, no video evidence, no medical record and no contemporaneous record to prove the alleged misconduct.
84. There was no investigation conducted by the employer on this matter. If there was investigation conducted, I am certain the employee would not have been charged because there is no evidence implicating him to the charge of sexual misconduct.
85. There is no evidence presented before the Council that suggests that the employee lifted the skirts of the 2 learners touching their private parts using a pipe. The layout of the class and where the employee’s table is located suggests that this occurred in full view of the class, which is highly improbable. It must be noted that the 2 learners are cousins and none of other learners were called to corroborate the 2 learners’ versions.
86. I concur with the employee’s representative’s contention in his closing arguments that both learners had a possible motive to falsely implicate the educator because he had disciplined them for poor behavior in 2025. This is seemingly the critical fact which is the basis of these allegations. The educator warned them that their continued poor behavior will lead to their exclusion in the grade 7 end year function, the allegations emerged after these disciplinary interventions.
87. It must be noted that enforcing discipline is part of the educator’s duties. The timing of the allegations creates a reasonable possibility that resentment, anger or retaliation played a part in the accusations.

88. The educator’s evidence was consistent, clear and unwavering. He denied the allegations and his witnesses corroborated each other and their evidence never changed.
89. The employee was charged with one count as stipulated in page 2 of the charge sheet. In these proceedings the onus is on the employer to prove the guilt of the employee. For the reasons contained in this award I find that the employer has failed to prove the guilt of the employee on the charge as contained in the charge sheet on a balance of probabilities.
90. Mr Gary Alexander is therefore acquitted on all charges. In the circumstances I hereby make the following award: AWARD
91. The Employer [ the Applicant, Head of department of Education Eastern Cape] has failed to prove the charges against Mr. Gary Alexander [ the Respondent] on a balance of probabilities.
    The Respondent – Mr Gary Alexander is acquitted on all charges.

Signature:

Ncumisa Bantwini

ELRC Panelists