IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MALELANE DISTRICT CIRCUIT

Case No. ELRC93-26/27MP

In the matter between

DEPARTMENT OF EDUCATION Employer

And

Stephen Tsundzuka Tshimbana Employee

ARBITRATION AWARD (INQUIRY BY ARBITRATOR)

Details of hearing and representation

1. This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 as amended. The inquiry took place on 08 June and 17 August 2026 at the Department of education’s Malelane district circuit offices.
2. The employee, Mr. Stephen Tsundzuka Tshimbana, was represented by Mr. Ishmael Mgwenya from the South African Democratic Teachers Union (SADTU), while the employer, the Mpumalanga Department of Education, was represented by Mr. Lisanang Mashigo, the departmental official.
3. The proceedings were digitally recorded.
4. Ms. Mafondo Mohaule-Mboweni provided intermediary services, while Mr. Godfrey Usiba assisted with interpretation services.
5. Both parties did not submit any documentary evidence. The Employer called three (3) witnesses, while the Employee called seven (7) witnesses.

Issues to be decided.

6. This was an Inquiry by Arbitrator. I must decide whether the employee is guilty of the misconduct levelled against him or not. If found guilty, I must determine an appropriate sanction.

Background and common cause issues

7. The employee, Mr. Stephen Tsundzuka Tshimbana, works for the Mpumalanga department of education, having been so employed from 22 February 2006. The employee is employed as CS1 Educator. He is charged with two charges of misconduct in terms of sections 17(1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended (the Act).
8. The charges were phrased as follows: –

Charge 1: “It is alleged that you committed misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 (“the Act”) in that you, Mr. Tshimbana ST, on or about 05 February 2026, at or near Mahlatsi secondary school, unlawfully and intentionally sexually assaulted a learner, namely “BN”, by touching her buttocks and/or breasts without her consent.

Charge 2: “It is alleged that you committed misconduct in terms of section 17 (1) (c) of the Employment of Educators Act 76 of 1998 (“the Act”) in that you engaged in conduct of a sexual nature towards a learner, namely BN by touching her buttocks and/or breasts, which conduct is inappropriate and prohibited for an educator”.

Summary of the employer’s evidence.

9. The employer relied on the evidence of the complainant learner, Ms. BN, and a learner support agent, Ms. Khonziwe Simelane, and lastly, a fellow learner of the complainant, Mr. “TN”.
10. The employer’s first witness was Ms. Simelane. She testified under oath in English. The succinct summary of her testimony was as follows: –
11. That she started working in July 2025 as a learner support agent. She supports learners with school and home-based problems. That on the day in question, being the 05 February 2026, she observed MS BN sitting alone during the athletics preparation.
12. That she approached the learner, who started to cry as she was narrating how Mr. Tshimbana had touched her on the breasts and buttocks.
13. That upon realizing the situation, she invited Ms. BN to her office, where she continued to tell her about how teacher Tshimbana touched her on her breasts and buttocks while they were practicing athletics at the sports grounds, and later in the staff room. That Ms. BN further told her that Mr. Tshimbana subsequently requested the learner to fetch her books in his office, and followed her, closed the office and continued to touch the learner inappropriately. She further testified that Ms. BN told her that that Mr. Tshimbana made her to touch on his trousers. That she was scared to go home as the teacher was waiting for them at a secluded place next to his stand just outside the school yard. That she then informed the school management.
14. The employer’s second witness was the complainant herself, Ms. BN. She testified in vernacular which was translated into English. She testified through the help of an intermediary. The succinct summary of her testimony was as follows: –
15. That she is a seventeen (17) year old grade 11 learner at Mahlatsi secondary school. That on the 05 February 2026, she was at the sports grounds with other learners. That whilst at the grounds, Mr. Tshimbana touched her on the breasts and buttocks, and further asked when she was going to visit him. That thereafter, Mr. Tshimbana left the grounds and returned to the school premises, and subsequently told her to go to his office to fetch a book. That Mr. Tshimbana followed her to the office, closed the door, continued to touch her while making remarks to the effect that it was “nice”. That teacher Tshimbana told her that she will find him next to her stand and/or yard just outside the school.
16. That she subsequently told teacher Zabane, who thereafter informed teacher Simelane. That teacher Simelane asked her why she was seated alone when other learners had left school already, and that she then related what had happened to her. Furthermore, she testified that Ms. Simelane informed Ms. Kunene in her presence. They further informed teacher Thabethe. She further testified that she was asked if she needed the lift or would walk on her own, and that she responded that she would leave on her own.
17. Ms. BN further testified that while at the office with Mr. Tshimbana, he took her hand and forced her to touch his penis and said it was “nice”. She concluded her testimony by saying she felt scared.
18. The Respondent’s third witness was Mr. TN, a fellow learner at the same school. He testified under oath in vernacular which was translated into English. He also spoke through the help of an intermediary. The succinct summary of his testimony was as follows: –
19. He testified that he was an eighteen (18) year old grade 11 learner at Mahlatsi secondary school, and was friends with the complainant, Ms. BN. That on the 05 February 2026, she witnessed Mr. Tshimbana touching Ms. BN on her breasts and buttocks. That he subsequently asked Ms. BN as to what was happening between her and teacher Tshimbana, to which she responded that nothing was happening between them. That on the same day, while doing long jump, teacher Tshimbana continued to play with Ms. BN. That he only witnessed what happened on the field, and the incident happened around 13.00 in the afternoon, shortly after they arrived at the grounds. He further testified that he backed off after Ms. BN said nothing was happening between her and teacher Tshimbana. He further testified that the other learners who witnessed the touching were Ms. PM and Ms. SM.

Summary of the employee’s evidence.

20. The employee called seven (7) witnesses, namely, Mr. Bandile Mahlalela, Ms. Palisa Mbokodo, Ms. SM, Ms. TM, Ms. IM, Mr. Thomas Malele and Mr. Samuel Surprise Nkosi.
21. Mr. Stephen Tsundzuka Tshimbana testified first. He testified under oath in English He testified that he started teaching at Mahlatsi secondary school on the 22 February 2006. That he has had a bad relationship with the Principal, and that at some point the union secretary had to intervene. That on the 05th of February 2026, he stayed in his office while colleagues were preparing documents for the athletics event to be held the next day on the 06th of February 2026. That he subsequently received a call around 13.15 requesting him to come to the sports field to monitor learners, and remained there until knock off time. That thereafter he returned to his office. That there were still learners and teachers at the school, as other learners were bringing equipment like tapes. That at the time he returned to his office, there were lots of people in the staff room. He testified that his office is situated in the staff room. That he did not have company in his office at any point on the day. That he had never touched Ms. BN as he would ever put a child in danger. Further, that Mr. TN was never present at the sports field on the day as he was not on the list of learners earmarked or qualified for the athletics event the next day, being the 06 February 2026. That he left his office and went home between 14H30 and 15H00 in the afternoon, and went to check his stand and thereafter went straight home as he was living alone. That he could not answer whether Ms. BN knows if he had a stand or not, and that the distance between his stand and the school is around one (1) kilometer. That he does not know why would Ms. BN accuse him of sexual assault allegations.
22. Mr. BM was the first witness. He testified that he was a seventeen (17) year old grade 9 learner at Mahlatsi secondary school. That he knows Ms. BN as a quiet person. Furthermore, that on the 05th of February 2026, he was part of the selected learners at the school’s grounds preparing for athletics event which was to be held the following day, being 06 February 2026. That he was the only learner competing in the long jump event. That he was situated next to the corner side of the field (close to where corner kick is taken during soccer matches) and only school governing body members were present. That he saw Ms. BN on the day but could not remember what event she was doing on the day. That he did not pay attention to Ms. BN, or the people that were around her on the day. That he saw Mr. TN on the day, as well as Mr. Tshimbana on the sports grounds or field. That he saw Mr. Tshimbana at the field from start to finish, which was between 13.00 and 14.00 hours in the afternoon. That he did not see teacher Tshimbana do anything unusual to Ms. BN. That after practice he spoke to teacher Malele, and subsequently left for home.
23. Ms. PM was the second witness. She testified under oath in vernacular. She was assisted by the intermediary. The succinct summary of her testimony is as follows: –
24. She testified that she was a seventeen (17) year old grade 11 leaner at Mahlatsi secondary school. She testified that she knew Ms. BN as she studied together with her, and further that on the 05th of February 2026, she was in the company of Ms. BN, Ms. SM and others whom she could not recall their names. She testified that just like Ms. BN, she was competing in the 200m and 100m. That she saw Mr. Tshimbana on the field on the day in question, but did not see him and Ms. BN together. That Mr. TN was not part of the learners that were preparing on the 05 February 2026. That after the preparation, he went home together with Ms. SM, Ms. BM, Ms. IM and Ms. I who she could not recall her surname.
25. Ms. SM was the third witness. She testified in vernacular which was translated into English. She was assisted by an intermediary during the course of her testimony. The succinct summary of her testimony was as follows: –
26. She was a sixteen (16) year old grade 11 learner at Mahlatsi secondary school. She knows the complainant, Ms. BN. She testified that she was part of the selected learners preparing for the athletics event on the 05th of February 2026, and she competed in the 200 and 400m events. She further testified that she stood together with the complainant during warmups. She further testified that she did not see Mr. Tshimbana touch Ms. BN, and that Mr. Tshimbana was at the office and only came to the field around 14.00 hours to assist with filling the forms for competing the next day. That she left together with Ms. BN but parted ways on the way home. That she was with Mr. BM, Ms. FS and Ms. I when she went home.
27. Mr. TM was the fourth witness. He testified that he was a fifteen (15) year old grade 9 learner at Mahlatsi secondary school. He testified that he was part of the learners who were preparing for the athletics event on the 05th of February 2026 at the school’s grounds. He does not know the complainant, Ms. BN, and only remembered his friend, Mr. SM as one of the learners present at the school’s grounds.
28. Ms. IM was the fifth witness. She testified that she was a thirteen (13) year old grade 8 learner at Mahlatsi secondary school. She was present on the school’s grounds on the 05th of February 2026, and knows the complainant as her friend who lived with her on the same street. That she knows teacher Tshimbana, who was her teacher. That teacher Tshimbana was part of the teachers that were present at the school’s grounds on the day, as he was coaching before he left to go to the class and returned again to check the learners. That she saw Ms. BN from beginning of the preparation to the end. That she did not see Ms. BN and Mr. Tshimbana on the field together on the day, and that Mr. Tshimbana did not touch Ms. BN. That she went home with Ms. BN and Ms. SM or thought they parted ways with Ms. BN on the way next to the tavern. That the next day, Ms. BN was crying, alleging that Mr. Tshimbana slapped her but she did not believe her because she knew the teacher would not slap a learner.
29. Mr. Thomas Malele was the sixth witness. He testified under oath in English. He testified that he was a teacher and chairperson of sports at Mahlatsi secondary school. He has been at the same school for over twenty (20) years. He further testified that he knew Mr. Tshimbana as a colleague and a coach for the boys and ladies football teams and served with him in the sports committee since the year 2009.He testified that on the 05th of February 2026, learners were released around 13H15, and that he was in the sports field when he decided to call Mr. Tshimbana to come to the field, and that’s where they met on the day. Mr. Malele testified that he distributed learner forms for the athletics event and returned to the office to check the documents, and left Mr. Tshimbana to monitor the kids doing warmups. He testified that thereafter he went to the police station together with Surprise Nkosi, Sifunza Makhosazana to certify learner’s documents. He further testified that when he returned some learners were still at the sports field. That thereafter he heard from Mr. Tshimbana the next day.
30. Mr. Samuel Surprise Nkosi was the seventh witness. He testified under oath in English. He testified that he was a teacher at Mahlatsi secondary school, and serves on the sports committee. That he knows Mr. Tshimbana and colloquially refers to him as “grootman” because of the age difference. He further testified that on the 05th of February 2026, he was at the staff room preparing learners documents for the athletics event the next day, and that he did not go to the sports field. He further testified that he knows that Mr. Tshimbana was at the sports field on the day in question and that he knew nothing about the allegations pertaining to Mr. Tshimbana.

Analysis of the evidence and arguments

31. The employer had to prove on a balance of probability that the employee, Mr. Mr. Stephen Tsundzuka Tshimbana, was guilty of all the allegations levelled against him. The charges appear on paragraph 8 supra. The employee was charged for misconduct in terms of sections 17(1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998 in that he committed acts of sexual assault on Ms. BN, a learner grade 11 learner at Mahlatsi secondary school.
32. At the end of the inquiry, parties undertook to submit written closing arguments, including the mitigation and aggravating factors. I have since received same and I considered them in my decision.
33. The onus to prove the case rested on the Employer. The Employee denied the charges. The Employer led oral evidence of three (3) witnesses, namely, the complainant herself, Ms. BN, a learner support agent, Ms. Khonziwe Simelane, and lastly, a fellow learner of the complainant, Mr. TN.
34. I start first with the evidence of Ms. BN. The succinct summary of her evidence was that she was sexually assaulted by Mr. Tshimbana, on the 05th of February 2026, firstly, on the sports field, and later on the same day, at Mr. Tshimabana’s office. Ms. BN’s testimony in respect of the sexual assault at the sports field was corroborated by a fellow learner, Mr. TN. Mr. TN testified that on the day, he was busy with warmups for the long jump, and saw Mr. Tshimbana touching Ms. BN inappropriately. He testified that he approached Ms. BN and asked her what was happening, to which Ms. BN replied that nothing was going on.
35. Mr. Tshimbana denied touching Ms. BN, and further denied the presence of Mr. TN at the sports field on the day. According to Mr. Tshimbana, Mr. TN was not on the list as he had not qualified to participate in the athletics event of 06 February 2026. Mr. Tshimbana did not submit the alleged list for determination of this issue before me. This being a factual dispute, and material to the dispute at hand, I must determine by assessing the credibility and probability of the witnesses’ evidence before me.
36. Mr. Tshimbana called at least seven witnesses. Mr. BM could not recall other learners present, not could confirm or deny the presence of Mr. TN on the day. Ms. PM and Ms. SM testified that Mr. TN was not present at the sports field on the 05th February 2026. Messrs. Malele and Surprise Nkosi, being teachers responsible for the learners, did not testify on the presence or absence of Mr. TN.
37. Ms. SM’s testimony was littered with inconsistencies and falls to be rejected, more so on the question of whether Mr. TN was present or not on the field on the day. Although Mr. Tshimbana confirmed that he made a turn at the sports field to monitor learners, Ms. SM sought to suggest that Mr. Tshimbana could not have touched Ms. BN because he was at the office. During cross examination, she was asked how she got to know that Mr. Tshimbana was at the office, and she replied that she heard from Messrs. Malele and Nkosi, same teachers that testified on behalf of Mr. Tshimbana. During cross examination, Ms. Magagula changed her version from saying TN was never present at the field to “I never saw him”.
38. Mr. TM’s testimony was unhelpful. The long and short of his testimony was that he only saw his friend SM, and he did not know others learners on the day.
39. Ms. IM was not asked or commented on the presence or absence of TN on the day. In any event, her testimony was littered with material inconsistencies and exaggerations that it should be rejected wholly. Firstly, Ms. IM testified that he knew Mr. Tshimbana as her teacher. However, Ms. IM was a grade 8 learner having barely being at school for more than two weeks at the time of the incident. Mr. Tshimbana was neither her class teacher nor taught her during that time. She claimed to have known Mr. Tshimbana because the complainant had pictures of him on her phone, but she had never seen them. In the end, Ms. IM gave the impression that she was coached on what to say, or alternatively on her own volition, testified on issues that she had either no first-hand knowledge of, and was mostly uncorroborated hearsay evidence that was designed to shield Mr. Tshimbana.
40. Mr. BM, who testified on behalf of Mr. Tshimbana, testified that Mr. TN was present on the day. Put differently, Mr. BM, Ms. BN and Mr. TN confirmed the presence of Mr. TN on the day. Ms. BN alleged being sexually assaulted by Mr. Tshimbana, and Mr. Nkosi, almost immediately confronts Ms. BN and asked her to explain the touching, and when rebuffed by Ms. BN, he backs off.
41. In my view, the probable version is that Mr. TN was present on the sports field, and had seen Mr. Tshimbana touch Ms. BN. Of all the witnesses that testified on the incident at the field, Mr. TN testified on what he had seen, and immediately approached Ms. BN about it. This in my view gives more credence to his version that firstly he was present, and secondly he had seen Mr. Tshimbana sexually assaulting Ms. BN.
42. The second incident allegedly happened at the staff room, inside Mr. Tshimbana’s office. Mr. Tshimbana does not deny going back to his office after knocking off at the sports field. However, he denies the presence of Ms. BN. Ms. BN testified that Mr. Tshimbana sent her to his office to fetch a book, and subsequently followed her, and started to be touchy with her. She further testified that Mr. Tshimbana made her touch his penis, and remarked that it was nice.
43. Ms. BN testified with the help of an intermediary. She appeared rattled by the presence of Mr. Tshimbana, and requested video to be switched off during her testimony. Despite being rattled, her testimony was coherent, consistent and remained the same even under a grueling cross examination.
44. Where Ms. BN was inconsistent, it was not on material facts important for determining the issue. For instance, she testified that after the office ordeal, she told teacher Thabethe who then told teacher Simelane. However, teacher Simelane testified that she saw Ms. BN sitting alone after school. Looking dejected and approached her to find out. Importantly, what teacher Simelane testified on was consistent with what Ms. BN testified on. They corroborated each other.
45. Importantly, the nature of the similar fact evidence is admissible in sexual related matters. Ms. BN first told Ms. Simelane about what had happened, and repeated same in the inquiry. In my view, the evidence of Ms. BN is credible and reliable, and should be preferred against that of the Employee, Mr. Tshimbana.
46. Mr. Tshimbana called seven (7) witnesses. However, all of them could neither confirm nor deny material issues helpful for the determination of the issues. In any event, all the witnesses would have only been helpful in respect of charge one that happened at the sports field.
47. In view of the above analysis, it is therefore my finding that the employer has, on balance of probabilities, proved that the employee has committed misconduct as charged in terms of sections 17 (1)(b) and 17(1)(c) of the Employment of Educators Act, 76 of 1998.
48. Having found the employee guilty as charged in terms of, inter alia, section 17(1)(b) of the Employment of Educators Act, 76 of 1998, it follows that the sanction of dismissal is mandatory, irrespective of the mitigating factors. The interest of the learner should prevail. Sexual assault of learner by an educator is not acceptable in a school environment. Learners look up to the teachers for protection, not sexual grooming and/or assault.
49. I have asked the parties to address me on whether the Applicant can be suitable to work with children. Section 120(1)(c) of the Children’s Act, 38 of 2005 makes a provision 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”. The employee is found guilty as charged. Considering the above, I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005.

Award

50. I find that the employee, Mr. Stephen Tsundzuka Tshimbana, is guilty of the charges preferred against him.
51. I impose the sanction of mandatory dismissal with immediate effect.
52. Mr. Stephen Tsundzuka Tshimbana is found to be unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
53. The General Secretary of the ELRC must, in terms of section 122 (1) of the Children’s Act, 38 of 2005, notify the Director General: Department of Social Development in writing of the findings this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Mr. Stephen Tsundzuka Tshimbana is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

Thapelo Mathekga
ELRC PANELIST
14 September 2026