IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – MPUMALANGA PROVINCE “the Employer”

AND

VP MOYANE “the Employee”

SECTION 188A INQUIRY BY ARBITRATOR RULING

CASE NUMBER: ELRC1093–24/25MP
DATE AWARD SUBMITTED: 13 March 2026
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days at the offices of the Employer in Mbombela, and the last day of the inquiry took place on 30 January 2026 via MS Teams virtual platform. The parties requested opportunity to submit written closing arguments which were duly received and form part of the record.
2. The Employer is the Mpumalanga Department of Education, represented by Ms Miya, T. The accused Employee is Mr Moyane, VP, (“Moyane”), represented by Mr Shakwana, S, and official of NATU.
3. Mr Luthuli, S, acted as interpreter, and the intermediary was Ms Mohaule-Mboweni, M.

Issue to be decided

4. I am required to determine whether Moyane is guilty of the charges levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Moyane is unsuitable to work with children.

Background and charges

5. Moyane, an educator employed at Phambanisa Primary School (“the School”), is charged with three allegations of misconduct.
6. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998. It is alleged that between August 2024 and October 2024 he violated the SACE Code of Professional Ethics by having a sexual / love relationship with a grade 10 learner (“SM”) from Shinyukane Secondary School.
7. Charge 2 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that during 2024 academic year he conducted himself in an improper, disgraceful, and unacceptable manner by having sexual intercourse with a grade 10 learner (“SM”).
8. Charge 3 – charged with misconduct in terms of section 18(1) of the Employment of Educators Act 76 of 1998. It is alleged that during 2024 academic year he put the name of the Department of Education into disrepute when he as an educator impregnated a grade 10 learner (“SM”).

Plea

9. Moyane pleaded not guilty to charge 1, 2 and 3 and denied all the allegations against him. He did not have a sexual relationship with SM, and he did not impregnate her.
10. During opening statements Mr Shakwana on behalf of Moyane stated that SM will testify that the Employer instructed her to lie, and that the Employer offered her money to come and say whatever Mayile told her to say. SM will testify that she never had a sexual relationship or intercourse with Moyane, and that he did not impregnate her.

Summary of evidence

11. The Employer submitted the documents contained in Bundle A, document B and Bundle C, as well as a voice recording, whilst the Employee submitted the document marked D.
12. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of the evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses. The fact that I have not captured all of it herein should not be misconstrued that I have not taken all the evidence presented into account. My findings are, accordingly, within the context of all the evidence provided by the parties during the arbitration hearing.
13. The matter relates to, inter alia, allegations of sexual misconduct towards a learner who was a minor at the time of the alleged incidents. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the minor witness for the Employer as “SM”. The witnesses testified virtually via MS Teams, with the assistance of an interpreter and an intermediary.

Employer’s case

14. Thapelo Mayile (“Mayile”) testified under oath that he is currently the Assistant-Director Labour Relations for the Department of Culture, Sport and Recreation. He was a Labour Relations Practitioner at the DOE from 2008 to 2025.
15. In October 2024 he received a call from the Director Labour Relations about an allegation that an educator impregnated a grade 10 learner.
16. He went to the School to investigate the matter and found that the principal was aware of the situation. He went to the home of SM with the principal and another educator, but she was not there. He received the contact information of Mandla Madonsela, who directed him to the house of the Madonsela family. There he found Andronica, the aunt of SM. She called Mandla Madonsela. They told Mayile that an educator by the name of Moyane came to see their family and he informed Andronica that he made a mistake because he impregnated learner SM. Andronica told him that the matter had to be discussed with the entire family.
17. They agreed that Moyane would come with his family to discuss the situation , which he did. He informed the Madonsela family that he impregnated learner SM, and that he would take care of the learner. He agreed in writing. He wrote the agreement in his own hand in Siswati, as reflected in A4. The translated agreement is reflected as document B.
18. Mayile testified that the agreement in A4 was dated 19 October 2024, even before he started the investigation. The Moyane family and the Madonsela families met to discuss the issue of Moyane impregnating learner SM. Moyane agreed to take responsibility for all the needs of the child once the child was born. He would also put the child on his medical aid to cater for medical care. The Moyane family asked that the Madonsela family take responsibility of the baby so that the mother, learner SM, complete grade 12. The Madonsela family requested that the Moyane family take the baby after birth, but the Moyane family requested that the Madonsela family look for a person to look after the baby at the Madonsela home, while the Moyane family will pay for the carer, which was agreed to. The Madonsela family requested that their home be cleansed and the Moyane family agreed that they would fulfil that customary ritual.
19. He requested to see learner SM. He asked whether she would be comfortable to speak to him in the presence of her aunt Andronica, and SM asked to speak to Mayila alone.
20. He informed her that he was investigating a learner pregnancy and SM confirmed that she was pregnant. Mayile asked her who impregnated her and she said it was educator Vusi Moyane. She told Mayile that they met at a place of entertainment, Ganbuzas, and Moyane asked for her cell number. She gave it to him. He proposed love and she agreed to a love relationship. She was under the influence of intoxicating substances at the time. That same day they had sexual intercourse in his car. They again met on a later date at Gambuzas and had intercourse again. She then had challenges with sleeping too much, her cousin suspected that she was pregnant. She bought a pregnancy test, and it confirmed that she was pregnant.
21. SM told Mayile that she informed Moyane about the pregnancy. He told her that it was a mistake that they had intercourse and that she fell pregnant, but he would take care of everything. She was then told that the families met on 19 October 2024 and came to an agreement that Moyane would take responsibility and support the child. SM was not part of the family meeting.
22. SM told Mayile that she was communicating with Moyane on Whatsapp, but the messages were deleted. She gave Mayile two numbers for Moyane, which he used to contact Moyane.
23. The circuit manager was aware of the matter. She showed Mayile the message wherein the Madonsela family reported the matter. Mandla Madonsela informed the circuit manager. He was part of the meeting between the families.
24. Mayile recorded the meeting with SM. The transcript is reflected in Bundle C. Mayile had a meeting with Moyane and informed him of the allegations. He denied that he knew SM or slept with her. Mayile testified that he compared the signature next to the name Moyane in the agreement with other documents signed by Moyane in school, and it looked like his signature.
25. The following weekend SM contacted Mayile and told him she wanted to forward an affidavit to him, as reflected in document D. SM said she was not a complainant and never complained about Moyane. SM then later came to the hearing with Moyane, instead of using the transport which the Department arranged for her.
26. During cross-examination Mayile testified that Moyane’s SADTU representative, Mr Brown, confirmed that it was Moyane’s signature in the agreement. Moyane was a SADTU shop steward and therefore the union had to be consulted. The union told Mayile that Moyane did not report the matter to them. Moyane then asked Brown to be present as a fellow employee.
27. Mayile denied that Mandla Madonsela fabricated the allegations against Moyane with the assistance of Mayile. When he met the families they have already entered into the agreement, and it was already reported to the circuit manager. He never met Moyane before and had no reason to fabricate anything against him, he had nothing to gain. The recording, Exhibit 1, will show that SM told Mayile that she and Moyane had sexual intercourse twice. A4 is the agreement, and it is not false.
28. Moyane was not in the same school, so he was not suspended initially. He was suspended after 28 February 2025 when it became evident that he was interfering with the process. The family informed Mayile that SM disappeared, and then she came to hearing with Moyane on 28 February 2025. The fact that he was the SGB secretary running the interview process for a new principal had nothing to do with it. Mayile was not even aware of the interviews. He did not suspend Moyane to remove him from the interview panel.
29. Mayile was cross-examined extensively regarding the allegations of him fabricating the allegations, as the record will reflect. He denied all allegations of being part of a scheme of falsely implicating Moyane. The transcript of the recording he made, as well as the recording of the interview with SM clearly reflect that she stated that Moyane had sexual intercourse with her twice. If she now disputed it, she was not truthful.
30. SM, an 18-year-old female, testified under oath that she was a learner in grade 11. Mayile came to her home investigate. She told him what he told her to say. He coached her. She told him that she wanted to talk to him alone. He told her how she was supposed to express herself about Moyane. She was not aware that he was recording the meeting. He told her to admit that she was impregnated by Moyane, and how they met.
31. SM testified that Mayile promised her an I Phone. She was forced to say what is in the recording.
32. NOTE: Ms Miya applied that the witness SM be declared a hostile witness in order to test her credibility through cross-examination. The application is based on her deviation from her original statement as contained in the recording and transcript of the recording. Mr Shakwana did not agree that there was a deviation in her testimony.
33. RULING: I found that the witness SM did make a previous statement which is part of the record, as reflected in the recording and the transcript of the recording. Her testimony in the arbitration directly contradicted her earlier statement and constituted a material deviation. The witness SM was therefore declared a hostile witness in order to allow the Employer to test the credibility of its own witness through cross-examination.
34. During further questioning of SM, she testified that Mayile promised her a phone. He made the promise at her home when it was just the two of them.
35. After she realised they wanted to force her to not tell the truth, she went to the SAPS to make an affidavit. She sent the affidavit to Mayile, but he ignored it.
36. She used to sleep in the same room with AJ, and he noticed that she was pregnant. They slept in separate beds. She did not have intercourse with AJ. She was never at Mabuzas.
37. SM did not know why Mayile would want her to lie about Moyane. He promised her the phone after the recording. She said Moyane impregnated her because she was forced. She could not explain how the promise of the phone influenced her when it was only offered after the interview.
38. Moyane’s number was on her phone because she always allowed others to use her phone.
39. SM testified that Sakhile Sithole was the father of her child. She said it was Moyane because she was forced and had no choice. She refused to disclose the names of the family members who forced her to lie about Moyane.
40. SM testified that if someone promised you something you will end up lying, as she was promised a cell phone. She could not explain why she did not put the fact that she was coerced in her affidavit to SAPS.
41. During cross-examination by Mr Shakwana, she testified that Mayile promised her an I Phone. Everything she said in the recording was on instruction of Mayile. She got Moyane’s numbers from Mayile, he gave it to her to write down. She never had a sexual relationship with Moyane. She did not know why the Employer was pursuing Moyane as the father of her child.
42. During questions asked by the commissioner to clarify issue, SM testified that after she made her statement, and after the recording, she saw Mayile take out the cell phone, and then he said if their plan is successful, she will get the cell phone. She could not explain how it then influenced what she said as it only happened after she already made her statement. She testified that a paternity test would confirm Sithole is the father of her child, but she was not prepared to agree to a paternity test.
43. Andronica Madonsela (“Andronica”) testified under oath that she is the aunt of SM. Moyane called her and then came to her house. He told her there was a problem with SM and that he impregnated her. She asked him how he could have been attracted to a child, and he said that SM told him that she was 23 years old. He was fooled by her.
44. SM came with her friend who told her that SM was pregnant. She did not say who the father was at the time. SM pointed out another boy. SM gave him the number of a boy who confirmed it.
45. Moyane however came with his family and confessed it was him. They signed an agreement. SM stole the original agreement. SM is lying if she says Mayile told her to accuse Moyane. She told them Moyane impregnated her. Moyane did not keep to the agreement between the families.
46. During cross-examination Andronica testified that Moyane confirmed that he impregnated SM. He came to their house and admitted it and undertook to support her and the child. She saw him signing the agreement.
47. Mandla Madonsela (“Mandla”) testified that he was the grandfather of SM. They were informed that SM was impregnated by an educator, and he sent a message to the circuit manager, as reflected in A5. The Moyane family came to their home. Moyane told them he met SM at a shebeen. Mandla fetched a piece of paper and a pen and Moyane wrote everything down and read it back to them. They asked the three members of his family to sign the letter, and they did. The Madonsela family did not sign, as it was the document of the Moyane family. Moyane wrote the contents of A4. Moyane did not keep to any of his promises in the letter. He would lie if he disputed that he wrote it. Mandla is a grandfather, and he has SM on his medical aid, he did not need Moyane’s money. Mandla is employed by the Department of Health.
48. Mandla testified that SM belonged to Moyane as he impregnated her. He could bring her back after the child was born. It is their culture to pay the damages after the pregnancy. He did agree to take responsibility in the letter.
49. During cross-examination Mandla testified that he reported the matter to the circuit manager. Mandla is a professional nurse. Moyane wrote A4. It was an undertaking by the Moyane family. They signed it. Moyane came to their house and agreed in writing that he impregnated SM, so that convinced Mandla 100% that he was the father of SM’s child.
50. Hebron Madonsela (“Hebron”) testified under oath that he was part of the meeting where Moyane agreed in writing that he impregnated SM.

Employee’s case

51. Vusi Moyane, the Employee, testified under oath that he knew nothing about a sexual relationship with SM. He did not go to Mabuzas place. He does not drink or smoke. He did not go to the Madonsela family with his family. He did not commit to look after a child. He did not write a letter or agreement to that effect.
52. He did know Mandla and Andronica well. Adronica called boys who admitted to sleeping with SM. SM is not in his school. He did not know SM before she testified in this hearing. He is 52 years old and she is 18 years old. He did not know what they wanted to achieve by falsely implicating him.
53. The circuit manager is his aunt. He had a dispute with her about the recruitment and appointment of the principal at his school. She wanted to take charge and was upset that he would not allow her. That is why Mayile was sent to investigate him. They wanted him to lose his job.
54. SM confirmed that the allegation against him was not true and that the family forced her to point him out.
55. During cross-examination Moyane testified that there were no problems between him and his aunt, the circuit manager. The process of appointing a principal could continue without him. He is also surprised that the Madonsela family would lie about him coming to their house. SM testified what Mayile told her to say. Everybody is lying about him. He did not know why they would lie.

Summary of arguments

56. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

57. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
    a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) If the rule or standard was contravened, whether or not –
    i. The rule was a valid or reasonable rule or standard;
    ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    iii. The employer has consistently applied the rule or standard.
    iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.
58. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
59. All the allegations in the charges against the Employee, as well as the evidence, documentary, electronic and otherwise, deduced in support thereof by the Employer, and the evidence deduced by the Employee in defence, were considered and weighed against the abovementioned standard of proof.
60. It is not disputed by the Employee that the actions he had been charged with constitute misconduct. He merely denied committing the alleged misconduct as set out in the three charges below.
61. Charge 1 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998. It is alleged that between August 2024 and October 2024 he violated the SACE Code of Professional Ethics by having a sexual / love relationship with a grade 10 learner (“SM”) from Shinyukane Secondary School.
62. Charge 2 – charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998. It is alleged that during 2024 academic year he conducted himself in an improper, disgraceful, and unacceptable manner by having sexual intercourse with a grade 10 learner (“SM”).
63. Charge 3 – charged with misconduct in terms of section 18(1) of the Employment of Educators Act 76 of 1998. It is alleged that during 2024 academic year he put the name of the Department of Education into disrepute when he as an educator impregnated a grade 10 learner (“SM”).
64. I am mindful of the fact that the Employee is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
65. In respect of the all the allegations the Employee disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
66. The Employee’s defence in respect of the alleged sexual relationship and improper, disgraceful, and unacceptable conduct is a blanket denial of any wrongdoing. He submitted that it is all a fabrication of lies, instigated by Employer’s representative, Mayile, and his aunt, the circuit manager because they wanted to remove him from the interview panel who was dealing with the recruitment of a new principal at his school.
67. I take cognisance of the fact that SM is a single witness in respect of Moyane impregnating her. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. It is prudent to deal with SM’s evidence first, as well her deviation from her original statement and her being declared a hostile witness to the Employer’s case.
68. Mayile testified that he was made aware of the matter and went to investigate it. As part of his investigation, he interviewed SM. He recorded the interview. In her statement in the interview the clearly identified Moyane as the father of her child and stated that he had sexual intercourse with twice.
69. During the course of the hearing process, she decided to change her version, and alleged that she was forced by Mayile to implicate Moyane. She was coerced into such by the promise of an I Phone. The Employer’s application to declare her a hostile witness was granted as she deviated materially from her original statement.
70. I reject the version of SM that Moyane did not have a sexual relationship with her, and that he did not impregnate her. The reason she gave why she allegedly lied in her initial statement to Mayile, i.e. that he promised her an I Phone, and that caused her to go along with his plan to falsely implicate Moyane, does not hold water. She testified that he allegedly made the promise of an I Phone on after she already implicated Moyane, so how could that promise then coerced her into lying about Moyane. She also contradicted the opening statement of Moyane’s representative who stated that she was offered money to falsely implicate Moyane. She never testified anything about being offered money by Mayile. She also contradicted herself in respect of why Moyane’s numbers were in her phone. Initially she testified it was because she allowed everybody to use her phone, and then later changed her version and testified Mayile gave her Moyane’s numbers to write down.
71. I accept on a balance of probabilities that the statement that SM made to Mayile was not coerced in any way, and that she was not forced to falsely implicate Moyane, but that it was in fact a true reflection of what the relationship between herself and Moyane was. The attempt to undo her initial statement appears to be a recent fabrication to cover for Moyane for some undisclosed reason.
72. I find Mandla, the grandfather of SM, to be a very good, reliable and credible witness. He has no reason to falsely implicate Moyane. His testimony that he did not need Moyane’s money as he has his own medical aid on which he placed SM, was not challenged. He would have no interest in the alleged plot to remove Moyane from the interview panel in a school in which Mandla has no interest. I accept his evidence on a balance of probabilities that Moyane and his family came to their house, admitted in writing that Moyane was the father of the unborn child of SM, and undertook to care for her and the child.
73. I find Moyane’s version that it is all a fabrication of lies, instigated by Employer’s representative, Mayile, and his aunt, the circuit manager because they wanted to remove him from the interview panel who was dealing with the recruitment of a new principal at his school, highly improbable. To accept his version would mean to accept that his aunt, the circuit manager, devised an elaborate scheme involving a learner in another school that was coincidentally pregnant, an official of the Department placing his career on the line for someone he did not even know, a family that would go to another family to enter into an agreement to care for a child fathered by one of its members and so doing falsely implicating him with absolutely nothing to gain.
74. The Employee failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. The Employee could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.
75. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false. The Employee’s version that it is a fabrication is not plausible.
76. SM, a learner in another school, testified to the sexual intercourse that took place between her and the educator, Moyane, which led to her falling pregnant.
77. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the employee committed the misconduct as contained in charges 1, 2 and 3. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding

78. The accused employee, Mr Moyane, VP, is found guilty of the following misconduct:
79. Charge 1 – contravening section 18(1)(a) of the Employment of Educators Act 76 of 1998, in that failed to comply with a legal obligation relating to education and the employment relationship by having a sexual / love relationship with a grade 10 learner (“SM”) from Shinyukane Secondary School.
80. Charge 2 – contravening section 18(1)(q) of the Employment of Educators Act 76 of 1998 by conducting himself in an improper, disgraceful, and unacceptable manner by having sexual intercourse with a grade 10 learner (“SM”).
81. Charge 3 – contravening section 18(1) of the Employment of Educators Act 76 of 1998 by bringing the name of the Department of Education into disrepute when he as an educator impregnated a grade 10 learner (“SM”).

Sanction

82. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
83. Although the Employer charged Moyane with having sexual intercourse with a minor grade 10 learner under section 18(1)(a) of the EEA, it is evident that his misconduct was of sexual nature, which resulted in the Complainant’s sexual integrity being impaired. Moyane’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession and the Department into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a minor female learner in grade 10 to be impregnated by an educator.
84. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of having a sexual relationship with a learner in the school where the educator is employed, which I keep in mind considering the nature of Moyane’s misconduct. Although the Complainant agreed to a sexual relationship, she was a minor in grade 10, which made her agreement of no consequence in my opinion, and although she was in a different school, I find no reason why the misconduct of Moyane should be regarded in a less serious light than those provided for in section 17(1), which carry the mandatory sanction of dismissal. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Employee was employed in, and the years of service of the Employee, I do find no room for a lessor sanction and find that the sanction of dismissal is fair and appropriate in the circumstances of this matter as well.
    Sanction
85. In terms of section 188A(9) of the LRA I direct that the employee, Mr Moyane, VP, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005

86. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the 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”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
87. The parties were given the opportunity to submit arguments in this respect. In view of my finding of the serious nature of the Employee, Mr Moyane’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable female learners being protected from being impregnated by educators.
88. Mr Moyane, VP, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Moyane, VP, 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.

COEN HAVENGA
Senior ELRC Arbitrator
13 March 2026