17 June 2025 2025 -ELRC1079-24/25EC

Case Number: ELRC1079-24/25 EC
Commissioner: Hadley Saayman
Date: 04 JUNE 2025

In the DISCIPLINARY INQUIRY

Department of Education–Eastern Cape
AND
MR CRAIG HING

Educator’s representative: Adv. G D Saayman
Applicant’s address: 28 6th Avenue
Newton park
Port Elizabeth
6036
Telephone: 041- 364 0399
Telefax:
E-mail: cosec@naptosa.org.za

Department of Education’s representative: Mr S Kralo
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Jikijwa046@gmail.com

DETAILS OF HEARING AND REPRESENTATION

The matter came before the ELRC in terms of Collective Agreement No. 3 of 2018 and was set down for an Inquiry on 6 May and 7 May 2025 at Westering Primary School, Gqeberha.
The Department of Education was represented by Mr S Kralo, a Employee Relations Officer. The
interpreter was Mr N H Hart and the intermediary Ms N O Nxala.
The Educator was represented by Adv. G D Saayman of NAPTOSA.
The applicant submitted written closing arguments on 19 May 2025, as agreed and the
respondent on 20 May 2025 due to no electricity at the District Office. I have considered both
their closing arguments.
CHAIRPERSON’S DISCIPLINARY CHECKLIST
CRITERION YES NO COMMENT
Explain the purpose of the enquiry. √
Was the educator issued with a notification of enquiry? √
Did an investigation take place? √
Was the educator informed of his right to representation? √
Was the educator informed of his right to an interpreter? √
Was the educator informed of his right to call witnesses? √
Was the educator informed of his right to state his case? √
Was the educator given sufficient time to prepare for the enquiry? √ BACKGROUND TO THE DISPUTE:
The Educator is permanently employed as a post level two (2) Departmental Head at Van Der
Kemp Primary School. The evidence bundle indicated that the grandfather of the learner approached the school principal during August 2024 to complain about the allegations against the educator.
The Educator was charged and pleaded not guilty to the following:

(1) Section 17(1) (b) of the Employment of Educators’ Act 76 of 1998, as amended, in
that he had committed an act of Sexual Harassment to a learner where it is said that:
• On or about 16 August 2024 inappropriately physically touched a then grade 6 learner, EK at Van Der Kemp Primary School.

(2) Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, in that he whilst on duty, conducts himself in an improper, disgraceful or unacceptable manner, where it is said that:
• On or about 16 August 2024, he made sexual remarks about EK, a then grade 6
learner at Van Der Kemp Primary School.

ISSUE TO BE DECIDED

I must decide whether the Educator was guilty as charged by the Department of Education.

SURVEY OF EVIDENCE

This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act, relevant to the dispute at hand. THE DEPARTMENT OF EDUCATION’S EVIDENCE
The first witness called by Department of Education, was Ms Charney Strydom. Strydom is an educator at Van der Kemp Primary School, teaching Grade 4. She knew EK, who was in her Grade 4 class but was in Grade 6 in 2024. Strydom recounted an alleged incident where EK and her friends approached her during break but could not discuss it at that moment. EK’s sister later informed Strydom about the incident, describing how a male educator allegedly held EK by her hips during an encounter in class. Strydom noted that EK did not mention any verbal communication during the incident and stated that she merely waited for the period to end. Additionally, Strydom confirmed that she authored a document but indicated that it did not contain any specific allegations regarding the physical contact by the educator.
The second witness was Ms Megan Claasen. Claasen is an educator at Van der Kemp Primary School,
where she teaches Grade 4, 6, and 7. She is familiar with EK, having taught her Afrikaans as her
First Additional Language, as well as Maths during the 2022 and 2023 academic years. However,
she did not teach EK in 2024, focusing instead on EK’s sister. Claasen recounted an incident from the previous year when EK and her sister approached her,
requesting to sit in her class. Claasen was initially confused about their request and inquired why
they wished to be there. EK and her sister expressed their discomfort in their own class,
mentioning that Mr. Hing made inappropriate comments regarding EK’s body, specifically
referencing her breasts. While Claasen could not recall the exact words used by Mr. Hing, she
confirmed that inappropriate comments about EK’s breasts were made. The report about these comments came from a learner named A, who indicated that EK's sister had informed Claasen about the situation. At the time of this request, EK was present in class. Claasen acknowledged that she was made aware of physical contact related to the incident and noted that there had been other similar incidents reported to her in addition to this one.
The third witness called by the Department of Education was EK, a 12-year-old learner currently in Grade 7, having been in Grade 6 the previous year. She is familiar with Mr. Hing, a teacher who taught her in Grade 5 but not in Grade 6 or 2024. EK recalled that during free periods, Mr. Hing sometimes behaved inappropriately, particularly when she asked to go to the gym. On one occasion, while wearing a blue dress that exposed her breasts, Mr. Hing looked directly at her and made her feel uncomfortable. After agreeing to her request to go to the gym, he grabbed her by the waist and pulled her closer. Feeling uncomfortable, EK stopped her oral presentation and left. She initially did not report Mr. Hing’s actions to anyone except for two friends, whom she confided in during the second break that day. EK later mentioned that there was another incident where Mr. Hing looked at her inappropriately after she dropped a pencil. In 2024, EK experienced a similar incident where Mr. Hing touched her inappropriately, attempting to reach her private parts in the presence of multiple classmates. EK felt scared and hesitant to report the incidents, fearing trouble. Her friends encouraged her to speak up, and eventually, she told her grandfather about the incident. After her grandfather reported it to the school, the principal instructed them to go home immediately and return the following day.

THE EDUCATOR’S EVIDENCE

The educator Mr Craig Hing was addressed regarding two charges involving EK, a Grade 6 learner during 2024 at Van der Kemp Primary School. In his testimony, Mr. Hing acknowledges that EK stated he did not physically touch her, and he concurs with her assertion, refuting the charge. Regarding a second charge, Mr. Hing notes that neither EK nor the accompanying witnesses provided any comments, and he similarly did not make any remarks.

However, he expressed disbelief at the testimony given by Ms. Claasen, suggesting that she harbours a personal vendetta against him. He highlights a close relationship between Ms. Claasen and Ms. Strydom, implying that their alliance could influence the allegations against him. Mr. Hing reflects on the timeline of the accusations, indicating that problems began only after the departure of the former principal.

      He claims that the current environment is politically charged, with individuals jockeying for positions within the school, which could be a motive for the allegations aimed at him. In response to claims from EK that he looked at her breasts and behind, Mr. Hing states he has been on a spiritual journey since late 2022, particularly following the passing of his sister, which has led him to be more introspective and committed to his faith. He insists on maintaining a professional distance from students, adhering to departmental protocols by ensuring that interactions are appropriate and respectful.

      He denied any intention to touch her private parts in front of the class and argued that if he intended to do so, he would have sent her friend away rather than risk such behaviour in front of multiple students. He emphasizes that he does not teach EK this year, maintaining that all his students are treated with equal respect and care, regardless of the accusations. He describes his current relationship with EK as distant, with minimal interaction due to not being her teacher. He notes previous instances where EK and her sister entered his classroom freely, affirming that he has called colleagues to observe his conduct, thereby reinforcing his assertion of professionalism and integrity in the classroom.

ANALYSIS OF EVIDENCE

Fairness requires that the position and interests of both the Educator and Department of Education are considered in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Labour Relations Act.
Sexual harassment may include:
Inappropriate Comments: Making suggestive or explicit remarks about a student’s body, such as comments regarding physical appearance, which can lead to discomfort or humiliation.
Unwanted Physical Contact: Engaging in physical interactions, such as grabbing or touching a student without consent, which can be perceived as an abuse of authority and a violation of professional boundaries.
Creating a Hostile Environment: Conducting oneself in a manner that fosters a climate of fear or discomfort for students, particularly if such behaviour is persistent or part of a pattern of inappropriate interactions.
In the matter of Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA) the Supreme Court of Appeal has laid out the accepted test applicable to both a trial court and an arbitrator when faced with a factual dispute, in particular when faced with two irreconcilable versions. According to this judgment (at para 5) the court concluded on the disputed issues by making findings on:
a) the credibility of the various factual witnesses.
b) their reliability; and
c) the probabilities
The court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. This finding will, in turn, depend on a variety of subsidiary factors, such as
• the witness’ candour and demeanour ;
• his or her bias, latent and blatant;
• internal contradictions in his or her evidence;
• external contradictions with what was pleaded or put on his or her behalf, or with established
fact or with his or her own extra-curial statements or actions;
• the probability or improbability of particular aspects of his or her version; and
• the calibre and cogency of his or her performance compared to that of other witnesses
testifying about the same incident or event.
A witness’ reliability will depend, apart from some of the factors above, on
• the opportunities he or she had to experience or observe the event in question; and
• the quality, integrity and independence of his or her recall thereof.
Finally, an analysis and evaluation of the probabilities and improbabilities of each party’s version
on each of the disputed issues are necessary components in reaching conclusion.
During cross-examination the witness Charney Strydom was asked to read a letter into the record. Strydom explained that the report was based on information from the learner but initially, only spoke to the learner’s sister, not the learner herself. She was questioned about the absence of physical touch in the letter, stating that this was due to speaking to the learner afterwards. She clarified that there wasn’t sufficient time to write the letter. The term "we" in the last paragraph referred to other teachers who were also informed. She was uncertain about whether the educator touched the learner’s breasts. It was emphasized that the physical touch was not mentioned because the letter was written before that information was known. The incident supposedly occurred in the educator's class, with two learners as witnesses. The sister of the learner, A approached her to discuss the matter, while the learner EK, was not present at that time. Under re-examination Strydom confirmed that the meeting with the learners took place on a Friday and recalled writing the letter on a Tuesday. The witness met EK on the Monday following the incident, just after EK returned from the office. Although initially stating that she had not met EK before writing the letter, the witness corrected herself, indicating she did speak with EK beforehand.
By the time of writing the letter, she was informed of allegations concerning physical contact, which came after writing the letter. The source of information about the physical touch was EK’s sister, with further explanation provided by another learner. The sister, demonstrated the physical touch, and it was clarified that she was not in the same class as EK, meaning only learner A demonstrated this to the her.
Assessing the credibility of Ms. Charney Strydom’s evidence involves examining various aspects, including her role as a witness, her relationship with EK, and the content of her testimony. As an educator at Van der Kemp Primary School, Strydom has a professional stake in the well-being of her students, which may enhance the credibility of her testimony. Her familiarity with EK, who was in her Grade 4 class, lends authority to her observations regarding EK’s behaviour and interactions with others.
Strydom recalls an instance where EK and her friends approached her during break but were unable to discuss their concerns at that time. This detail indicates that there may have been a sense of urgency or discomfort on EK’s part, as she felt compelled to seek assistance from a trusted adult. However, the fact that EK’s sister later informed Strydom about the incident rather than EK herself could raise questions about the immediacy and reliability of the original report.
Furthermore, Strydom’s testimony regarding EK not mentioning any verbal communication during the incident may imply that there were no explicit verbal threats or conditions attached to the alleged contact. While this absence of verbal exchange does not necessarily negate the seriousness of the situation, it may complicate the perception of intent or misconduct in the incident described.
Additionally, Strydom’s acknowledgment of authoring a document that lacked specific allegations regarding physical contact by the educator presents a discrepancy in her testimony. The absence of detailed allegations in her accounts may point to a lack of comprehensive knowledge about the events or suggest that the situation was not as clear-cut as other witnesses describe.
While Strydom’s professional demeanour and willingness to address the situation are positive indicators of her credibility, the limitations of her account—including her reliance on hearsay from EK’s sister and the lack of specific details regarding the reported behaviours—may impact the weight of her testimony. Overall, while Ms. Strydom adds valuable context to the situation, the effectiveness of her evidence depends largely on corroborating testimonies and the overall coherence of the accounts from other witnesses involved.
Under cross-examination Megan Claassen stated that learner, A is two years younger than EK, who was 11 years old at the time of the allegations, making A nine or ten years old. When questioned about her belief in a younger child’s testimony, she expressed that she would believe any child. Claassen mentioned that no specific words about EK’s breasts were said to her directly. She was asked about her relationship with Ms Strydom, affirming they are close friends, but she could not recall if Strydom sat next to her during break time on that day.
She was accused of trying to portray Mr. Hing negatively, to which she responded she could not deny any proof. Claassen explained that A requested to sit with her during normal school time due to discomfort around Mr. Hing, and that it happened on several occasions. When asked how many times EK came to her class, she stated she could not recall, but it was after the incident. She reported the matter to the principal. Claassen was questioned about A’s status as a potential witness, to which she responded she did not know. She confirmed that what she testified was based on what she heard from the children.
Evaluating the credibility of Ms. Megan Claasen’s evidence involves considering her professional background, her relationship with EK, and the specifics of her testimony regarding the alleged misconduct by Mr. Hing. As an educator at Van der Kemp Primary School, Claasen has a direct connection to the students, including EK, whom she taught during the 2022 and 2023 academic years. Her familiarity with EK provides context for her observations and indicates that she may have a vested interest in the safety and well-being of her students, which can enhance the perception of her credibility.
Claasen recounts an incident where EK and her sister approached her, expressing discomfort in their own class due to inappropriate comments allegedly made by Mr. Hing regarding EK’s body. This testimony indicates that EK felt comfortable enough to confide in Claasen about her discomfort, suggesting a trusting relationship. Claasen’s acknowledgment that she cannot recall the exact words used but confirms that inappropriate comments were made adds a layer of realism to her account; it reflects the often-unclear nature of verbal interactions, especially when they are distressing.
Moreover, the fact that Claasen received reports about these comments from another learner, A, lends additional support to her testimony. This indirect corroboration from a peer highlight that the concerns about Mr. Hing’s behaviour were known within the student community, thereby reinforcing the credibility of Claasen’s recollections.
Claasen’s admission of being aware of physical contact related to the incident also adds weight to her testimony. This acknowledgment suggests that the matter was serious enough to come to her attention and implies there might be a broader issue relating to Mr. Hing’s conduct. Furthermore, her reports of other similar incidents signify a pattern, which could contribute to the credibility of EK’s claims as well.
In summary, Ms. Claasen’s evidence appears credible due to her established rapport with EK, her professional position within the school, and her willingness to address reported concerns. While her inability to recall specific comments may limit the strength of her testimony regarding Mr. Hing’s exact words, the overall context and corroboration from other students bolster the reliability of her account.
Under cross-examination learner EK confirmed that friends encouraged her last year to tell her parents about the alleged incident involving Mr. Hing. Although she was uncertain about the specific month it occurred, claiming it happened in August. She stated that it took a long time before she informed her grandfather about the incident and mentioned that Mr. Felix advised her to speak to Ms. Claasen. When asked about her time in Ms. Claasen’s class, she claimed she didn’t do anything and did not inform her about the incident.
EK alleged that Mr. Hing attempted to touch her private parts, insisting that he was aiming to do so and confirming that she pushed him away. When presented with Mr. Hing’s future testimony denying any intent to touch her, she questioned why he would aim to touch her. EK recalled that Mr. Hing looked at her breasts while she was in grade 5, stating she noticed it while looking at his face.
She did not confront Mr. Hing about his gaze. EK mentioned a discussion with Ms. Claasen, Ms. Strydom, and A but stated that they offered no guidance on what to do. Despite claiming that Mr. Hing attempted to touch her, she remarked that he would say he had no such intentions.
The Labour Court in Potgietersrus Platinum Ltd. v CCMA (J1459/98 of 30 July 1999) held that, it is merely required of the employer to show that circumstantial evidence that an employee is guilty of the misconduct, is more plausible than the possibility that he/she did not commit the misconduct. Should the employer be able to demonstrate a sufficient evidentiary basis to implicate the employee on a balance of probabilities, a mere and persistent denial by an employee without offering an actual version in answer to the evidence of the employer, is not a sufficient defence. As pointed out by the court, consistent denial does not constitute an alternative persuasive version and undue weight should not be attached to this as opposed to detailed, consistent, corroborated, and essentially unchallenged evidence presented by the employer. Should the employer demonstrate a sufficient evidentiary basis to prima facie implicate the employee on a balance of probabilities, the onus to prove whatever defence / explanation he offers, lies with the employee.
During cross-examination, Mr. Hing was confronted regarding allegations of inappropriate behaviour towards the learner EK. He confirmed that while he denied touching her, he was specifically referring to an incident dated August 16, 2024, during which EK testified that he did not physically touch her. Mr. Hing categorically denied the accusation of attempting to touch her private parts, mentioning that he did not recall any incident of her pushing him, as he doubts her physical strength.

Mr. Hing recounted a conversation with Mr. Felix about the involvement of EK’s grandfather, expressing shock at the allegations and emphasizing his innocence. He stated that if the grandfather refused to communicate with him, he was free to involve the authorities.

Referring to Ms. Strydom’s testimony, he questioned why EK would report something untrue. He indicated that EK had mentioned discussing the matter with family and friends, suggesting that her confidence in her accusations might stem from encouragement from peers. He asserted that he treats all students equally and stated that prior to the incident, he had not been aware of the dynamics of the situation.

When asked about his spiritual journey in 2022, Mr. Hing explained its importance, arguing that such a commitment reinforces his values and would prevent him from engaging in inappropriate behaviour. He clarified that he raised this point not to generalize about Christians, but to illustrate how seriously he takes his personal beliefs, especially following a significant emotional period after his sister’s passing.

Regarding Ms. Claasen’s perceived vendetta against him, he maintained a professional demeanour, asserting that personal feelings should not interfere with professional conduct. He expressed confusion over EK’s assertion that he was looking at her inappropriately, questioning what could have led her to perceive him in that manner.

Mr. Hing criticized the timing of claims made by Ms. Claasen, suggesting that she should have reported her feelings of unease immediately to the principal, especially given her closeness to organizational leadership. He concluded by asserting that if further inquiries were made into his character, a different narrative would emerge, highlighting his openness and professionalism in his role as an educator.

A finding on a balance of probabilities is also not merely a mechanical balancing of evidence – or for that matter, the number of witnesses on each side. In Selamolele v Makhado 1988 (2) SA 372 (V) at 374J–375B the approach to the question whether the onus has been discharged was dealt with as follows:
“Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.”
Evaluating the credibility of EK as a witness involves considering various factors, including her age, the consistency of her testimonies, and the context of her experiences. EK, being a 12-year-old learner in Grade 7, may possess limitations in her understanding and articulation of complex events. However, her familiarity with Mr. Hing, having been taught by him in Grade 5, provides context for her perceptions of his behaviour. Her reports of inappropriate actions during free periods, including feeling uncomfortable with Mr. Hing's gaze and physical contact, suggest that she has a significant emotional response to these incidents. Her ability to recall specific events, such as the details of her attire and the circumstances surrounding the incidents, indicates a degree of clarity in her memory. EK's decision to confide in friends rather than immediately reporting the incidents may reflect her age and the typical behaviour of many children when faced with uncomfortable or confusing situations. Over time, encouragement from her friends and sharing the experience with her grandfather shows a gradual shift towards seeking support and taking action, which can be viewed as a sign of courage for a young person. However, the credibility of her account may also hinge on the consistency of her statements and how well they align with any corroborating evidence or witness testimonies. For instance, her mention of feeling scared and hesitant to report the incidents, as well as detailing her experiences in front of classmates, demonstrates the gravity of her claims. It also highlights the social dynamics that could have influenced her decision-making process at the time. Moreover, EK's reported feelings of discomfort and fear associated with Mr. Hing's behaviour may lend authenticity to her claims. Children often exhibit profound emotional responses to situations involving perceived authority figures, making their reactions significant when assessing the credibility of their accounts. Ultimately, while there may be concerns about the reliability of memory in children, EK appears to provide a consistent narrative of her experiences and the emotional impact of Mr. Hing's actions. Given her age, her insights reflect a sincere attempt to convey uncomfortable experiences, bolstered by the support she sought from friends and family. This context supports her credibility, although it remains essential to consider any external evidence or testimonies that may corroborate her claims.
The Children’s Act, 2005 and the Children’s Amended Act 2007, codifies the common law
principal of in loco parentis, which refers to a person who steps into the shoes of a child’s parents for a specific purpose. It means that a person acting in loco parentis, such as a teacher, has a responsibility to:
‘(a) safeguard the child’s health, wellbeing and development; and
(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation, and any other physical, emotional or mental harm or hazards’.
In the case of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC), the Labour Court has considered what it means to discharge an onus on a balance of probabilities. “It stated that it is not enough for the chairperson to simply find that the evidence seems to be evenly balanced (or that neither side’s evidence had been discredited) and that therefore the employer had not discharged its onus – especially if the evidence on both sides are diametrically opposed and mutually destructive. The conflicting versions must be weighed up against the inherent or general probabilities of the matter and a finding must be made. Both versions cannot be allowed to stand and a finding made on onus alone. The court stated that the enquiry is two-fold: there has to be balancing of the probabilities; and there has to be a finding on credibility of the witnesses.”
Mr. Hing’s evidence presents several factors that influence its credibility. Firstly, he consistently denies the allegations against him, asserting his innocence and emphasizing his commitment to professionalism and ethical conduct in his role as an educator. His claim of being on a spiritual journey, particularly after experiencing a significant personal loss, may lend a degree of sincerity to his assertions; he suggests that such a journey instills a strong moral compass, one that would prevent him from engaging in inappropriate behaviour.
Secondly, Mr. Hing questions the motives behind the accusations, suggesting that EK may have been influenced by peers or adults, raising doubts about her confidence in her testimony. He highlights inconsistencies in the timeline of events, such as the lack of immediate reporting by the teacher who expressed feeling unsafe, which could indicate ulterior motives or a lack of substantiation surrounding the allegations.
However, several elements could potentially undermine his credibility. His repeated assertions of innocence may come across as defensive, particularly when he speculates about the motivations of others involved without direct evidence. Furthermore, his emphasis on personal relationships and past experiences could be perceived as an attempt to shift blame or deflect attention from the core allegations.

Ultimately, the credibility of Mr. Hing’s evidence depends on the perspective of the audience weighing it against the testimonies and evidence presented. His consistent denial of wrongdoing, coupled with his professional demeanour and expressions of shock regarding the allegations, portrays a narrative of innocence. However, the circumstances surrounding the allegations, including potential influences on the learner and the lack of immediate action from other educators, add complexity to the assessment of his credibility.

The Constitution of the Republic of South Africa, 1996, provides an umbrella of rights to protect learners from sexual violence. Section 12 states that each person has the right to bodily integrity, and to not be treated in a cruel, inhuman or degrading fashion. This should be read with Section 10, which says that each person has the right to dignity.
Determining whether Mr. Hing is guilty of contravention of Section 17(1) (b) and Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, on a balance of probabilities involves evaluating the evidence presented by all witnesses against the backdrop of relevant considerations:

Both EK and Ms. Claasen provided evidence pointing towards inappropriate behaviour by Mr. Hing. EK described specific incidents where she felt uncomfortable due to Mr. Hing’s actions, including instances of physical contact and inappropriate comments about her body. Ms. Claasen corroborated EK’s claims, noting that EK and her sister sought her out for support due to discomfort related to Mr. Hing’s remarks.

EK, as a young learner, may have limitations in recalling details accurately, yet her consistent narrative about feeling uncomfortable lends weight to her testimony. Ms. Claasen’s professional background and her direct interactions with EK provide context that enhances her credibility. Furthermore, the fact that additional reports of similar behaviour by Mr. Hing came to light adds further context and suggests a pattern of behaviour.

Mr. Hing consistently denied the allegations against him, framing them within a context of personal and professional integrity. While his insistence on innocence should be considered, a mere denial does not outweigh the accumulation of testimony from credible witnesses presenting concerning accounts of his behaviour.

The testimony reflects a troubling pattern of behaviour involving allegations of inappropriate comments and physical contact that raise serious concerns about Mr. Hing’s conduct as an educator. This pattern, alongside the emotional impact on learners like EK, indicates an environment that was not conducive to her safety and well-being.

      Considering the collective weight of the testimonies, the corroborative details provided by witnesses, and the nature of the allegations, there appears to be a compelling case suggesting that Mr. Hing engaged in inappropriate conduct as an educator. Therefore, on a balance of probabilities, it would be reasonable to conclude that Mr. Hing is likely guilty of misconduct relating to inappropriate behaviour towards the learner.

Everyone has both the right to a basic education and the right to learn in a safe and secure environment. The Constitution states that each person’s individual rights must be respected and protected. This means that a person’s dignity, bodily integrity and special rights as a child must not be interfered with.
Section 7 of the Constitution goes further, though, and says that rights must be actively ‘promoted’ and ‘fulfilled’. This means that measures must be taken to ensure that people can enjoy the full extent of the rights that they are given. This may include active steps by the state or other people. The Constitution also speaks about how rights bind the state and other people.
Section 8 of the Constitution states that each branch of the state (government, the legislature and the courts) has a duty to ensure that rights are respected, protected, advanced and fulfilled. State institutions, such as schools, are especially bound by this section to enforce the Bill of Rights. This means that schools and the Department have the duty to protect learners’ rights to a basic education and must actively protect learners from being hurt or violated.
Section 8 also states that individual people and companies are bound by the Bill of Rights. This means, for instance, that any person who interferes with another person’s bodily integrity, dignity or rights as a child has infringed that person’s constitutional rights and must be held responsible for that.
The Constitution recognises the unequal starting position of bearers of rights, and states in Section 9 that each person has the right to equality.
Section 28(1)(d) of the Constitution of the Republic of South Africa, 1996, provides that ‘(e)very child has the right to …be protected from maltreatment, neglect, abuse or degradation.”
In Centre for Child Law v Minister of Justice and Constitutional Development and Others, 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) at para 26, it was stated:

“The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.”

The Children’s Act gives content to and supplements the special rights of children in the Constitution. It binds natural and juristic persons, such as schools or state institutions. The Children’s Act says that every decision regarding children must be made in the ‘best interests of the child’. This includes that children must be protected from physical or psychological harm caused by ‘subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence…’
Having considered the evidence and submissions in its totality, I am convinced that the Educator, Mr Hing is guilty of contravention of Section 17(1) (b) and Section 18(1) (q) of the Employment of Educators Act 76 of 1998, as amended.
The argument of the Educator that he was the victim of a conspiracy due to a vacancy for deputy principal, which was never put to any of the witnesses, caused by the infighting politics at school does not persuade me that he is not guilty herein. The argument about the date of the alleged incident in the above charges, does not have a bearing on the result herein.
The Court in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (15 August 2019) stated that:
“[16] …The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed.
The nature of the misconduct of which Mr. Hing has been found guilty is of the utmost seriousness. This is underscored by the constitutional obligation to protect children’s rights as stipulated in section 28(2) of the Constitution of the Republic of South Africa, 1996, which places the best interests of the child as a paramount consideration in all matters affecting them. Furthermore, Mr. Hing’s conduct stands in direct violation of the professional standards established by the South African Council for Educators’ Code of Professional Ethics, which seeks to safeguard learner safety and uphold the integrity of the teaching profession.
It is of additional concern that Mr. Hing has not acknowledged responsibility, nor expressed any remorse or willingness to rehabilitate. Such a position undermines the principles enshrined in the Children’s Act 38 of 2005, which mandates proactive measures to protect children from harm and emphasizes the importance of rehabilitation where appropriate. Mr. Hing’s failure in this regard indicates a continuing risk to learner safety.
The behaviours exhibited by Mr. Hing bear comparison to grooming conduct as recognized in South African jurisprudence, notably in S v M 2007 (2) SACR 539 (SCA), wherein grooming is identified as a precursor to sexual assault. The disciplinary consideration must therefore address whether it is justifiable to await an actual assault before imposing the ultimate sanction of dismissal, or whether dismissal upon conviction for grooming-related misconduct is warranted to prevent foreseeable harm. The decisions in Premier, Mpumalanga Province v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC) affirm the primacy of the public interest and child protection in such matters.
Mr. Hing’s conduct has demonstrably endangered the safety and well-being of learners within the educational environment. Allowing Mr. Hing to continue in his role poses an unacceptable and preventable risk to learners, contrary to the principles of fair labour practice as upheld in South African Police Service v Solidarity obo Barnard [2014] ZALAC 37, which recognize the legitimacy of dismissal in cases of serious misconduct involving vulnerable persons.
In determining the appropriate sanction, the enquiry must have due regard to the paramountcy of the best interests of the child as outlined in section 28(2) of the Constitution and the protective framework of the Children’s Act 38 of 2005. This obligation extends beyond the immediate learner(s) affected, encompassing all children potentially under Mr. Hing’s care now and in the future. Ensuring their safety and well-being must be the guiding principle of this disciplinary process. I therefore make the following ruling: AWARD
The educator, Mr Craig Hing is guilty of the contravention of Section17(1)(b) and Section18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended.
The educator, Mr. Craig Hing is dismissed with immediate effect.
Mr Craig Hing is unsuitable to work with children in terms of section 120(4) of the Children’s
Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the
Children’s Act 38 of 2005, notify the Director General: Department of Social Development in
writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005
that Mr Craig Hing 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.
That the Educator, Mr Craig Hing, is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.