17 June 2025 2025 -ELRC127-24/25KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO.: ELRC127-24/25KZN
IN THE INQUIRY BY ARBITRATOR BETWEEN: –
KZN EDUCATION DEPARTMENT APPLICANT/EMPLOYER

AND

GUMEDE S RESPONDENT/EMPLOYEE

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 11 JUNE 2025

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, Truro House, Durban. These proceedings were digitally recorded.
[2] Ms Monica Mtetwa, a Labour Relations Officer, represented the applicant (employer) and Mr l. Magagula from SADTU represented Mr S. Gumede, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 12 July 2024, 2 August 2024, 11 October 2024, 29 January 2025 and 9 May 2025. Mr Magagula applied for the matter to be postponed on 12 July 2024 as they contended that they were only handed the bundle at this sitting hence they were not ready to proceed as they required time to prepare hence the matter was postponed. The hearing commenced on 2 August 2024. On 29 January 2025, Mr Magagula submitted that the employee was unwell and was at his doctor’s rooms thus he applied for the matter to be postponed. He subsequently produced Mr Gumede’s sick note and the matter was postponed to 9 May 2025, a date agreed to by all parties. On 9 May 2025, there was no appearance by Mr Gumede or his representative, Mr Magagula. The Council provided proof that the employee party was duly served with the Notice of this hearing on 8 April 2025; and after granting an indulgence of more than 30 minutes, the matter proceeded. The matter was concluded on 14 May 2025 when the employer submitted their written closing arguments which was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in a bundle of documents which was marked as bundle “A” and utilized as a common bundle.
[6] The nature of the process and all rights was explained to the parties.
ISSUES TO BE DECIDED
[7] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[8] Mr Gumede is employed as an educator at Isikhwelo Primary School. As a result of the serious nature of the allegations against him, he is on suspension as from 9 April 2024.
CHARGES

The employer preferred the following charges against Gumede;
[9] Be advised that you, Mr S.G. Gumede, appointed by the Head of Department of the KwaZulu-Natal Department of Education [“the Department”] in terms of the Employment of Educators Act, 1998 (Act No. 76 of 1998) as amended [“the Act”], as an Educator at Isikhwelo Primary School [‘the School’] is hereby charged with misconduct as follows;
CHARGE 1
You allegedly committed an act of sexual assault on learners at your School. You committed an offence in terms of Section 17(1)(b) of the Act.
Count 1

On or about 19 February 2023 and 13 December 2023, you allegedly touched Learner X, a learner at the ‘School’, buttocks/bum while she was in your class, and you further promised her money if she does not report you at home. You thus committed an offence in terms of Section 17(1)(b) of the Act.
Count 2
On or about the 1st school term 2024, you allegedly touched Learner Y at the School, buttocks/bum while she was in your class, and you further promised to lend her your cell phone if she does not report you at home. You thus committed an offence in terms of Section 17(1)(b) of the Act.
Count 3

On about 8 February 2024, you allegedly lifted the uniform of Learner B, a learner at the ‘School’ and proceeded to touch her buttocks/bum while she was in your classroom. You thus committed an offence in terms of Section 17(1)(b) of the Act.
Count 4
On about September 2023, you allegedly during cultural day called Learner A, a learner at the ‘School’, to your classroom and pulled down her undergarments (undies). You thus committed an offence in terms of Section 17(1) (b) of the Act.
CHARGE 2

You allegedly on or about 13 June 2023 while on duty, conducted yourself in an improper, disgraceful or unacceptable manner, in that you called Learner Z, a learner at the ‘School’, to your classroom during break time where you inappropriately stared at her buttocks/bum and you inappropriately invaded her personal space by closely positioning your face to her forehead thus making her uncomfortable. You thus committed an offence in terms of Section 18 (1) (q) of the Act.
CHARGE 3

On or about the 1st school term 2024, your allegedly whilst on duty, contravened Section 10 of the South African School Act 84 of 1996, as amended, in that you administered corporal punishment on Learner Y, a learner at the School by hitting her on her hand and then bribed her with R5. You thereby contravened Section 18 (1) (a) of the Act.
PLEADINGS
[10] Mr Gumede pleaded not guilty to all the charges.

SUMMARY OF EVIDENCE AND ARGUMENTS

What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE EMPLOYER’S CASE

Four (4) witnesses testified, namely Learner A, Learner B, Ms B.L.P. Tsekiso and Mr N.E. Mngoma.
LEARNER A
[11] She is twelve years old and in 2023 she was in Grade 5A. Mr Gumede was teaching Grade 5C in 2023.
[12] She was practising for a Zulu traditional dance as the following day was Heritage Day. When they practice their dances, they wear their school uniform.
[13] After dancing she went to drink water at the concrete area where she met Mr Gumede. He asked her to do the Ozina Zulu dance for him and she refused as she would have to lift her legs up high when doing this dance. She told him that she would rather do the Gqoza dance. While doing the Gqoza dance for him, her pen fell down and he told her to carry on dancing; he would pick up her pen. She then stopped dancing, picked up her pen, went to the tap, washed her face and went back to where the other learners were.
[14] The next day they did the Zulu dance. She met Mr Gumede next to his class and he told her to come to his class. When she went to his classroom, he closed the door and they both sat down on chairs. She had written her name on the middle of her thigh. Mr Gumede pulled up her uniform and told her that he was looking at her tattoo. While she was still seated, he then pulled down her panties and she said; ‘no sir’; she pulled up her panties, opened the door and ran out. He told her that she must not mention what happened and he was going to give her his phone to play with.
[15] She went back to her classroom, sat down and put her face down on the desk.
[16] She later told Learner B what Mr Gumede had done to her because Learner B was also sharing her story with Learner X, Learner Y and Learner Z. Learner Z told her that when she fell in class, her panty was showing and Mr Gumede was just looking. Learner Y told her that she had cried when Mr Gumede hit her and he told her that she must stop crying and he will give her R5.
[17] Mr Gumede had hit her with the duster and she also witnessed him hitting the learners with a duster. He would ask the learners to show their fingers and then he would stamp their fingers with his hand, saying that he is casting the demons out of them.
[18] She was present when Learner B wrote a letter and gave it to Ms Zulu.
[19] On the day of catering, all the learners from Grade 5A and 5C were all gathered at the Grade 5B classroom. There was no one in the Grade 5C classroom when Mr Gumede called her.
[20] Under cross-examination she testified that when Mr Gumede hit her on her fingers with the duster it was painful. She did not report Mr Gumede when he punished her with the duster because a lot of educators hit them and it was not the first time that an educator had hit her.
[21] The Grade 5C classroom is adjacent to the Grade 5B classroom. She did not know who was in Grade 5B at that time. When Mr Gumede closed the classroom door, nothing came to her mind. She thought that she was wearing her uniform on the day Mr Gumede called her to the classroom. Before this incident, nobody had told her about Mr Gumede’s behaviour.
[22] Mr Gumede lifted her uniform up close to her hips and while holding her uniform up he used his other hand to pull down her panties. She asked him; ‘sir what are you doing’. She did not know why her panty did not tear.
[23] When she ran out of the class, she did not see anyone outside. There was no one in the assembly area which is in front of the classes. When she went to class 5A, Ms. Maphumulo was there but she did not tell her anything as she was scared.
[24] She told her friends about her incident on the day Learner B wrote her letter. She had been scared to tell them in case they told her that she was lying. She decided to write a letter about the incident and not bottle this up because she saw Learner B writing a letter.
LEARNER B
[25] She is currently in Grade 6. Mr Gumede had taught her when she was in Grade 5.
[26] She wrote a letter to Ms Zulu, telling her how she was feeling about what Mr Gumede had done to her which she did not like. She requested Ms Zulu to tell her how she should narrate this story to her mother.
[27] Learner A, X and Y were with her when she wrote her letter. She told the learners how she was feeling and what Gumede had done to her then they told her what had happened to them. They told her that Mr Gumede was abusing them hence they decided to write the letter because they were tired of being abused by Mr Gumede.
[28] When Ms Zulu received her letter, she called them. She told Ms Zulu her story. Ms Zulu thereafter went and spoke with Mrs Sibisi. Ms Zulu asked if anyone had come to her, she told her no one had come to her.
[29] She had gone to Mr Gumede’s class to look for Ms Nxumalo and Ms Sibiya to say her goodbyes to them. They normally find Ms Nxumalo in Mr Gumede’s class but she was not in his class. When Mr Gumede asked her to come inside the classroom, she went inside. He then asked her why she did not close the door; thereafter she closed the door. He sat down and asked her to come closer to him; then she went closer to him. He lifted her uniform up and touched her buttocks. Then Ms Sibisi knocked on the door, she went and opened the door for her and then she left and went home. She did not report the incident to anyone at home.
[30] She did not report the incident to Ms Sibisi because she was not used to her and she was scared of her but she had informed Ms Zulu. She did not know if Ms Sibisi had seen what had happened inside the classroom.
[31] Learner A had told her that she had written a ‘tattoo’ on her thigh and she was in Ms Maphumulo’s class, washing dishes with another learner, Mr Gumede had sent the other learner for water and called Learner A to come and sit right next to him. He requested to see her ‘tattoo’ and then Learner A said, ‘no sir’. Learner A also told them that when they were practicing the traditional Zulu dance, she went to drink water and met Mr Gumede who asked her to do the Zulu dance for him. Learner A told Mr Gumede, ‘No sir’ and that she rather do the Gqoza dance. Learner A’s pen fell down and Mr Gumede told her that he will pick the pen up and she must do the Zulu dance. Learner A refused, picked up her pen and left.
[32] Under cross-examination she testified that this incident took place in 2024. She only knew of Mr Gumede’s Grade 5C classroom. She had been to Mr Gumede’s classroom before the incident and she was treated just like the other kids.
[33] On the day of the incident, when she went to Mr Gumede’s class, she was with her friend and her sister however she went inside the class alone because her sister asked their friend to accompany her somewhere.
[34] She did not leave after finding out that Ms Nxumalo was not in Mr Gumede’s class because Mr Gumede had asked her to come in. When Ms Sibisi knocked on the door, Mr Gumede was touching her on her buttocks at that time.
[35] She did not know what the time was but it was after school. The distance from the door to Mr Gumede’s desk where he was sitting was over 2 metres. She did not talk to Mr Sibisi and could not remember if she made eye contact. She did not know if Ms Sibisi, who was at the door, saw her because she was facing the other direction and was talking to someone.
[36] The windows in Mr Gumede’s class are clear but are green at the bottom. She did not know whether someone from outside could see inside the classroom.
[37] She was also scared of Ms Zulu. She included the other learners’ names in her letter because they asked her to put their names so that their stories can also be heard.
[38] Among her friends, she spoke out first. They wrote the letter when they were sitting together in class. After sending the letter to Ms Zulu, Ms Zulu called and asked them what happened and then each of them told her their story. Then Ms Zulu said that she was going to take the letter to Sibisi.
[39] She did not report the incident to anyone at home because she was scared.
[40] She disputed that they wrote the letter together because they were planning to destroy Mr Gumede’s life. She and her friends were not lying about Gumede.
BUSISWE LINDIWE PRIMROSE TSEKISO
[41] She is a DCES Circuit Manager at the Pumelela Circuit Management Centre.
[42] She compiled her report pertaining to the allegations of sexual harassment which occurred at Isikhwelo Primary School, which school falls under her supervision.
[43] The principal phoned her and reported this matter to her as the parents were at school to inform the principal that they have reported the matter to the SAPS. She thereafter asked the principal to invite the parents for her to do the investigation on the following day.
[44] The principal indicated that he was informed by the parents what their learners had experienced at school and the things that were done to them by Mr Gumede.
[45] Thereafter, she called the parents and they indicated their concerns. She obtained the parents’ permission to obtain their children’s statements in their presence. She called the learners individually for them to make their statements and to check the authenticity of what was reported to her.
[46] The learners told her that Mr Gumede would touch them in places they were not comfortable and they mentioned their bums, and that his hand would touch the boobs of the learners. One of the learners said that Mr Gumede would call her to the table, drop his pen down and ask her to pick it up and as she bent down to pick up the pen, she would find him like drooling and looking at her in a manner that the learner was not comfortable with. Others learners told her that Mr Gumede would ask them to remain behind after school and he would ask the learners to do the Zulu dance facing him as the learner was dancing, she would feel uncomfortable because Mr Gumede would be looking at her private part as the learner was putting her leg up and down while doing the Zulu dance.
[47] During her investigation, the learner confirmed that it started by her informing the teacher that she was comfortable to talk to.
[48] After consulting with the learners, she called Mr Gumede and she sat with the principal, her scribe and Mr Gumede who stated that he loved his learners and taking care of those learners. He did not accept what was reported by the learners. She requested him to put whatever he was saying in writing and hence she obtained his written report.
[49] She then reported the matter to her CES verbally and requested Mr Gumede to report at the circuit office as the parents were protesting at the gates, demanding that Mr Gumede not be at school as the learners were not feeling safe anymore. She thereafter compiled the report.
NKOSINATHI EMMANUEL MNGOMA
[50] He has been the Principal of Isikhwelo Primary School for almost 15 years. Mr Gumede was one of the educators at Isikhwelo Primary School.
[51] Ms Sibisi and Mrs Zulu, who are educators at the Isikhwelo Primary School came on the morning of 16 February 2024 to report that the learners had reported allegations against Mr Gumede to them.
[52] Mrs Zulu and Mrs Sibisi told him that a few learners came and reported to them that Mr Gumede was touching them on their private parts. While he was listening to that incident, two of the parents of these learners came to meet him and told him that their children had made allegations that Mr Gumede had touched them on their private parts. The parents told him that they had already reported the matter to the police station. He then reported this to his supervisor, Mrs Tsekiso who advised him to call the parents of these children the next day to talk about this matter.
[53] He did not interview the learners because the matter was already reported to the police station.
ANALYSIS OF EVIDENCE AND ARGUMENT
[54] The employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[55] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[56] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[57] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[58] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[59] One of the objects of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra 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 the state or any other person having sufficient interest in the protection of children.”
[60] On 2 August 2024 and 11 October 2024, Mr Gumede was present at the arbitration hearing when the employer’s witnesses, Leaner A and Learner B testified; and he completed his cross-examination of these two witnesses.
[61] On 9 May 2025, Mr Gumede chose not to attend and participate in the hearing despite the date being agreed upon and the Notice being duly served on him by the Council. The employer on 9 May 2025, led the testimony of Ms Tsekiso and Mr Mngoma and thereafter closed their case.
[62] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[63] Learner A testified about two incidents involving Mr Gumede; one pertaining to him asking her to do a Zulu dance for him and the other in which he lifted up her uniform and pulled down her panty. Leaner B testified that Mr Gumede called her into his classroom, lifted up her uniform and touched her buttocks.
[64] Learner B corroborated Learner A’s testimony as Learner B confirmed that she was the first person to speak out about Mr Gumede touching her to her friends thereafter Learner A shared what had happened to her and; Learner B confirmed that she had written the letter about her allegations against Mr Gumede.
[65] As habitual, in cases of sexual incidents, there are no witnesses. Both Learner A and Learner B in their evidence-in-chief and under cross-examination gave a consistent account of what transpired.
[66] Mrs Tsekiso testified that she obtained the learners’ statements with their parents’ consent. She gave an account of what the learners told her pertaining to what Mr Gumede would do to them which resulted in them being uncomfortable.
[67] Mr Mngoma testified that he was approached by Ms Sibisi and Mrs Zulu as well as the parents regarding the allegations against Mr Gumede.
[68] I have considered the relevant cautionary rules relating to child witnesses and single witnesses which requires that the evidence accepted should be substantially satisfactory in respect of material aspects.
[69] It is trite law that in a disciplinary hearing both the employer and employee parties will be afforded an opportunity to cross-examine the other parties’ witnesses and during that cross-examination a party needs to challenge any evidence that they disagree with and put their version to the witness on the stand.
[70] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the LAC held, “that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examination but, indeed, also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may, in general, imply an acceptance of the witness’ testimony.”
[71] Mr Gumede did not challenge the testimonies of Learner A and Learner B and neither did he put his version to them. Mr Gumede however put to Learner B that the learners wrote the letter together because they were planning to destroy his life, which Learner B disputed and stated that she and her friends were not lying about him.
[72] Mr Gumede did not deny any knowledge about the allegations made against him by Learner A and Learner B and neither did he deny that he committed any wrongdoings. His allegation that these learners wrote the letter as they were planning to destroy his life has no substance. The question is why would these two minor learners, aged 11 and 12 create a plot or be seeking revenge against Mr Gumede.
[73] There was no evidence of a vendetta against Mr Gumede or that the witnesses had lied or fabricated evidence against him. I accordingly find no probable motive for the witnesses to have lied at the arbitration hearing. Importantly, Mr Gumede did not provide any probable evidence that would support his notion that these witnesses were indeed lying. Both Learner A and Learner B came across as credible witnesses.
[74] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[75] In Mudau v MEIBC & Others [2013] 13 ILJ 663 [ LC] the court held that the task of an arbitrator in terms of section 188A is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged with and if so whether there exists a basis in fairness to terminate the employment relationship.
[76] Section 28 [2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[77] Having regard for the totality of the evidence, I find the version of the employer more plausible, logical and the more probable version, and that Mr Gumede is guilty.
[78] The employer did not call witnesses in respect of Charge 1 Count 1 and Count 2, Charge 2 and Charge 3. As there was no evidence presented in respect of Charge 1 Count 1 and Count 2, Charge 2 and Charge 3, I find Mr Gumede not guilty of these Charges.
[79] The testimony by Learner A and Learner B pertaining to charges are compelling for me to find on a balance of probabilities that Mr Gumede is guilty of Charge 1 Count 3 and Count 4.
SANCTION
[80] In terms of Section 17 of the Employment of Educators Act, it is mandatory that an educator convicted under this section must be dismissed.
[81] There is no discretion to impose a lesser sanction than dismissal. Dismissal is a statutory sanction.
AWARD
[82] The employee, Mr S. Gumede, is found guilty of contravention of section 17(1)(b) of the Employment of Educators Act.
[83] The employee, Mr S. Gumede, is dismissed with immediate effect.
[84] The employer, the KZN Department of Education must inform the employee, Mr S. Gumede of his dismissal immediately on receipt of this Award.
[85] Mr S Gumede is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[86] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr S. Gumede’s name as contemplated in section 120 in Part B of the register.
[87] The ELRC must also send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr S. Gumede’s SACE certificate.