18 March 2026 -ELRC 742-25/26 GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD IN DOE ALBERTON
CASE NO.: ELRC 742-25/26 GP
In the Inquiry by Arbitrator between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER
AND
THAMSANQA ASHLEY NYANDENI EMPLOYEE

Arbitrator: Mmamahlola Gloria Rabyanyana
Heard: 03 November,01 December 2025, and 19 February 2026
Closing Argument: 26 February 2026
Mitigating / Aggravating Factors: 26 February 2026
Date of Award: 16 March 2026
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Enquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

The Inquiry was held on 03 November, 01 December 2025, and 19 February 2026, at the Employer’s District Offices in Pretoria CBD and the Council’s Centurion offices. Mr. M. Ndlovu represented the Employer and the Employee was represented by Mr.D. Mokoena, a NAPTOSA union official.
The proceedings were recorded digitally. The Employee duly submitted his closing arguments and mitigating factors. The Employer failed to submit the closing and aggravating factors despite the extension granted.

ISSUE TO BE DECIDED

I am required to determine if the Employee was involved in a sexual relationship with a learner as proffered by the Employer. If I find the Employee guilty, I have to determine the appropriate sanction. ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
1. The Employer leveled one count of misconduct against the Employee in
  terms of Section17(1)(b) of the Employment of Educators Act, Act 76 of 1998
  (“Act”): –
  Allegation 1: It is alleged that during the year 2024, whilst on duty at Phateng
  In secondary school, you were involved in a sexual relationship
  with Tshiamo Mkhwebane, a Grade 12D learner at Phateng
  Secondary School.

EVALUATION AND SUMMARY OF EVIDENCE

The following factors are common cause between the parties:

5.1 The Employee, Mr.Nyandeni, (“hereinafter referred to as Nyandeni”) was employed as a PL1 educator on 07 November 2022 at Phatheni Secondary School.
5.2 The learner was doing Grade 11 at the school in 2024 and Grade 12 in 2025. Mr. Nyandeni knows the learner but did not teach her.
5.3 The text in Bundle A is between the learner and Mr. Nyandeni, which occurred in 2025. The USB is an audio clip of communication between Mr. Nyandeni and the learner in 2025.

SUMMARY OF EVIDENCE

Makgeru Mission Mohlala testified that he is the school principal. E4 is his statement. Mr. Nyandeni approached him and requested his intervention in a situation where Lindokuhle Kabini, a learner, was peddling lies about him that she had a relationship with him.
He convened a meeting with Lindokuhle Kabini and Ms. Mogele, an educator. She denied peddling lies about Nyandeni. She indicated that Nyandeni was in a relationship with her friend LM. Nyandeni was covering up this relationship as she had a fallout with LM. Nyandeni was afraid that she might spill the beans. Hence, he reported false information to divert attention.
Mr. Nyandeni denied the relationship with LM. When they called LM, she initially denied the relationship but confirmed it. She referred to Nyandeni by his first name, Thamsanga, and said that they communicate often. She called LM to corroborate her story.
LM mentioned that Nyandeni was in a relationship with TM, GA, and MF. LM’s role was to organize girls for Nyandeni in exchange for liquor. They called in the three girls. TM confirmed that she had a relationship with Nyandeni, but it was over. MF laughed at them without mentioning anything. GA said she could not say anything in Nyandeni’s presence. He escalated the allegations to the Department.
During cross-examination, he stated he called the parents of all these learners. The other learners alleged that he was used to buying them liquor. They addressed him on his first name, Thamsanqa.
Lindokuhle Thobela testified that she was 20 years old. In 2024, Nyandeni was teaching her Grade 10. Nyandeni was in a sexual relationship with TM, a Grade 11 learner, during 2024. He had many relationships with other learners, including her friend LM, AG, and TM.
During cross-examination, she said she was not sure about his relationship with LM. TM showed them her picture with Nyandeni inside his vehicle. She is not a friend of TM. She was part of the group that TM showed the picture. TM and LM are not friends. She had not seen Nyandeni with TM.
GA informed them in the toilets that she had sex with Nyandeni. Somebody overheard the conversation and told Nyandeni. Nyandeni had a guilty conscience and informed the principal that she was spreading rumours that he was in a relationship with LM

to cover himself. The Principal called her to the office to explain. She had ‘beef’ with LM because they lied about her. She denied having a relationship with Nyandeni.

LMG testified that she was 18 years old and 17 years old in 2024. Nyandeni taught her Business Studies in grade 10 in 2024. She is not a friend of TM. She was not aware that TM was in a relationship with Nyandeni. She reiterated during cross-examination that she was not aware of the relationship between Nyandeni and TM.
Tshiamo Mkhwebane testified that she was 20 years. She was 19 years old when the incident occurred in 2024. It all started when her friends asked her to request Nyandeni`s iPhone to take pictures as they were afraid. He lent her the phone. They took the pictures. She gave Nyandeni her phone number to send the pictures, which he did.
They continued to communicate on the phone. She became closer to Nyandeni and would ask him for money during break. He would give her the money when he had.
One Saturday, she asked to visit him at his place, which he agreed. He collected her from the gate. It was only the two of them in the room. He ordered McDonald’s meals. He kissed her, and she returned the kiss. They became intimate and had sex together. At around 6 and 7 pm, he dropped her at the taxi rank and paid the fare.
Her mom was angry with her and took her phone. Nyandeni told her that he saw that her mom took the phone because he put the status on her WhatsApp status that she will open a criminal case against whoever was having an affair with her daughter, However, they continued with their relationship until he cut her off.
She realized that she was in a relationship with GA and was always together. They attended Christmas parties together. GA confronted her and warned her to stay away from Nyandeni, as his family is aware of her. She stopped communicating with GA and Nyandeni.
A4 reflects her phone numbers. She was chatting with Nyandeni late at night. A28 is the conversation between her and Nyandeni at 10 pm on a Saturday. The chats were not school-related. She had sex with Nyandeni once.
During cross-examination, she reiterated that she had sex with Nyandeni on a Saturday. Nyandeni stays at Khutsong and does not know his fiancée. She was not aware that Madam Mabe was Nyandeni`s fiancée. They used a condom. She deleted the texts. It was the second time that she cut herself because she was sad that Nyandeni broke up with her.
She denied telling LM that she slept with Nyandeni. She had not been in Nyandenis car. Her communication with Nyandenis car by calling text and voice notes. She admitted that it was her voice note on 17 April 2025 where she said to Nyandeni that imagine if I had sex with you if it happens for real, I don’t know.” She sent the voice note to Nyandeni because she wanted to have more sex with Nyandeni.
She denied that she set him up as a revenge because she could not get him back. She loved him. She was surprised that the principal knew about her relationship with Nyandeni because she had not told anyone.
She admitted that A1 shows that she was the one going after Nyandeni. She admitted that Nyandeni did not love her as on A3 and 4. It was not correct for Nyandeni to chat with the learner at night about unrelated schoolwork. She would not complain if she did not know that Nyandeni was going out with GA. She is bitter about their relationship.
She admitted that if you love someone, you will do anything to get them. She referred to Nyandeni as Thamsanga as an A30. She visited Nyandeni and had sex. She did not tell anyone about the sex but told LM about her relationship with Nyandeni.
Thamsanga Ashley Nyandeni denied having a sexual relationship with TM. During cross-examination, he admitted that he communicated with TM at 18H30 and after 22H00 on A1. They communicate with learners for school-related matters. He denied having a relationship with her. Hence, he told her that she lied about him.
He could not text her during school hours because he was at school. He did not correct the learner that they needed to communicate during the day for school-related matters because he was seeking clarity from her.
There is no time set to communicate with learners because they communicate with them on a WhatsApp group at night. When asked why he did not rebut Lindokuhle `s version that he was in a relationship with her friend TM, he said she lied, and he did not know what she was talking about.
He reported the case to the principal, not the learners. He was not happy about the lies Lindokuhle was spreading about him. He denied that he approached the principal because he was guilty conscience.
He did not report TM being affectionate with him because he did not know about it. He denied having sex and kissing TM. If he did, she could not have sent a voice note saying people are saying I have slept with you, I wonder what will happen when the day it happens for real.
He denied picking her up from the gate and dropping him off at the taxi rank. TM lied that she cut herself with a razor after learning he was in relation with another learner. He denies having a relationship with the learners.
CLOSING ARGUMENTS
The Employee argued that the Principal’s testimony regarding the alleged relationship was based entirely on school rumors and hearsay. The Law of Evidence Amendment Act 45 of 1988, provides that hearsay is generally inadmissible unless it is in the interest of justice to admit it. In Naraindath v CCMA & Others, the court emphasized that while hearsay can be admitted in labor disputes, it must be reliable and corroborated. Here, the hearsay lacks any corroboration and should be disregarded.
Kabini testified about “circulating pictures,” yet the Employer failed to produce them. In Edcon Ltd v Pillemer NO (Reddy), it was found that an employer must submit actual evidence to support allegations of misconduct rather than relying on general statements. The failure to produce these photos should lead to an adverse inference against the Employer’s case.
TM admitted under cross-examination that she never had a sexual relationship with Nyandeni A voice note confirmed the TM was seeking romantic attention that Nyandeni did not reciprocate. In cases involving a single witness, the evidence must be “clear and satisfactory in all material respects” (S v Janse van Rensburg). The Complainant’s admission and the non-reciprocal voice note render her testimony unreliable and untrustworthy.
LM testified that the TM has a history of false accusations and confirmed the Nyandeni’s innocence. Where there are conflicting versions, the Commissioner must assess the credibility and reliability of witnesses. The Employer has failed to discharge the burden of proof. He prays for a finding of Not Guilty and be cleared of all charges to continue his professional service to the Department, the community, and his learners.

ANALYSIS OF EVIDENCE AND ARGUMENTS

It is a common cause that Nyandeni had WhatsApp chats with TM, not only after school hours, but also late at night after 22H00. These were frequent chats. He presented these WhatsApp messages as a defence that they contained no romantic content.
According to him, this is normal because, as educators, they chat with learners in WhatsApp groups. Nyandeni is irresponsible and disingenuous to compare the incomparable. It is not true that the educators would communicate in the Groups during the unholy hours. Furthermore, the Group chats are school-related during a reasonable time. His chats with TM are in contrast.
A personal chat between an educator and a learner about unrelated school matters late at night is outrageous and unacceptable. The chats contain romantic and flirtatious content and allegations of a love relationship. TM initiated most of the chats, though. However, Nyandeni entertained her and participated without correcting her to refrain from this.
Nyandeni is charged with an offence that occurred in 2024. The WhatsApp chats he presented occurred in 2025. These chats have a sexual connotation. Save for corroborating that Nyandeni had a more than educator /learner relationship with TM, which is glaring, the chats do not rebut what occurred in 2024.
His presentation of the chats is selective and did not cover the period in question. He deliberately omitted the 2024 chats because they would expose him. It is plausible that TM deleted her chats because they posed a problem with her mother.
Nyandeni did not challenge TM that he told her that he had seen a status on her phone posted by her mother stating that she would open a criminal case against whoever was having an affair with her daughter. This was when she confiscated TM’s phone following galavanting with Nyandeni. Furthermore, Nyandeni did not deny or challenge TM that they became closer and would give her money during break when she asked.
TM testified that she ended the affair when she realized that Nyandeni was romantically involved with GA. GA confronted her and warned her to stay away from Nyandeni, as his family is aware of her. This was unchallenged. However, this is corroborated by the WhatsApp chats as it was one of the relationships discussed late at night.
She testified that she initiated a visit to Nyandeni. Nyandeni accepted her request. They had sex at his place. Nyandeni’s defence is a bare denial about the visit and sex. There is an overwhelming link between their late-night WhatsApp chats that occurred post the sex event, addressing in his first name, and what Nyandeni and the learners reported to the Principal.
These persuaded me on the balance of probabilities that the visit and sex occurred. TM`s voice note of 17 April 2025imagine what will happen if I had sex with you for real,” refers to 2025. She was addressing to the rumors that were occurring in 2025 long after their relationship and sex.If it happened for real “ she meant at the time not in the past. She said she wanted some more sex with Nyandeni.
She confessed that she loved Nyandeni. The voice note does not exonerate him but instead strengthens the employer’s case. His chats with TM were all about sex, not school-related matters. She said she wanted another sex with Nyandeni. She would not have complained if she had not known that Nyandeni was going out with GA. TM divulged the information to the principal when she was probed. Therefore, it is not true that he set up Nyandeni to take revenge. Nyandeni instigated the trouble by reporting Kabini.
If indeed he had issues with Kabini allegedly peddling lies about him romantically involved with LM, why did he not also report that TM was accusing him of having an affair with GA?
Kabini and TM corroborated the Principal’s testimony on what they told him. Therefore, the employee’s argument that it should not be admitted as it is uncorroborated hearsay is misplaced.
I have noted a discrepancy between TM and Kabini. TM denied telling anyone that she slept with Nyandeni. However, the discrepancy is immaterial as it does not address the core issue that I am determining. The employers’ witnesses were credible and their testimony reliable. But for this immaterial inconsistency, their version is consistent and corroborates each other. Nyandeni’s WhatsApp chats corroborate their version. The link between the employer’s version and the chats is overwhelming.
I am satisfied that the employer has proved on the balance of probabilities that Mr. Nyandeni had a sexual relationship with TM. Therefore, the employer has discharged its onus of proving on the balance of probabilities that he had committed the offence. I find him guilty of contravening Section 17 (1) (b) of
the Act.
The employee submitted the following Mitigating factors:

• Mr. Nyandeni T.A began his teaching career in 2023 and has maintained an unblemished disciplinary record. He is a dedicated educator, as evidenced by his current degree in Education. This shows a serious commitment to love and care for learners in the education fraternity and to contributing more meaningfully to the education sector.
• He is the sole breadwinner for his one minor child, responsible for all their living expenses, school fees, and transport. He recently acquired a house for his family. Loss of income would place this home at immediate risk, leading to homelessness.
• He is also financially responsible for his grandmother, who depends on him for her survival, i.e., her medical and living expenses.

SANCTION

The court held in Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May
2021), that “The interests of the community cannot be ignored in determining an
appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility who cannot leverage their power and
the esteem with which they may be regarded to satisfy their sexual lust.
He engaged in a sexual relationship with a young adolescent girl. As an educator,
responsible parents and the Community entrusted him to care for and protect learners. However, he shamefully destroyed that relationship of trust.
The young girl expected care and protection from her educator; instead, she
became his predator. He abused his position as educator and in loco parentis. I find that dismissal is an appropriate sanction.

54. In light of the seriousness of the offences and the mandatory
sanction it carries, I have no discretion to impose any other sanction,
regardless of Mr Nyandeni’s mitigating factors. Therefore, he must be dismissed
in accordance with Section 17 (1)(b) of the EEA.

I find that Mr. Nyandeni is unsuitable to work with children. I invoke Section
120(4) of the Children’s Act No 38 of 2005 to declare him, on my own accord,
unsuitable to work with children.
1. The General Secretary of the ELRC must, in terms of Section 122(1) of the
  Children’s Act No 38 of 2005, 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 No 38 of 2005, that Mr. Nyandeni is unsuitable to
  work with children, for the Director General to enter his name in Part B of the
  National Child Protection Register.
The attention of SACE is drawn to the fact that Mr. Thamsanqa Nyandeni had
engaged in a sexual relationship with a learner.

FINDING

The Employee, Thamsanqa Ashley Nyandeni, is found guilty of having
a sexual relationship with a learner in terms of Section 17 (1) (b) of the Act,
which imposes a mandatory sanction of dismissal.
The General Secretary of the ELRC must, in terms of Section 122(1) of the
Children’s Act No 38 of 2005, 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 No 38 of 2005, that Thamsanqa Ashley Nyandeni is
unsuitable to work with children, for the Director General to enter his name in
Part B of the National Child Protection Register.
The ELRC is directed to forward a copy of this award to SACE.

Signed and dated at Pretoria on 16 March 2026.

MG Rabyanyana ELRC Panellist