Panellist: MN Masetla
Case Case number: ELRC1447-24/25MP

Date issued: 14/08/2025

In the inquiry by Arbitrator Hearing between:

Mpumalanga Department of Education Employer

And

Eugene van Jaarsveld Employee

AWARD

INTRODUCTION AND BACKGROUND TO THE RULING

1. This is an award in the inquiry by arbitrator proceedings between Mpumalanga Department of Education, the employer and Eugene van Jaarsveld, the employee.
2. The proceedings were held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995.
3. The proceedings commenced on 10 June 2025 and were concluded on 30 July 2025.
4. The employee was represented by an attorney, Mr G Meyer from Keet Attorneys.
5. The employer was represented by Ms G.S Chauke, Labour Relations Officer.

ISSUES TO BE DECIDED

6. I have to determine whether the employee committed the allegations of sexual assault raised by the employer.
7. To order appropriate relief.

BACKGROUND TO THE ISSUES IN DISPUTE

8. Following the allegations raised against the employee of the acts of sexual assault, the employer suspended the employee on 28 March 2025. The employee also received a notice of disciplinary enquiry in which the employee was charged in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998. The allegation/charge was as follows:

8.1. Charge 01

You committed misconduct in terms of Section 17(1)(b) of the Act in that around September 2024, during working hours and while in your place of residence that is located at the school, you committed an act of sexual assault on one of the learners at HTS Middleburg by-

a) Kissing her
b) Putting your hand underneath her skirt
c) Taking her hand and making her to touch your private parts

9. Both parties submitted bundles of documents. the employer submitted the learner’s statement while the employee submitted two bundles marked Exhibit A and B.
   PLEA TO THE CHARGES RAISED
10. The charges were read into record and put to the employee. After satisfying myself that the employee understood the charges, the employee then pleaded not guilty.
    Employer’s Case
11. The employer’s witness, the learner, testified under oath and stated that she was 15 years old. She is in Grade 9 at Hoerskool Piet Retief. She stated that in the year 2024, she attended school at Hoerskool HTS in Middleburg and was in Grade 8. Her Geography teacher was the employee, Mr Eugene van Jaarsveld whom she knew since Grade 3.
12. In September 2024, she was in class and it was almost the end of the period when she was discussing with the other learners. The boys made a remark and started laughing. Her friend explained to her what the remark meant. The remark was a sexual joke. After the period, the employee asked her what the remark meant. She then refused to explain what it meant. However, after a few days, she explained to the employee what the remark meant.
13. The following day whilst they were still working in class, there were still jokes about the remark. The employee then requested her to collect the printed paper work at his house which was approximately 100 metres from the class. The house is located inside the school premises. Since she has been to the employee’s house before because she was friends with the employee’s son, she then went to the house as instructed. She found the house not locked, she opened and closed the door to avoid two small dogs getting out. She then went to the study room. She heard the door opening. She then proceeded to look for the printed paperwork and found nothing. Then the employee came to her and said in Afrikaans “Jou hare is mooi braided”. The employee then pulled her close and kissed her whilst his hands were around her waist. She tried pulling away but he then put his hands under her skirt. She tried pulling away again but the employee pulled her back. She then succeeded in letting his hands off her skirt to escape. The employee then pulled her hands back and rubbed her hands on his private parts. She then looked at what he did. She tried pulling her hands away but the employee held her tight. The employee then said to her “please don’t tell anyone because I will lose my job, my wife and my children”. She was scared and told him that the bell was going to ring. She needed to get her bag.
14. She then reported to her parents during the December 2024 vacation. She only reported this in December because she had promised the employee that she would never tell anyone to protect him from losing his job, wife and children. She left the school because she was no longer comfortable there. She started talking to the employee after four (4) weeks as she started forgiving him. After her grandfather passed away on 9 October 2024, the employee told her to talk to him because he would help her. The conversation was through a text.
15. In December 2024, she called the employee to tell him that she told her mother. The employee started crying and asked her not to tell her mother.
16. The employer’s second witness, Ms Natasha Malan stated under oath that the learner is her daughter and is 15 years old. In December 2024, the learner told her that she needed to move to her father in Piet Retief. She asked her what the reason for wanting to move to Piet Retief was to which she said was for sport. She then told her that reason was not making sense to her. She then asked her mother to talk to the learner. Around the 28th of December 2024, she asked her to tell her the truth. The learner started crying and said that she must not tell her father because he would go to the police. She later calmed down and told her that in September 2024, she was in the employee’s class who asked her to go to his home to fetch printed work. She then went to the house and later heard the door open. The employee entered and the learner told him that the printed papers were not there. The employee drew the learner close to him and said her hair was beautifully braided. The learner told him that she did the hair by herself. The employee gave her a kiss and his hand went under her skirt. The bell rang and the learner went back to fetch her bag.
17. She decided to let the learner go to stay with her father in Piet Retief to prevent her from being exposed to this behaviour. She lost her daughter even though she is still alive.
18. Around 2 January 2025, she called the school governing body chairperson, Mr Haulthouzen to inform him about the issue. Mr Haulthouzen met with the employee who started crying and said he was sorry. The employee was asked to move out of the school. The management of the school did not want to take the matter further until she appointed an attorney who requested the principal to report the matter to the department. As parents of the learner, they opened a criminal case. Before this incident, she had a good relationship with the employee. She would ask for his wife to pick up her kids from school.
    Employee’s case
19. Eugene van Jaarsveld testified under oath that he is a teacher at HTS Middelburg for approximately twenty (20) years. He has a passion and love for the children. He has been professional and available to children talking to him since they felt comfortable around him. In 2024, his colleague asked him to talk to her daughter who was seeing a Psychologist.
20. He knew the learner from Grade 3 or 4 whose mother was his colleague. Since he stayed in the school premises with his colleague, their children played together and were welcome in their houses. The learner visited them often and would talk to his wife. The learner would talk to him about her unhappiness at home and her desire to stay with her father in Piet Retief. She complained that her little brother was favoured more than her and disliked her mother drinking alcohol. He would not discuss adult issues with her because she did not have the capacity to understand.
21. Around early September 2024, on a day school children were wearing casual clothes, he was in Grade 11 tourism class when the learner came to his class since they were not busy in their class. He had printed work for learners to give for the following day. Because the learner was there, he asked her to fetch the printed work at his house. He would not send a stranger and it was not usual for teachers to send learners to their houses. The learner went to fetch the papers but took longer to come back. The bell rang and he went to check on her. As he walked into the house, the learner was standing on the other side of the counter. He asked her why it took long but she laughed and said she did not find the papers. He walked past her to the study room and took the papers. He rolled them and tapped her. He told her that if it was a snake, it would have bitten her. They started moving out with the learner in front. Suddenly the learner turned back and gave him a kiss (piksoen). He was shocked and said to her that could not happen. He felt embarrassed. The learner then laughed and he told her that she needed to be in class. The learner said she was going to fetch her bag. He did not know how to handle the situation but told his wife. He did not report the incident to the school because, in the past, a lot of male teachers were asked to resign and were not protected. He further did not report it because he wanted to protect the learner as well because she was already in trouble with the school as a result of sending nude pictures to boys at school and using a cellphone in class. The learner was also in trouble with her mother for watching adult sex life content with her cellphone which was confiscated.
22. After that incident, he avoided situations where he would be alone. He stated further that there was a remark of sound in class made where learners started laughing. The learner asked him a few times about the meaning of the remark. The learner and her younger brother walked past a netball court and she asked him if he knew what that meant. He said he did not know. The learner came close to him and whispered that it was what adult people do. He then said to her “No man” and changed the subject. The learner continued to communicate on WhatsApp with him after the incident when she told him that she does not have a boyfriend. He told her that it was the reason she was sad.
23. He was later called by Mr Haulthouzen on 7 January 2025 into a meeting where he was informed of the complaint by Ms Natasha Malan. He explained what happened and Mr Haulthouzen said it was beyond his powers to resolve the complaint. He denied ever touching the learner. He was arrested and felt his reputation was gone.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
24. The employee is charged for allegations arising from Section 17(1)(b) of the Employment of Educators Act 76 of 1998 which provides as follows:

“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 employee”

25. In particular, the employee is alleged to have committed an act of sexual assault on the learner by kissing her, putting his hand underneath her skirt and taking her hand and making her to touch his private parts. These allegations are serious in the context of the trust that parents expect to exist between the educators and learners. The parents, as members of the community, cannot be expected to leave their children in the care of educators who commit acts of sexual assault on them. Educators are expected to live exemplary lives and guide learners into becoming better and useful future leaders in the society. It is against this background that sexual assault allegations made against an educator should not be taken lightly.
26. It is common cause that the learner, the learner was doing Grade 8 at HTS Middelburg in 2024. It is further not in dispute that the employee was the learner’s geography teacher. It is further not in dispute that the learner now attends school in Piet Retief.
27. The learner testified that she had known the employee for a long time since grade 3 and that she was friends with the employee’s son. The employee confirmed in his testimony that indeed he had known the learner since she was in grade 3 or 4. The employee confirmed further that the learner would visit him and his wife at their house. The learner would talk to his wife and also confide in her. This evidence presents a picture of the existence of trust that the learner had on the employee and his wife. From the testimony of the learner, I am unable to find anything ulterior as to why she would make such serious allegations against the employee. The learner, from my analysis of her demeanour during her testimony, appeared truthful and stood her ground in maintaining her version during cross examination.
28. The learner testified that in September 2024, during the employee’s class, a sexual remark was made and learners laughed. The employee asked her what the remark meant and she refused to respond. The following day thereafter, she explained the meaning of the remark to him in class. She told him in Afrikaans and said that it meant “Wat getroude mense doen”. Under cross examination, she went further to state that the employee met her at a netball field and asked her further if she was going to tell him what the joke meant or she would continue making jokes about it. This clearly paints a picture of a person who did not consider the remark in class as a co-incidence that needed to be ignored, but he continued to entertain it with a minor girl learner who looked up to him as a parent. Under cross examination, she stated that she did not scream at that time because she trusted the employee. The employee continued to entertain discussions of a sexual nature with a minor learner. If, as per his evidence, he could not discuss adult issues with her because she lacked the capacity to understand, it would be reasonable that he escalated the issue to the learner’s mother. This he did not do. It clearly shows the probability that he enjoyed sexual discussions with a minor. The fact that he entertained such discussion without reporting to the parent on the basis that the learner allegedly persisted with those discussions can only mean that he was preparing the learner for the conduct he is now charged for. As an adult, the employee should have known better that what he was doing with the learner was wrong. The employee, in his evidence, stated that on hindsight, he should have behaved differently. It cannot be correct that a learner whispers interpretation of sexual issues to a teacher and he keeps quiet about it. I can only find that he was indeed enjoying the discussion, a conduct I find is unacceptable from a person in his position.
29. It is further not in dispute that the employee requested the learner to go pick up some work at his house during class. This clearly confirms the learner’s version that she indeed knew the employee and has been to his house before. The employee could not send a stranger to his house. The learner indicated that whilst at the house, a door was opened and it was the employee. The employee’s version was that the learner took too long and he followed her. He found the papers and tapped her braids with a paper and said all these papers were in front of her. This is just not probable. The fact that the employee sent a learner to his house whom he enjoyed discussing matters of a sexual nature can only mean that he had the intention of committing sexual assault on the learner. Whilst the employee indicated that it was not strange for teachers to send their learners to their houses, this case is different due to what has been happening between them as I indicated above. The employee could have simply sent another learner to check on why the learner took long. The employee’s version is just not probable and is rejected.
30. The employee stated further that on his way out of the house, the learner walked in front of him. Suddenly, the learner turned back and kissed him. He felt shocked and embarrassed. If indeed that behaviour (kiss) was shocking and embarrassing to him as a teacher, it would be expected of him not to keep quiet about it. He would have reported it to the learner’s mother and to the school management. His explanation that he did not report it out of fear of victimization by the school is far from the truth. A learner who behaves in that manner cannot be protected. Because there was nothing wrong on his part, it was expected that he would report such a strange behaviour to be corrected. It is my view that this was planned by the employee. He could not be victimised for doing the right thing. On the contrary, he knew that the school management would ask him why he had sent a girl child to his house and he followed her alone. There was nothing to protect the learner from by keeping quiet about such an incident. By him keeping quiet, show that he had no interest in correcting the behaviour of the child because he enjoyed same.
31. The employee sought to create an impression that he was shocked and embarrassed by the learner’s kiss. He needed to protect himself and the learner. However, such a version was never put to the learner when she testified. The learner was never told that her cell phone was once confiscated by her mother for watching sex content and that she distributed nude pictures to boys. I find that the employee tried to create a defence which is not truthful. The majority of the things said were not put to the learner. I further find that the testimony of the employee’s wife was simply planned and prepared. She simply repeated what the employee had said.
32. After a careful analysis of the evidence presented, I find that the employee is guilty of the allegations levelled against him and accordingly, his version is rejected.
33. In arriving at the appropriate sanction, I have to consider the nature of the allegation, seriousness thereof, previous disciplinary record of the educator, mitigating and aggravating circumstances. I accept that the employee has been employed for approximately twenty (20) years as an educator and no evidence of previous disciplinary infractions was led. Sexual assault of a learner is, in my view a very serious misconduct. The educator is in a position of power and authority to the learner. Taking advantage of the learner’s vulnerability should not escape a harsher sanction. I am further guided by section 28(3) of the Constitution which provides that a child’s best interests are of paramount importance in every matter concerning the child. It will therefore not be in the interests of children to allow the employee to be involved further in the lives of children learners given that he is found guilty of such a serious misconduct. I am further guided by section 17(1)(b) of the Employment of Educators Act which 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 employee.
34. The employee, Eugene van Jaarsveld, is found guilty as charged by the employer, Mpumalanga Department of Education.
    AWARD
35. Having been found guilty, I make the following award:

35.1. The employee is hereby dismissed.

35.2. In terms of section 120(4) of the Children’s Act 38 of 2005, Mr Eugene van Jaarsveld is unsuitable to work with children. 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 to enter his name into the register.

35.3. The employee, Mr Eugene van Jaarsveld 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 the ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

M.N Masetla
Panellist