IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
KRUGERSDORP
CASE NO.: ELRC1235-25/26 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

MCDONALD MONDE TSHAWE EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 11 May 2026 and 24 July 2026
Closing Argument: 31 July 2026
Mitigating / Aggravating Factors: 31 July 2026
Date of Award: 18 August 2026
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Inquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held on 11 May 2026 and 24 July 2026, at Pro-Practicum School in Krugersdorp, and virtually. Ms. M. Delman represented the employer. Mr. M. Muntswu, a SADTU union official, represented the educator. The proceedings were recorded digitally. The employer’s bundle is marked ‘E’. The Educator did not present documentary evidence.

ISSUE TO BE DECIDED

2. I am required to determine if the Educator had committed a sexual assault offence against a learner as proffered by the Employer. If I find in favour of the Employer, I will determine the appropriate sanction.
3. The educator disputes touching the learner and kissing her on the mouth. ALLEGATIONS PROFERRED AGAINST THE EMPLOYEE
   3. The Employer levelled one count of misconduct against the employee in
      terms of Section 17 (1)(b) of the Employment of Educators Act, Act 76 of 1998
      (“Act”): –
      Allegation 1: It is alleged that while on duty, on or around 01 September 2025, you committed an act of sexual assault on TK, a Grade 6 learner at FJL Wells Primary School, by touching her and kissing her on the mouth while in the storeroom of a class.

EVALUATION AND SUMMARY OF EVIDENCE

4. The following issues are common causes between the parties:

4.1 The Educator has been employed at FJL Wells Primary School;
4.2 He is a PL1 educator and was employed in January 1992;
4.3 The educator knows TK, a learner at the school. He was on duty at the school on 1 September 2026. He was with TK in the storeroom on 1 September 2025.

5. TK testified that she is 12 years old. Her date of birth is 02 July 2013. On 1 September
   2025, Mr. Tshawe came to her class and requested that she assist him to collect
   money for a bonanza event. She assisted Sir with the money collection from other
   classes.
6. On their way to Sir’s class, he asked her if she was going to kiss him. She took it as a
   joke, and they laughed about it. When they arrived in his classroom, he chased
   two learners away who came to pay in the storeroom. They went into the storeroom,
   which is adjacent to Sir’s classroom. He showed him a picture on his phone and
   placed his hands on top of her breast. Shortly after, he told her, “Come and hug papa”.
7. As she hugged him, he came close to her lips, and she tried to push him away.
   However, he kissed her on the lips twice. She left and cried as she went to the tap to
   wash her face and drank water. She proceeded to the classroom. Her classmates saw
   her crying and enquired. She informed them that Sir touched her and forcefully kissed
   her on the mouth. Her classmates suggested that she report the incident to Ms. Biyela.
8. She went with her friends OM and TG to report to Ms. Biyela, who escalated it to the
   principal. The same day, after school, as she was playing with her friends, Sir
   approached her and pulled her to the side and told her not to report the storeroom
   incident to her parents, as he would lose his job. She was disappointed in him because
   the learners loved him more than all the educators at school.
9. During cross-examination, she confirmed that Sir asked her if she was going to kiss him. She took it as a joke. Sir kissed her twice on the lips in the storeroom. It was only the two of them in the storeroom when he kissed her. The other two learners were left. She was sitting when he asked her to hug him. She stood up to hug him.
10. After hugging, she tried to move away, but he held her tight, preventing her from moving. He kissed him twice; his hands were on her chest. She cried all the way to class. She went with her two friends, OM and TG, to report the incident to Mam Biyela. She reported the incident to her parents when she arrived home.
11. TG testified that she is 13 years old. Sir came to their class and asked TK to assist him collect the money for the bonanza event. They left the classroom together. TK came back to the class crying, and when they asked her what was wrong, she told them that Sir had forcefully kissed her. She advised TK to report the matter to Ms. Biyela.
12. The principal called them and asked for more information about the incident. They reported to Mam Biyela, who took them to the principal. After school, whilst playing with TK, she left when she saw Sir approaching TK. She stood by her examination-in-chief testimony during cross-examination. Further, they are disappointed because they trusted Sir.
13. OM testified that she is 13 years old. On 1 September 2025, Sir came to their class and asked TK to assist him collect the bonanza money. They left the classroom together. Later, TK returned to the class crying. They asked her why she was crying. She told them that she went into the storeroom with Sir. Sir showed her a picture on his phone and told her to hug Daddy. As she hugged him, he kissed her forcefully. She went to the tap, washed her mouth, and returned to class crying. She and TG advised TK to report the incident to Ms. Biyela.
14. After school, she saw Sir pulling TK to the side. When he left, TK informed her that Sir told her not to report the storeroom incident to her parents. During cross-examination, she reiterated her examination-in-chief testimony.
15. AM testified that she is 12 years old. On 1 September 2025, Sir came to their class and asked TK to assist him collect the bonanza money. She left with Sir. However, she later returned to the classroom crying. She told them that she went into the storeroom with Sir. He showed her a picture on his phone and told her to hug Daddy. As she hugged Sir, he kissed her forcefully.
16. She further told them that she went to the tap to wash her mouth and went back to class crying. They advised her to report the incident to Ms. Biyela. After school, she saw Sir pulling TK aside. TK informed her that Sir told her not to report the storeroom incident to her parents. During cross-examination, she reiterated her examination-in-chief testimony
17. Cynthia Bongiwe Biyela testified that on 1 September 2025, she was approached by TK and two other learners. They reported that Sir requested TK to assist him in collecting the money for the bonanza event. When they finished the task, Sir went with TK to the storeroom of his classroom, where she kissed her forcefully on the mouth twice.
18. TK was crying hysterically as she reported the matter to her. She informed TK that she would report it to the principal. She told the learners to return to the class. She went to report to the principal what the learners had told her. The Principal, Mr. Mphatswe, requested that she call the learners to the office so that he could source more information about the incident. She called the learners to the office, and Mr. Mphatswe interviewed the learners one at a time.
19. During cross-examination, she testified that the learner reported the incident to her. She escalated it to the principal, who took further steps.
20. Sello Mphatswe testified that she is the school principal. On 1 September 2025, Ms. Biyela came to his office and reported that TK had reported to her that Mr. Tshawe took her to the storeroom of his class where he kissed her forcefully and touched her.
21. He requested Ms. Biyela to call the learners to get more information. He interviewed them one at a time. TK informed him that she was helping Mr. Tshawe collect the money for the bonanza event. They went to Mr. Tshawe’s storeroom where Mr. Tshawe forcefully kissed her twice and touched her.
22. After interviewing all learners, he called Mr. Tshawe to the office and informed him about the allegations. Mr. Tshawe told him that he only thanked TK for helping him to collect the bonanza event money. Mr. Tshawe requested that he should not inform his wife about the allegations. His wife works at the school
23. During cross-examination, he testified that he called the learners to his office to interview them for more information about TK’s allegations. His report is based on the information he got from the learner. TK told him that he touched her bum. He had no close relationship with TK. It was the first time she reported anything to him. He had a good working relationship with Sir.
24. McDonald Tshawe testified that on 1 September 2025, he met TK when she was coming from the tap. He asked her to assist him collect the money for the bonanza event. He collected the money together with TK. They went to his storeroom. He did not close the door. He asked the two learners who were standing near the door to close it. He counted the money from the storeroom and left together with TK. He told her to return to the class. He denied touching and kissing TK.
25. During cross-examination, he admitted that he did not challenge the learners’ testimony that he came to the classroom and requested TK to go with him to collect the bonanza money. He was afforded such an opportunity to challenge TK. He told his representative to deny that he kissed TK. However, his representative was not given such an opportunity.
26. He admitted that he did not challenge the testimony that he told TK, ‘Are you going to kiss daddy?’ He denied that he told TK not to report to her parents. He did not tell the Principal when he informed him about the allegations that he was only thanking her.
27. He had a good relationship with the Principal. The Principal trusted him. He did not challenge the Principal’s testimony. He does not know why the Principal, TK and the other learners would lie about him.
28. He called TK from outside when he asked her to assist him with the collection of the money. In the storeroom, he stood next to the table, while TK stood next to the door. TK was checking the list. He was counting the money. CLOSING ARGUMENTS
29. The employer argued that Mr. Tshawe did not challenge TK’s testimony that he touched her breasts and forcefully kissed her twice on the mouth. He confirmed that he has a good relationship with the learner witnesses. However, he failed to explain why the learners would indicate that they have a good relationship with him and yet fabricate allegations at the same time.
30. He testified that Mr. Mphatswe’s testimony that he (Mr. Tshawe) told Mr. Mphatswe that his conduct was only to thank TK for assisting him. He confirmed that he had a good relationship with Mr. Mphatswe. He could not explain why Mr. Mphatswe would lie about him. He admitted that he did not dispute the testimony of TK, OM and AM; he pulled TK and told her not to report to her parents.
31. Mr Tshawe argued that TK testified that he told her when they were collecting money that she should kiss him when they got into the office. Mr Tshawe turned back learners who followed him and TK to the office. These two incidents gave her an opportunity to resist getting into the office.
32. TK, TG and OM’s testimony about where they found Ms Biyela to report the allegation was inconsistent. On the contrary, Ms Biyela said TK, TG, OM and AM found her in her class when they came to report. TK said Mr Tshawe kissed her twice forcefully in an interval of around two seconds, but she told O and T that it was at the same time. TK said she kissed her once in the storeroom and dragged her; as she was leaving, he kissed her for the second time.
33. OM initially said TK told her she was kissed once but later changed to two times. AM, whom TK did not tell her anything, demonstrated what she had not seen as if she were a credible witness. Mr Mphatswe said TK touched on the bums, whereas all other witnesses said in her breasts.
34. Therefore, he pleaded that he should not be found guilty due to the inconsistency of the employer’s uncorroborated testimony.

ANALYSIS OF EVIDENCE AND ARGUMENTS

35. The unchallenged testimony of the four learners is that Mr Tshawe requested TK from the class to assist her to collect money for the bonanza event. His version that he met TK outside the classroom was not put to the learners for test. He had an opportunity to challenge at least one of the four learners.
36. I find that his failure to challenge them and put his version to the test was calculated, not a mistake. He knew that he would not be successful because the learners were consistent with what occurred on the day.
37. His improbable version aims to conceal that he singled TK out by disguising money collection when he called her from the classroom. He tries to display as if he accidentally met TK outside. He probably planned to implement his mission in the storeroom. Hence, he picked her up from the classroom. Otherwise, if the money collection were innocent, he would not be making up the story of how he got TK to assist him.
38. However, I must state without any contradiction that it is not a requirement that a commission of the offence should be premeditated. In this case, the conspicuous presence of premeditation supports the probable value of the employer’s version.
39. The finding that the incident was premeditated is supported by TK’s unchallenged version that Mr Tshawe asked on their way to the classroom if she was going to kiss daddy. Mr Tshawe chose not to challenge this version because he probably knew he uttered the words, which he later actioned.
40. It is common cause that he went with TK to the storeroom and that it was only the two of them in the storeroom. In his version, he instructed the two learners who were standing near the storeroom to close the store. If there was nothing to hide, why did he want the door closed, leaving him and TK alone? His defence is that TK did not scream out for help. Her reasonable response was that the storeroom was too big to have been heard by others.
41. Mr Tshawe’s argument that the two incidents of telling TK if he was going to kiss him when they got into the office and when he chased the two learners who followed him and TK to the storeroom, gave her an opportunity to resist getting into the storeroom is misplaced. TK’s version is that she took the former incident as a joke.
42. It is disingenuous of him as a loco parentis to shift his responsibility on a twelve-year-old child. It is not what the learner did or ought to have done to prevent his untoward actions. He called her to hug him, which she did. I cannot apportion an iota of blame to TK for hugging him even if it were not by his instructions. It remains his responsibility to avert the same.
43. TK’s testimony is that in the storeroom, he showed him a picture on his phone and
    placed his hands on top of her breast and told her, “Come and hug papa”. As she
    hugged him, he came close to her lips, and she tried to push him away. He kissed her
    on the lips twice. TK’s testimony in chief and cross-examination about what occurred
    is consistent with no contradictions. She was consistent even when she told TG, OM
    and Ms Biyela. The same version was supported by AM, who overheard her narrating
    to TG and OM.
44. Mr Mphatswe argued that TK contradicted herself in the sequence of the events that occurred in the storeroom, particularly the kissing intervals. However, in his argument he did not dispute that TK said he kissed her twice. TK’s demonstration of how the two kisses occurred was consistent with her testimony.
45. I have noted the inconsistency in Mr Mphatswe’s statement and testimony that TK told him that he touched her bum instead of the breast. The inconsistency is not material as it does not take away the kissing, hugging and requesting her prior, if she was going to kiss daddy.
46. I find TK’s version to be more probable than Mr Tshawe’s. She is supported by TG, OM and AM’s testimony that she returned to the classroom crying and emotional. Her emotional state bothered her fellow learners, as they were persistent in finding out why she was crying. Her emotional state was concerning, which prompted them to insist that she report the incident to Ms Biyela. Similarly, she was emotional when she approached Ms Biyela and the Principal.
47. It is common that she had been with Mr Tshawe all this time. He could not explain why she returned crying. The link between what TK stated occurred in the storeroom and her emotional state upon returning to the class is overwhelming. She even washed her face and drank water at the tap after the incident. All these learners were consistent that Mr Tshawe was their most favourite educator, as he is loving and adorable among all the educators. She could not have faked the tears under the circumstances.
48. Mr Tshawe did not challenge TK’s testimony that he approached her after school to tell her not to report the storeroom incident to her parents. They did not hear the conversation between Mr. Tshawe and TK after school, though. However, TG and OM saw him pulling TK aside, as they were playing after school. Mr Tshawe, other than bare denial, did not explain what the private conversation with TK was about. The inference I can draw from the lack of explanation is that indeed he prohibited TK from reporting the storeroom incident to the parents.
49. Mr Tshawe concurred with Mr Mphatswe that they had a good working relationship. There is no reason why Mr Mphatswe could lie about him. In any event, Mr Mphatswe’s version is about what the learners and Ms Biyela informed him. He did not see anything. Similarly, there is no explanation why TK could fabricate the incident and her peers fabricate what they heard from TK, and that he took TK from the class, they saw TK crying and saw him with TK after school.
50. Mr Tshawe, despite having been warned at the beginning of the proceedings to challenge every part of the testimony which he believes to be untruthful by putting his version and questioning the employer’s witnesses through his representative, opted not to do so on crucial aspects, when given such opportunity.
51. His version, which seemingly even confused his representative, is not probable. He offered so much irrelevant and inconsistent information to mislead the proceedings. In contrast, the young learners provided straightforward, clear and consistent testimony, which I find more probable than that of their educator.
52. I am persuaded on the balance of probabilities that Mr Tshawe has committed the offence. Therefore, the employer has discharged its onus by proving on the balance of probabilities that Mr Tshawe had committed an offence. I find him guilty of contravening Section 17 (1) (b) of the Act.

SANCTION

53. Section 17 (1) (b) of the Act carries a mandatory sanction of dismissal for a sexual assault of a learner. I have found Mr Tshawe guilty of this offence. The parties submitted their mitigating and aggravating factors, which I did not capture herein, but which I did consider, despite the mandatory sanction.
54. In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court
    held 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”.
55. In light of the seriousness of the offence and the mandatory sanction it carries, I have no discretion to impose any other sanction, regardless of mitigating factors. As I have mentioned supra, the mitigating and aggravating factors are academic.
56. He committed the offence against a young girl. The parents and the Community have entrusted him with the care and protection of learners. Nonetheless, he shamefully destroyed this trust relationship. TK expected care and protection from her educator. In contrast, he turned her into his predator. He abused his position as educator and loco parentis. I find that the mandatory sanction of dismissal is indeed an appropriate sanction.

FINDING

57. The Employee, McDonald Monde Tshawe, is found guilty of a count of sexual assault of a minor learner in terms of Section 17 (1) (b) of the Act, which imposes a mandatory sanction of dismissal.
58. 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 McDonald Monde Tshawe is unsuitable to work with children, for the Director General to enter his name in Part B of the National Child Protection Register.
59. The ELRC is directed to forward a copy of this award to SACE.

Signed and dated at Pretoria on 18 August 2026.

MG Rabyanyana ELRC Panellist