IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – GAUTENG PROVINCE “the Employer”

AND

KW MASHELE “the Employee”

SECTION 188A INQUIRY BY ARBITRATOR RULING

CASE NUMBER: ELRC38 – 25/26GP
DATE AWARD SUBMITTED: 18 March 2026
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter sat on several days and the last day of the inquiry took place on 17 February 2026 at the Teachers’ Centre in Soshanguve. The parties requested opportunity to submit written closing arguments. The Employer duly submitted its closing arguments, but by 13 March 2026 the Employee has not submitted any.
2. The Employer is the Gauteng Department of Education, represented by Ms Mathobela, L. The accused Employee is Mr Mashele, KW, (“Mashele”), represented by Mr Malope, M, an official of SADTU.
3. Mr Usiba, G, acted as interpreter, and the intermediary was Ms Padi, M.
4. The Inquiry proceeded in the absence of the Employee on 17 February 2026.
5. The Employee had been properly notified of the time, date and place of the proceedings. Proof of the notification is available in the file of the Council. The Employee failed to attend the arbitration hearing without reasonable and just cause. No proper reason or explanation was supplied for the failure to attend by the Applicant. Although he sent a document purporting to be a medical certificate via his union representative, who applied for another postponement, the Employer opposed the application and challenged the validity of the document purporting to be a medical certificate. The representative could not give any indication of how long the Employee will be incapacitated, neither did the certificate.
6. I found the document to not constitute a valid medical certificate. It was the first page of a Z36 form which is used by the Department of Labour for purposes of certifying a disability status. It usually contained two pages, but the document presented by the Employee had only the first page. It was a memorandum with no contact details of a medical practitioner or diagnosis purporting to be a medical certificate. The Employee previously also submitted a medical certificate which the Employer accepted and the matter was postponed. The Employee’s representative was afforded the opportunity to attend the inquiry and to represent the Employee, but he elected to not participate in the inquiry.
7. The CCMA Practice and Procedure Manual, which could be considered to be a guideline in respect of Council matters as well, as the Council is accredited by the CCMA, also underscores the Commissioner’s discretion to decide whether an application for postponement should be granted or refused; a discretion that should be exercised judicially and for substantial reasons. It also enjoins a party seeking postponement to approach the CCMA/Council timeously and as soon as the circumstances which may justify an application become known to the applicant. Most importantly, the application for postponement must be bona fide and not used as a tactical ploy to delay and to gain unfair advantage and should not cause prejudice to the other party.
8. The purported medical certificate presented constitutes hearsay evidence as outlined in Mgobhozi v Naidoo NO & others (2006) 27 ILJ 786 (LAC). This judgment states that medical certificates are no different to other documentary evidence and that it is not sufficient for employees to simply obtain a copy of a medical certificate and present this in the absence of at least an affidavit from the doctor concerned without questions being asked.
9. I refer to the Constitutional Court judgement in Psychological Society of South Africa v Qwelane and Others, [2016] ZACC 48; 2017 (8) BCLR 1039 (CC) where the CC reaffirmed its observations on postponements and stated that postponements are not merely there for the taking. They have to be properly motivated and substantiated. And when considering an application for a postponement a court has to exercise its discretion whether to grant the application. It is a discretion in the true or narrow sense – meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply because it disagrees. The decision to postpone is primarily one for the first instance court to make. In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement. The Labour Court has also continuously stated that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest.
10. I did consider that I had previously postponed the matter due to the Employee being medically incapacitated. I also had regard for the serious nature of the allegations levelled against the employee. In this instance section 28(2) of the Constitution 108 of 1996 is of utmost importance, which provides that a child’s best interests are of paramount importance in any matter concerning a child. It is the interest of learners and the education system as a whole that sexual misconduct against educators concerning children or learners be dealt with expeditiously without undue unsubstantiated delays.
11. In Carephone (Pty) Ltd v Marcus NO and Others 1999 (3) SA 3O4 (LAC) the LAC echoed the principles applicable in postponements as alluded to in Qwelane above, it drew attention to the fact that postponements at the CCMA (and Councils) should be treated with circumspect as they are not necessarily on a par with that in courts of law for the following reasons: ‘The first is that arbitration proceedings must be structured to deal with a dispute fairly quickly with the ‘the minimum of legal formalities’ (section 138(1) of the LRA).
12. In Nnxuba Yethemba Municipality v South African Local Government Bargaining Council and Others (PR41/2020) [2022] ZALCPE the LC reiterated that the mere production of a medical certificate does not somehow automatically stay the arbitration proceedings. An unattested medical certificate is not something which can be waved about at an arbitration like one would a magic wand with a view to bringing proceedings to a halt so as to justify the disappearance of the person to whom it was issued. If the medical certificate and the circumstances surrounding its production are contentious and an arbitrator is not only entitled, but in fact obliged, to consider the content of the certificate together with the circumstances in which it was obtained in exercising his discretion as to whether a postponement should be granted.
13. The facts are analogous to those in Old Mutual Life Assurance Company SA Ltd v Gumbi[111]. [2007] 4 All SA 866 (SCA). After several failed attempts to delay and frustrate a disciplinary hearing, the representative of the employee produced a medical certificate recording that the employee was suffering, inter alia, from a headache. The Chairperson adjourned the hearing for an hour to enable the employee to recover. He suggested that the employee take headache tablets. He refused to postpone the hearing. The Court agreed with the Chairperson who it regarded as having ‘justifiably’ doubted the reliability of the medical certificate and inferred that the employee was ‘malingering’. In coming to its conclusion, the Court held that, in the circumstances of that case, the mere production of a medical certificate was not sufficient to justify the employee’s absence.
14. On the basis of the above authority, I dismissed the application for postponement and therefore proceeded in the absence of the accused Employee. The SADTU representative of the Employee was requested to stay present and participate in the inquiry and look after the interests of the Employee. He consulted with his seniors and decided to not participate in the process.

Issue to be decided

15. I am required to determine whether Mashele is guilty of the charge levelled against him. Should I find him guilty of the charge, I then need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Mashele is unsuitable to work with children.

Background and charges

16. Mashele, an educator employed at HS Hercules (“the School”), is charged with one allegation of misconduct.
17. Charge 1 – charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998. It is alleged that between August 2024 and December 2024 he had a sexual relationship with a grade 12 learner (hereinafter referred to as “BLM”) in HS Hercules where he was also employed as educator.

Plea

18. In the absence of Mashele I entered a plea of not guilty to charge 1 on his behalf.

Summary of evidence

19. The Employer submitted the documents contained in Bundle A and Annexure A.
20. The proceedings have been recorded digitally, and a summary of the Employer’s witnesses’ evidence follows below. What follows is only a summary of the evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses. The fact that I have not captured all of it herein should not be misconstrued that I have not taken all the evidence presented into account. My findings are, accordingly, within the context of all the evidence provided by the parties during the arbitration hearing.
21. The matter relates to, inter alia, allegations of sexual misconduct towards a learner who was a minor at the time of the alleged incidents. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the minor witnesses for the Employer as BLM in this award.

Employer’s case

22. Immanuel Ramathavha (“Ramathavha”) testified under oath that he is the principal of the School where BLM was a learner in grade 12 in 2024. Mashele was an educator at the School. He received an email from the mother of BLM wherein she alleged that BLM had a sexual relationship with Mashele, and that BLM was pregnant with his child. She requested a meeting on 3 February 2025. They met in his office. The parents of BLM told him that she was pregnant and that Mashele was the father. A18 reflects the email he received from Khopotso Mapaila, the parent of BLM.
23. A28 reflects the sworn statement he received from the twin brother of BLM, wherein he stated that he recognised Mashele on a photograph his mother showed him, and that BLM admitted to them that Mashele was responsible for her pregnancy. The statement of the twin brother confirmed what the parents told him in his office.
24. On 3 February 2025 he also had a meeting with Khopotso Mapaile, the mother of BLM, and the deputy principal, Ms Bester. A21 reflects the minutes of that meeting. She confirmed her statement that Mashele impregnated her daughter, BLM. She was distressed that an educator took advantage of a learner in an inappropriate relationship. She was concerned that BLM might not have been the only victim. She stated that BLM had been a virgin before Mashele had a sexual relationship with her. The situation was deeply upsetting within their cultural values. Ramathavha expressed his regret and informed the mother that the matter will be reported to the district labour office. He also informed the mother that she had the option of opening a case of statutory rape as BLM was underage when she became pregnant in 2024.
25. A22 reflects the minutes of the meeting he had with Mashele and Ms Bester. He informed Mashele of the allegations. Mashele indicated that he wanted to seek professional guidance. His only response was to ask the name of the learner.
26. A24 reflects his report to the district labour office.
27. Mmaphefu Moleya (“Moleya”) testified under oath that she is the school social worker. This case was allocated to her. A31 reflects her report and recommendations.
28. She received the statement reflected in A26 from BLM. BLM stated that in August 2024 Mashele phoned her and proposed that she become his girlfriend. Mashele also came to her home, and they started to have a love relationship during the time that she was writing preliminary exams in August 2024. Around September 2024 she and Mashele started to engage in sexual activities at his place near Laerskool Booysens in Commercial Street. Mashele rented a room not far from his parent’s home. He stayed alone. During October 2024 she missed her period. She told Mashele and he suggested that she buy a pregnancy kit to test her. She did and the result was positive. She sent Mashele a picture of the pregnancy test and he said to her that he would support her in whatever decision she made regarding her pregnancy. She had to decide whether to terminate the pregnancy or to keep the child. She decided to keep the baby, and she informed Mashele of her decision. He told her that he supported her decision because he also wanted a baby. They decided to keep the pregnancy secret because if her mother knew she might have asked her to terminate the pregnancy. During the final exams she was tired and slept a lot. She wanted to enrol at UJ in 2025, but because of the pregnancy she had to take a gap year. Her biggest fear and concern were that if Mashele was charged he would lose his job and would not be able to support her child. She stated that she was willing to co-operate with the inquiry and give information that she and Mashele were dating and that she was pregnant with his child.
29. BLM signed her statement on 13 February 2025. Her twin brother and her mother signed as witnesses.
30. Moleya’s subsequent attempts to contact BLM failed. On 9 April 2025 Moleya contacted the mother, who told her that if she reprimanded BLM, BLM would go and stay with Mashele.
31. On 10 April 2025 Moleya arranged to go and meet BLM at her home. BLM refused to give Moleya directions to her home and refused the intervention of a social worker. Moleya called her and told BLM that she was there to support her, but BLM refused to discuss the matter. Moleya contacted the mother who told her that they relocated and that they did not want to be involved in the case any longer. Moleya never managed to meet with BLM and her mother.

Employee’s case

32. The Employee elected not to attend the inquiry. Despite being given the opportunity to stay present, question witnesses and look after the interests of the Employee, his representative elected not to participate in the inquiry.

Summary of arguments

33. Ms Mathobela on behalf of the Employer argued that she would apply for hearsay evidence to be admitted in terms of the provisions of Section 3(1) of the Law of Evidence Amendment Act 45 of 1988.
34. The nature of the proceedings is alleged sexual misconduct by an educator, and the hearsay evidence is tendered to demonstrate that there was an improper sexual relationship between an educator and a minor learner.
35. The purpose of the evidence goes to the heart of the dispute.
36. The reason why the evidence of BLM, her mother and her twin brother that is contained in their statements that has been submitted, could not be presented first hand by their own testimony, was that they refused to respond to notifications to attend the inquiry on several occasions. The Employer submitted subpoenas that were issued by the Council and properly served on the three witnesses. The serving of the subpoenas was followed up with Whatsapp communication to make them aware of the importance and need to comply with the subpoenas. The implications of non-attendance were also explained to the mother. However, all the Employer’s attempts to ensure the presence of the three witnesses at the inquiry were in vain. The witnesses ignored the last attempt available to the Employer to secure their presence, leaving the Employer without any further recourse.
37. Excluding the contents of the statements of the witnesses on the basis of being hearsay, would be a far greater injustice than any uncertainty that might result from its inclusion. The Employer referred to inter alia, the case law of Staggie 2003 (1) SACR 232 (C) 240, S v Ndhlovu AND Others 2002 (6) SA 305 (SCA), Kapa v S 2023 (4) BCLR 370 (CC), Ramavhale 1996 (1) SACR 639 (A).
38. The Employer argued that the hearsay evidence is corroborated by the principals evidence in terms of what the mother reported to him, as well as the social worker’s evidence in terms of what BLM stated to her. The evidence should be admitted in the interest of justice as it would prove the improper sexual relationship of the Employee, an educator, with a minor leaner in the same school where he was employed. This will be in line with the requirement of section 28(2) of the Constitution as it would place the interest of the minor child who was impregnated by an educator in paramount importance.
39. The accused Employee did not submit any arguments.

Analysis of evidence and argument

40. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
    a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) If the rule or standard was contravened, whether or not –
    i. The rule was a valid or reasonable rule or standard;
    ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    iii. The employer has consistently applied the rule or standard.
    iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.
41. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
42. All the allegations in the charge against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, were considered and weighed against the abovementioned standard of proof.
43. I have entered a plea of not guilty on behalf of the accused Employee. In his absence I have only the evidence of the Employer to consider. I will assume that the Employee disputed all the allegations in the charge sheet.
44. The Employee has been charged with the following misconduct: Charge 1 – charged with misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998. It is alleged that between August 2024 and December 2024 he had a sexual relationship with a grade 12 learner (hereinafter referred to as “BLM”) in HS Hercules where he was also employed as educator.
45. I am mindful of the fact that the Employee is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
46. I accept that the Employee’s defence in respect of the alleged sexual relationship is a blanket denial of any wrongdoing.
47. I will first deal with the admissibility of the hearsay evidence contained in the statements of BLM, her mother Khopotso Mapaila and BLM’s twin brother.
48. Section 3(1) of the Law of Evidence Amendment Act 45 of 1988 provides as follows:

“Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.
(4) For the purposes of this section-
‘hearsay evidence’ means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;
‘party’ means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.”.

49. I considered the nature of the proceedings, the nature of the evidence, the purpose for which the evidence is tendered, the probative value of the evidence, the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends, any prejudice to a party which the admission of such evidence might entail, and other factor which should be taken into account, in order to decide whether the evidence of the witnesses who testified in the internal disciplinary hearing, should be admitted in the interests of justice. I also take into account that arbitration proceedings are not the same as civil or criminal proceedings.
50. In Makhi Kapa v The State CCT292/21[2023] ZACC 01 the Constitutional Court acknowledged the general aversion to the admission of hearsay evidence in criminal cases since hearsay’s reliability cannot be tested by cross-examination or other processes. Notwithstanding, the CC held that hearsay evidence will be reliable and, subject to the assessment and conclusions on the other considerations, admissible if it is not contradicted by “other objectively proven facts” and ultimately, “fit[s] into the picture” sketched by the rest of the evidence. The CC judgment also relied on the Supreme Court of Appeal’s judgment in S v Ndhlovu 2002 (6) SA 305 (SCA), where hearsay evidence was admitted due to “the numerous pointers to its truthfulness”.
51. The CC, in evaluating whether it was in the interests of justice to admit Ms Dasi’s statement, considered all of the factors listed in section 3(1)(c) of the Law of Evidence Amendment Act. The consideration of probative value was central to the case.
52. In assessing the probative value of the statement, the CC recognised that in key respects, Ms Dasi’s statement mirrored all the objective evidence placed before the Trial Court. For these reasons, the CC held that Ms Dasi’s statement had sufficient probative value to warrant its admission.
53. The Respondent provided reasons why the witnesses could not be called to testify in this arbitration hearing. Despite all attempts, including the last resort of issuing subpoenas, the three witnesses simply refused to attend the inquiry to give viva voce evidence. The assumption that there was apprehension based on the fact that the dismissal of the Employee might impact on his ability to financially support the child he fathered, is probable. The prejudice to the Employer in ruling out that hearsay evidence, outweighs any possible prejudice to the Employee, and would fly in the face of the requirements of Section 28(2) of the Constitution. In the circumstances I rule that the contents of the statements of Khopotso Mapaila, of BLM and her twin brother are admissible hearsay evidence.
54. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The version of BLM has been materially the same throughout the investigation, as relayed to her mother, her twin brother and the social worker.
55. BLM stated that the Employee proposed love to her and that sexual intercourse took place between her and the Employee, an educator in the School where she was a learner. The sexual relationship resulted in her falling pregnant with the child of the Employee.
56. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the employee committed the misconduct as contained in charge 1. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding

57. The accused employee, Mashele, KW, is found guilty of the following misconduct:
58. Charge 1 – contravening section 17(1)(c) of the Employment of Educators Act 76 of 1998 in that between August 2024 and December 2024 he had a sexual relationship with a grade 12 learner (hereinafter referred to as “BLM”) in HS Hercules where he was also employed as educator.

Sanction

59. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
60. Mashele’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behaviour does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with learners at a school and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant BLM being a minor female learner to be lured into a sexual relationship by an educator, and to be impregnated by him. It had a devastating impact on her family and her future, resulting in her having to give up her intended studies for at least a year, and dealing with an unforeseen family going forward.
61. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of having a sexual relationship with a learner in the same school, which I keep in mind considering the nature of Mashele’s misconduct.
62. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of summary dismissal is fair and appropriate in the circumstances.

Sanction

63. In terms of section 188A(9) of the LRA I direct that the employee, Mr Mashele, KW, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005

64. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act 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 state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
65. The parties were quested to submit arguments in this respect. I have not received any arguments in this respect and therefore make this ruling on my own accord. In view of my finding of the serious nature of the Employee, Mr Mashele’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. The mother of BLM expressed the fear that she might not have been the only one. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.
66. Mr Mashele, KW, is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, 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 38 of 2005, that Mr Mashele, KW, 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.

COEN HAVENGA
Senior ELRC Arbitrator
18 March 2026