IN THE EDUCATION LABOUR RELATIONS COUNCIL

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE HEAD OF DEPARTMENT
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR THABISO MICHAEL MOLOI EMPLOYEE

Case No: ELRC1354-24/25FS
Dates: 07 May, 23-24 July 2025
Venue: Provincial Department of Education, Bloemfontein

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Superintendent-General: Free State Department of Education (hereinafter ‘the employer’), and Mr Thabiso Michael Moloi, ‘the employee’.
2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was scheduled for 07 May, 23 to 24 July 2025 at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Ms Lindiwe Cweba, its Labour Relations Officer. Mr Desmond Serape, a Full-Time Shopsteward of the trade union SADTU, represented the employee.
3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with Section 138(7) of the LRA.
4. The proceedings were digitally recorded, and Ms Philani Nyezi was the Interpreter. Ms Thiti Mokgwamme was the Intermediary. At the end of the inquiry, the parties’ representatives requested to submit their closing arguments in writing by 01 August 2025, whereafter the award shall follow. This was granted.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee misconducted himself, per the allegations levelled against him. If I find that he did commit the misconduct(s), I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employer has employed the employee as an Educator since May 2015, and has been teaching Physics and Mathematics at St Bennet’s High School, Bochabela in Bloemfontein. Following alleged acts of sexual misconduct in November 2024, the employee was not suspended but was released on bail at pending criminal proceedings for the same allegations.
7. The allegations levelled against the employee are as follows:

Count One (1)
You have contravened Section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that on 02/11/2024 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you hugged and touched the buttocks and breast of a grade 10 learner (…………)

8. The employee (hereinafter the teacher) pleaded not guilty to the charge. He was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. His rights and obligations were also correctly explained to him at the commencement of the Inquiry.
9. For this award, the learners’ names shall be kept confidential. The female learner who was allegedly sexually assaulted was 15 years of age and in Grade 10 at the time of the alleged incident. It appears that the alleged incident took place in the employee’s office (departmental head).
10. The employee denied the allegations against him. No common cause factors were recorded. Preliminary issues, such as postponement applications, were dealt with as and when they were raised.

SURVEY OF EVIDENCE AND ARGUMENT

11. This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all the submissions in arriving at my conclusions.

Documentary Evidence

12. The parties handed in the following bundles of documents:
    Employer: The notice of the disciplinary hearing (charge sheet)
    Employee: None

Employer’s Case

13. Ms M, a 16-year-old female learner who was in Grade 10 in 202, testified as the employer’s first witness. She testified on how the incident took place on a Saturday morning during extra classes, when she went out of her class to consume water at a tap, and how she walked into the employee who upon seeing her, decided to invite her urgently to his office. Ms N stated that although she could not understand the urgency of the request, she decided to comply and accompanied the employee to his office.
14. Ms M testified that upon arrival at the office, the employee sat down, whilst she was standing. She stated how the employee checked on her wellbeing and difficult relationship she had with her mother at the time, as well as her grades which dropped over the past quarters. Ms M stated that she became emotional during the conversation, where after the employee offered her a fatherly hug, which she welcomed.
15. Ms M, (who became emotional on the stand), further testified that the employee then hugged her again for a second time, but that this time around, the employee touched her buttocks. She stated that she thought it was a mistake. Ms M stated that the employee, whilst hugging her, told her not to be afraid, and said that he knew that he was intimidating. She stated that she thought it was a mistake because she did not know the employee like that.
16. Ms M testified that the employee then asked her (whilst in the hug position) whether she was scared, and she did not respond. She stated that the employee said that “he was scared”. Ms M stated that the employee continued to hold her, and touched her buttocks again, and told her that “she must not think that he is touching her buttocks”.
17. Ms M testified that the employee then told her that he do not want to see him at his place, because he does not want trouble since school children can be problematic. She stated that the employee asked her whether it was the first time someone touched her like that. Ms M stated that after the employee said that about problematic school children, the employee then raised his hands up her body and her breasts as well. She stated that whilst doing that, the employee told her that “he was aware that she was uncomfortable. She stated that she froze right there and then.
18. Ms M testified that the employee then squeezed her breasts. She stated that she asked the employee to return to her class, but the employee did not respond. Ms M stated that the employee then asked her when will she see him again, and she respond during lunch time. She stated that the employee doubted her, and she said after school. Ms M stated that she gave those responses in order to get the employee to release her.
19. Ms M testified that she went back to the classroom of Mr Matroos, where she was supposed to be, and asked for a toilet break. She stated that she was in the employee’s office for close to 30 minutes, and that she felt weak on her way back to Mr Matroos’ class. Ms M stated that upon her arrival in the toilet, she cried and called her Aunt Mpho, and told her that she wanted to confide in her, on condition that she must not spread the news.
20. Ms M testified that her aunt was surprised, and called her back, and told her to go home immediately. She stated that she washed her face, and went back to class, and bumped into Ms K on her way back to class. Ms M stated that Ms K asked her a lot of questions. Ms M stated that she then arrived in class, and fecthed her backpack, and left. She stated that she hitched hiked to their home, and told the people in the car what happened, as well as her grandmother at home, where after her grandmother reported the incident to the school principal.
21. In cross-examination, Ms M disagreed with the employee’s denials of what transpired. She agreed that they spoke about her aunt, and that the alleged incident did not take place in May 2024, but reiterated that it took place in November 2024. Ms M stated that she has no reason to fabricate such a story, in that she always viewed the employee as a father figure, since the passing of her own father.
22. Ms K, a classmate of Ms M, also 15 years and in Grade 10 at the time (November 2024) testified as the second witness of the employer. She testified on how Ms M initially came late to school on that Saturday, and how Ms M left the class soon after Mr Matroos went out of the class. Ms K stated that Mr Matroos came back to the class, whilst Ms M was still out. She stated that upon Ms M’s return to class, Ms M immediately asked for a toilet break.
23. Ms K testified that she noticed that Ms M took too long, where after she decided to also ask for a toilet break to go and check on Ms M. She stated that she then found Ms M crying, wherein Ms M told her that she (Ms M) wanted to go home, where after Ms M went to class and fetched her backpack and left. Ms K described Ms M as having been fine when Ms M left the classroom the first time around, but returned to the class crying.
24. In cross-examination, Ms K stood by her testimony and stated that Ms M did not tell her what happened, but that she saw the state in which Ms M was during that time.
25. Mr Kholile Reginald Matroos ‘Mr Matroos’, also a Departmental Head, testified as the third witness of the employer. He gave an overview of what the Saturday classes entailed, and that Ms M was in his class for physics. Mr Matroos also stated how Ms M came late that morning, and how he reprimanded her. He stated that he then went to the office to make photocopies, and that upon his return to class, he found that Ms M was not in class.
26. Mr Matroos stated that he asked the class about Ms M’s whereabouts, and that Ms M returned to class a while later. He stated that he noticed that Ms M’s facial expressions were unhappy, and he thought that it was because he had reprimanded her earlier. Mr Matroos stated that some five minutes later, Ms M asked for a toilet break whilst in a crying state. He stated that upon Ms M’s return from the toilet, Ms M then just passed him and grabbed her backpack and left the classroom.
27. Mr Matroos stated that he then tried to follow Ms M, but could not get hold of her. He stated that he reported the situation to the principal, because he was not sure whether Ms M had a bereavement or something else. Mr Matroos stated that he also reported the matter again during lunchtime to both the principal and the employee. He stated that the employee told them that he (the employee) also reprimanded Ms M for being late that morning.
28. Mrs Thandeka Mogotso ‘Mrs Mogotso’, Ms M’s Grandmother, testified as the fourth witness of the employer. She stated that she was still taking a bath when her daughter received a call from Ms M, who told her daughter that a teacher summoned her to his office, and touched her private parts. Mrs Mogotso stated that she got a fright, in that Ms M did not want anyone else to know. She stated that she told her daughter to call Ms M back, because the call was cut off.
29. Mrs Mogotso testified that she wanted Ms M to leave the school premises immediately. She stated that another learner’s parents then gave Ms M a lift home, because they saw Ms M crying outside the school yard and of which they thought Ms M was robbed. Mrs Mogotso stated that upon Ms M’s arrival at home, Ms M related to them what happened. She stated that she was so shocked, that she immediately reported it to the principal and the police. Mrs Mogotso stated that the incident affected Ms M badly, to a point that Ms M was nearly relocated to another school.

Employee’s Case

30. Mr Richard Phongola ‘Mr Phongola’, a fellow Teacher, testified as the first witness for the employee. He testified in short that he knows the employee and Ms M, and that he once saw the two of them together in the employee’s office during the second term of 2024. Mr Phongola stated that he also once assisted the employee to tell Ms M to pull up her socks in order to increase her academic performance.
31. Mr Thabiso Michael Moloi, the Employee, testified as the second witness in his case. He gave an overview of his credentials and relationship with Ms M, and admitted to having had contact with Ms M on Saturday 02 November 2024, when the principal asked him to take over the MTN class. The employee stated that he noted that Ms M was late on that day and reprimanded her when he bumped into her a second time outside the classroom at a tap.
32. The employee stated that Ms M looked sad and not happy at all. He denied ever having given Ms M a fatherly hug and touched her buttocks. He stated that at the lunch table on 02 November 2024, Mr Matroos told him and the principal that he (Mr Matroos) had a problem with Ms M who was so restless on that day. The employee denied having summoned Ms M to his office and given her hugs and touched her buttocks and her breasts.
33. The employee testified that the allegations against him could be triggered by the fact that he reprimanded Ms M, and that he was wrongfully accused. In cross-examination, the employee stood by his testimony and added that he was arrested and in police custody for 21 days.

ANALYSIS OF EVIDENCE AND ARGUMENT

34. As stated, the employee pleaded not guilty to the charge against him. The employer called four witnesses, and the employee one witness in his defence. The employer’s witnesses were consistent in their versions with no contradictions. I, therefore, find them credible and reliable. The employee only denied the allegations against him. He called a witness who mainly testified about what happened during the second term.
35. I shall now proceed to determine the charge levelled against the teacher, in light of the evidence led by the parties:

Count One (1)
You have contravened Section 18(1)(q) of the Employment of Educators Act 76 of 1998, in that on 02/11/2024 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you hugged and touched the buttocks and breast of a grade 10 learner (…………)

36. Of importance to note about this case is that all the witnesses from both sides are in agreement that Ms M was, for lack of a better word, traumatised on Saturday, 04 November 2024. Then surely, someone like Ms M, who was all right when she arrived late at school and all of a sudden crying and sad, must mean that whatever upset her must have been at the school. No evidence was presented that Ms M came to school in that traumatic state.
37. The employee tried to shift the timelines of his interaction with Ms M to the second term in May, when he summoned Ms M to his office to discuss her academic performance. Mr Phongola corroborated this well, and neither the employer nor Ms M disputed it. The employee was not charged for the incident that occurred between him and Ms M in May 2024, but for the incident that occurred on 4 November 2024.
38. Since it is clear that the is having a habit of calling Ms M to his office, I find it plausible that the same happened on 04 November 2024, based on their history alone. When Ms M narrated what happened in the office on that Saturday, she became extremely emotional and traumatised, to the point where the arbitration had to be constantly adjourned in order for her to become stable again and to continue to give her testimony.
39. Ms M appeared truthful and genuine in her testimony, and I have no reason to doubt her version. The employee claimed to have given a lesson in the MTN class, but did not deem it proper to call at least one or two of those learners to corroborate his alibi. The manner in which Ms M described the incident in the employee’s office was such that little, if any, doubt can be placed on it.
40. I must say that I find it disgusting that the employee, who also happened to be part of the school’s management team, abused his power to the extent of preying on a vulnerable 15-year-old child. Ms M stated that the conduct started with a fatherly hug, which progressed to an intimate hug with the touching of Ms M’s sexual organs (her breasts and buttocks).
41. The fact that the employee told Ms M that he knew that she was not comfortable with that shows that the employee knew that he was misconducting himself against the will of Ms M, who, in any event, was a minor at the time. The employee went as far as telling Ms M that Ms M must not think that he was touching her buttocks whilst touching her buttocks. This is absurd to say the least. This suggests that the employee was trying to get into the mind of Ms M.
42. Having taken all the evidence and circumstances of the case into account, I am arriving at a conclusion that the employer has demonstrated on a balance of probabilities that the employee is guilty of the allegations levelled against him. Ms M’s testimony is well corroborated by Ms K and Mrs Mogotso and Mr Matroos, and the employee’s evidence sought to prove what happened in May 2024, something which the employer does not dispute.

VERDICT

43. Count 1: The employee was charged under section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended (the EEA), which reads as follows:

Misconduct

18. (1) Misconduct refers to a breakdown in the employment relationship, and an educator
    commits misconduct if he or she –
    (q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
19. Now with all due respect to the employer’s representative, the evidence of this case shows that the misconduct of the employee was no ordinary misconduct, but serious. Section 17(1)(b) of the EEA provides the following:
    Serious misconduct
20. (1) An educator must be dismissed if he or she is found guilty of –
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner, student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
21. It is clear from the reading of the law that the employee should have been charged under section 17(1)(b) of the EEA, and not section 18(1)(q), based on the seriousness of the misconduct. I do not understand why the employer’s representative would resort to a less serious charge amid a traumatised minor whose sexual organs were touched and squeezed by the employee. The employer must investigate this choice of its representative further.
22. With the evidence which was placed before me, I find the employee guilty of having contravened paragraph 17(1)(b) of the EEA, in relation to having sexually assaulted Ms M.

SANCTION

47. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998

10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
    following section:
    “Serious misconduct
11. (1) An educator must be dismissed if he or she is found guilty of—
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner. student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
    other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
    (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
    and procedures 35 provided for in Schedule 2.” [my emphasis added]
12. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted a learner in accordance with section 10 of the ELAA. A dismissal, therefore, automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having sexually assaulted a learner of the school where he was employed.
13. Based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory and must be handed down to the employee. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. The employee, in my view, abused his authority as a teacher and betrayed the trust placed in him while standing in loco parentis towards the learner.
14. Having found the employee guilty of the main charge, which is based on paragraph 17(1)(b) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the employee must be dismissed.

CHILD PROTECTION REGISTER

51. The parties did address me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of Ms M. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

52. It is common cause that Ms M was 15 years old at the time when the teacher committed the misconduct against him, which by its very nature, is serious.
53. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

54. Having found the employee guilty of sexual assault, I hereby do find him unsuitable to work with children. Based on these findings, I will instruct that the employee’s name be reported to the Director-General of the Department of Social Development for listing in Part B of the Child Protection Register.
55. In the premise, I make the following award:

AWARD

56. Mr Thabiso Michael Moloi is found guilty of the charge of sexual assault levelled against him by the Superintendent-General: Free State Department of Education.
57. The mandatory sanction of dismissal is imposed with immediate effect on the employee.
58. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.
59. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the 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 Thabiso Michael Moloi 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.

This is done and dated on 18 August 2024, at Kimberley.

David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator