IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
FAKUDE, M M The Educator
Inquiry by Arbitrator
Case Number: ELRC 279-25 KZN
Date of award: 14 August 2025
J KIRBY
ELRC Arbitrator
DETAILS OF THE INQUIRY
1. The Inquiry by Arbitrator was held on 30 July 2025 at the Truro House offices of the Employer.
2. The Employer was represented by its employee, Ms M Mtetwa, who submitted three bundles of documentation marked as exhibits A, B and C respectively. In addition, she called three witnesses to provide oral evidence.
3. The Educator, M M Fakude, was represented by Mr K C Ngcobo, a trade union official.
4. The alleged misconduct that is the subject matter of this dispute is of a sexual nature. In order to preserve the privacy of the learner involved I shall refer to her as the Learner. The Learner did not testify.
5. The services of an interpreter, Ms Mabele were utilized.
6. The proceedings were digitally recorded.
EXPLANATION OF THE EDUCATORS’ RIGHTS
7. At the commencement of the hearing, I explained the following rights to the Educator, who confirmed that he was aware of and understood these rights:
7.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, I stressed the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
7.2. The right to give evidence and to call witnesses.
8. The Educator confirmed that he had been given written notice of the alleged misconduct. He had had sufficient time to prepare for this Inquiry.
9. It was explained to both parties, who indicated that they understood that:
9.1. If the Educator were to be found guilty of having contravened section 17 Employment of Educators Act (the Act) I was obliged to impose a sanction of dismissal;
9.2. A separate hearing in respect of sanction in event of a finding of guilty would not be held if the Educator were to be found guilty of having contravened section 18 of the Act. Evidence in mitigation and aggravation of sanction would need to be presented prior to a finding on the merits of the case having been given;
9.3. They could make closing arguments after all evidence had been heard; and
9.4. In terms of section 120 of the children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Educator is unsuitable to work with children. It was further explained that as with the question of sanction, a separate hearing would not be held.
PRELIMINARY ISSUES
10. Prior to the charge having been put to the Educator, both parties raised preliminary issues for determination. I shall deal briefly with these preliminary issues below.
11. On behalf of the Educator it was submitted that as the Employer had previously withdrawn the charge against the Educator, the Employer was precluded from charging the Educator again. I ruled that the previous withdrawal of the charge did not preclude the Employer from proceeding to charge the Educator again with the same charge of alleged misconduct.
12. The Employer’s representative gave notice that it was her intention ask for the hearsay evidence of the Learner to be admitted as evidence as she would not be calling her as a witness. Having heard the submissions on behalf of both parties I ruled that I would reserve my ruling in this regard until I had heard the evidence of the remaining witnesses of the Employer. I detail below in paragraphs 25-35 the submissions made on behalf of the parties, my ruling not to admit hearsay evidence and the reasons therefor.
THE CHARGE, PLEAS AND PLEA EXPLANATIONS
12. The charge of misconduct faced by the Educator is at page 1 of exhibit C and reads as follows:
“Charge 1
On or about the 1st school’s term 2024 you allegedly had a sexual relationship with the Learner a then grade 12 learner at the School. It is alleged that you impregnated the Learner then instructed her to terminate the pregnancy. You thus committed an offence in terms of Section 17(1)(c) of the Act.
Alternatively
On or about the 1st school’s term 2024 you allegedly unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education. In that you impregnated and instructed the Learner at the School to abort the pregnancy. You thus committed an offence in terms of Section 18(1)(f) of the Act.”
13. The Educator pleaded not guilty to both the main count and its alternative. His defence was a bare denial of the alleged misconduct.
THE EVIDENCE ON BEHALF OF THE EMPLOYER
14. Sibusiso B Mngadi is employed by the Employer as a circuit manager. As a result of having received a report of sexual assault from the school principal of Kwamgaga Secondary School (the School,) he had asked to see the Learner and her class teacher to whom the complaint had allegedly initially been made.
15. On their arrival at his office, he had asked the Learner about her parents whereabouts. On learning that her mother was not available as she worked on the North Coast he had contacted the mother, advised her of the allegations of the Learner and requested her to go together with the Learner to the principal of the School so that a statement could be taken from the Learner.
16. S S G Majola is the principal of the School.
17. On 15 October 2024 Nomceba Zulu, the Learner’s class teacher, had reported to him that the Educator had allegedly had a sexual relationship with the Leaner, impregnated her, compelled her to have an abortion and refused to partake in a cleansing ceremony. He had asked the Learner to provide him with a statement. She had refused to do so stating that she first wanted to consult with her mother. Sometime later he had reverted to the Learner but she had again refused to give a statement indicating that she was focused on studying for her examinations.
18. Under cross-examination Majola stated that the only correspondence that he had received from the Learner was a note dated 13 May 2025 (at page 7 of exhibit B) in which she states that as an adult she categorically states that she had never reported a case against the Educator to the Employer.
19. Nomceba Zulu (Zulu) was the grade 12 class teacher of the Learner.
20. Sometime during 2024, the date of which Zulu could no longer remember, the Learner and the class representative had approached her. The learner was looking to be given a “pass out” from school as she was suffering from a headache. This compliant had been become the norm with the Learner and she had asked the Learner why this was the case. The Learner had then asked to speak in private to her. She, the Learner and the class representative had then moved to another classroom. The Learner said that her problems had been caused by her father having passed away. Zulu had responded that it had been sometime since her father had passed away. At that stage the class representative had then spoken on behalf of the Learner stating that the Educator had had a sexual relationship with the Learner, impregnated her, compelled her to have an abortion and then refused to participate in a traditional cleansing ceremony. Zulu had responded by stating that the Learner should not let this issue interfere with her studies.
21. The meeting had taken place on a Friday. She did not immediately report the allegations to the School principal as the School had been plagued with learners making false accusations. After having thought over the situation over the week-end she decided to report the allegations to the School principal, which she did on her return to the School on the following Monday. She was then instructed to take the Learner to see Mngadi.
22. On her relaying the allegations to Mngadi, whilst the Learner sat in her car, he had told her to take the Learner to Prince Mshiyeni Hospital. The Learner had, however, refused to go.
23. Under cross-examination Zulu:
23.1. Stated that whilst the class representative had narrated the complaint of the Learner when they had met, the Learner had subsequently spoken;
23.2. Confirmed her evidence in chief that the School was plagued by false statements being circulated through the School. She did not know whether the allegations brought to her attention in respect of the Learner and Educator were true or false;
23.3. Stated that she had not taken any notes of the meeting and had not requested the Learner to provide her with a written statement.
24. On hearing the evidence presented on behalf of the Employer, I once again considered the request on behalf of the Employer to admit the hearsay evidence.
SUBMISSIOINS IN RESPECT OF THE ADMISSION OF HEARSAY EVIDENCE
THE EMPLOYER
25. It was submitted on behalf of the Employer that hearsay evidence of the Learner’s evidence ought to be admitted as:
25.1. When she had been approached to testify she had stated that she was not interested in doing so. The Employer was thus prevented from presenting her evidence at the Inquiry by Arbitrator;
25.2. The Learner had been traumatized by the conduct of the Educator and for this reason she would not testify;
25.3. The Employer now did not know the whereabouts of the Learner; and
25.4. The Employer would be severely prejudiced were the hearsay evidence to be excluded.
THE EDUCATOR
26. It was submitted on behalf of the Educator that hearsay evidence should not be admitted as:
26.1. The Learner had stated in her note addressed to the School principal that she had not reported a complaint against the Educator;
26.2. No written statement had been taken from the Learner at the time of her having allegedly lodged her complaint; and
26.3. The admission of hearsay evidence would be highly prejudicial to the Educator.
RULING IN RESEPCT OF HEARSAY EVIDENCE
27. The admissibility of hearsay evidence is governed by section 3 of the Law of Evidence Amendment Act 45 of 1988, which includes the following provisions:
“3(1)-Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-
…
(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 evidence 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.”
28. I shall consider each of the factors listed above.
The nature of the proceedings
29. The Labour Court ruled in the case of Swiss South Africa (Pty) Ltd v Louw NO & others [2006] 27 ILJ 395 that hearsay may be admitted to proceedings before the CCMA having due regard to the need to resolve disputes with the minimum of legal formalities as stipulated in section 138 of the Labour Relations Act. This Inquiry by Arbitrator should similarly be conducted with a minimum of legal formalities and a degree of flexibility. Hearsay evidence is admissible at this Inquiry;
The nature of the evidence
30. The Employee seeks to have the oral report given by the Learner to Zulu, her class teacher, admitted as hearsay evidence. This report was not reduced to writing at any stage. The report by the Learner was only made by her after the class representative had already relayed to Zulu, in the Learner’s presence, a version implicating the Educator in misconduct, The version told to Zulu was thus primarily given by the class representative, with the Learner’s subsequent confirmation thereof. The class representative was not called as a witness.
The purpose for which the evidence is tendered
31. The evidence is tendered to establish the guilt of the Educator. The evidence of the other witnesses called to testify on behalf of the Employer does not implicate the Educator in anyway whatsoever. As such, no aspect of the hearsay evidence would be capable of corroboration by the other witnesses called by the Employer.
The probative value of the evidence
32. Given that the evidence of the Respondent’s witnesses is not inculpatory of the Educator in any respect, the probative value of the hearsay evidence that the Employer would seek to attach to the hearsay evidence would be to establish all the elements of the alleged misconduct;
The reason why the evidence is not given by the person upon whose evidence the probative value of such evidence depends
33. The Respondent’s representative submitted that the Learner’s current whereabouts are not known and thus she could not be brought to the Inquiry. It is, however, evident from the evidence of the Respondent’s witnesses that from the outset she has been a reluctant participant; the initial complaint was made by the class representative; she refused to provide the School principal with a written statement; she refused the offer to be taken to Prince Mshiyeni Hopital; and she submitted a note to the School principal stating that she had not lodged a complaint against the Educator.
34. It may also be that the Learner elects not to cooperate with the Employer as she does not want to relive the trauma. There is, however, no evidence before me in this regard and thus I do not know whether this is a reason for her non-attendance.
35. I needed to have regard for the above factors in deciding whether it would be in the interests of justice to admit the hearsay evidence of the Learner. In so doing I need to weigh the interests of the Educator against that of the child; namely, the Learner and other school children. The Educator is charged with serious misconduct of having been in a sexual relationship with a learner at his school. I have, however, determined that it would not be unfair to the Educator in the interests of justice to admit the hearsay evidence having regard to the above factors and in particular:
35.1. Zulu was not convinced that the Learner and class representative were being truthful;
35.2. I do not know whether I am being asked to admit the hearsay evidence of the class representative or the Learner. The class representative had first relayed to Zulu, in the presence of the Learner, the alleged misconduct of the Educator. The Learner had subsequently simply confirmed the correctness of this version to Zulu. No further details were obtained from the Learner by Zulu, the School principal or circuit manager. As such, the learner never relayed her version independently of the class representative to any of these witnesses. The class representative was not called as a witness and as such I do not know the circumstances in which she allegedly came to know of the alleged misconduct of the Educator;
35.3. At best for the Respondent, given the above circumstances in which Zulu learnt of the alleged misconduct, I would not know whether the hearsay evidence I was called upon to admit is that of the Learner, an interpretation of the class representative of something that the Learner had allegedly told her or a combination of both of these possibilities;
35.4. I do not know the reason for the Learner not testifying. I do not know whether she is available and willing to testify but not contactable by the Employee; traumatized by the misconduct and unwilling or unable to testify or has elected not to cooperate with the Employer for whatever reason of her own.
36. On me giving my ruling excluding the hearsay evidence, the Employer’s representative closed its case and the Educator elected not to testify.
ANALYSIS OF EVIDENCE
37. The Employer bears the onus of proving the guilt of the Educator on a balance of probabilities.
38. As already indicated, the evidence submitted on behalf of the Employer does not establish any misconduct by the Educator.
FINDING
39. The Educator, M M Fakude, is acquitted.
J Kirby
Arbitrator 14 August 2025
ELRC 279-25/26 KZN
