20 August 2026 -ELRC650-25/26KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO.: ELRC650-25/26KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

NDLOVU ML RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 18 AUGUST 2026

Applicant’s representative : MS N. MAZIBUKO
:

Respondent’s representative : MR K.C NGCOBO

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, Durban Teachers Centre, 14 Clayton Road, Overport, Durban. These proceedings were digitally recorded.
[2] Ms N. Mazibuko, a Labour Relations Officer, represented the applicant (employer) and Mr M.L. Ndlovu, the respondent (employee) was initially represented by Mr S. D Duma and subsequently by Mr K.C. Ngcobo, both from SADTU. The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 22 May 2026 but was postponed due to the respondent being unwell, 29 May 2026 and 22 June 2026. The matter was concluded on 8 July 2026 when the parties submitted their written mitigating and aggravating circumstances as well as their closing arguments which was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in a bundle of documents which was marked as bundle “A” and was utilized as a common bundle.
[6] The nature of the process and all rights was explained to the parties.
ISSUES TO BE DECIDED
[7] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
PRELIMINARY ISSUE
[8] At the inception of the matter, Ms Mazibuko made an application to amend the charge sheet by removing an additional year of the incident, “2024” to which there were no objections by the applicant party.
[9] Accordingly, I granted the application.
BACKGROUND TO THE DISPUTE
[10] Mr Ndlovu is employed as an educator at Mziwamandla High School.
[11] One learner made allegations of sexual misconduct against Mr Ndlovu and the employer subsequently charged him with misconduct.
CHARGE
The employer preferred the following charges against Mr Ndlovu: –
[12] Be advised that you, Mr M.L. Ndlovu, appointed by the Head of Department of the KwaZulu-Natal Department of Education [“the Department”] in terms of the Educators Act No. 76 of 1998 [“the Act”] as an educator at Mziwamandla High School [“the School”] is hereby charged with misconduct as follows:
CHARGE 1
On or about June 2025, 2nd school term you allegedly committed an act of sexual harassment on Learner A, the then Grade 12 learner at the School. It is alleged that on numerous occasions you summoned her to the staffroom when you were alone and asked her if she has a boyfriend, you want her to be your wife and you also stare at her body with lustful eyes. You thus committed an offence in terms of Section 17(1)(b) of the Act.
ALTERNATIVELY
On or about June 2025, 2nd school term while on duty, you allegedly conducted yourself in an improper, disgraceful and acceptable manner on Learner A, a learner at the School. In that on numerous occasions you summoned her to the staffroom when you were alone and asked her if she has a boyfriend, you want her to be your wife and you also stare at her body with lustful eyes. You thus committed an offence in terms of Section 18(1)(q) of the Act.
CHARGE 2
You allegedly on or about June 2025, 2nd school term misused your position in the School to prejudice the interest of any person. In that you threatened to report Learner A to her parents about her “shenanigans” (having a boyfriend) if she does not give you her cell phone number. You thus committed an offence in terms of Section 18(1)(q) of the Act.
PLEADINGS
[13] Mr Ndlovu pleaded not guilty to the charges.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE APPLICANT’S / EMPLOYER’S CASE
The employer called three witnesses to testify on their behalf.
LEARNER A
[14] Learner A testified that she was 17 years old in 2025 and was a Grade 12 learner at Mziwamandla High School. She stated that Mr Ndlovu had previously taught her Life Orientation while she was in Grade 11.
[15] She testified that during the second term of 2025, Mr Ndlovu summoned her to the staff room after signalling to her while learners were returning to class. She stated that they were alone in the staff room when he requested her cellular telephone number. She refused to provide it and asked why he wanted it. According to her, Mr Ndlovu replied that she would find out later, after which she left the staff room.
[16] She testified that on a subsequent occasion Mr Ndlovu again called her to the staff room while her class teacher was absent. She stated that only she and Mr Ndlovu were present. She again refused to provide her cell phone number and suggested that he obtain her mother’s number if he wished to contact her. According to her evidence, Mr Ndlovu told her that she was “playing hard to get” and threatened that if she did not provide her number, he would have her removed from the school because he knew about her alleged “shenanigans”. She denied any wrongdoing and told him that if he knew of any misconduct, he should report it to her mother.
[17] She further testified that on another occasion learners were gathered near the school hall observing another learner who was experiencing what she described as an ancestral calling. She stated that she was standing with another learner, S, when Mr Ndlovu stared at them from a distance, causing S to ask why he was looking at them. She thereafter went into the hall.
[18] She testified that later that day, while walking past the staff room after school, Mr Ndlovu stopped her. As other learners were nearby, she stopped because she believed he would not do anything to her in their presence. According to her evidence, he asked whether S was her boyfriend. After she denied that he was, Mr Ndlovu again accused her of “playing hard to get” because she had refused to provide her cell phone number. He also asked when she had last seen Kwanele, whom she identified as a student teacher known to her outside the school. She answered his question and, after asking whether they were finished, Mr Ndlovu allowed her to leave.
[19] Learner A testified that on another occasion she had been called to the staff room by Mr Shange regarding a history essay. While there, she noticed Mr Ndlovu looking at her. She described his manner of looking at her as though he was “undressing” her with his eyes and testified that he stared at her thighs while she was wearing a short skirt. She regarded his manner of looking at her as lustful and inappropriate.
[20] She testified that apart from requesting her cell phone number, asking about her boyfriend, looking at her in the manner described and threatening to report her alleged “shenanigans”, Mr Ndlovu did nothing further to her. She acknowledged that he had reprimanded her for wearing earrings while she was in Grade 11 but stated that he did not do so during Grade 12.
[21] Learner A testified that she became afraid of Mr Ndlovu and stopped attending school because she feared what he might do to her and believed that her complaint would not be taken seriously by educators. She stated that she wrote some, but not all, of her June examination papers before remaining away from school. She returned to school only after the newly appointed principal, Ms Ntuli, persuaded her to return and transported her from home to enable her to complete her examinations.
[22] She identified her written statement in the bundle and confirmed that it accurately reflected her complaint. She testified that she regarded Mr Ndlovu’s request for her cell phone number and the manner in which he looked at her as unprofessional and unacceptable and requested that action be taken to prevent similar conduct towards other learners.
[23] Under cross-examination, Learner A confirmed that Mr Ndlovu had previously disciplined her for wearing earrings and that she knew earrings were prohibited at school. She testified that this disciplinary action did not influence her feelings towards him or motivate her complaint. She explained that although she continued wearing earrings, she would hide them whenever she encountered him and acknowledged that he disciplined other learners in the same manner.
[24] She testified that Mr Ndlovu summoned her to the staff room approximately two or three times but could not recall the exact dates. She stated that she always complied because she believed there would be other educators in the staff room. She confirmed that no other learners or educators witnessed the conversations that occurred inside the staff room.
[25] She testified that she first disclosed the incidents to her older sister and not to educators or the principal because she believed that complaints made to educators would not be taken seriously or communicated to her parents. She explained that she was not close to her mother and that her sister later informed their mother after she had already stopped attending school.
[26] When referred to documents indicating that her mother had reported the matter to Ms Mzobe and that the matter had been referred to Mrs Mnikathi, Learner A testified that she had not previously seen those documents and had been unaware that the matter had been escalated within the school. She maintained that her belief that complaints were not taken seriously was based on her own observations of the school environment.
[27] She testified that the incidents occurred during the second term of 2025, during the June examination period, and that she did not complete all of her examinations because she remained away from school.
[28] When it was put to her that she had alleged Mr Ndlovu wanted her to become his wife, she denied ever making such an allegation and stated that those words appeared only in the charge sheet and not in her evidence or written statement.
[29] She explained that her description of Mr Ndlovu looking at her with “lustful eyes” referred to the occasion when he stared at her thighs while she was in the staff room with Mr Shange. Although unable to explain precisely how she distinguished the look from an ordinary glance, she maintained that his manner of looking at her was inappropriate for an educator.
[30] She testified that she understood Mr Ndlovu’s reference to her “shenanigans” to mean misconduct such as smoking, bunking classes or similar behaviour that he might report to her mother.
[31] She confirmed that other learners were present when Mr Ndlovu stopped her outside the staff room after school but was unable to identify any learner who witnessed the conversation. She further testified that after the incident she asked another learner, whether an educator had ever asked a learner out at the school, to which the other learner replied that such an incident had previously occurred.
[32] Learner A testified that she prepared her written complaint at her uncle’s request, although he was not present while she wrote it. She handed it to him for submission to the principal. She stated that nobody instructed her to remain away from school and that she made that decision herself because she was afraid.
[33] She testified that she believed Mr Ndlovu’s conduct towards her could also affect other learners, despite not knowing of any previous complaints against him. She confirmed that she had never previously laid a complaint against any educator.
[34] When it was put to her that Mr Ndlovu denied calling her to the staff room, requesting her cell phone number, asking whether she had a boyfriend, threatening her or making any inappropriate advances, she disputed those allegations and maintained that the incidents had occurred. She testified that she had no reason to fabricate allegations or falsely implicate Mr Ndlovu.
[35] She further testified that Mrs Mthethwa of the School Governing Body visited her home, spoke to her privately after speaking to her mother, encouraged her to return to school and assured her that she would be protected. She nevertheless delayed returning because she wanted her uncle to accompany her.
SKUMBUZO SELBY MTHEMBU
[36] Mr Mthembu testified that he is currently unemployed and volunteers as a security guard at Mziwamandla High School. He stated that Learner A is his niece.
[37] He testified that he first became aware of the allegations while he was working on a farm after receiving a telephone call from his sister informing him that Learner A wanted to leave school because she was experiencing problems involving an educator. After returning home, he met with his sister, who informed him that Mr Ndlovu had requested Learner A’s cellular telephone number.
[38] Mr Mthembu testified that he accompanied Learner A’s mother to the school where they met the acting principal, Mr Langa. According to his evidence, Mr Langa requested Learner A to prepare a written statement concerning the incident. Learner A subsequently prepared the statement, which he delivered to the school.
[39] He testified that they later returned to the school to enquire about progress because Learner A remained at home and was refusing to attend school. Mr Langa informed them that he had escalated the matter to the Department of Education and to the Circuit Manager and that he was awaiting feedback.
[40] Mr Mthembu stated that when they later visited the school again, a new principal, Mrs Ntuli, had been appointed. Mrs Ntuli informed them that she had no knowledge of the matter. He testified that they explained the allegations to her in the same manner as they had previously explained them to Mr Langa. He further testified that a representative from the ward councillor’s office questioned why she had not been informed of the matter and indicated that arrangements would be made to meet with the principal regarding its escalation.
[41] Regarding Learner A’s absence from school, Mr Mthembu testified that she informed him that she was afraid to return because other learners were aware of the incident and questioned her about it despite her not disclosing the matter to them. He stated that whenever Learner A was questioned about the incident, she became emotional, cried and was unable to explain everything that had happened.
[42] He testified that he never discussed the allegations with Mr Ndlovu and that all his dealings concerning the matter were with the school principals. He confirmed that, to his knowledge, the matter had been reported to Mr Langa, who stated that it had been referred to the Department of Education, while Mrs Ntuli advised that she had not previously been informed about it.
[43] Mr Mthembu testified that he did not consider it proper that Mr Langa had failed to inform the newly appointed principal of the matter after referring it to the Department. He further testified that, in his opinion, Learner A would not fabricate allegations against Mr Ndlovu or leave school on the basis of a false allegation. He described Learner A as an introverted, quiet and intelligent learner.
[44] Under cross-examination, Mr Mthembu confirmed that he does not reside with Learner A, although they live close to one another.
[45] He testified that he had been volunteering at Mziwamandla High School from the beginning of the second term of 2025. Although he had previously assisted the school and participated in the Community Policing Forum, he became a full-time volunteer after Learner A stopped attending school because he wished to monitor and support her when she returned. He testified that he believed she would not have returned to school or completed her examinations had he not been present. He denied that his role as a volunteer created any conflict of interest or provided him with any benefit and confirmed that he received no remuneration.
[46] Mr Mthembu acknowledged that he was aware the school had experienced leadership and governance challenges, but stated that his knowledge was based on what he had heard rather than personal involvement. He testified that he had no role in the school’s leadership during Mr Langa’s period as acting principal, had no knowledge of any association between Mr Langa and Mr Ndlovu, and knew Mr Ndlovu only as an educator with whom he exchanged greetings. He denied ever raising complaints about Mr Ndlovu at school meetings or participating in such meetings.
[47] He testified that discussions regarding the incident primarily took place with Learner A’s mother. He stated that when Learner A’s mother asked whether Mr Ndlovu had been harassing Learner A, he informed her that he had no personal knowledge because Learner A had not reported anything directly to him. He further testified that he had no prior knowledge of complaints against Mr Ndlovu before the present matter.
[48] Mr Mthembu denied encouraging or influencing Learner A to make allegations against Mr Ndlovu. He testified that although he accompanied Learner A’s mother when the matter was reported to the school, he did not investigate the complaint or involve himself in its handling.
[49] He denied that he would benefit in any way from Mr Ndlovu’s suspension or dismissal and reiterated that his volunteer work at the school was unpaid.
[50] When referred to the wording of the disciplinary charges alleging that Mr Ndlovu had wanted Learner A to become his wife, Mr Mthembu testified that he was unable to comment because it was the first time he had seen the charge sheet. He explained that Learner A had discussed the incident mainly with her mother rather than with him.
[51] Mr Mthembu testified that when he and Learner A’s mother reported the matter to the school, they informed the principal that Learner A refused to attend school because Mr Ndlovu had requested her telephone number, looked at her in an inappropriate manner and that she was afraid to return to school. He stated that he was unaware that Mr Ndlovu had previously reprimanded Learner A for wearing earrings and explained that the information he received came from Learner A’s mother rather than Learner A herself.
[52] He further testified that he was aware that Learner A had experienced conflict with two girls in her class during the previous year, which he described as an argument or misunderstanding involving gossip, including discussion relating to the present matter.
VIRGINIA HAWUKILE NTULI
[53] Ms Ntuli testified that she is the Principal of Mziwamandla High School in the Umlazi District and assumed duty on 1 August 2025. She stated that when she commenced duties Mr Ndlovu was employed at the school as an educator.
[54] She testified that during the second or third week of August 2025 Mr Mthembu, who introduced himself as Learner A’s uncle, approached her at the school and informed her that allegations of sexual harassment had previously been reported to the acting principal, Mr Langa. According to Mr Mthembu, Learner A had stopped attending school because Mr Ndlovu remained at the school and had been unable to complete her June examinations.
[55] Ms Ntuli testified that this was the first occasion on which she became aware of the allegations. She explained that there had been no handover regarding the matter when she assumed office.
[56] Following the report, she contacted Mr Langa, who confirmed that he was aware of the allegations and that Learner A had stopped attending school following the incident. She testified that she requested an explanation of what steps had been taken but did not receive a clear response.
[57] She instructed Mr Langa to obtain and provide her with all relevant statements, including statements from Learner A, Mr Ndlovu and educators who had knowledge of the matter. Mr Langa subsequently furnished her with the requested statements, including statements by educators, Mrs P.N. Mzobe and Mrs F. Mnikathi.
[58] Ms Ntuli testified that she personally informed Mr Ndlovu that allegations had been made against him because she did not want him to hear about them through rumours. She explained that she advised him that she was not investigating the allegations but merely notifying him of the complaint and requested Mr Langa to obtain his written response because the matter pre-dated her appointment. Mr Ndlovu subsequently submitted a written statement denying the allegations.
[59] After receiving the documentation, Ms Ntuli referred the matter to the Circuit Manager, Mr Mzolo, who advised her to liaise with Employer Relations at Truro House. She testified that she could not remember whether Mr Mzolo indicated that he already knew of the allegations before she contacted him.
[60] She reiterated that the matter had never been handed over to her by Mr Langa and that, once she became aware of the complaint, she obtained the available statements and referred the matter through the appropriate departmental structures.
[61] Under cross-examination, Ms Ntuli testified that she did not regard the enquiries she conducted as a formal preliminary investigation. She explained that, after satisfying herself that Learner A had stopped attending school and had failed to complete her examinations, she considered it appropriate to report the matter to the Department because of its seriousness.
[62] She confirmed that she recorded her meeting with Learner A and Mr Mthembu in the school’s occurrence book, although the entry was not included in the arbitration bundle because it was overlooked after Employer Relations assumed responsibility for the matter. She further testified that officials from Employer Relations later interviewed her, Mr Langa and other persons connected with the complaint.
[63] She confirmed that Mr Ndlovu was not present during her first meeting with Learner A and Mr Mthembu because she regarded it as premature to involve him before obtaining preliminary information. She stated that he was thereafter informed of the allegations and afforded an opportunity to submit a written statement through Mr Langa.
[64] Ms Ntuli testified that she interviewed one additional learner, who indicated that the learner had heard about the incident from Learner A. She stated that she did not examine duty rosters, timetables or staffroom attendance records because no specific dates or times had been provided and she did not believe those enquiries would have assisted. She also confirmed that she did not interview educators who may have been present near the staffroom.
[65] She accepted that Learner A’s written complaint was an important document but testified that it was not the only information relied upon. She stated that Mr Langa, Mrs Mzobe and Mrs Mnikathi had all confirmed that allegations had been reported.
[66] She testified that she had no knowledge of any leadership disputes at the school before her appointment and was unaware of any relationship between Mr Langa and Mr Ndlovu. She further testified that Mr Mthembu later became one of several volunteer security officers following incidents of violence at the school and denied that his appointment was intended to target Mr Ndlovu.
[67] Ms Ntuli maintained that the steps she took before referring the matter were adequate. She testified that Learner A’s refusal to attend school, her intention to deregister and her failure to complete her Grade 12 examinations justified referring the matter to the Department. She denied that Mr Ndlovu had been deprived of an opportunity to respond.
[68] Regarding the events of 19 September 2025, Ms Ntuli testified that she was unaware that Mr Mthembu had formed part of a group confronting Mr Ndlovu. She explained that the school was unfenced, members of the public frequently entered the premises and volunteer security officers were deployed to patrol the school grounds rather than guard the entrance.
[69] She testified that she had no personal knowledge of allegations that Mr Ndlovu had previously disciplined Learner A for wearing earrings and had only become aware of that allegation through his written statement. She further explained that learner indiscipline was common when she assumed office and that learners frequently disregarded school rules.
[70] When questioned regarding the wording of the disciplinary charges, Ms Ntuli testified that she was not involved in drafting the charges and therefore could not comment on their wording. She explained that if there were discrepancies between the wording of the charges and Learner A’s evidence, this did not necessarily mean that the allegations themselves were false.
[71] She further testified that her primary concern was Learner A’s welfare. According to Ms Ntuli, Learner A consistently maintained that she would not return to school while Mr Ndlovu remained at the school, even if this meant repeating Grade 12. Ms Ntuli testified that she encouraged Learner A to return to school and ultimately transported her between home and school so that she could complete her examinations.
[72] Ms Ntuli testified that, in her view, Learner A’s willingness to sacrifice her Grade 12 academic year suggested that there was more to the matter than a single request for a telephone number. She also confirmed that she had no knowledge of any conflict between Learner A and other learners before assuming office.
THE RESPONDENT’S / EMPLOYEE’S CASE
MPHUMELELI LUDWICK NDLOVU
[73] Mr Ndlovu testified that Learner A had been his learner from Grade 10 until Grade 12 and that he believed he had also been her class teacher in either Grade 10 or Grade 11. He stated that Learner A associated closely with another learner, Learner TM.
[74] He testified that Learner A frequently walked around the school during teaching periods and that he regularly disciplined her for wearing earrings, wearing a short skirt and being outside the classroom without permission. He stated that learners often left their classrooms when teachers were absent, walked around the school premises or bunked classes. He explained that he regarded discipline as part of his responsibilities as an educator and that learners often became unhappy with educators who enforced school rules. He stated that he disciplined all learners equally and not Learner A alone.
[75] Mr Ndlovu testified that during assemblies and prayer meetings he regularly reminded learners that earrings, bangles, coloured jerseys and short skirts were prohibited. When Learner A wore earrings or a short skirt, he would call her aside, explain that the items contravened the school rules and confiscate the earrings. He testified that these disciplinary interventions resulted in arguments between himself and Learner A.
[76] He testified that he could not specifically remember calling Learner A into the staff room when they were alone but explained that educators often summoned learners to the staff room for school-related errands and that the staff room was normally occupied by both educators and learners. He denied the allegations that he had requested Learner A’s cell phone number, asked whether she had a boyfriend, proposed that she become his wife, looked at her in a sexual manner or behaved inappropriately towards her. He testified that he was shocked by the allegations and stated that he had served as a SADTU leader and had attended and presented workshops dealing with professional ethics.
[77] Mr Ndlovu testified that when speaking to learners it was normal to look at them. He further testified that educators sometimes informed learners that their parents would be contacted if disciplinary problems continued, but he could not recall making such a statement to Learner A.
[78] When asked why Learner A would implicate him, Mr Ndlovu testified that she and another learner, Mpanza, had developed a poor relationship with him because he regularly disciplined them. He maintained that this was the reason for the allegations.
[79] Mr Ndlovu testified that his relationship with the School Governing Body (SGB) deteriorated after Mr Mthetwa became chairperson. He stated that, as the school’s SADTU representative, he frequently disagreed with Mr Mthetwa over governance issues because he believed the SGB interfered in matters reserved for educators. He testified that he had no personal knowledge of any relationship between Learner A and Mr Mthetwa but stated that when the new principal arrived at the school, persons including Learner A’ uncle guarded for security purposes.
[80] He further testified that Mr Mthetwa and Learner A’s uncle were members of the EFF, although he acknowledged that this evidence was based on his own knowledge and that he was not calling any witness to corroborate it.
[81] Mr Ndlovu testified that he found it surprising that Learner A’s uncle, rather than her mother, became involved in reporting the allegations because Learner A resided with her mother. He further testified that he had heard Learner A did not attend winter classes and understood that learners sometimes avoided winter classes to escape disciplinary action.
[82] Under cross-examination, Mr Ndlovu confirmed that Learner A did not dispute that he had reprimanded her for wearing earrings and accepted that his evidence regarding her disciplinary problems, including wearing a short skirt, had not been put to Learner A during her testimony.
[83] He maintained that the responsibility for learner discipline rested with educators rather than the SGB. He denied looking at Learner A with “lustful eyes”, asking whether she had a boyfriend, threatening to report her to her parents or engaging in any inappropriate conduct. He maintained throughout that the allegations against him were false.
[84] He stated that educators would only discuss relationships with learners in the context of disciplinary matters. He agreed that these versions had not been canvassed with Learner A during her testimony.
[85] Mr Ndlovu testified that the allegations arose from disputes concerning the appointment of the school principal. He stated that he had supported another candidate for the principal’s post and that his disagreements with Mr Mthetwa led to hostility towards him. He expressed the view that Learner A had been influenced by others, particularly Mr Mthetwa and those involved in the principalship dispute, to make the allegations. He confirmed, however, that he was not calling Mr Mthetwa or any other witness to support this allegation.
[86] He testified that he had been informed by his Head of Department and Mrs Mzobe that Learner A’s family had attended at the school. He also referred to an audio recording suggesting that Learner A had left home because her mother had not taken the matter seriously. He accepted that the recording constituted hearsay and acknowledged that he had no witness to testify regarding its contents. He ultimately testified that he did not know whether Learner A’s mother had reported the matter to the school.
[87] Mr Ndlovu confirmed that he had submitted a written statement when the allegations first arose. He accepted that his statement did not mention Learner A wearing a short skirt but explained that the omission did not mean that the incident had not occurred and maintained that he had simply failed to include it.
[88] He further confirmed that he had not applied for the principal’s post. He nevertheless maintained that the allegations were linked to divisions surrounding the appointment of the principal and to threats allegedly made against educators who had supported Mr Langa.
ANALYSIS OF EVIDENCE AND ARGUMENT
[89] The respondent is charged with misconduct in terms of section 17(1)(b) and 18(1)(q) of the Employment of Educators Act 76 of 1998 (as amended) (EEA).
[90] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[91] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[92] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[93] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra 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 the state or any other person having sufficient interest in the protection of children.”
[94] The employer bears the onus of proving, on a balance of probabilities, that the employee committed the misconduct alleged. The standard of proof is not proof beyond a reasonable doubt but proof on a balance of probabilities.
[95] The proper approach to resolving factual disputes is well established. In Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie SA and Others 2003 (1) SA 11 (SCA), the Supreme Court of Appeal held that credibility, reliability and probabilities are interrelated and must ultimately be weighed together in deciding which version is more probable. That approach has consistently been applied in labour matters, including Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others (2020) 41 ILJ 444 (LC), and Workforce Staffing (Pty) Ltd v Mjoli and Another (2024) 45 ILJ 1627 (LAC). Those authorities make it clear that credibility findings cannot be divorced from the objective probabilities and that the evidence must be evaluated holistically.
[96] In cases involving mutually destructive versions, the enquiry is whether the party bearing the onus has established that its version is more probable than the competing version. In allegations of sexual misconduct, which frequently occur in private, the evidence of the complainant, the respondent and the objective facts must be evaluated together. Consistent with S v Jackson 1998 (1) SACR 470 (SCA), Learner A’s evidence must neither be approached with suspicion merely because she is the complainant nor accepted uncritically. It must be evaluated against the same standards applicable to every witness.
[97] The only direct evidence regarding the alleged misconduct came from Learner A. Although no eyewitnesses were present during the conversations in the staffroom, this is unsurprising given the nature of the allegations. Sexual misconduct and inappropriate conduct towards learners frequently occur in circumstances where there are no independent witnesses. The absence of eyewitnesses therefore does not render her evidence unreliable.
[98] Learner A testified in a clear and satisfactory manner. She remained consistent on the material aspects of her evidence despite lengthy cross-examination. Importantly, she readily made concessions where appropriate. She accepted that the respondent had previously disciplined her for wearing earrings and acknowledged that he disciplined other learners similarly. She further conceded that the allegation that the respondent asked her to become his wife did not originate from her and was contained only in the charge sheet. These concessions enhance rather than detract from her credibility because they demonstrate that she was prepared to distinguish between what she personally experienced and what had subsequently been alleged. It further demonstrates that she was not attempting to portray the employee negatively in every respect.
[99] Her evidence is further supported by the objective probabilities. The undisputed evidence established that she absented herself from school during her Grade 12 year, failed to complete all of her June examinations and only returned after considerable intervention by the newly appointed principal. It is inherently improbable that a Grade 12 learner would jeopardise her education, remain absent from school and risk her academic future merely to pursue a fabricated complaint against an educator. Her conduct is consistent with someone who genuinely feared returning to school.
[100] Although Mr Mthembu and Principal Ntuli were not eyewitnesses, their evidence corroborated important surrounding circumstances. Their evidence confirms that the complaint was reported shortly after the incidents, that Learner A became emotionally distressed, refused to attend school, and required encouragement before returning. Their evidence lends objective support to Learner A’s account that she genuinely feared the respondent and that the complaint was not an afterthought.
[101] The respondent denied every allegation and attributed the complaint to previous disciplinary action taken against Learner A and to alleged political influence and governance disputes within the school. While I accept that Mr Ndlovu was entitled to deny the allegations, his explanations are not supported by evidence to render the employer’s version improbable.
[102] Firstly, several material aspects of the respondent’s defence were never put to Learner A during cross-examination. In particular, the allegations that she frequently wore short skirts, bunked classes and harboured resentment towards him because of his repeated disciplinary interventions which resulted in arguments were not canvassed with her. This omission is significant because fairness requires that material aspects of a party’s version be put to opposing witnesses. The failure to put these aspects materially weakens the respondent’s version.
[103] Secondly, the suggestion that Learner A fabricated the complaint because she was disciplined is inconsistent with her own concessions that she had indeed been disciplined and that other learners were treated similarly. If discipline alone motivated the complaint, one would reasonably have expected some evidence of hostility before these incidents, but none was produced. The mere existence of previous disciplinary interactions is insufficient, without more, to establish fabrication.
[104] Thirdly, the allegations that the complaint formed part of a conspiracy involving members of the School Governing Body, appointment of the principal or political interests was speculative. No independent evidence was led in support thereof and no corroborating witnesses were called. Further, the respondent accepted that much of this evidence was based on his own assumptions.
[105] Fourthly, the employee’s evidence consisted largely of a blanket denial. Apart from suggesting ulterior motives, he was unable to provide a plausible explanation for why Learner A would falsely implicate him, remain away from school and jeopardise her Grade 12 examinations.
[106] Mr Ndlovu’s reliance on hearsay relating to an audio recording concerning Learner A’s family circumstances carries little evidential weight. He himself accepted that it constituted hearsay and produced no witness to verify its contents.
[107] Having considered Learner A’s evidence in its entirety, I find that she testified in a straightforward manner, made appropriate concessions and remained consistent on the material issues. Her evidence is reliable and probable.
[108] Mr Ndlovu sought to suggest that Mr Mthembu had ulterior motives because of his later involvement as a volunteer security officer and alleged political associations. However, no evidence was presented demonstrating that Mr Mthembu personally influenced Learner A to fabricate allegations. His evidence remained largely confined to matters within his personal knowledge and he readily conceded where he had no direct knowledge. Those concessions enhance the reliability of his testimony.
[109] Mr Mthembu’s opinion that Learner A would not fabricate allegations is not determinative, but his observations regarding her emotional state and refusal to attend school are consistent with the probabilities arising from the evidence as a whole.
[110] Evaluating the evidence holistically, I have considered the credibility and reliability of each witness together with the objective probabilities. I have not accepted Learner A’s evidence merely because she is the complainant, nor rejected the respondent’s evidence merely because he denied the allegations. Accordingly, I find that Learner A’s version is supported by the objective probabilities, whereas the respondent’s explanation rests largely upon speculation and unsubstantiated allegations. Applying the principles set out in Stellenbosch Farmers’ Winery, Masilela, Old Mutual v Makanda, Workforce Staffing and S v Jackson, I am satisfied that the employer has succeeded in establishing that its version is more probable than that of the employee.

FINDING
[111] Sexual assault involving a learner is addressed under Section 17(1)(b) of the EEA, which entails serious misconduct and stipulates 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. Misconduct in terms of section 18(1)(q) refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.
[112] Although the evidence did not establish that the employee expressly stated that he wanted Learner A to become his wife, the evidence establishes that the employee repeatedly summoned Learner A when they were alone, requested her cell phone number, asked her about her boyfriend and looked at her body in a manner she perceived as sexual and inappropriate which caused her genuine distress. However, there is no evidence that the employee touched Learner A, attempted to touch her, sexually violated her or committed any act constituting sexual assault. Accordingly, the evidence does not establish that the respondent committed an act of sexual assault as contemplated by section 17(1)(b).
[113] The evidence does, however, establish conduct that was improper, disgraceful and unacceptable for an educator. His actions constituted unwelcome conduct of a sexual nature that violated the learner’s dignity and created an intimidating educational environment. The employee abused the professional boundaries that should exist between an educator and a learner by repeatedly pursuing personal interactions unrelated to education. The cumulative effect of his conduct falls squarely within the ambit of section 18(1)(q) of the Employment of Educators Act. The employer has therefore proved the alternative to Charge 1 in terms of section 18(1)(q) of the Employment of Educators Act.
[114] Regarding Charge 2, I accept Learner A’s evidence that after she refused to provide her cell number, the respondent informed her that she was “playing hard to get” and threatened to report her alleged “shenanigans” to her parents should she refuse to provide her cellular number. In doing so, the respondent misused the authority vested in him as an educator in an attempt to obtain personal information from a learner by means of intimidation. Such conduct is improper and incompatible with the standards expected of educators and constitutes an abuse of authority and falls squarely within the misconduct contemplated by section 18(1)(q). The employee is therefore guilty of Charge 2.
[115] Having considered the evidence of all the witnesses, the documentary evidence, the arguments advanced by the parties, the credibility of the witnesses, the reliability of their evidence and the inherent probabilities, I find that the employer has discharged the onus of proving misconduct on a balance of probabilities in respect of the alternative to Charge 1 and Charge 2.
[116] Accordingly, I find the respondent not guilty on Charge 1, but guilty on the alternative to Charge 1 and guilty on Charge 2.
[117] In Mudau v MEIBC & Others [2013] 13 ILJ 663 [ LC] the court held that the task of an arbitrator in terms of section 188A is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged with and if so whether there exists a basis in fairness to terminate the employment relationship.
SANCTION
[118] In determining the sanction, I have considered the provisions of Item 3 of Schedule 8 to the Labour Relations Act, together with the principles set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC). I have weighed the nature of the misconduct, the position occupied by the respondent, the impact of the misconduct, the interests of the employer, the respondent’s personal circumstances, service and the possibility of corrective discipline.
[119] The misconduct is particularly serious because the respondent occupied a position of trust over a vulnerable learner. Educators stand in loco parentis and are expected to maintain strict professional boundaries at all times. They are expected to safeguard learners’ physical and psychological well-being and to provide a safe educational environment. The employee had a legal and moral obligation to safeguard and protect Learner A and not breach the trust placed in him as in loco parentis. Instead, the respondent repeatedly pursued personal interactions with Learner A, requested her personal cell phone number, questioned her regarding her personal relationships and misused his authority to pressure her into providing personal information. His conduct fundamentally undermined the trust inherent in the educator-learner relationship.
[120] The evidence further establishes that the misconduct had significant consequences for Learner A. She became fearful, absented herself from school and failed to complete all of her June examinations. The misconduct therefore extended beyond inappropriate conduct and materially affected her education and emotional well-being. Such consequences are entirely inconsistent with the constitutional obligation placed upon educators to promote the best interests of learners.
[121] Although I have considered that there is no evidence of previous disciplinary action for similar misconduct and have taken into account the respondent’s service and the consequences of dismissal, these factors are outweighed by the seriousness of the misconduct. The respondent persisted in denying all wrongdoing, accepted no responsibility for his conduct and expressed no remorse. Instead, he attributed the complaint to unsupported allegations of conspiracy and political interference.
[122] The respondent is an educator and is required to maintain the highest standards of professional conduct. The Employment of Educators Act, the SACE Code of Professional Ethics and section 28(2) of the Constitution place a clear obligation upon educators to protect learners and to maintain appropriate professional boundaries. Learners are particularly vulnerable, and educators occupy positions of trust and authority over them.
[123] I have considered whether progressive discipline would be appropriate. In the circumstances of this matter, I am satisfied that it would not. A final written warning or any lesser sanction would neither restore the trust relationship nor reassure learners and parents that the school provides a safe educational environment. The misconduct was directed at a vulnerable learner, involved an abuse of authority and demonstrated a serious departure from the ethical standards expected of members of the teaching profession. I am satisfied that the respondent’s misconduct irreparably destroyed the trust relationship. Given the nature of the misconduct, progressive discipline would neither restore that trust nor adequately protect learners or preserve public confidence in the education system.
[124] In the circumstances, dismissal is fair, appropriate and justified. The respondent is accordingly dismissed.
AWARD
[125] The employee, Mr M.L. Ndlovu, is found not guilty of contravention of section 17(1)(b) but is found guilty on the alternative to Charge 1 and guilty on Charge 2 in terms of section 18(1)(q) of the Employment of Educators Act.
[126] The employee, Mr M.L. Ndlovu is dismissed with immediate effect.
[127] The employer, the KZN Department of Education must inform the employee, Mr M.L. Ndlovu of his dismissal immediately on receipt of this Award.
[128] Mr M.L. Ndlovu is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[129] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr M.L. Ndlovu’s name as contemplated in section 120 in Part B of the register.
[130] The ELRC must also send a copy of this Award to the South African Council for Educators (SACE) to consider revoking Mr M.L. Ndlovu’s SACE certificate.