In the inquiry by arbitrator between
Provincial Department of Education; Eastern Cape
(Employer)
And
Collin Sthembiso Hendriks
(Employee)
AWARD
Case number: ELRC920-24/25EC
Nature of dispute: Misconduct: Sexual assault
Nature of process: Inquiry by Arbitrator
Dates of hearing: 21 01 2025, 30 06 2025, 14 01 2026, 25 05 2026, 27 AND 28 07 2026
Closing arguments: 11 08 2026
Date of award: 19 08 2026
Panelist: JC Robertson
Education Labour Relations Council
261 West Avenue
ELRC Building, Centurion
Tel: 012 663 7446
Introduction and background
1 This matter was referred for an inquiry by arbitrator hearing to the Education Labour Relations Council (ELRC) in terms of clause 32 of the Dispute Resolution Procedures of the ELRC read with clause 3 of ELRC Collective Agreement 3/2018 and section 188A of the Labour Relations Act 66 of 1995 (LRA). Ms T Gunguta and later Mr T Tsheko represented the Provincial Department of Education, Eastern Cape (employer), Mr P Papisa (SADTU) represented Mr CS Hendriks (employee). Ms Z Xaba acted as intermediary for the learner in respect of whom this inquiry arises. The learner was 20 years old at the time of the alleged sexual assault. Given the fact that she was a learner at the time and is still furthering her studies she will be referred to as Ms X. Ms V Gwija acted as interpreter. The matter was digitally recorded. It was agreed that the parties would deliver their respective written closing arguments by 11 08 2026. I have received no written closing arguments from either of the parties. The period for the delivery of written arguments having expired, I have proceeded with my award.
Issue to be decided
2 I am required to determine whether the employee is guilty as charged and dependent thereon an appropriate sanction.
Background
3 The complainant was placed in the care of Mr and Mrs Hendriks on the death of the complainant’s mother. Mrs Hendriks is the complainant’s mother’s sister and her aunt. Mr Hendriks has two other foster children, J 9 years old and M 3 years old. The complainant was born on 15 11 2004, and was 20 years old at the time of the alleged sexual assault (July 2024). At the time, Mr Hendriks and his family stayed in the Breidbach Senior Secondary School (BSSS) hostel. Mr Hendriks is the principal of BSSS.
4 In 2024 the complainant was in Grade 11 at BSSS. The complainant posted a detailed account of the alleged sexual assault on Facebook (July 2024), eliciting a public response. Mr Hendriks was criminally charged on 31 July 2024 and 3 days later arrested and detained for 2 weeks. He and his family were evicted from their hostel accommodation on 13 08 2024. He currently rents accommodation in Breidbach. His wife, the two foster children, the complainant and his sickly brother reside with him. The employee’s wife is unemployed. The complainant dropped out of school after the alleged incident. She is currently living with the Hendriks family and studying Grade 12 online, from home. The employee enrolled her in 2025 with the Skills Academic School in Gqeberha to do distance learning for matric.
5 The employee was charged with misconduct as follows:
Charges
The alleged misconduct and available evidence are:
The alleged misconduct is for the contravention of the Employment of Educators Act, 76 of 1998, Schedule 2 item 7 of Disciplinary Code and Procedures. The alleged misconduct and available evidence are based on the following:
Charge 1
You contravened Section 17(1)(b) of the Employment of Educators Act of 1998 which inter alia reads as follows “committing an act of sexual assault on a learner, student or other employee.”
In that, on or about the period of July 2024, you committed an act of sexual assault to a learner, Ms X, by raping her in your office at Breidbach Senior Secondary School.
…
6 He was suspended, which has been uplifted in the interim and he has been placed in the position of a caretaker principal at a local school.
7 The employee pleaded not guilty as charged.
8 The parties handed up their respective bundles of documents. The employer Exhibit A1-A10 and the employee Exhibit B1-B10 .
9 A copy of the complainant’s statement opening the criminal case with the Police against the employee was not handed up. Copies of various statements and an affidavit, by Ms X, dated 4 11 2024, 6 12 2024 and 12 12 2024 respectively (A10, B1, and B4-B5) were handed up, see schedule 1 hereto.
10 At the hearing on 21 01 2026 the employer requested a postponement for reasons set out in my ruling of 21 01 2026. I granted the postponement. In my ruling of 21 01 2026 I referred to the proceedings of the day, which are set out herein for purposes of background and context.
10.1 Ms Z Xaba, a social worker in the employ of the employer, acted as intermediary. Both the complainant and intermediary were seated behind a screen placed by the department to shield them from the employee, but within hearing.
10.2 The complainant stated that there had been no sexual assault and that she wished to withdraw her accusations against the employee.
10.3 The employee pleaded not guilty to the charge.
10.4 The employee handed up an affidavit dated 12 12 2024 by the complainant to the effect that she wished to withdraw the charge (criminal case). The affidavit is to the effect that she wished to withdraw the case as this was never her idea. She was never raped. She was held hostage by her boyfriend who put her up to this. Mr Hendriks did not like her going out with him and she supposes he did this to get back at her father (Mr Hendriks).
10.5 Her boyfriend had abused her. The employee confirmed that the criminal matter had been withdrawn on 9 December 2024 and handed up a letter from his attorneys dated 10 12 2024 in this regard. He also handed up a copy of a handwritten statement signed by the complainant dated 6 12 2024, to the same effect as the complainant’s affidavit. He reported that this letter had been forwarded to the employer. The employer’s representative, Ms Gunguta, however had no knowledge of the letter. The statement by the complainant expresses, inter alia, her wish to withdraw the case.
10.6 I adjourned the hearing to afford the complainant an opportunity to discuss the matter with the intermediary away from all the parties. On their return the intermediary reported on behalf of the complainant that the whole case had been made up. It was not true and the complainant stated that she was withdrawing the case.
10.7 Ms Gunguta was of the view that to withdraw the matter would be premature. There were several issues that needed consideration and investigation arising from her consultation with the complainant yesterday and the information disclosed by her today e.g.:
10.7.1 Apply to declare the complainant a hostile witness
10.7.2 The circumstances surrounding the complainant’s abduction and why had her parents not taken action.
10.7.3 She would need to interview the named boyfriend and two friends of the complainant who as reported by the complainant had visited her at the boyfriend’s house.
10.7.4 The boyfriend’s family in Mount Frere where she reported he had also taken her and who apparently were aware she was being kept against her will.
10.7.5 The potential to influence the complainant to withdraw the matter.
10.7.6 She was not targeting the employee as a person or saying that he was guilty, but as a department they had to check and investigate the matter fully given the seriousness of the allegations.
10.7.7 The matter had been referred to the department via the MEC’s for Education and Social Development and they had to report to them.
10.7.8 In the circumstances she sought a postponement sine die to investigate the additional matters.
10.7.9 Ms Gunguta reported that the complainant had told her yesterday that she had laid a charge against the boyfriend with the Police. The employee reported that he, his wife and the complainant had reported the matter to the Police. Mr Papiso confirmed that the criminal charge against the boyfriend would be heard shortly.
10.8 The employee’s representative held the view that the complainant had made her position clear, both in the criminal matter and the departmental inquiry, the criminal matter against the boyfriend was ongoing and that the matter should be withdrawn.
10.9 After hearing the parties and discussing the matter further I granted a postponement on the basis that:
10.9.1 The complainant has submitted a statement that she withdraws her accusations of rape against Mr Hendriks and has confirmed this in the hearing today.
10.9.2 The employer representative will motivate for the lifting of the employee’s suspension.
10.9.3 There are further allegations surrounding this matter that the employer wishes to investigate in order to fulfill its mandate to provide a safe environment for teaching and learning and safeguard its learners.
10.10 The employer was required to inform the ELRC of the further conduct of the matter on or before 24 February 2025.
10.11 The matter was then scheduled for hearing on the dates listed above.
Survey of evidence
The employer’s submissions
11 The employer led the testimony of Ms X, the complainant. The employer declared Ms X a hostile witness. The employer also led the testimony of Ms Anathi Mbangata. Ms A Mbangata resides in Mount Frere and is the legal guardian of Lazolo Mbangata since his mother had passed away. The employer thereafter closed its case.
12 Prior to leading her evidence in chief the employer representative put a summary of what she had previously stated, prior to this hearing. Ms X confirmed under oath this was true and correct, namely to the following effect:
12.1 The allegations she made against the employee relating to sexual assault and rape were not true
12.2 She alleged she was forced by her boyfriend (Lazola) to make the allegations
12.3 The boyfriend wanted to get money out of the employee as he had always asked her how much he earned
12.4 When asked by them as to why she did not report this, she averred she was afraid for her life
12.5 She had since moved on with her life and needed no assistance both mentally and physically. She confirmed she had been referred, by way of a letter from Ms Xaba, to attend at Cecelia Makiwane hospital, but decided not to go. She did not need support. She was fine mentally and did not wish to revisit the matter
13 Ms X confirmed that she did not require to sit behind a screen to testify, the intermediary and interpreter however remained in attendance.
14 Ms X testified further to the following effect under examination by the employer who declared her a hostile witness.
14.1 She did not wish to discuss the allegations of rape and sexual harassment against the employee. Reason being she did not want to talk about the past. These things were false, she almost lost her life, she did not want to talk about something that was bad and that she had not done. Either she lied or she was going to die and so she had lied. Her boyfriend (Lazola) had forced her to make the report to the police, if she had not he would have beaten her again that night.
14.2 She did not report to the police that her boyfriend assaulted her. She was in love and did not want to do anything bad to him and lose him. She did not know at the time what she was doing.
14.3 She had not gone to her boyfriend’s aunt in Mt Frere because of any rape situation, but because he wanted to make her his wife and keep her there. The aunt took her to a social worker and told her she would be her foster child, she would take her in and she would stay with her.
14.4 She had called her aunt, the employee’s wife, and told her to send her money so that she could come back home. She had told her boyfriend’s aunt that her aunt had sent her money and this had led to tension between them. She had then realised that something was going on there. She had called her boyfriend and told him that she was concerned and he had told her that what she wanted to do would not work out and she must do whatever they told her to do and listen to them. That’s when she got scared and did whatever they told her to do, things had continued and she was made to participate in rituals which again concerned her and she spoke to her boyfriend forcing him to allow her to return home. He had then booked a bus for her and she returned to East London. He told her that she should not do any funny business. She then decided to call her friends to fetch her from her boyfriend’s place and she went back home to her family and told them what had actually happened. She now felt safe. She did not wish to comment on why no case had been laid by her and her family in respect of what had happened.
14.5 She now had resolved to tell the truth and that the incidents in question did not happen and that she would tell the truth from the start.
14.6 She apologised for what she did and the fact that relationships had been ruined and people had been upset by what had been placed on the social media. She did not realise it would be so serious and apologised and hoped that they would forgive her for whatever she did.
14.7 She was not the one who posted the incident/s on social media it was her boyfriend. In fact a lot of people had called her voicing their curiosity in respect of the fact that she did not write English that well. She however had not told them at the time that it had been her boyfriend.
14.8 Put to her that the employer had heard a different story from her boyfriend, his aunt and the social worker in Mount Frere from what she had presented. She responded that she did not understand how Lazolo could say she was detached when they were making love. Lazolo was not a person who liked to touch or make love to her and they did not hold deep conversations. The aunt had not been chased away by the social worker because she was 20 years old. The social worker did not ask her if she wished to make a report to which she had affirmed. The only reason they had gone to the social worker was because they wanted to obtain a foster grant. The social worker told them that as she was 20 years old no grant could be paid as the grant stopped at the age of 18 years .
14.9 The employee agreed with the testimony of Ms X, accepted her apology and hoped that the matter would be laid to rest.
15 Ms Anathi Mbangata testified to the following effect:
15.1 Ms X was Lazolo’s girlfriend they had come to visit her in Mount Frere while on vacation. Ms X had approached her wanting to stay in Mount Frere. After saying that that they should discuss it with Lazolo she asked her what the reason was and Ms X had said that she wished to remain with her as a parent and with a boyfriend and that she could then visit Lazolo in East London. She Ms Mbangata had no problem but said they should speak to Lazolo first. Lazolo was not happy about the arrangement but said he would not stand in the way of the complainant’s wishes and if she wanted to stay with his aunt that would be in order. As she knew the story she decided to report the issue of the complainant/Ms X to the social workers and report that she would stay in her house as she knew that they had opened a case. They went to the social workers, that is herself Lazolo and the complainant. They narrated the story to the social worker and she said that the complainant was above age (18 years) and so she could not open a file for her. However bearing in mind the matter she would assist them. She was still busy with other issues. Lazolo was running late and said he would leave Ms X with her and he had then left. The applicant had narrated the full story to the social worker who wrote down what she said. The social worker had then gone to consult a superior and the manager/superior had called the police who were dealing with this matter (in King or East London where it was reported) and told them that Ms X was staying in Mount Frere. In the event they needed to speak to Ms X they should contact her or the social worker. They had then returned home.
15.2 Asked what the story was that Ms X had narrated, she responded that Lazolo had explained to her that Ms X was sexually abused by the employee. She then testified as to asking Ms X about the conduct of the employee how many times she had slept with him, she did not remember the times. Where she sat in the school offices and where they stayed and where they had entered into sexual relations and why she had not reported the matter to her aunt. Ms X said the reason was that she had received no assistance from her aunt when the employee had started touching her and she had therefore not reported the issue later on. She depended on the employee and he had told her that he would not buy her any clothes or anything if she did not sleep with him. She also stated that at social gatherings especially with the family he would not leave her on her own in the event that she might report what was happening.
15.3 While in Mount Frere, Ms X had started receiving telephone calls and when she asked her who it was she said that it was her cousin.
15.4 Later on, when she was going to town Ms X asked her to collect money that had been deposited for her. On her return she asked Ms X who had sent the money (R300 equivalent to a bus fare to East London) and Ms X told her that it was for the police case and that they wanted her to attend. Ms Mbangata went on to say that Lazolo had said he wanted to hold a birthday celebration for Ms X in East London and she told him that he must come and fetch her as she had concerns about her safety. Lazolo was concerned about the expense. Ms X then used the R300 to travel to East London. Lazolo confirmed her arrival and that was the end of the story with Ms X and herself. Ms X had never returned to Mount Frere
Cross-examination.
15.5 The visit to Mt Frere was a normal visit and not a question of Lazolo or Ms X escaping.
15.6 At the time Lazolo was a student at Walter Sisulu University (WSU) and he was staying with Ms X in East London in a flat he rented. She was not sure if he was funded by NSFAS. He had at times indicated that he had financial problems. His younger brother and Ms X, both of whom did not work stayed in the flat with him. As the eldest brother he was looking after the other two, with no monies from her as a foster parent, to support him. He was not working at any place. He had said he was tutoring at WSU in IT. Lazolo had told her that he bought a car, however she later found out that the car did not belong to him, but to his girlfriend (not Ms X).
15.7 Put to her that her report that Ms X told her that the employee told her she was not allowed to mingle with family and the fact that she was staying with Lazolo was contradictory, she was unable to provide a satisfactory answer.
15.8 She could not confirm who sent Ms X the R300.00. Lazolo that said that he did not do so. Ms X said she received the money from the police.
15.9 Asked whether Lazolo was trustworthy or had mislead her in the past, she responded that he had mislead her sometimes.
15.10 She was not aware that the criminal case against the employee had been withdrawn and that Ms X had submitted an affidavit to the effect that the employee had not assaulted her. She had not been aware that the employee, his wife and her sister who lived in East London, supported Ms X.
15.11 She agreed that it was not possible for someone who did not work and was a student at WSU to take care of two adults as Lazolo apparently was doing.
15.12 Asked whether she was aware that there was an ongoing occurrence/case against Lazolo she responded that she was. Asked to explain, she stated that the case related to child neglect and Lazolo was a suspect. The case was in Johannesburg. The child had not yet been found and as the story went Lazolo was the last person to be with the child.
15.13 She denied that she had wanted to register Ms X as a foster child when she was with her in Mount Frere. The only thing that she had done was that she asked Ms X about a foster grant and she said the person to ask was the employee who was responsible for her finances. At social welfare she asked about the social grant they found that the foster care had been cancelled, that was all. There was nothing that said she wanted to foster Ms X as her child, she was the girlfriend of Lazolo. She denied attempting to apply for a foster grant for Ms X in the same way as she had obtained a foster grant for Lazolo her foster child. It was not her intention to foster Ms X but to assist as she had stopped going to school. She had enrolled her at Ingwe TVET and asked the social worker about a social grant which would assist to pay for transport for Ms X to go to school. However they would still have a problem with food.
15.14 She agreed that one could conclude that Ms X was not at ease staying with Lazolo, taking note of what she had told her and would rather stay with a parent than a boyfriend.
The employee’s submissions
16 The employee led the testimony of Ms X, testified on his own behalf and closed his case.
17 Ms X testified to the following effect:
17.1 She had voluntarily gone to stay with Lazolo at his flat, a school “university residence”. 3 persons, i.e. Lazolo, his brother and her resided there. She could not say how Lazolo managed to finance the situation, but he made everything seem easy. He worked BOLT using a vehicle that she had thought was his, but later found out belonged to his ex-girlfriend and that he was still involved with her. Asked if she was aware of any child he had to support, she was not aware of any child he had to support and did not know if he had a child. He was arrested for rape and he told her that the girlfriend would come and collect her car. He was not convicted.
17.2 Lazolo used drugs, weed and alcohol. He was abusive to her both verbal and physical, especially when she found out things from his phone.
17.3 Lazolo was jealous that the employee would give her things that she asked for, things that he could not give her. He asked her if she loved him and would do anything for him, she told him she would do anything for him. The next morning Lazolo told her that she was trending on social media and showed her the post of which at the time she was unaware. He had done the post and told her to get ready so that they could go and report the incident in the post to the police in King Williams Town. He instructed her to tell the police that the employee had raped her and everything that was written in the post. So that they could make the employee scared and that if he wants it to stop to pay R 100 000.00- R 150 000.00. She did not want to and was crying. Lazolo threated her and told her that if she did not do this he would make her life a mess. She had then complied.
17.4 She had decided to tell the truth after she had been taken to Mt Frere, she realised what was happening and felt like she was in a trap. Lazolo wanted her in Mount Frere and wanted her to be his wife. On realising this she decided to go back home.
17.5 The father of her child, her aunt in East London, her mother’s sister (the employee’s wife) and the employee currently supported her.
17.6 She regretted what she had done, but at the time had been blinded by love.
In cross-examination
17.7 She had never told Ms Mbangata any stories, Lazolo had told the stories.
17.8 She stood by her previous testimony
18 Mr CS Hendricks testified to the following effect:
18.1 When Ms X was 12 years old her mother had passed away and his wife, her mother’s sister had decided to foster her and she had been staying with them since then.
18.2 He had been a teacher for 13 years and there had been no accusations against about assaulting learners. There were no allegations in his family against him relating to any sexual assault of a child. There was nothing untoward in his relationship with Ms X. She had told him about Lazolo, her boyfriend.
18.3 On return from church on a Sunday his wife had showed him the WhatsApp message that Ms X was at the police station laying a charge against him. He decided to discuss the matter at home. Lazolo and Ms X were not there. He saw that he was trending on face book that he had sexually assaulted his daughter. He had left it like that as he wanted the law to take its course. He was later arrested.
18.4 He had learned that Lazolo was using substances, dagga and committing IT fraud. He had not discussed this with Ms X. He saw Lazolo for the first time that Sunday evening when he came to fetch Ms X’s clothes and they had had words. Lazolo was staying in Southernwood opposite Boston College.
18.5 In his view Lazolo was hostile towards him because he supported Ms X and gave her whatever she wanted, as she had lost her mother. Not only her aunt in East London , but he and his wife looked after her financially.
18.6 On her return Ms X had recounted her story. It did not sit well with him. She apologised to him. They had gone to the police station where she voluntarily withdrew the charges against him. The relationships between Ms X and him and the family had been restored. However his health had deteriorated because of the incident.
18.7 In 2025 he had enrolled Ms X at the Skills Academy to do a distance matric and she was still a student at the Skills Academy.
In cross-examination
18.8 He had not opened a charge against Lazolo for what had happened or the issue of the R 150 000.00. He had become aware of this on being told by Ms X. The State had opened a case against her for perjury but she was acquitted. He had obtained a protection order against Lazolo.
18.9 Asked why he had not clarified the issue around the publication on social media, extortion drugs etc, he responded that Ms X had made a publication on social media where she explained and expressed herself and that all the things that were levelled against him were false.
18.10 He was also of the view that considering the conduct displayed by Lazolo it may be detrimental to Ms X to pursue him. In any event to try and protect her dignity and integrity he did not do anything.
Analysis of evidence and argument
19 I have only referred to the evidence and argument necessary to substantiate my finding/s and award. In many cases evidence was of hearsay nature or of issues post the relevant events, which would if all were covered in this award, obscure the issues. Suffice it to say that I have considered all the evidence and argument, but because the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons (Section 138 (7)), I have only referred to the evidence and argument necessary to substantiate my finding/s and award.
20 The onus, is on the employer, to prove that the employee is guilty of the allegations proffered against him, on a balance of probabilities. The employer needs to prove by way of credible evidence, that its version is the more probable and acceptable version . The rules underlying the charges, that the employee was aware of the rules, the rules were valid or reasonable, constituted serious misconduct and were consistently applied by the employer was not in dispute. What is in dispute is substantive fairness including whether the employee contravened the rules.
The legislative and regulatory context
21 The Constitution of the Republic of South Africa, 1996 (RSA Constitution)
Section 28(2) provides that “A child’s best interests are of paramount importance in every matter concerning the child.”
The Childrens Act, 38 of 2005
22 Section 9 provides that the best interests of the child are paramount:
In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.
23 Section 120 provides that a finding that a person is unsuitable to work with children may be made inter alia by any forum (of its own volition or on application by a person having a sufficient interest in the protection of children) established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.
24 In terms of section 122 the relevant administrative forum must notify the Director General in writing of any finding in terms of section 120 that a person is unsuitable to work with children.
The Employment of Educators Act 76 of 1998 (EDA)
25 Section 17 deals with serious misconduct. Section 17 (1)(b) provides that “[a]n 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.”
The South African Council for Educators (SACE) Code of Professional Ethics .
26 Excerpts of the SACE Code of Professional Ethics included in Schedule 1 hereto find application and provide context in the instant case.
27 The guidelines in Schedule 8 of the Labour Relations Act 66 of 1995 (LRA) and the instruction of the Constitutional Court as to what commissioners should take into account in determining whether dismissal is an appropriate sanction is instructive as to what should be considered in a disciplinary inquiry in regard to sanction. In Sidumo & Another v Rustenburg Platinum Mines (Pty) Ltd & Others the Constitutional Court held:
“In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list”
28 Where there are differing factual versions presented by witnesses, this entails, in summary, an assessment of the credibility, by way of their demeanour, any partiality, prejudice or self-interest , of the witnesses, the reliability and accuracy of their testimony , and the inherent probability or improbability of the witnesses testimony together with an overall consideration of the probabilities of each party’s version and to make a determination thereon as to the most natural and plausible conclusion .
29 I take into account that in the event of circumstantial evidence, inferences on the probability of the facts in dispute may only be drawn from proven objective facts. As such, it constitutes indirect proof and care must be taken as to the nature of the evidence from which it is sought to draw an inference about the facts in dispute. “If the facts permit of more than one inference, the Court must select the most ‘plausible’ or probable inference” . The distinction between speculation, (an impermissible inference), and a permissible inference grounded on objective facts, must also be born in mind :
“There can be no inference unless there are objective facts from which to infer other facts, which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
30 In summary, in the event of circumstantial evidence, it is necessary to determine whether there are proven objective facts , on which inferences can be drawn and the probability or otherwise of such inferences (i.e. where the facts permit of more than one inference, that it is the most ‘plausible’ or probable inference).
31 Notwithstanding that the employer declared Ms X a hostile witness ,I found her testimony to be reliable and credible. She testified in respect of events that she was party to in a straightforward manner. It is also relevant that she was in a relationship with one Lazolo who appears to have misled her for his own ends. It was Lazolo who made the posts on the social media and coerced Ms X to lay a charge at the King Williamstown police station. Following on the events in Mount Frere, Ms X was able to see through the plans of Lazolo and thereafter made plans to return home. Further:
31.1 Apart from her initial statement to the police and her statement made to the employer (4 11 2024) (A10), the complainant, Ms X has consistently denied the allegations of sexual assault and rape of her by the employee.
31.2 She testified that her boyfriend Lazolo was responsible for the social media posts and that she had nothing to do with this, only learning about it after it had been made.
31.3 The employee testified that after the whole incident, Ms X had placed a post on social media stating that all the allegations levelled against the employee were false.
31.4 At the hearing on 21 01 2026, Ms X stated that there had been no sexual assault and wished to withdraw the accusations against the employee.
31.5 On 12 12 2024 Ms X made an affidavit to the effect that the employee had never raped her, she had been put up to the subterfuge by her boyfriend (Lazolo) and wished to withdraw the case against the employee. See also written a statement dated 6 12 2024 to the same effect. The employee testified that Ms X had been charged with perjury and that she had been acquitted.
31.6 Despite extensive cross-examination and being declared a hostile witness Ms X persisted with her version that the employee had not raped or sexually assaulted her.
31.7 Ms X subsequent to the social media posts, her sojourn in Mont Frere and return to East London from where she returned to the employee’s home, is still living with the employee and his family.
32 Other factors do not support the employer’s version of events. E.g.:
32.1 The whole episode of Ms X being taken by Lazolo to his aunt in Mount Frere is disturbing. It bears all the hallmarks of keeping her against her will in Mount Frere. Ms Mbangata’s testimony appeared contrived. I do not accept her explanation that she did not attempt to obtain a foster grant from social welfare. Her excuse when this was put to her, that this would assist with payment for school transport for Ms X, appears on the face of it, to have been made up on the spur of the moment and in any event does not detract from the fact that she enquired about getting a social grant/Foster grant from social work. In this regard the social worker, who attended to the matter and who could have offered clarity on the situation, did not testify. In the circumstances this must adversely affect the respondent’s case and I can place no weight on Ms Mbangata’s testimony in this regard.
32.2 It was left to Ms X to obtain money from her family to pay for bus fare in order to return to East London. Why she would return to Lazolo given all that transpired is not clear. However given his attitude on her arrival she requested her friends to fetch her and returned to her home with the employee and his family.
33.3 None of the testimony of Ms Mbangata was of any direct relevance to the charges against the employee. She explained that Lazolo had told her what happened. Lazolo was not called to testify and accordingly Ms Mbangata’s testimony in this regard is not only hearsay but is disputed by the employee and Ms X. I must draw a negative influence against the employer for not calling Lazolo and cannot accord any weight to Ms Mbangata’s testimony regarding the alleged sexual assault and rape and why she was taken to Mt Frere.
33.4 Taking into account the severity of the allegations of the conduct of the employee against Ms X, it makes no sense, that if this was true, she would voluntarily live with the family in the employee’s home. In addition, she is being supported financially by her aunt (who lives in East London), her other aunt, the employee’s wife and the employee and further the employee is funding her studies through distance learning.
34 In the circumstances I find that the employer, the department of Education Eastern Cape, has failed to present any cogent and direct evidence to the effect that the employee was guilty as charged. The employer has accordingly not discharged the onus that the employee was guilty as charged. In the circumstances I make the following award.
Award
35 The employee, Collin Sthembiso Hendriks, is found not guilty of the charges preferred against him by the employer, the Provincial Department of Education, Eastern Cape.
36 The employee is required to report back to the school, namely Breidbach Senior Secondary School, in his position as principal, within three days after getting this award.
37 The employer is required to reinstate the employee’s accommodation benefits, as previously existed at the school, with immediate effect.
JC Robertson
ELRC Panelist