20 March 2026 -ELRC1065-25 26 GP

Case Number: ELRC1065-25 26 GP
Commissioner: M.A. HAWYES
Date of Award: 20th of March 2026

In the ARBITRATION between

Department of Education: Gauteng
(Employer)

and

Mr. T. Kgutswane

(Employee)

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 10th of February 2026, the 23rd and 24th of February 2026 and finalized on the 4th of March 2026.
1.2 The hearing was dealt with at the Gauteng Department of Education Head Office in central Johannesburg.
1.3 Mr. L. Makoka, a union official from the trade union NATU, represented the employee.
1.4 Mr. F. Moloto, a labour relations officer, represented the employer.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 11th of March 2026. The said arguments were timeously received and my award now follows.
1.6 Each party each made use of a small bundle of documents.
1.7 Detailed notes and a digital recording was kept of the entire arbitration process.
1.8 The minor witnesses that testified at this hearing were assisted by an intermediary and interpreter.
ISSUE IN DISPUTE
2.1 Whether the employee is guilty of alleged sexual misconduct as contemplated in section 18 (1) (q) of the Employment of Educators Act no 76 of 1998 (as amended) (EEA). Firstly, the employee was charged with sexually harassing a Grade 11 (F) learner, NH on the 23rd of September 2025 whilst on duty at Far Secondary School, in that he told her that he dreamed about having sexual intercourse with her and that in this dream he had four rounds of sex with her.
2.2 Whether the employee is also guilty of alleged misconduct as contemplated in section 18 (1) (q) of the EEA. It is alleged that the employee also, on or about the 23rd of September 2025 whilst on duty at Far Secondary School, conducted himself in an improper, disgraceful and unacceptable manner, in that he promised to give a Grade 11 (F) learner, NH, an Accounting question paper and memorandum and he told her that he would prefer her to wear a mini dress and come to him so that he could show her on her body what he wanted in return.
BACKGROUND TO THE ISSUE
3.1 The employer employs the employee at Far Secondary School as a PL 1 educator teaching Economics and Accounting.
3.2 The employee pleaded not guilty to both the charges preferred against him.
SURVEY OF PARTIES EVIDENCE AND ARGUMENT
EMPLOYERS EVIDENCE AND ARGUMENT
4.1 The employer lead the evidence of the following witnesses namely Mr. Silo Marapeng, the Principal of Far Secondary School, the complainant NH who testified with the assistance of an interpreter and an intermediary and MN and NP, fellow grade 11 pupils and friends of NH but from a different class.
4.2 Marapeng testified that during September 2025 the parent (father) of NH approached him with the allegations contained in the charge sheet and reported how the employee had made unwanted sexual advances towards his daughter.
4.3 Marapeng testified that he asked for the allegations to be placed in writing and they later were.
4.4 He advised the parent that the matter would be referred to the employer’s district office for further investigation.
4.5 Marapeng also testified that the employee had been acting as a departmental head since November 2022 in the Economics department.
4.6 The next witness, NH, a 17 year old pupil from Far Secondary School, testified that at the time of the alleged incidents she was in Grade 11F and it was also the time of writing the September preliminary examinations.
4.7 Two learners and friends of hers, MN and NP came to her class after break on the 23rd of September 2025. The two learners are not from her class 11F but from 10C. It is common cause that the employee taught the 10C class Accounting at the time.
4.8 MN and NP told her that they had arrived at class late after break and the employee had refused to allow them to enter until they brought her to him.
4.9 NH testified further that she went with her to friends to the employees class after seeking permission from her class teacher.
4.10 When she arrived at class 10 C the employee called her aside and told her that he had had a dream about her. In the dream she was begging him for four rounds. He did not specify what the four rounds were that he was talking about and she initially thought that he was referring to her mark for accountancy although it later became clear to her that he was talking about sexual intercourse. The employee then said that he woke up from his dream.
4.11 NH told the employee that he should find a sangoma or priest to interpret the dream because she could not do that.
4.12 The employee then laughed and said he was kidding and NH testified that she told the employee to exclude him from his issues.
4.13 She then proceeded to leave the classroom but at the door he stopped her and told her that she must not tell anyone what he had said because he would lose his job. She then left and returned to 11F.
4.14 On returning to class she felt overwhelmed and started to cry. A class mate Nomhle approached her and asked what was going on and NH related the incident with the employee to her.
4.15 In the afternoon MN returned to her class and told her that the employee had alleged that she (NH) had taken his pen but if she didn’t she must still come back to his class because he wanted to talk to her.
4.16 NH testified that she had not taken the employees pen and she returned very reluctantly to the employee’s classroom.
4.17 Once there the employee called her aside again and suggested that he would give her the current accounting paper and the memorandum for the Grade 11 preliminary examination. He then asked NH what she would say and she said that she would say “thank you”.
4.18 The employee replied to her and said “no” – you must come to my place wearing a mini-dress and then I will point out to you what I want.”
4.19 NH testified that she felt very uncomfortable and asked if she could leave.
4.20 The employee then offered again to give her both the Accounting paper and memorandum and she said “no” again and asked to be excused from his class.
4.21 The employee persisted and said that after she had written her exams that she should come to him so that he could give her a love bite. The employee then insisted to give her the examination paper and memorandum but she in turn desisted and quickly left his class.
4.22 NH returned to her class and told NM what had happened and shortly thereafter it was the end of the school day.
4.23 Later that day she spoke to her brother and mother about what had happened at school. Her mother phoned another lady connected with the school and this lady phoned the principal whilst her mother and father listened. The principal advised the parents to come to school and report the incident.
4.24 NH testified that she approached the principal first and her father came to the school a few days later. NH explained that her father lives and works in Mpumalanga and does not live with her mother and brother.
4.25 NH testified that the employee did not teach her at the time of the incidents. He taught class 10C accounting. She was in grade 11. The employee had taught her in the first term of 2025 and the school had later changed him to teach different classes.
4.26 During cross examination NH was questioned, inter alia, about where her conversation with the employee took place. She explained that the employees desk was near the door where he was marking papers. Since it was exam time not many learners had come to class and the learners that were there were seated at the back near the wall. NH testified that the learners in the class were too far away to hear her conversation with the employee.
4.27 The next witness was MN, a 16 year old pupil at Far Secondary School.
4.28 MN testified inter alia that she knows NH and that they have been friends since Grade 9.
4.29 MN testified that she and her friend NM arrived at class 10C late. They found the employee at his desk in front of the class marking papers. He asked them why they are late. He then instructed them to call NH from 11F if they wanted to come back into class. They then went to call NH.
4.30 NH went with them after obtaining permission to leave from her class teacher. Upon arriving at 10C the employee spoke to NH at his desk where he was marking papers. They returned to where they were sitting at the back near a window and could not hear the conversation between the employee and NH because they were too far from them.
4.31 MN testified that she noticed a change in NH’s demeanor when she left the class the first time. It was like she just wanted to get out of the class as quick as possible.
4.32 MN testified that the employee approached her to call NH a second time to class in the afternoon because he suspected that NH had taken his pen. When she went to 11F to call NH there was no teacher in class.
4.33 NH was very reluctant to return to the employee’s class but elected to go because she had been called by an elderly person. MN testified that she asked NH why Sir was calling her back to his class a second time and she did not answer.
4.34 When they arrived in class Sir spoke to NH again out of her earshot. Sir later told her that he had found his red pen.
4.35 MN deposed that NH had not mentioned what the conversation was that she had with the employee on two occasions.
4.36 The third witness for the employer was the 16yr old learner NP who testified that at the time of the incident she had been friends with NH for one year. Both of them had been pupils in class 11F in the 2025 school year.
4.37 On the 23rd of September 2025 she noticed that NH was called out of class and when she returned to class she looked upset and troubled.
4.38 NP then sought to find out what was wrong and NH was initially reluctant to speak about what had happened. NP insisted that NH reveal to her what was bothering her.
4.39 NH then related the dream saga conversation that the employee had had with her i.e. that he dreamt about NH wanting four rounds of sex and her response that she could not interpret dreams.
4.40 NP testified that she noticed that NH was called out of class twice NP testified that she was not in class when NH came back the second time but she was told that NH had returned crying.
4.41 The final witness was NM, a 16 year old pupil in class 10C at Far Secondary School corroborated the version of MN in most material aspects and I see no need to repeat that testimony again.
EMPLOYEE’S EVIDENCE AND ARGUMENT
4.42 The employee testified under oath and called two minor witnesses in support of his version.
4.43 The employee testified that on the 23rd of September 2025 he was at school teaching class 10C accounting.
4.44 The employee confirmed that he had only taught grade 11s’ accounting for ten days in the first term of 2025.
4.45 On the 23rd of September 2025 whilst in class marking exam scripts both MN and NM arrived at class late (14H30).
4.46 He asked where they had been and they said they were with NH at break time. He then asked both learners to call NH to class so that he could speak with her. They did so.
4.47 When NH arrived he spoke to her about the late coming to class and NH denied that she had arrived late at her class.
4.48 The employee then referred to a male learner who he called NH’s boyfriend, (a pupil in his 10C Class) had confirmed that NH had not arrived late in class.
4.49 The employee then reprimanded NH for associating with and being influenced by her boyfriend not to do her school work and staying away from school.
4.50 The employee testified further that he told NH that if she did not stop with her boyfriend he would call her mother and explain what was going on with her and her boyfriend. It was at this juncture that NH’s facial expression changed and she left his class.
4.51 He later felt bad and called NH back to his class in the afternoon at which time he apologized to her but emphasized that she needed to end her relationship with her boyfriend because it was affecting her work.
4.52 The employee testified that some learners were in class and some were not because exams were being written and not everyone came to school when exams were being written.
4.53 The employee confirmed that MN and NM were learners in his class 10C in 2025. NM was one of his top learners but MN influenced NH and was a bit of a troublemaker in class and he had previously spoken to MN’s parents that there were problems with her.
4.54 The employee deposed further that he had taught NH in grade 10 and that is how he knew that male learner was her boyfriend.
4.55 The employee denied relating any dream that he had involving NH or offering to give her the accounting paper and memorandum in exchange for a visit to his house wearing a mini dress. The employee explained that he lived in a bachelors flat with the mother of his child and their two year old son and that it would not be possible to meet NH there.
4.56 The employee then called two minor witnesses in support of his case.
4.57 The first was TN, an 18 year old grade 11 learner at Far Secondary School. TN testified that in 2025 he was a learner in the employees grade 10C class.
4.58 TN expressed an opinion on MN and NM who were fellow students in the 10C class in 2025. He testified that NM was a smart girl and that MN was influenced by the conduct of NM.
4.59 TN testified further that on the 25th of September 2025 he was seated in the front of the class near where the employee was seated. He noticed that MN and NM were not in class but arrived late. He then heard Sir asking MN to call NH. When she arrived he heard Sir reprimanding NH about her boyfriend and how her boyfriend was influencing her in a bad way. He knew the male learner because they were classmates in 2025.
4.60 TN testified that he saw NH return to class later that day and speak to the employee but he did not hear their conversation on this occasion because it was close to the end of the school day and he was getting ready to leave class.
4.61 The second and final witness LM, a 17year old learner at Far Secondary School testified that he was seated together with TN at the front of the classroom. His testimony was a carbon copy of the testimony of NM, exculpating the employee from any involvement in sexual discussions, and his version will not be repeated here.
4.62 After the closure of the employee’s case I observed that for the most part none of the employee’s version as corroborated by his two minor witnesses was put to any of the employer witnesses during cross examination.
4.63 I took a principled decision to recall NH for the purposes of cross examination and directed the employees union official Mr. Makoka to put the employees version of events to NH so that she could comment thereon.
4.64 Upon recall the employees union official only partially complied with my directive and it became necessary for me to intervene and put the employee’s full version to NH and record her response.
4.65 Her response for the record is as follows:
4.65.1 She briefly repeated her version exactly as she had given it before;
4.65.2 She denied that the employee reprimanded her about the male learner because at the time they spoke she and male learner had already separated. NH also mentioned that her mother was aware of her relationship with the male learner when it existed.
4.65.3 She denied that TN and LM were seated close to where she was speaking to the employee and in fact reiterated that both were sitting far and could not hear her conversation with the employee.
4.65.4 She submitted that the employee continued his sexual discussions when she came to his class the second time.
4.65.5 She stated that the employee was lying and that she knew exactly what had happened on the 25th of September 2025 and what she saw.
ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The employer bears the onus of proving the allegations against the employee on a balance of probabilities.
5.2 In assessing evidence it is important to note the age of children when evaluating the probity of their evidence.
5.3 I find that NH was in in grade 11F at the time of the alleged incidents and that her two witnesses were in grade 10C, a class taught by the employee. It is common cause that NH was summoned by and met and spoke to the employee twice in his classroom on the 25th of September 2025
5..4 All The Respondent’s minor witnesses impressed me as good honest witnesses that were capable of understanding the difference between the truth and a lie and were clearly motivated to tell the truth.
5.5 NH testified twice at the hearing and on both occasions her evidence remained entirely consistent with her earlier version and the testimony of the two witnesses called to corroborate her version.
5.6 At the time of her second testimony NH was confident and showed no signs of diminishing as a witness. If anything her evidence was stronger than the first time that she testified.
When confronted with the version of the employee she responded in a confident manner and readily provided an explanation why the version of the employee was incorrect and a fabrication.
5.7 The version of the employee is improbable. It is improbable that the employee would call NH to class twice to address his alleged concern with her relationship with the male learner when the relationship between the two had ended. The employee did not teach NH any subjects on the 25th of September 2025 and had only taught her for a short while in the first term of 2025. Why would there be any interest to interact with her at that time?
5.8 I find it probable that the employee engaged with NH on the basis of the sexual dream he had about her and when she did not show any interest in his sexual advances the first time he realized that he had put himself in a precarious position by speaking in the way he had. He felt the need to motivate her to firstly keep quiet about their first conversation by illicitly offering NH the accounting paper and memorandum and in so doing he hoped to gain leverage over her to fulfil his desire to ultimately engage in sexual relations.
5.9 The employee understood that he needed corroboration for his version. Enter the testimony of TN and LM.
5.10 As mentioned earlier the two versions were identical on the employees version and just about nothing else. I find that two employee witnesses did not witness or hear any conversation between the employee and NH and were probably approached later and given some incentive to testify on behalf on the employee.
5.11 Both witnesses looked bored and uninvolved when they testified under oath. I find that both were coached as to what to say.
5.12 It is improbable that any learners would have been close to the employee and NH when he engaged in the sexual conversation with her and later when he tried to bribe her with the accounting paper and memorandum for sexual favors. This conclusion is supported by the surrounding circumstances that the school was writing examinations and pupils were only required to come to school when they were writing. This meant that the class was not full with learners and I accept the version of NH and her witnesses that those present learners were seated towards the back of the class and out of earshot of any conversation that the employee had with NH.
5.13 In conclusion I find that the employee acted in an improper, disgraceful and unacceptable manner by engaging NH in the brazen sexual manner that he did and by bribing her when he realized that she was not receptive to his advances. The employee is found guilty of both charges of misconduct.
SANCTION
1 The parties are directed to forward me written submissions in mitigation and aggravation of sanction by Wednesday the 25th of March 2026.
6.2 In addition both parties must address the aspect of whether the employee should be declared unfit to work with children in terms of section 120 (4) of the Children’s Act, no 38 of 2005.