IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN BLOEMFONTEIN (FREESTATE PROVINCE)

Case No ELRC 235-25/26FS

In the matter between

FREESTATE DEPT OF EDUCATION EMPLOYER

and

SV HLATYWAYO EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 27 June 2025; 25 July 2025 and 23 September 2025

CLOSING ARGUMENTS: 03 October 2025

DATE OF AWARD: 20 October 2025

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[1] This is an inquiry scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry proceeded at the Freestate Provincial offices at 67 Charlotte Maxeke Street in Bloemfontein on 27 June 2025, 25 July 2025 and was finalised on 23 September 2025. Both parties were in attendance and were represented with Mr Blessing Mothopeng, the Labour Relations Officer in the department representing the employer while Mr Bereng Elliot Matseletsele, a full-time shopsteward for the trade union SADTU, represented the applicant.

[2] At the conclusion of the inquiry, parties requested to make written closing arguments, a request I duly granted. It was then agreed that parties would submit their written closing arguments on 30 September 2025. I received both parties’ submissions from the Council on 03 October 2025.

[3] An intermediary who assisted the learner witnesses was arranged by the Council while an interpreter was also arranged to assist with interpretation. The proceedings were recorded and typed notes were also taken.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the employee, Mr Sizwesithini Victor Hlatywayo, is guilty of the charge preferred against him by the employer, the Freestate Department of Education (the department), and I am required to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[5] The educator, Mr Hlatywayo, is an employee of the department employed as an educator at Lenakeng Technical School in Welkom. Three charges in particular were preferred against him, and the charges were the following:

Charge 1.

You have contravened section 17(1)(b) of the Employment of Educators Act No 76 of 1998 (the Act) in that on 29 July 2024, at Lenakeng Secondary School, you committed an act of sexual assault on a learner (name concealed) when you held her head, neck and waist, you then pulled her closer to you and attempted to kiss her.

Alternative to Charge 1

You have contravened section 18 (1) (q) of Employment of Educators Act No 76 of 1998 in that on 29 July 2024, while on duty at Lenakeng Secondary School, you conducted yourself in an improper, disgraceful, or unacceptable manner by holding (learner A) head, neck and waist, you then pulled her closer to you and attempted to kiss her.

[6] The educator, Mr Hlatywayo, pleaded NOT GUILTY to the charge.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[7] The employer called learner A as its first witness and who testified that she is 16 years old and currently a leaner at Lenakeng Technical School. On 29 July 2024 and during period 2 or 3 and while in Ms. Lehlokwa’s class, the educator, Mr Hlatywayo entered the class saying he was looking for her. She stood up, and the educator asked her to follow him outside. While outside, she asked her why she had not yet fetched her report to which she responded that her parents had told her that they would fetch the report. The employee asked her to go to his class and, on entering the class, she sat down. The employee then entered the class after her and asked the same question on why her parents did not come to fetch the report, to which she responded that her mother had said she would come to the school. The employee then told her that he knew there were subjects she was battling with and that she loved boys. She responded that she knew nothing about loving boys and that the boys she was hanging out with were her friends. The employee then went further to tell her that every time he kept looking at her, she was in the company of boys. He then told her that whatever was going to happen should be kept between the two of them. He proceeded to tell her that he was going to do everything in his power to ensure that she passed the subjects and that he wanted the reports to reflect level 5, level 6 and level 7.

[8] The employee asked her to close the door. She went up to close the door and immediately after closing the door, the employee asked her to stand behind the door. He went closer to her, held her head and neck and held her waist and forced her to kiss him. She moved her mouth away saying no. She pushed him away and pushed the door open and ran out of the class and went back to Ms. Lehlokwa’s class and started crying, and the other learners and Ms Lehlokwa saw her while she was crying. She did not give the employee permission to kiss her, and she did not expect the employee to do what he did because he is her class teacher. She told her friend, learner B, her mother and reported the incident to the principal the following day. She had no reason to lie about the incident and stood nothing to gain by falsely implicating the educator.

[9] Learner B was called as the employer’s 2nd witness. Her testimony was that she is 16 years old and a learner at Lenakeng Technical School. She knows about the sexual assault incident involving the educator. She and other learners were in Ms. Lehlokwa’s class when the educator, during period three, came to the class and called learner A. Ms. Lehlokwa permitted learner A to go with the educator. Learner A left the classroom being ok, but when she came back, she came back crying. She asked learner A why she was crying, but learner A did not respond. She left learner A be. It was only after school that learner A told her that upon entering the educator’s class, the educator asked her to close the door, afterwhich the educator asked her to stand against the door and after learner A closed the door, the educator approached her and touched her on her head and waist and asked her to kiss him. Learner A refused and ran out of the class crying. After learner A told her what happened, leaner A reported the incident to the principal the following day.

[10] She believed learner A because inside the class, the educator would make jokes about learner A’s surname and would always look at learner A and tell her that she was forever in the company of boys. The educator would treat learner A differently, one example being when the educator would ask other learners to bring books for him to sign but leave learner A be when she did not hand over hers. She cannot think of any reason why learner A would lie about the incident or gain anything by falsely implicating the educator.

[11] Ms. Cicilia Letevane Lehlokwa was called as the employer 3rd witness. She testified that she is currently employed as an educator at Lenakeng Technical School. On 29 July 2024 the educator came to her class requesting that she release learner A because he wanted to talk to her about her parents’ failure to collect reports. She released the learner who left with the educator. After a while, learner A came back and sat down. But she could see that she was not looking the way she did before leaving the classroom and could see that she was not ok. She asked learner A if she was ok, and learner A responded that she was ok. She then went on with what she was doing. When leaving the school and on her way home, learner A approached her walking along with one of her friends saying she wanted to talk to her. She told learner A to see her the following morning because she was in a hurry.

[12] The following day, learner A came to her and told her that when she got to the educator’s classroom, the educator sexually assaulted her by trying to kiss her and that she ran out of the class. She (Ms. Lehlokwa) went to Ms. Mofokeng who is the School Based Support Team (SBST) coordinator and told her what happened. Ms. Mofokeng said they must go to the principal. The principal asked her to call learner A, and she went to her class to fetch learner A. The principal then asked for a statement of what happened. She left the principal’s office and went back to her class, leaving the principal with the learner. Learner A is an average learner and did not do that well in other subjects. Learner A is a disciplined learner, and she did not bunk classes and does behave when reprimanded. She could not think of any reasons why learner A would lie about the incident. She allowed the educator to take learner A from the class because the principal had asked all teachers to call parents of the learners, and she thought it was because of that that the educator called learner A.

[13] She would not have believed learner A if what she observed the previous day did not occur. The educator would always make statements to the effect that the learners were naughty and could make one lose his job. After the incident, learner A’s attendance became irregular. There was an incident when the educator came to her office and commented that learner A was attending bashes. She was surprised by the educator’s remarks to the effect that learner A liked boys.

[14] The 4th and last witness called by the employer was Mr Sempe Zacharia Nale. He testified that he is employed as the principal of Lenakeng Technical School. On 30 July 2024 he received a report about an incident that occurred on 29 July 2024. Two educators together with one intern and learner A came to his office to report an incident about a learner who was called to the educator’s class and was sexually assaulted. He immediately stopped them when she saw tears on learner A’s face and decided to ask everybody else to leave the office so he could remain with the learner. When everybody left, he tried to calm learner A down, and when she was calm, he asked her to tell him what happened. Learner A told her that the educator tried to kiss her in his class and that she ran out of the class. He called the educator and asked him about the allegation. The educator told him that he did go to his class with learner A. He told the educator that learner A had alleged that he tried to kiss her. The educator denied the allegation. He then told the educator not to have any further engagements with the learner and asked him to leave the office. When the educator left the officer, he called learner A back and asked for her statement and compiled a report which he sent to the district office.

[15] After getting the statement from the learner, he called the social worker and reported the incident to her.

Employee’s Evidence

[16] Mr Sizwesithini Victor Hlatywayo testified that he is currently employed by the Department as an educator at Lenakeng Secondary School. He testified that he did not engage in the conduct alleged by the employer. On 29 July 2024 the staff attended a morning brief where the principal announced that there were learners who had not come to collect their reports. The principal then informed all the educators that they were permitted to use the school’s phone to contact the parents. He had a WhatsApp group that he had created that he would use to communicate with parents. He discovered that he did not have numbers for four of the learners. He then decided to have one-on-one engagements with the learners and started with three male learners who all advanced reasons why their parents could not fetch the reports.

[17] Regarding learner A, he called her from her class and did so because he wanted there to be a witness who would see that he had called the learner, and that is why he called learner A in front of the teacher. After leaving the class with learner A and after fetching learner A, he saw some learners who were loitering around the school. He asked learner A to go wait for him in his classroom. The learners however ran away when he confronted them. He went to his class and found leaner A seated on a desk next to the door. He proceeded to go to his desk and sat on the chair. He then asked learner A why her report had not been fetched and why her mother was not coming to fetch the report. He then asked learner A to give him her mother’s contact details so that he could call her to fetch the report. Learner A responded that her mother did not have a cellular phone.

[18] He went on to ask learner A about her always being in the company of boys, something he believed affected her performance at school. He also confronted learner A about her being absent from school and her bunking classes. He then told learner A that he would inform her mother about her bunking classes and her behaviour inside the classroom. He then released learner A to go to the class. Learner A left the classroom and there were no signs of her being upset. He had kept a distance from learner A at all times when they were in the classroom together. There was a class next to the one they were sitting at, and it would not have been possible for people in the classroom next to his not to see if learner A ran out crying from the classroom as she alleged. What also surprised him was that learner A left school without reporting the alleged improper behaviour towards him. He had always encouraged learners to report any inappropriate behaviour by teachers and that they should report such incidents to the principal. Learner A was aware that she should report such kind of incidents.

[19] Learner A would report incidents to him and would also report to him when she was not to come to school. She does not understand why learner A did not report the incident. Also, there was inconsistency with the statement given by learner A and that given by Ms. Lehlokwa. Learner A stated that she went to Ms. Lehlokwa and thereafter went to the principal while learner B testified that they only reported the incident the following day. It pained him that learner A would go home and not report the incident to her mother but report the incident to her sister who in turn reported it to her mother. He suspected that the four learners plotted against him and discussed him elsewhere so that he could not confront them about the reports that were not collected. He believed that Ms. Lehlokwa conspired with learner A to tarnish his image. Ms. Lehlokwa’s testimony showed that she (Lehlokwa) was not in good terms with him. Ms. Lehlokwa did not see learner A crying, and there was no teacher who observed learner A crying even during his period.

[20] The principal had confirmed that there are cameras at the school and that they were working. It was evident that the principal saw the camera and the footage from the cameras would have shown the state of learner A when she left his classroom. Learner A’s report was also not presented to show how poorly learner A was fairing at school. He requested learner A’s report from the principal, but the principal told him that he had sent all the information to the district office. That the footage from the school’s cameras was not shown showed that the principal had intentions of destroying him.

[21] Having had one-on-one with four learners whose reports were not collected, he was concerned that it was only with learner A that allegations of impropriety against him were raised. He has a number of years’ experience as an educator and had never conducted himself in a manner that is disrespectful towards learners. He had worked with the principal since 2013 and no complaints of sexual misconduct against learners had been lodged against him. His trade union also tells teachers not to engage in improper conduct against learners.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[22] I have taken into account the evidence and submissions made by the parties. The allegation made against the educator, Mr Hlatywayo, relates, as evidence shows, to an incident alleged to have happened in his (Mr Hlatywayo) classroom on 29 July 2024 where he is alleged to have held learner A on her head, neck and waist and thereafter pulled her closer and attempted to kiss her, conduct that resulted in the employer charging Mr Hlatywayo for serious misconduct in terms of section 17(1) (b) of the Act. Mr Hlatywayo denied the allegation.

[23] Regarding the question of whether Mr Hlatywayo engaged in the conduct alleged, I had regard to the evidence led by the two learners and other witnesses called by the employer. Trite to mention from the onset is that there was no dispute around whether Mr Hlatywayo did call learner A to his classroom on 29 July 2024. What was in dispute was whether Mr Hlatywayo engaged in the conduct alleged inside the classroom. As is often the case with alleged sexual misconduct cases, alleged sexual assault or harassment often happen in the presence of only the victim and the alleged perpetrator and rarely occurs in the presence of witnesses. Thus, whether the sexual assault alleged did occur turns on the credibility and weight attached to the versions of the parties involved.

[24] In answering the question of whether the educator engaged in the conduct alleged, it is important to look at the educator’s conduct on the date the incident allegedly occurred. Firstly, the version by learner A is consistent with that of the educator himself and Ms. Lehlokwa regarding Mr Hlatywayo having gone to Ms. Lehlokwa’s class to call learner A to his class, and learner B who was in the same class confirmed as much when she gave evidence.

[25] What became unclear though, and what the educator failed to fully or sufficiently explain is why, if, on his own version, there were three male learners whose reports had not been collected by their parents just as learner A, he did not call the male learners to his classroom and instead addressed them outside of his classroom and not inside his classroom as he did with learner A. That he had one-on-one sessions with the learners in the same classroom he had an interaction with learner A was only mentioned during cross examination when a question was posed as to where he engaged the three male learners. In the absence of a cogent explanation, I am left to conclude that he (Mr Hlatywayo) only called learner A to his classroom because he wanted to engage in the conduct alleged outside the view of other learners. If his intentions were pure and innocent as he sought to suggest, he could simply have addressed learner A on the uncollected report outside the classroom as he did with the three male learners or simply ensure that there was a witness who would witness the interaction between him and the learner A. The educator did not explain why it was necessary for him to specifically address the issue of non- collection of learner A’s report in his classroom when he could simply have done so outside the classroom as he did with the three male learners.

[26] Secondly, the version by learner A to the effect that she was alone in the classroom with the educator is consistent with that of the educator himself whose version was also that it was just himself and learner A in the classroom. If, according to the educator’s version, when he called learner A in Ms. Lehlokwa’s class and in the presence of Ms. Lehlokwa and other learners he did so because he wanted there to be a witness that he did call learner A, he could similarly have called a witness to be present in his class when he addressed learner A. The educator did not explain why he believed his calling learner A should be witnessed by Ms. Lehlokwa and the learners in her (Ms. Lehlokwa) classroom. It is an explanation I find puzzling. The only reasonable conclusion I reach is that he possibly wanted Ms. Lehlokwa to believe that he had no malicious intentions when he called learner A in her presence while the contrary has been shown to be true if one has regard to what later happened when he was alone with learner A. What, according to learner A, happened in his classroom suggests that he wanted to be alone with learner A for purposes of engaging in the very conduct alleged, which was that of sexually assaulting the learner.

[27] Also, that the sexual assault happened and the negative effect it had as alleged by learner A is corroborated by what happened after the sexual assault occurred. Ms. Lehlokwa’s testimony was that when learner A came back to the classroom, she could see that learner A was not ok, and she asked learner A if she was ok, to which learner A at the time responded she was ok. The emotional state of learner A and the effect the assault possibly had on her was also corroborated by learner B who testified that learner A was ok when she left the classroom, but that she was crying when she (learner A) came to the classroom after having been to the educator’s classroom. That learner A was possibly assaulted by the educator is further corroborated by the principal who testified that there was a point where he had to ask everybody else to leave the office so that he could be alone with learner A when he saw that learner A was crying where he tried to calm her.

[28] The educator did not advance a cogent explanation on why all these witnesses would gang up against him. But even if he were to allege that they all ganged up against him as he claimed, he dismally failed to explain the reasons that all these witnesses would have to falsely implicate him. Both learners testified that they would have nothing to gain by falsely implicating him. But if indeed there was collusion among the employer’s witnesses to falsely implicate him, their versions would have been more practised to accord or align with each of the witnesses’ narration of the events. But I cannot find this to be the case having had regard to the testimony of all the witnesses. There was, for an example, a difference between the exact day that Ms. Lehlokwa was told about the sexual assault with the learners testifying that the incident was reported to Ms. Lehlokwa the same day after school after which Ms. Lehlokwa went to the principal while Ms. Lehlokwa testified that the incident was reported to her the following day, something that I found to be more a case of a lapse in recollection of events than a contradiction as contended by the educator.

[29] An attempt the educator made at trying to explain why the witnesses would gang up against him was simply unconvincing. He first referred to learner A and the three male learners he engaged regarding the reports that had not been collected, stating that he believed the three learners and learner A connived to get him in trouble. But he failed to substantiate this claim. But even if he were to try to, I would still be left unconvinced that learners who he had no previous history of animosity with and who he, on his own version, only confronted on 29 July 2024 about their parents’ failure to collect the reports, would suddenly take issue with him and connive to land him in trouble. It is my finding that the claim as to the learners having connived to falsely implicate him simply does not hold water.

[30] Also confronted about the allegation during cross examination, the educator responded that learner A was 15 years when the incident is said to have occurred in 2024 and that she was thus a child and that he would not have done what he is alleged to have done. He further stated that he believed someone sat down with learner A and coached her to bring up the allegations against him and that learner A received advice from outside, but he failed to state who could have coached the learner or who the learner received advice from. The educator also did not put this version to learner A. The educator, during re-examination by his representative and on a question asked by his representative on the reason why learner A would accuse him of such serious conduct, the educator responded that learner A possibly sat with individuals who are dangerous who advised her to bring the allegations against him. But he again did not mention who these ‘dangerous individuals’ were.

[31] The educator also referred, during cross examination and under re-examination by his representative, to Ms. Lehlokwa having been too personal when she testified against him, suggesting that Ms. Lehlokwa may also have had a vendetta against him. But the educator failed to put a version to Ms. Lehlokwa to this effect. The educator also made reference to the principal having failed to make CCTV footage of the date of the incident available as proof that the principal had intentions to destroy him. But he again did not put this version to the principal when he (principal) testified.

[32] It is now trite that a person against whom serious allegations are made, and evidence is led to a degree that it requires rebuttal, should at least set out his defense to a degree that it negates or shows the allegations to be untrue. It is not enough for a person against whom serious allegations are made to simply put up weak defense or explanation and expect to escape sanction. The educator faced a very serious allegation, and witnesses were called who all pointed to his possibly having engaged in the conduct alleged. He needed put up as such defense as would show that he did not sexually assault learner A as alleged. The sexual assault on the learner did, as shown in the evidence led, that it seriously affected the learner because after the incident, learner A has never been the same again. This version was not disputed by the educator.

[33] In terms of the South African Council of Educators (SACE) Code of conduct educators must “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that the educators must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school. This provision is consistent with the Constitution which provides that the dignity of children must be protected.

[34] Protection of children’s rights to bodily dignity is non-negotiable. The SACE Code of Professional Ethics was introduced to keep the behaviour of educators in check and to ensure that educators fully understand and appreciate the ethical conducted expected of them in the school environment. Abiding by the Code is also non-negotiable to the extent that educators have power over learners and which power, if not kept in check, may be abused to prey on naïve and vulnerable learners. It also ensures that educators do not engage in conduct that defeats the very noble objective of children’s learning and development.

[35] Learners attend school to learn, and because they spent most of their time at school, educators take up the role of parents while learners are in their care. They are accordingly required to conduct themselves in a manner that is proper and becoming and to serve the best interests of the learners under their care. Thus, an educator who commits any act of sexual assault on learners and conducts himself in an improper, disgraceful or unacceptable manner must be harshly dealt. Section 17(1) (b) provides that an educator who is found guilty of committing an act of sexual assault on a learner, student or other employee must be dismissed. The provisions of this section demonstrate the seriousness that any sexual assault on learners should be viewed.

[36] In the premises, I make the following award:

AWARD

[37] The educator, Mr Sizwesithini Victor Hlatywayo, is found guilty of serious misconduct in terms of section 17(1)(b) of the Employment of Educators Act for having sexually assaulting a learner by holding her head, neck and waist and pulling her towards him and trying to kiss her. The educator is further found guilty of misconduct in terms of section 18(1) (q) of the Employment of Educators Act by conducting himself in an improper, disgraceful or unacceptable manner by holding the learner’s head, neck and waist and pulling her towards him trying to kiss her whilst at school.

[38] The sanction of dismissal is imposed effective from 22 October 2025.

[39] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[40] The educator, Mr Sizwesithini Victor Hlatywayo, is found unsuitable to work with children in terms of Section 120 (4) of the Children’s Act 38 of 2005.

[41] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Sizwesithini Victor Hlatywayo, is unsuitable to work with children, for the Director general to enter his name as contemplated in Section 120 in Part B of the register.

[42] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC