---
title: "20 October 2026 – ELRC1345-25/26EC"
description: "Case Number: ELRC1345-25/26EC Date: 20 October 2026 In the matter between Eastern Cape Department of Education Employer and Onke Tikise Employee (accused) DETAILS OF HEARING AND REPRESENTATION 1. This is an inquiry by arbitrator, in terms of section 188A of…"
url: "https://elrc.org.za/docs/20-october-2026-elrc1345-25-26ec/"
updated: "2026-10-22"
category: AWARDS
---

# 20 October 2026 – ELRC1345-25/26EC

Case Number: ELRC1345-25/26EC
Date: 20 October 2026

In the matter between

Eastern Cape Department of Education Employer

and

Onke Tikise Employee (accused)

DETAILS OF HEARING AND REPRESENTATION

1. This is an inquiry by arbitrator, in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (LRA). The arbitration proceedings were held on 22 July 2026 and 18 September 2026. Eastern Cape Department of Education (employer) was represented by its labour relations officer, Mr Lusapho Ndzongo. The educator, Mr Onke Tikise (employee) was in attendance and was represented by a SADTU official, Mr Lindile Matyumza.
2. The proceedings were digitally recorded.
3. At the completion of the proceedings parties agreed to submit written closing arguments (aggravating and mitigating circumstances) by not later than 25 September 2026, and they all submitted.
   ISSUE TO BE DECIDED
4. I am required to determine whether the employee is guilty of the charge(s) proffered against him by the employer, and if I find him guilty, I will determine an appropriate sanction.
   BACKGROUND TO THE ISSUE
5. The employee is an educator at HC High School under OR Tambo Inland District. Following allegations of engaging in unaccepted conduct against learners, the following charges were proffered against him:
   ‘Charge 1
   It is alleged that you committed an act of misconduct in terms of section 17(1)(g) of Employment of Educators Act 76 of 1998 as amended (EEA)
   • In that on or about year 2025 you sexually harassed a learner SK when you inappropriately complemented her thighs and asked to go private where you could see and touch her thighs;
   Charge 2
   It is alleged that you committed an act of misconduct as contemplated in section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended (EEA)
   • In that on or about year 2024 you threatened to rape a grade 12 learner SM when she refused to give you her contact number.
   Charge 3
   It is alleged that you committed an act of misconduct as contemplated in section 18(1)(f) of Employment of Educators Act 76 of 1998 as amended (EEA) :
   • When you brought the name of the Department of Education into disrepute by your actions that were trending in the public domain (social media) thereby denting the image of the Department.’.
6. Section 17(1) calls for mandatory dismissal if an educator is found guilty of the offense under the section, while section 18(1) does not. During the course of the proceedings the employer withdrew charge 1 as it indicated that it could not get hold of learner SK to testify to it.
7. The employee pleaded not guilty to all charges.
   SURVEY OF THE EVIDENCE AND ARGUMENTS
   EMPLOYER’S CASE
   Ms SM
8. Ms SM (former leaner at HC High School) testified that she left HC High school in 2025. She knows the employee as one of the teachers, but he did not teach her class. She is now repeating her grade 12 at Holomisa High School.
9. Sometime in 2024, while she was in grade 11, she recalls that there was an event at the school and she and other learners were wearing private clothes. She thinks the event was a farewell of a teacher who had left the school way before she arrived at the school. She was standing next to the school gate with her friend, Ms LN, and the employee arrived and asked for her cell number. She refused to give it to him after he had for several times asked for it. He then said to her, since she was to progress to grade 12 the following year would she give him permission to rape her. She did not answer him, and what he said to her made her to feal threatened and scared. She could not report the matter to school authorities as the employee’s spouse is also a teacher at HC. Also, she knows of a number of instances where teachers had sexual encounters with learners, and nothing was done to teachers. While still at the school she was scared of him and would avoid him as she could not be sure if he would not act up on his threat. She regards HC as not safe for girls especially with teachers like the employee still at the helm.
10. At cross examination she was asked why she did not report an incident this serious to the school principal, and her answer was that she knew it would not go far as incidents similar to hers were never acted on. She does not know exactly who reported the matter to the school authorities. She was told by her mother that she was required to go to a school meeting on 03 December 2025 where learners would talk about their encounters similar to hers.
    Ms LN
11. Ms LN (former learner at HC High School) testified that she left HC High after completing her matric in 2025. Ms SM was her friend at school even though they were not in the same class.
12. She recalls an incident when she was standing with Ms SM next to the school hall, and the employee came to them. It was after the memorial service of a learner who had passed on. The employee looked drunk. He asked Ms SM to give him her cell number and she refused. Upon her refusal he then asked if Ms SM was giving him permission to rape her as she was not giving him her number. Ms SM was shocked and could not believe what had happened. She told her that she was afraid to report the incident as it would not be taken seriously.
13. At cross examination she was asked whether she ever thought of reporting the incident, and her answer was that it was not her place to report the matter. She had advised Ms SM to report the incident, but she expressed her discomfort as she felt it would not be acted upon.
    EMPLOYEE’S CASE
    Employee
14. The employee testified that testified that he is a subject teacher at HC High, teaching grades 8 to 12. He has been at the school since 2018. Before then he taught at Zamukulungisa High School from 2016 to 2018.
15. He testified that he does not know Ms SM. He deals with a number of learners and there are number of them he does not know. He knows Ms LN as he once taught her. About the event where the incident is said to have happened, his testimony was that there are number of events held and there are many occasions learners would be asked to wear tradition attire. In memorial services they usually wear school uniform. He denies having encountered Ms SM and said what he is said to have said. He would not know of any reason why she would implicate him in such a serious act. When trained as teachers in university they are taught to assume parental role to learners entrusted to teachers. There is no way he would have uttered such words to a learner. He does not remember talking to Ms SM in the presence of Ms LN.
16. At cross examination he was asked whether he disputes that Ms SM was a leaner at HC High in 2024, and his answer was that he is not. On whether he recalls a day he would have been drunk at a school event his answer was that he does not drink on working days. He went further to say he does not drink at work, and he has no idea why he would be accused of having been in that state while at school premises
    Arguments
17. For the employer it was argued the employee’s conduct of threatening Ms SM with rape did not sit well with her, and ever since the threat she avoided being close to him. While still at HC High she had harbored a fear that the employee would act on his threat. She might not have recalled the actual date with preciseness, but what is key is she recalls the utterances. Her version was confirmed by her friend, Ms LN. She confirmed that there was an event. The employee came up with a bare denial as he does not provide an alternate version. He just says that she does not know the learner and had never threatened her with rape or said anything to her. Threatening a leaner with sexual violence amounts to intimidation, crimen injuria or assault. An eminent risk of physical harm or assault must be treated with high seriousness. He thus should be found guilty of charge 2. With regards to charge 3 the employee led no evidence, and a result of this the learner’s (complainant’s) version proves the charge as she testified that she will not take her child to HC High if the employee continues to be the educator there. This indicates that the image of the school has been tarnished. Section 28(2) of the 1996 Constitution provides that best interests of the child are of paramount importance in everything that involves a child. The employee has propensity of living up to his rape threats in the future, and he is not fit to work with children. As a result of his actions the employee is to be declared in terms of section 120(4) of the Children’s Act to be unfit to work with children. The ELRC’s General Secretary is to, in terms of section 122(1) of Children’s Act, notify the Department of Social Development’s Director General of the declaration, and the employee’s details be entered in the National Child Protection Register in terms of section 120.
18. For the employee it was argued that the learner’s story falls short of exact date and time. Ms SM says the incident happened on Heritage Day, while her witness says it happened after a memorial service. There is also evidential gap as a result of not promptly reporting the incident this serious. In light of the learner’s failure to prove the allegations the accusations stand to be dismissed.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
19. The employee’s conduct of threatening the learner with rape is regarded by the employer as amounting to sexual assault in terms of section 17(1)(b) of EEA. Section 5(1) of Sexual Offences and Related Matters Amendment Act 32 of 2007 (SORMA) provides that sexual assault occurs where a person unlawfully and internationally sexually violates a complainant without his or her consent. Then, there is section 14A which talks of sexual intimidation (not assault), which is said to occur where a person unlawfully and intentionally utters or conveys a threat to a complainant that inspires a reasonable belief of imminent harm in that a sexual offence will be committed against him or her. This section was defined under sexual assault before 31 July 2021 amendment (sections 3 and 5 Act 13 of 2021), which deleted it from 5(2) and placed it in section 14A and changed it to sexual intimidation. The conduct the employee was charged for, which is threatening to rape a learner, remains an alleged threat (not actual assault) and it falls to be determined as alleged sexual intimidation in terms of section 14A. The alleged act also falls to be determined as serious misconduct in terms of section 17(1)(g) of EEA. The guilt or otherwise of the employee is to be determined as above stated as our law recognizes that employers sometimes define or restrict alleged misconduct too narrowly or incorrectly owing to them being not skilled legal practitioners. The principle is that a workplace standard has to be contravened, which the employee knew or reasonably should have known.
20. What is to be proven is whether the act of threating the learner with rape did occur, and if proven mandatory dismissal is to apply as section 17 provides that an educator must be dismissed if found guilty of the offenses mentioned in (a) to (g).
21. Ms SM’s testimony is that the employee threatened her with rape after she refused to give him her cell number, and this happened in 2024. The version was corroborated by Ms LN. There might be difference on the actual event they were coming from, but such is not material to what the two witnesses say was done by the employee. The incident happened in 2024, and it is humanly possible to not be accurate on the dates and the actual occasion. The non-corroboration of exact date also shows that there was no rehearsal and sharing of notes and versions by the two before giving their testimonies
22. The employee has taken issue with the complainant’s non-reporting of an incident this serious with haste. Ms SM testified that she was in fear and was skeptical of the matter being taken seriously as incidents of similar nature had occurred in the school and nothing was ever done to implicated educators. She also feared that reporting it would have had dire consequences for the employee’s spouse, who also teaches in the same school. Ms LN also testified that she had also persuaded Ms SM to report the incident, but she had expressed fears in reporting it. In Rustenburg Platinum Mines Ltd v UASA obo Pietersen and Others the Labour Court had the following to say with regards to delay in reporting of sexual offenses:
    ‘[49] …Astute lawyers will always attack the credibility of complainants because of the time lapses between the incidents and when they get reported, and the inability to proffer specifics or corroborating evidence. There is of course always a danger in accepting at face value that an incident took place simply because it was reported immediately thereafter. The consequences could be fire for both the accuser and the accused if the allegations are found to be without merit. The stigma of being a sex pest remains forever even if in the end, the allegations are found to be unsubstantiated. There is however an even greater danger when it is not accepted that the incident took place because the complainant took long to report it, or that he or she cannot recall details with clarity. Without vindication because of such technicalities, the trauma persists indefinitely for the complainant.
    [51] In most cases however, it might take ages for the complainant to finally muster the strength and courage to report the incidents…’
    The credibility or the truthfulness of Ms SM’s version is therefore not to be doubted merely because of not immediately reporting the incident as there are justifiable reasons she has mentioned which made her not to immediately report the incident, and the reasons she mentioned are in line with those mentioned in paragraph [51] of the judgement as being amongst the reasons discouraging complainants from immediately reporting incidents, which include outright terror (that the employee would act on the threat) and feeling pity for the perpetrator’s spouse.
23. Rustenburg Platinum Mines judgement also ruled on the standard of proof to be applied in cases of this nature. In paragraph [35], the Labour Court ruled that commissioners are not to apply a high standard of proof when assessing mutually destructive versions. They are to apply balance of probability standard and to rely in Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others in resolving disputed facts. The SCA in Stellenbosch Farmers Winery had the following to say:
    ‘On the central issue as to what the parties actually decided there are two irreconcilable versions, so too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows: To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities….in the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus succeeds in discharging it.
    In applying the above standard to the case at hand I have considered the improbability of Ms SM having decided without any reason to implicate the employee with an offense this serious, and Ms LN tagging along and corroborating a lie about an issue this serious. Ms SM and Ms LN were reliable witnesses, and I have no reason to doubt their credibility. The applicant’s version was a bare denial as far as I am concerned, as he concentrated on denying knowing the complainant. He could not come with exactly what he had said to the complainant. It has therefore been proven that the applicant did threaten Ms SM with rape.
24. The employer led no evidence with regards to charge 3. Nothing was adduced to prove that the applicant’s act of having threatened Ms SM with rape was trending in public domain (social media) and thereby denting the image of the Department. The employee is therefore not guilty of this charge.
25. The applicant has been found guilty of having threatened the learner (Ms SM) with rape and is thus guilty of misconduct as contemplated in section 17(1)(b) of EEA. Section 17(1) is couched in peremptory terms and calls for straight dismissal when the educator is found guilty of the offense proffered in terms of this section. In Diholo v Gauteng Department of Education an educator was subjected to inquiry by arbitrator in terms of section 188A of the LRA, to answer allegations of misconduct of sexual nature on a learner. The educator was found by the arbitrator guilty of serious misconduct, in terms of section 17(1)(b) of EEA, for having committed an act of sexual assault to a learner. The Labour Court recognized the fact that a section 17(1) of EEA offense is punishable with mandatory dismissal if the educator is found guilty. The Court went further to consider that the interests of a child have to be exalted whenever considering cases involving protection of children. Section 28(1)(d) of the 1996 Constitution provides that every child has a right to be protected from maltreatment, neglect, abuse and degradation. The schools and educators have a common law and Constitutional duty to take care of the children entrusted to them. The case at hand is of no difference, and the employee is to be summarily dismissed owing to having been found guilty of section 17(b) of EEA offense and also having broken the in loco parentis trust bestowed on him as a guardian to learners when they are at the care of the school.
26. By virtue of the legislative duty entrusted to arbitrators, in terms of section 120(1)(c) of the Children’s Act 38 of 2005 (Children’s Act), the employee is found to be unsuitable work with children owing to his conduct of having threatened a leaner with rape. The findings are made in terms of section 120(2) of the Children’s Act, and the Director General of Social Development is to be notified of this award and finding in terms of section 120 of the Children’s Act. This award, with its findings, is to be sent to the educators’ body, SACE, for consideration of actions to be taken by the body.
    AWARD
27. I therefore make the following award:
    27.1. The employee, Mr Onke TIkise, is found guilty of charge 2, which is in terms of section 17(1)(g) of EEA, for having threatened a learner with rape.
    27.2. Dismissal is the appropriate sanction in the circumstances and is to take effect immediately.
    27.3. 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 on appropriate action to be taken by the body.
    27.4. The employee, Mr Onke Tikise, is found to be unsuitable to work with children in terms of section 120(2) of the Children’s Act.
    27.5. The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act, ordered to immediately notify the Director General of the Department of Social Development in writing of the findings of this forum made in terms of section 120 of the Children’s Act, that Mr Onke Tikise 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.

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC