IN THE EDUCATION LABOUR RELATIONS COUNCIL
Panellist: Themba Manganyi
Case No.: ELRC1368-24/25MP
Dates of Hearing: 22 April 2025 and 04 June 2025
Date of Arguments: 11 June 2025
Date of Award: 21 July 2025

In the Inquiry by Arbitrator proceedings between

HEAD OF DEPARMENT: MPUMALANGA EDUCATION DEPARTMENT EMPLOYER
and

NATU OBO HOPE MASHAMAITE EMPLOYEE

Details of hearing and representation

1. This matter was heard in terms of section 188A of the Labour Relations Act 66 of 1995 (“the LA”), as amended. The proceedings were conducted on 22 April 2025 and 04 June 2025 under the auspices of the Education Labour Relations Council (“the Council”).
2. Ms Zodwa Madingwana (“Ms Madingwana”), the Labour Relations Officer, represented the Employer, Head of Department: Mpumalanga Education Department. Mr Thokozani Nkosi (“Mr Nkosi”), a NATU Official, represented the Accused Employee, Mr Hope Mashamaite (“Mr Mashamaite”). Mr Skhumbuzo Luthuli and Mr Godfrey Usiba assisted with interpretation and Ms Mule Padi assisted with the intermediary services.
3. Only the notification to attend a disciplinary hearing was submitted into the record. Parties relied only on oral evidence to lead their cases. At the end of the proceedings, parties requested to submit their closing arguments in writing on 11 June 2025 and they duly complied. The proceedings were digitally recorded and the recordings thereof were retained by the Council.
4. In this award, the names of the minor witnesses (learners) will be concealed to protect their identity. Only their initials will be indicated.

Issue to be determined

5. I am required to determine the veracity of the allegations that are preferred against Mr Mashamaite. In the event that I find that the allegations have merit, I will be required to determine the appropriate sanction.

Rights and the procedure

6. All the rights commensurate with a fair process and the nature of the process were explained to the parties.

Charges

7. The Employer preferred the following charges against Mr Mashamaite:
   Charge 1
   You committed an act of misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998 (“the Act”), as amended, in that during the second term and / or third term of 2024, you contravened Item 3(3.8) of the SACE Code of Professional Ethics by failing to refrain from forms of sexual harassment to the then Grade 8 learners as follows:

1.1. While at school standing by a zozo shack with learner SS, you proposed a love affair to her and told her that she is beautiful.
1.2. While in class sitting down during your EMS period, you signaled to learner BM by twitching your eye while she was looking at you.
1.3. While getting to the office with learner PM, you gave her an uncomfortable hug.
1.4. While in class you called learner PM and brushed her uncomfortable on her cheek and / or chin.
1.5. While on your way to the staff room with learner LK, you told her that she must not be scared of you, you love her, and that she must not undermine you. (sic)

Charge 2
You committed an act of misconduct in terms of section 18(1)(a) of the Act in that during the second and / or third term of 2024, contravened Item 3(3.5) of the SACE Code of Professional Ethics in that you failed to avoid any form of humiliation and to refrain from any form of abuse of the then Grade 8 learners as follows: (sic)

2..1. While in the classroom, you said to learner SS that she was seeing herself as beautiful whereas she was not.
2..2. While in class, you said to learner LK that her head looks like a bucket.

Pleadings

8. Mr Mashamaite pleaded not guilty to both charges.

Survey of evidence and arguments

The Employer’s case

9. Ms Merica Rakgalakane (“Ms Rakgalakane”) testified under oath and stated that she was the Deputy Principal at Rorobhani Secondary School. She stated that Mr Mashamaite was her colleague. She testified that the Circuit Manager came to the school one morning and informed them that she received a call from a parent who complaint about Mr Mashamaite’s conduct towards girl learners and the Circuit Manager advised them to investigate the matter. She testified that she interacted with the girl learners. Two (2) of the girl learners informed her that Mr Mashamaite told them that he loved them. She stated that Learner SS said Mr Mashamaite told her that he loves her, but they were not in a relationship and Learner BM said Mr Mashamaite winked his eye on her whilst in class. She stated that she was also told that whilst in class, Mr Mashamaite almost fell whilst he was looking at the buttocks of a girl that was writing on the chalk board.
10. She stated that she was surprised when she heard about the allegations that were levelled against Mr Mashamaite, because the former Principal used to warn male educators on how they should conduct themselves around girl learners. She stated that Mr Mashamaite liked to surround himself with learners of both genders and that he liked his class and he was a disciplinarian. She could not understand why learners would allege that he misconducted himself.
11. Under cross-examination, she confirmed that she did not believe that Mr Mashamaite did as alleged by the girl learners. She stated that the Circuit Manager and Mr Mashamaite had a good working relationship when the Circuit Manager was their school Principal. She was certain that Mr Mashamaite would not harass girl learners.
12. Learner SS testified under oath with the aid of the Intermediary and stated that she was fourteen (14) years old and currently in Grade 9 and that Mr Mashamaite taught her EMS in Grade 8 in 2024. She testified that after the lesson, Mr Mashamaite requested her to accompany him to another classroom and on their way, Mr Mashamaite told her that she was beautiful. When she was in class, another girl learner came to call her on the request of Mr Mashamaite. She went to Grade 8D class where Mr Mashamaite was at. When she got there, Mr Mashamaite told to go to the side of the classroom. Mr Mashamaite said that they must date. When she told him that she was young, he said that he loved her and he will wait for her until she was in Grade 10. Mr Mashamaite told her that she would be hurting his feelings if she did not accept his proposal. She testified that Mr Mashamaite once refused her and other learners to enter the class when they came late and he told them not to come to his class for the whole term.
13. She testified that a boy learner asked her if she was no longer dating with Mr Mashamaite after Mr Mashamaite only took the books of some of the learners and not the books of the learners from her row. She refuted that she was in a relationship with Mr Mashamaite. She stated that if Mr Mashamaite would say that she was lying, he would be saying that because they were alone when he said that he loved her and he said she must not tell anyone. She testified that when they were next to the library, other learners were surprised that Mr Mashamaite also chased her from the class because they thought that she has broken up with Mr Mashamaite. She stated that she did not hate Mr Mashamaite.
14. Under cross-examination, she stated that Mr Mashamaite taught them very well. She stated that if an adult proposed love to her, she would tell her mother. She stated that she was testifying in these proceedings to confirm what she wrote in her statement about Mr Mashamaite. She attested that she did not report the matter immediately after Mr Mashamaite proposed to her, because she thought that Mr Mashamaite was joking. She stated that she realized that the matter was serious when she was called to the office because there were learners who suspected that there was something going on between her and Mr Mashamaite. She said she reported the matter to her friend, Learner ZM. When it was put to her that she was angry because Mr Mashamaite did not allow her to get to class, she conceded that she was angry. However, she was not testifying so that he gets punished for keeping her out of class and reiterated that she did not fabricate these allegations.
15. Learner LK testified under oath and with an aid of the Intermediary that she was fourteen (14) years old and currently in Grade 9. She stated that Mr Mashamaite taught her EMS in 2014. She testified that Mr Mashamaite requested her to accompany him to collect the scripts and on their way, Mr Mashamaite told her that she should not be afraid of him and he loved her and that she must not undermine him since he told her that he loved her, but she did not take him serious. She stated that on another occasion Mr Mashamaite told her that she had a bucket-like head and she felt bad about it. She testified that Learner BM’s mother (SGB member) reported the matter to the Circuit Office.
16. Under cross-examination, she stated that Learner BM was her friend and that she would do anything to protect Learner BM. She further said she wrote the statement to protect Learner BM. Under re-examination, she stated that Learner BM did not force her to write the statement and she confirmed that Mr Mashamaite said that he loved her.
17. Learner PM testified under oath and with an aid of the Intermediary that she was fourteen (14) years old and in Grade 9. She stated that Mr Mashamaite taught her EMS in 2024. She testified that Mr Mashamaite requested her to go with him to fetch the class scripts from the staff room and on their way, Mr Mashamaite hugged and brushed her chin and chicks and she felt uncomfortable. She stated that Mr Mashamaite brushed her on the chicks in class and other learners saw that. She testified that Learner SS told her that Mr Mashamaite said to her that she must not be scared of him because he loved her (Learner SS).
18. Under cross-examination, she submitted that she was friends with Learners SS and LK since primary school and that they are still friends in high school, but they were not in the same class. She confirmed that she knew the school’s Code of Conduct, but did not know it all. She refuted the version that Mr Mashamaite reprimanded her about the nose ring and told her to remove the nose ring and stated that she never had a nose ring, but she has a star in her teeth. She stated that when Mr Mashamaite hugged and brushed her, she tried to get away from him so that he could remove his hand, but he did not remove it. She testified that she reported to her mother that Mr Mashamaite hugged and brushed her chin and chicks and her mother reported the matter to Learner BM’s mother. She confirmed that Mr Mashamaite told her to remove the star from her teeth and denied that she was angry at Mr Mashamaite for wanting her to remove the star.
19. Learner BM testified under oath and with an aid of the Intermediary that she was fourteen (14) years old and that she was in Grade 9. She testified that Mr Mashamaite winked his eye to her whilst she was busy writing her school work. She stated that she did not witness what happened between Learner SS and Mr Mashamaite. She also did not know what happened between Mr Mashamaite and Learner LK. She was only informed by Learners SS and LK about what happened. She testified that she witnessed Mr Mashamaite touching Learner PM on the chin. She stated that she heard Mr Mashamaite saying that Learner LK has a bucket-like head.
20. Under cross-examination, she confirmed that she was in the same class with Learners LK and PM, but she was not in the same class with Learner SS. She stated that Learner LK and PM were her friends and Learner SS was a person that she just knew. She stated that they were in class when Mr Mashamaite said Learner LK had a bucket-like head. She testified that she knew that the winked eye was directed at her because when she raised her head, she saw that Mr Mashamaite was looking at her and the other learners were busy writing. She disputed the version that Mr Mashamaite could have been winking at the learners that were seated behind her and stated that Learner LK and Learner M were seated behind her and they could have told her that Mr Mashamaite winked at them. She stated that Mr Mashamaite brushed Learner PM’s chin in class,

The Employee’s case

21. Mr Mashamaite testified under oath and stated that he had a good working relationship with his colleagues, but he did not have a good relationship with management because he was a school based NATU representative. He stated that he only sent the class representatives to the staff room. He stated that he has never been subjected to a disciplinary hearing before and that he has never been involved in anything illegal with learners. He testified that the Principal and the Deputy Principal told him about the allegations against him on 24 October 2024. He stated that he continued teaching, but he could see that there was tension in the class. He requested Ms Rakgalakane to swap classes with another educator, but she said it was not necessary to swap classes because the learners said that he taught them well.
22. Under cross-examination, he stated that he did not comment about the allegations because he thought that he would be asked.

Analysis of evidence and argument

23. This is an award in terms of section 138(7) of LRA Therefore, what follows hereunder are my brief reasons. However, it must not be misconstrued that I have overlooked some of the evidence. All the evidence and the closing arguments have been considered.
24. It is trite that the test that is applicable in employment law is that of “on a balance of probabilities” and not “beyond reasonable doubt”. It is trite that in proceedings where minors are involved, the arbitrator should endeavor to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify and facilitate the ascertainment of truth so that the best interests of the child are upheld and to promote maximum accommodation of child witnesses without prejudice to the rights of the accused educator. I am satisfied that the environment in these proceedings was conducive for children to testify.
25. Sexual harassment is defined as an unwelcome and inappropriate conduct of a sexual nature that creates a hostile or intimidating environment for the victim. It involves any unwanted verbal, non-verbal, or physical behavior of a sexual nature that interferes with an individual’s well-being, dignity and ability to work or study.
26. In his evidence in chief, Mr Mashamaite did not deal with the allegations that were levelled against him. During the cross-examination of the Employer’s witnesses, Mr Mashamaite did not dispute the witnesses’ testimonies. On the allegation of winking at Learner BM, he suggested that he could have been winking at the learners that were seated behind her. This version does not in any way dispute that he winked. Even when he did not wink at Learner BM, it was still unacceptable to wink at the learners that were seated behind her.
27. Mr Mashamaite did not dispute that he proposed love to Learner SS and that he told her that she was beautiful. He also did not dispute that he told Learner LK that he loved her. He did not dispute that he brushed Learner PM on her chin and hugged her uncomfortably. He did not refute that he told Learner BM that she had a bucket-like head. Mr Mashamaite was advised at the commencement of these proceedings that it was incumbent on him to assist Mr Nkosi to put his version to the witnesses whilst they were still on the witnesses’ stand. He did not do as advised. He also did not refute any of the allegations during his evidence in chief.
28. It was held in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others judgment that:
    The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witnesses attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.
29. In his cross-examination, Mr Mashamaite concentrated on painting a picture that the learners were angry at him because he reprimanded them. It is true that Learner SS and Learner BM conceded under cross-examination that they were angry at Mr Mashamaite. However, they refuted the version that they reported these allegations because of the reprimands. Mr Mashamaite also took an issue about the delay in reporting these allegations and he argued that the learners colluded against him. All these learner witnesses testified on what they knew and where they did not carry any first-hand knowledge of an incident, they did not hesitate to say so. I therefore find that the learners were credible and reliable as witnesses.
30. There was no shred of evidence that was presented in these proceedings to suggest that the learners harbored any ill-feelings against Mr Mashamaite. Instead, they spoke highly of him as an educator. Even Ms Rakgalakane testified that Mr Mashamaite was a good educator, a disciplinarian and that there was no bad blood between the Circuit Manager and Mr Mashamaite. Mr Mashamaite did not dispute that there was a cordial working relationship with his colleagues. He only brought this version that he was not in good terms with the school management during his examination in chief. This version was not tested with Ms Rakgalakane. Therefore, it stands to be dismissed.
31. It is common that sexual harassment victims do not report the harassment immediately when it happens. In this case, Learner SS and LK took Mr Mashamaite’s advances as a joke. Hence, they did not report immediately. It is not unheard of that in some instances sexual harassment victims may take even decades before they report the matter. This is so because at times victims fear that they might not be believed or they might be afraid that they will be further victimized. Having considered all the evidence, I find on a balance of probabilities that the Employer succeeded in discharging its burden of proof.

Award

32. Mr Hope Mashamaite is GUILTY of contravening section 18(1)(a) of the Employment of Educators Act no 76 of 1998 and Item 3 (3.5 and 3.8) of the SACE Code of Professional Ethics.
33. Schedule 8 of the Code of Good Practice: Dismissal states in Item 3(2) that the Courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counseling and warnings.
34. Item 3(4) the Code of Good Practice: Dismissal provides that “generally it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Mr Mashamaite pleaded not guilty to all the allegations that were preferred against him. Thus, he was no remorseful of his conduct. His conduct borders on sexual harassment and it is more worrying that it involved learners. It is my strongly held view that Mr Mashamaite cannot be a candidate for rehabilitation considering that he did not comprehend the extent of his misconduct. I therefore find that dismissal is the only appropriate sanction under the circumstances and I hereby dismiss Mr Hope Mashamaite with immediate effect.
35. I find that Mr Hope Mashamaite is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Hope Mashamaite 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.
36. I further find that the Educator, Mr Hope Mashamaite, as a consequence to the transgression as referred to in paragraph 7 herein-above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

Arbitrator: Themba Manganyi