IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – GAUTENG PROVINCE “the Employer”

AND

S KUNENE “the Employee”

SECTION 188A IBA RULING

CASE NUMBER: ELRC14 – 24/25GP
LAST DATE OF INQUIRY: 28 March 2025
LAST CLOSING ARGUMENTS RECEIVED ON: 16 April 2025
DATE AWARD SUBMITTED: 19 May 2025 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on several days and the last day of the inquiry took place on 28 March 2025 at the offices of the Employer in Alberton. The last of the closing arguments were received from the parties on 16 April 2025.
2. The Employer is the Gauteng Department of Education, represented by Ms Ngwenya, A. The accused Employee is Mr Kunene, S (“Kunene”), represented by his attorney Mr Pamla, VN, after a successful application for legal representation.
3. Mr Seale, M, acted as interpreter, and the intermediary was Ms Shibisi, E.
4. The Employer submitted the documents contained in Bundle A, while the Employee submitted the documents contained in Bundle B.
   Issue to be decided
5. The parties concluded a pre-arbitration agreement which was signed and forms part of the record.
6. The following facts were agreed to be common cause:
   6.1 Kunene is employed as a PL1 educator, teaching history.
   6.2 He was employed on 1 April 2015.
   6.3 He earns about R20 000,00 per month.
   6.4 Palmridge Extension 6 Secondary School (“the School”) is the Employee’s place of employment.
   6.5 The Employee was given a cautionary transfer on 21 February 2024 and was served with the charge sheet on 4 April 2024.
   6.6 On the day of the alleged incident of sexual assault, i.e. 27 October 2023, the SMT made the Employee aware of the allegations against him.
7. The following issues were placed in dispute:
   7.1 Kunene disputed the charge that during or around October 2023 he sexually assaulted a learner at the School, by touching her tummy, touching her vagina and attempting to kiss her while in his office.
   7.2 Kunene disputed that he called the complainant to his office or workstation.
   7.3 All the allegations were placed in dispute.
   7.4 The admissibility of the audio recording was placed in dispute.
   7.5 The authenticity and admissibility of the incident report contained A8 was placed in dispute.
8. The Employer disclosed the witness statement and audio recording and transcript to the Employee.
9. I am required to determine whether Kunene is guilty of the charge levelled against him. Should I find him guilty of the charges, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Kunene is unsuitable to work with children.
10. The Employer shall request that the Employee be found guilty of the charge, while the Employee shall request acquittal and reinstatement.
    Background, charges and plea
11. Kunene is charged with one allegation of misconduct.
12. Charge 1 – charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998. It is alleged that during or around October 2023 he sexually assaulted the Complainant, a learner at the School, by touching her tummy, touching her vagina and attempting to kiss her while in his office.
13. Kunene pleaded not guilty to charge 1 and elected to not disclose his defence during the plea proceedings.

Summary of evidence

14. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.
15. The matter relates to allegations of sexual assault of a learner who was a minor at the time of the alleged incidents. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the then minor complainant as “the Complainant” in this award. The Complainant testified by making use of the assistance of an interpreter and an intermediary through TEAMS virtual process.

Employer’s case

16. The Complainant testified under oath through MS Teams that she is currently 19 years of age. She was 17 years of age and in grade 11 when the incident took place on Friday 27 October 2023. She was sitting outside the classroom with friends during break. She sat alone to the left side. Kunene came passed her and touched her face with a brushing movement. He told the class, and the learners seated outside what they will write exam about the next week. He then came passed the Complainant where she was sitting and said softly to her “let’s go”. The other learners did not hear him. She stood up and followed him to his office. She found him inside, seated on a chair. Kunene asked her how she was, and she said she was fine. He asked her why she was so quiet in class, and she said that is her nature, even at home. He asked her where she stayed, and who she was staying with. He referred to the similarity between her and her sister.
17. Kunene asked her whether she went out when she was at home, and she said she would visit friends sometimes, but she preferred to spend her time at home. He wanted to know whether she had lunch, and what drink she took after eating her food. He then asked her which kind of panty she wore when she walked around in the streets. He wanted to know whether she wore a full panty or a G-string thong. She answered that she wore full panties. She then became concerned with the type of questions he was asking her. He asked her why she did not wear the G-string type, but she did not answer him. He then asked her why she had a big body and why she gained weight, and whether she was pregnant. The Complainant told him she was not pregnant, and he kept staring at her tummy. He continued to ask her whether she was pregnant. He then shifted the chair towards her and said he thought she was pregnant.
18. Kunene kept on looking at her. He then took his left hand and touched her tummy and told her he wanted to check whether she was pregnant or not. He continued to touch her on her tummy in a sort of pressing manner to feel what was inside. She then realised his hands were going downwards towards her vagina. He touched the upper part of her vagina with his hand. The Complainant then stood up and demonstrated with the assistance of the intermediary in the following manner: Kunene stood next to her and made circular movements on her tummy with his left hand, then his hand went down towards her vagina, and he touched her vagina. He moved his hand around on her vagina. She then stepped back, and he stretched and reached after her, continuing to move his hand over her tummy and vagina.
19. When he could not reach her, he moved his chair closer to continue touching her as before. He then stood up and pushed the door, not entirely closed, he left a small opening.
20. The Complainant again demonstrated: He came closer to her, she tried to move away, he continued to come closer. There was a desk behind her. Kunene hugged her and put his hands around her buttocks and pulled her closer to him. He wanted to kiss her on the side of her face, but she moved her face away.
21. While he was attempting to kiss her, she managed to release herself and went out of his office as quick as she could. She saw other learners in the classroom. She went and sat next to Nana, whom she knew. Nana could see that she was not well. She was crying. She could not tell Nana what happened. Kunene then came out of his office and went to speak to some boys. He kept on looking at her. He then went to the staff room.
22. The Complainant then went to her class, but she could not find anyone to speak to. She went out to look for a friend of hers. He saw that she was crying, and he hugged her to comfort her. She then told him what happened. Other learners also heard her and said that she must report it. She met Ms Mfusi (“Mfusi”) and told her what happened. Mfusi took her to the staff room. The principal was not in. They looked for Mr Machabe (“Machabe”) and told him about the incident. Machabe and Mfusi took her to the sick room. Machabe asked her to explain what happened. She was not comfortable to tell him, and he said she must be sure of her facts because the educator could lose his job. She told Machabe that she would not lie about it.
23. The Complainant had a conversation with the principal later on the same day. It was only she and the principal present. The principal recorded their conversation.
24. The Complainant was adamant that Kunene did what she said he did. She has no reason to tell lies or to fabricate allegations against him. She had no issue with him as educator. He taught her in grade 10, 11 and the start of grade 12.
25. During cross-examination the Complainant testified that when she spoke to the principal, she was still upset, and she summarised what happened. She did not tell every little detail. She did not fabricate her testimony. Kunene did find her outside the classroom and told her to follow him to his office. She would not have gone to his office if he did not ask her to. She had no reason otherwise to be in his office, and she did not go there to ask him where she could improve her work. He never asked her about her marks.
26. He did brush her face, and she did find him seated in his office. She stood inside the office when she came in, not partially outside. The door was slightly open. She was standing behind the door. The learners in the classroom could not see what happened inside his office. The version in the recording is a summary of the events which she relayed to the principal at the time when she was upset. The more detailed version in her testimony did not mean she was lying. She denied that she was crying because Kunene was too harsh when he told her that he was disappointed in her. She would not cry if he said that her performance declined. She always performed at level 3 in History.
27. Makhosonke Xaba (“Xaba”) testified under oath that he is the principal of the School. The deputy principal, Machabe, who has passed on since, informed him of the incident on 27 October 2023 when he returned. He was obliged to investigate it. He called the Complainant in, and she told him what Kunene did to her. Kunene asked about her weight and touched her inappropriately on her tummy and private parts. He tried to kiss her.
28. Because it was a sensitive matter he made a recording of their conversation. Bundle B reflects the transcript of his recording. Policy dictates that he could only take the learner’s statement and not investigate deeper or talk to the other learners. Xaba read the transcript of the recording into the record. He was not for him to decide whether he believed her or not, only to record her version of the events, and then refer it to the authorities in the District Office. She was in a state of panic; he had to give her water and calm down in order for her to be able to relate her version to him.
29. Xaba completed the incident report in A8. The contents are clear. He wrote only the basic information down which came from the recorded interview. He then escalated it to the Labour Unit at the District Office. Mfusi did approach Machabe with the Complainant.
30. During cross-examination Xaba testified that he dealt with similar incidents before. They are educators and not legal professionals, thus they deal with it with less formalities. He recorded and relayed what the Complainant told him. He only collected information, he did not investigate, not his responsibility in terms of the policy. He wrote the incident report in A8. It reflects what the learner told him.
31. Phumlile Mfusi (“Mfusi”) testified virtually under oath due to being on maternity leave. She was the Complainant’s class teacher in 2023. The Complainant came to her and told her that Kunene touched her vagina and tried to kiss her. She was crying. Mfusi relayed the report made to her by the Complainant in detail. Before she could get the full story, the principal called for the Complainant. While waiting at the principal’s office the late Machabe came, and they explained to him what had happened. Machabe called the principal who said that he was on his way. The principal then got the full story from the Complainant.
32. B12 and 13 reflect the two statements Mfusi wrote.
33. During cross-examination Mfusi testified that she expanded in B13 on her statement in B12. She did not fabricate any evidence. She was only relaying what the Complainant told her, not what she saw personally.

Employee’s case

34. Sipho Kunene, the Employee, testified under oath that he is not guilty. He was part of the exam committee in 2023. He had to finalise the timetable, and he did not teach on that day. They broke for lunch, and he went to the yellow block. There is a number of classrooms of grade 11 and 10. He went there to give clarity and scope to the learners for the exam that started the next week.
35. Some learners were outside, some were inside, as it was lunch. At 11A there were learners inside, he called them outside to give the exam scope to them. He also motivated them to study hard because the learners need their grade 11 final exam marks to apply to university. He then went to 11B, 11C and 11D to do the same.
36. Kunene saw the Complainant in 11D. She was seated outside inside the classroom. He went back to his office through the classroom. When he entered 11A there were learners inside having lunch. Other learners were moving in and out. He cannot remember the number of learners in the classroom.
37. He opened the office door, entered and sat down. He grabbed his lunch which was a banana. He left the door of the office wide open. While he was having his lunch, the Complainant came and stood next to the open door. She was worried about her marks and asked where she had to improve. She blocked the view through the door. She was in the doorway. He never had a conversation with her, she enquired, and he responded that he was disappointed about how they were performing as learners, and he told her to improve. Maybe he spoke too harshly because he was angry with the results. She did not show any signs of crying, she stood and listened to him.
38. He was seated at the table against the wall with the door on the left. People could see him from outside if the view was not blocked. There are no windows. After he told her he stood up. She went out and he followed her and locked the office and went out of the classroom straight back to Machabe’s office.
39. The learners could see her at the office door. While he was typing in Machabe’s office, Ms Qubeka came in and said that there was a learner crying in the sick room. He followed her to the sick room where he found the Complainant with Mfusi. He asked what was wrong and one teacher said it was because the learner said that he had touched her and tried to kiss her. Kunene denied it. He said he did not do that. Machabe then entered and excused him, telling him to go do his job. He went back to his office.
40. Kunene disputed that the Complainant was seated outside alone. All the learners outside were called in to the classroom. He was under pressure to finish the timetable. He did not tell her to follow him to his office. He did not have time for a one-on-one with a learner. She found him in his office. He did not ask about her weight, or what was in her tummy. He did not ask about her panties. He did not try to hug or kiss her. He denied all the allegations.
41. Kunene could not explain why she would just implicate him falsely. It might have been pressure, when they see they are failing they come up with stories.
42. During cross-examination Kunene testified that he followed Qubeka when she came to call him. She called him specifically. Learners lie as a result of poor performance. She did perform poorly.

Summary of arguments

43. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. The parties were directed to address the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

44. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
    a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) If the rule or standard was contravened, whether or not –
    i. The rule was a valid or reasonable rule or standard;
    ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    iii. The employer has consistently applied the rule or standard.
    iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.
45. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
46. All the allegations in the charge against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, and the evidence deduced by the Employee in defence, were considered and weighed against the abovementioned standard of proof.
47. It is not disputed by the Employee that the actions he had been charged with constitute misconduct. He merely denied committing the alleged misconduct as set out in the charge below.
48. Charge 1 – charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998. It is alleged that during or around October 2023 he sexually assaulted a learner at the School, by touching her tummy, touching her vagina and attempting to kiss her while in his office.
49. I am mindful of the fact that the Employee is charged with sexual misconduct. It is a natural response in matters relating to the sexual assault that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
50. In respect of the all the allegations the Employee disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
51. The Employee’s defence in respect of the alleged sexual assault is a blanket denial of any wrongdoing. He submitted that it is all a fabrication of lies because learners lie as a result of poor performance. He could not substantiate his statement with facts as to why that would be a reason for the Complainant to accuse him falsely. The Complainant’s testimony that she did not fail History remained uncontested. Kunene did not present any substantive evidence of her alleged poor performance to support his argument that that is the reason why she fabricated false allegations of sexual assault against him. He had been teaching her for more than two years, why would she only now decide to falsely accuse him. This is not the conduct of a person who had a grudge against the Employee. The very detailed version of the allegations does not support the probability of it being fabricated. The Complainant testified that Kunene tried to kiss her. If it was indeed a fabrication, one would have expected her to say he did kiss her, for maximum impact.
52. The Complainant’s version is corroborated in all material aspects by the person she made the first report to, Mfusi, as well as by the principal. Her physical demonstration of how the assault took place, support the probability of her version as well. Xaba testified that he made the recording of the conversation between himself and the Complainant, and he confirmed the correctness and veracity of the transcript of the recording. The contents of the recording is therefore admissible evidence.
53. It must be remembered that the Complainant was only seventeen years old at the time of the incidents, and that the incidents took place during 2023, while the arbitration hearing was only concluded in 2025. Naturally, the lapse of time would affect the memories of witnesses, and I assessed the evidence against this backdrop.
54. It has been shown that children who are sexually abused, concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details like dates, or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners.
55. The defence placed a lot of emphasis on the reporting of the incident. The Constitutional Court has held that that the sexual assault of children has the inherent effect of rendering child victims unable to report the incident, sometimes for several decades, and that they should not be penalised for the consequences of their abuse by blaming them for the delay. The same principle would apply in my opinion in respect of how the incident is reported. If the evidence of the Complainant is therefore more detailed in the arbitration that in her initial reports, it should not impact on the credibility of her version. The fact that a child for instance does not tell another teacher at school about an incident that occurred at school but only tells a parent or grandparent later at home, or visa versa, is therefore no indication that the child has fabricated the evidence. Sometimes children would due to feelings of shame not tell a parent or teacher, but rather tell a close friend. I reject the arguments of the Employee that the way in which the incident was reported by the Complainant tarnish the credibility of her evidence in any material way.
56. The Employee admitted that the Complainant was in his office. He argued that the reason for her crying could be that he addressed her poor performance too harshly. He therefore implied that she was indeed crying. He then tried to water his comment down by stating that he did not know whether she indeed did cry. All the other witnesses however corroborated her version that she was upset and that she was crying. Considering the fact that the Employee did not provide substance to his assertion that her poor performance could be the reason for fabricating false allegations against him, I find on a balance of probabilities that the Complainant was upset and that she cried as a result of the sexual assault on her by the Employee.
57. I find no material discrepancies or inconsistencies in the evidence of the Complainant and the other witnesses for the Employer that would negatively affect their credibility. Despite her young age, the Complainants stood steadfast by her version.
58. I find it highly improbable that the Complainant fabricated allegations against the Employee. It would have been an elaborate fabrication involving educators and other learners, which I find highly improbable. The Employee failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. The Employee could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.
59. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainant’s version has been materially the same throughout the inquiry. I find it improbable that she would make up such a detailed version of events without any reason. The Employee’s version that it is a fabrication is not plausible.
60. There is a common misconception that sexual assault must necessarily involve contact with the genitalia of the victim, which is not the case. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. I find on a balance of probabilities that touching the stomach and vagina of the Complainant, and attempting to kiss her, did violate and/or or threaten the sexual integrity of the learner. The Employee indeed made direct contact with her vagina.
61. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the employee committed the misconduct as contained in charge 1. There is therefore evidence before me that proved that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
    Finding
62. The accused employee, Mr Kunene, S, is found guilty of the following misconduct:
63. Charge 1 – contravening the provisions of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that during or around October 2023 he sexually assaulted a learner at the School, by touching her tummy, touching her vagina and attempting to kiss her while in his office.
    Sanction
64. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
65. The Employer charged Kunene with sexual assault under section 17(1)(b) of the EEA. The conduct was of sexual nature, which resulted in the victim, i.e. the Complainant’s sexual integrity being impaired. It was done intentional and without consent of the Complainant, which rendered it unlawful. The actions of Kunene clearly had the elements of sexual grooming as well. Kunene’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual assault on learners at a school and not abusing the position he holds for personal gain or pleasure. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a minor female learner of 17 years old to be sexually assaulted at the School by an educator.
66. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of sexual assault.
67. Having considered all the facts before me, including but not limited to, the provisions of section 17(1) of the EEA, the gravity of the offence, the position of trust the Employee was employed in, and the years of service of the Employee, I do find that the sanction of dismissal is fair and appropriate in the circumstances of this matter as well.
68. I find that summary dismissal is an appropriate sanction in the circumstances.
    Sanction
69. In terms of section 188A(9) of the LRA I direct that the employee, Mr S Kunene, be dismissed summarily.

Finding in respect of section 120 of the Children’s Act 38 of 2005

70. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
71. The parties were given the opportunity to submit arguments in this respect. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Kunene’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.
72. Mr Kunene, S, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, 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 Kunene, S, 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.

COEN HAVENGA
Senior ELRC Arbitrator
19 May 2025