SEC 188A-INQUIRY BY ARBITRATOR

Case Number: ELRC 448-25 26 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 21st of May 2026

In the ARBITRATION between

Gauteng Department of Education

(Employer)

And

Mr. Norman Khoza

(Employee)

Union/Applicant’s representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Tshwane South District Office on the 30th of January 2026 at which time the hearing commenced with the leading of one witness.
2. The matter was subsequently adjourned to the 23rd of March 2026 and the hearing only commenced at 12h35 after Counsel for the employee was detained in the High Court by another matter. The evidence of one witness, the mother of the complainant, was led on this day.
3. After her testimony the matter was adjourned to the 24th of March 2026 for the evidence of the minor complainant. The venue was changed to the ELRC Head Office in Centurion which had better facilities for the hearing of testimony from minor witnesses.
4. The employer led and completed the testimony of the minor complainant with the assistance of an intermediary and subsequently closed the employer’s case.
5. The matter was then adjourned to the 4th of May 2026 for the employee to present his case with the venue being back at the Tshwane South District office.
6. The employee and his legal team did not attend the hearing and the matter was finalized in their absence.
7. The Respondent requested the opportunity to submit written closing arguments by the 11th of May 2026 and the said arguments were timeously received by the employer. The employee submitted no closing arguments.
8. Mr. John Marakalla, a labour relations official, represented the employer.
9. Adv.D.S Bopape instructed by Edgar Rangata Inc. attorneys represented the employee.
10. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.
11. The employee made use of one bundle of documents marked Bundle “A” consisting of 20 pages.
12. The employer initially made use of a bundle of documents later supplemented consisting of 27 pages which was marked Bundle “R”.
13. An interpreter, Mr. Godfrey Usiba, assisted the witnesses with interpretation services.
14. Ms. Georgina Wentzel, an intermediary, assisted the minor child where required.
15. The full details on the minor child will not be disclosed and she will henceforth be referred to by her initials only for her protection and privacy

ISSUES IN DISPUTE

16. The employee was charged with a contravention of three counts of section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
17. Allegation 1 alleged that that on or around the 30th of August 2024, whilst on duty at Lyttelton Primary School, you sexually assaulted LM, a Grade 11 learner by kissing her, touching her thighs, hips and bums.
18. Allegation 2 alleged that on or around the 30th of August 2024, whilst on duty at Lyttelton Manor High School, you sexually assaulted LM, a Grade 11 learner by inserting your fingers in her vagina.
19. Allegation 3 alleged that on or around the 30th of August 2024, whilst on duty at Lyttelton Manor High School, you sexually assaulted LM, a Grade 11 learner by taking out your penis and putting it inside her mouth. Allegation 3 referred to Lyttelton Manor Primary School but that is clearly a tying error in light of the first two charges consistently referring to Lyttelton High School.
20. It is common cause that the employer employs the employee as a PL 1 educator, teaching science at Lyttelton Manor High School. It is common cause that the employee also qualifies to teach mathematics.
21. The Applicant pleaded not guilty to all of the allegations levelled against him and the hearing commenced.

SURVEY OF EVIDENCE AND ARGUMENT

22. The employer led the evidence of three witnesses, the first being the principal of Lyttelton Primary School, Mr. Masopotha.
23. The second witness was the mother of LM, Ms Samkelisiwe Ngcobo.
24. The final witness was LM herself.
    POINT IN LIMINE
25. At the commencement of the arbitration the employee, through his legal representatives, raised a number of points in limine. The first was that the matter was running parallel with a criminal prosecution flowing from the same set of facts. It was argued that these proceedings should be stayed pending the finalization of the criminal case.
26. Another preliminary point raised was that the employer should supply the employee with the investigation report and a final point raised was that the employee had not yet prepared a bundle of documents. It was submitted that the employee would be prejudiced.
27. A postponement of the proceedings was sought.
28. After hearing submissions from both sides I made the decision to refuse the postponement and directed that the arbitration proceedings continue which it did.
29. There is no impediment to the continuation of the section 188A proceedings whilst the employee is facing a criminal prosecution. There is no prejudice to the employee because each process is different and each continues at their own pace.
30. The employer representative advised that there was no investigation report to disclose in this matter, which submission I accepted.
31. In respect of the employee legal representatives not having prepared a bundle of documents I find that the employee and his legal team could have prepared a bundle and that their decision not to do but rather raise this aspect amounted to a delaying tactic.
32. I found that there was no prejudice to the employee in us continuing with the oral evidence of the principal of Lyttelton Manor High School with the available documentation at our disposal.
33. As it turns out on the next date of set down the employee produced a bundle of documents in support of their case.
34. Masopotha testified, inter alia, that on the 8th of April 2025 at approximately the parent of LM requested to see him. She later reported that her child had reported to her that the employee had sexually assaulted her in August 2024.
35. Most of Masopotha’s testimony was hearsay evidence and I took a decision to admit it in terms of section 3 (1) (c) of the Law of Evidence Amendment Act, no 45 of 1998, in the interests of justice.
36. Masopotha testified further that he asked LM’s mother to put the allegation in writing and requested that LM herself do the same. It is common cause that they did. The necessary consent forms were also completed.
37. Masopotha testified that he later reported the matter to the current employer representative.
38. At 14h00 on the 8th of April 2025 the police arrived, arrested the employee and took him into custody.
39. Ms. Samkelisiwe Ngcobo testified that she is the mother of LM.
40. She confirmed that her daughter was a pupil at Lyttelton Manor High School and in 2025 she was in Grade 12.
41. She testified further that LM had completed her entire high school career at Lyttelton Manor. She knew the employee to be an educator at the school. Her daughter had been struggling with mathematics and she had asked the employee to assist LM with extra lessons.
42. Ngcobo testified further that on the evening of the 7th of April 2025 LM reported an incident involving the employee from the previous year. She was in Grade 10 at the time of the incident.
43. Ngobo testified further that during an extra lesson class the employee had violated LM sexually by kissing her, touching her thighs, hips and bums. He had also inserted his finger into her vagina and forced her to suck his penis in the school science laboratory.
44. He had released himself in her mouth and was later given a cup of water.
45. After reporting the incident to the principal of the school on the 8th of April 2025 she also laid criminal charges against the employee. The employee was arrested by the SAPS later that day. The case number given to her by the police is CR 147/4/2025.
46. The criminal case is still ongoing in court and the employee had later been released on bail.
47. Ngobo testified further that she noted that her daughter was distraught when relating the incidents. She testified that she was employed by Momentum and that she obtained therapy for LM through the Momentum Wellness programme. LM attended six sessions with a therapist.
48. Ngcobo testified that LM had confided in her that she was perplexed and trying to make sense of what had happened between the employee and her and that is why she had taken so long to report the matter.
49. Ngcobo testified further that the employee had groomed LM from 2023. She described that the employee frequently called her to his science lab so that they could pray and he told her that she was beautiful. He had also enquired about whether there was a father in her life and the general family structure and whether she had friends. It later turned out that LM had made a second statement (R22) dated the 8th of April 2025 where she had disclosed her earlier encounters with the employee. The second statement, where she recounted the events that led to the current charges against the employee is contained at R3-R5 of the employers bundle, was made on the 17th of June 2025.
50. Ngcobo also testified that on the day of the incidents they had moved from the science laboratory itself into a storeroom adjoining the laboratory itself. There was a camera in the laboratory but not in the storeroom. It is common cause that no footage could be obtained from the camera because it only had a small hard drive and recorded footage was recorded over.
51. Ngcobo conceded under cross examination that LM had not mentioned the alleged earlier events described in paragraph 48 in her first written statement.
52. During cross examination it was put to the witness that the employee would deny that any incidents occurred between him and LM on the 30th of August 2024.
53. Ngcobo testified further that LM made her disclosure whilst the two of them were watching TV which involved the molestation of a child and Ngobo had posed the question to LM that if she was sexually molested would she disclose that to her. It was at this stage that LM tearfully related the events of the 30th of August 2024 to her.
54. The third and final witness was LM herself.
55. LM testified, inter alia, that on the 30th of August 2024 her math’s teacher was one Dr. Juta. She was doing poorly in mathematics but fine in physical science. She had an extra Maths lesson with the employee on the said day at 15h00.
56. There was a place where learners sat and the employee desk is situated close to the projector. There was a camera positioned just above the projector.
57. LM testified that they chatted and she asked him what his intentions were with her. The employee told her that he loved her and asked that they should continue the conversation in the storeroom. The storeroom formed part of the laboratory.
58. Inside the storeroom she repeated her question about what the employee’s intentions were with her. He repeated that he loved her and LM replied scornfully that he did not love her. She then asked him if he had a wife and the employee rejoined by saying that he did not want to talk about his wife. LM then told him that she had to go.
59. It was at this juncture that the employee grabbed her by her arm and pulled her against him caressing her thighs, hips and bum. LM again asked the employee what his intentions with her were.
60. There was a wooden chair and table in the storeroom together with other science things.
61. LM testified that the employee picked her up and placed her on the wooden table, took off her tights, pulled her panties down and began to finger her inside her vagina.
62. LM described the fingering fast and rough and at that point he took her to the wooden chair where he sat down.
63. She then knelt in front of him, unbuttoned his trousers and put his penis inside her mouth. She closed her ears with her thumbs and the employee insisted that she suck his penis.
64. LM described going up and down on the employee’s erect penis until he ejaculated in her mouth.
65. When he had finished the employee pulled up his trousers and gave her some water contained in a beaker and told her to clean herself.
66. After she had pulled up her tights she prepared to leave and the employee told her to be careful that no one saw her departing the laboratory.
67. LM then testified that she texted her mother who works at Momentum in Centurion to say that she was coming to her work via Uber. When she arrived there she asked her mother to come and pick her up at the gate because she had no access herself to the Momentum premises. She mentioned nothing to her mother about what had happened.
68. During the course of her testimony LM admitted to making two statements, one on the 8th of April 2025 at the request of the principal and later another one intended for Mr Marakalla on the 17th of June 2025. The earlier statement described her earlier interactions ith the employee in 2022 and 2023.
69. LM described that she was shocked by what had happened and after admitting to her mother she underwent six therapy sessions through her mother’s Momentum Wellness programme.
70. LM admitted that she had only told her mother eight months (actually six months) after the incident. She testified that she was still trying to understand herself and wrap her head around what had happened. She had seen the employee as a father figure and it took long for her to raise the courage to speak about it.
71. When her mother posed the question whether she would admit if she was sexually assaulted whilst they were watching TV in February 2025 LM testified that she finally told her mother about what had happened between her and the employee in August 2024.
72. The following day they reported the incidents to the principal and laid a criminal charge at the SAPS.
73. After the completion of LM’s testimony the employer closed his case and the matter was adjourned by consent to the 4th of May 2026 for the employee testimony. The date was specifically arranged with both the employee’s attorney and Counsel whose diary was quite crowded with other criminal matters. This was the only date that Counsel apparently had available for months.
74. On the 4th May 2026 the employee and his legal team did not arrive at the hearing at the scheduled time of 9h30.
75. It is common cause that both parties were also served a written notice of set down for the said date, place and time.
76. After an hour and a half it became apparent that no one from the side of the employee was going to arrive at the hearing, The employee and his legal team made no attempt to communicate with the employer representative, the ELRC or myself.
77. I took a decision to deem the employee’s case closed and called for written closing arguments by the 11th of May 2026.05.17 Only written submissions from the Mr Marakalla were received. ANALYSIS OF EVIDENCE AND ARGUMENT
78. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.
79. The evidence of LM is crucial in that she was the only one able to give a direct account of what the employee did to her.
80. I find that LM was a good, honest and reliable witness.
81. Her testimony aligns for the most part with the evidence of her mother and the principal of Lyttelton Manor High school.
82. LM was cross examined at length by Adv Bopape, an experienced criminal law Counsel. She withstood cross examination well and her version remained strong and intact.
83. A natural question is of course why LM took so long to report the incident to her mother and doe this destroy her credibility.
84. Given the extent of what happened between her and the employee and the suddenness of it all I find that the delay is not proof that the incidents did not occur. I accept LM’s version that she was shocked by what had happened and was attempting to process the events in a way that made sense to her.
85. I find that she disclosed the incidents to her mother when her mother posed a direct question to her whether she would report a molesting to her. In the face of such a direct question and to have answered her mother in the negative would have been to lie and I find that LM did not want to lie to her mother.
86. I also find that in LM’s mind this seemed an appropriate time to disclose what had happened.
87. I find that LM’s second statement does not contradict her earlier statement and gives us insight into the earlier interactions of LM with the employee.
88. I find that the employee’s earlier interactions with LM going back to when LM was in grade 8 explain his attempts to start a process of grooming. In 2022 he would greet LM ever time he saw her and commenced enquiring about her family and friendship circle.
89. Then in 2023 he would enquire if she had gone to church which demonstrates an attempt to get closer to her by posing as a mentor and a spiritual adviser. At this time he asked her to visit him at his class so that they could pray. She never went and she told a friend about the invitation and they laughed about it.
90. Then in 2024 the employee taught her physical science and the opportunity for further contact with LM opened, leading to the current misconduct.
91. The employee version can best be described as a bare denial and the fact that he was not willing to testify under oath or call witnesses reinforces the notion that he has no plausible or acceptable challenge to LM’s sexual allegations against him.
92. I find that the employer has proven all the allegations contained in the charge sheet against the employee, on a balance of probabilities.

FINDING ON THE MERITS

93. I find the employee guilty of a breach of section 17 (1) (b) of the EEA on all counts.
94. Convictions for misconduct cited under section 17 of the EEA only attract one sanction and that is dismissal. Therefore, there is no need for submissions in aggravation and mitigation before I render my sanction.
95. The employee is dismissed with immediate effect.
96. The employee is found to be unsuitable to work with children in terms of section 120 (4) of the Children’s Act no 38 of 2005.

MARK HAWYES
PART TIME SENIOR PANELIST
21st of May 2026