IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT POLOKWANE

Case No. ELRC1072-25/26LP

In the matter between

LIMPOPO DEPARTMENT OF EDUCATION Employer

And

MUDAU NTAKADZENI EMMANUEL Employee

Details of hearing and representation

1. This enquiry is conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 as amended. The hearings took place on 25 February, and 24 April 2026 at the Department of Education, Capricorn North District Offices, Polokwane, Limpopo Province at 9:00AM. The employee, Mudau Ntakadzeni Emmanuel, was represented by Seopa M. Martin from South African Democratic Teachers Union (SADTU), while the employer, the Limpopo Department of Education, was represented by Manganyi K.S, its official. The proceedings were digitally voice recorded and Siphugu V.B and Netshisumbewa Rofhiwa were the interpreters. The intermediary was R.M Kupa. The employer handed in bundle of documents I marked as Bundle R. There was no bundle of documents handed in by the employee. Issues to be decided.
2. This was an Inquiry by Arbitrator. I must decide whether the employee is guilty of the misconduct levelled against him or not. If found guilty, I must determine an appropriate sanction.

Background and common cause issues

3. The employee, Mudau Ntakadzeni Emmanuel, is currently employed since 17 February 2022. The employee was employed as CS1 Educator, earning a salary of R30 175.25 per month. He was charged with two charges of misconduct in terms of sections 17(1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998 as amended (the Act). Charges 1, has three (3) counts, while charge 2 has two (2).
4. Charge 1: You contravened the provisions of section 17 (1) (b) of the Act in that, during or around 21st February 2025 or at any period incidental thereto, at or near Tlakale Mashshane Secondary School, you had sexually assaulted a Grade 9 learner, MGM in that:
   Count 1: You fondled MGM, on her breast.
   Count 2: You fondled MGM, on her buttocks.
   Count 3: You fondled MGM, on her private part.
   Charge 2: You contravened the provisions of section 18 (1) (a) of the Act in that, during or around 21st February 2025 or at any period incidental thereto, at or near Tlakale Mashshane Secondary School, you failed to comply with or contravened the South African Council of Educators Act, 31 of 2000 “Code of Professional Ethics” in that:
   Count 1: You contravened item 3.6 of the Act by failing to refrain from improper physical contact with learners at a school by touching a Grade 9 learner, MGM, in an improper manner.
   Count 2: You contravened item 3.8 of the Act by failing to refrain from any form of sexual harassment with learners at a school by touching a Grade 9 learner, MGM on her breast, buttocks, and private parts.

Summary of the employer’s evidence.
Five witnesses/complainants testified to the employer. The first complainant / witness of the employer was Rammutla Tshwene Edwin. Rammutla Tshwene Edwin testified under oath and in English that:

5. He is the principal of Tlakale Mashashane Secondary School (School) since 2010. His duties amongst others were to manage the human resources of the school and learners. On 24 February 2025 he was approached by the deputy principal, Ledwaba RDM. Ledwaba reported to him that the learner, MGM,
   reported to him (Ledwaba) that the employee harassed her (learner) sexually on Friday the 21st of February 2025. The learner was brought to him (Ledwaba) by Mrs Matshela G.M.
6. The learner, MGM, was called to his office. The learner explained to him that the employee sent her (learner) to the staff room. Then the employee followed her to the staff room. There was nobody in the staff room as all the teachers were in classes, but only the employee and the learner. The employee closed the staff room door and requested the learner to kiss him (employee) hugged and uncomfortably touched her private parts. The learner then managed to push the employee and opened the door to run back to class. The employee tried to try to request Mrs Matshela not to report the incident to the principal. After the report by the learner, he looked for the employee, but in vain. The employee was not at the school then. The employee came back the following day, 25 February 2025.
7. During the cross-examination, he testified that he did not see the employee touching the learner. The school has cameras. The cameras only cover the administration block and where they put imported items. There was no camera facing the staff room. The employee never asked him to check the cameras as he (employee) was not there on 24 February 2025. He heard the employee’s side of story the following day, 25 February 2025.

The second witness/complainant of the employer was Ledwaba Regionald David Madimetja. Ledwaba Regionald David Madimetja testified under oath and in English that:

8. He was the deputy principal of the school since 2023. On 24 February 2025 Mam Matshela G.M come to his office to report that MGM came to her (Matshela) and reported that the employee touched her uncomfortably. The learner was called and she came to his office. Then the learner reported that the employee sent her to the staff room. When they were in the staff room, the employee touched her in an uncomfortable manner on Friday the 21st of February 2025. The learner started to become emotional and cried. He then escalated the matter to the office of the principal, Rammutla T.E. He left the principal and the learner in the principal’s office.
9. During cross examination, he testified that MGM reported the incident to Mam Matshela herself. He did not recommend anything to the principal. The principal listened to learner while she was explaining the incident. He did not check the cameras. The principal told him that he (principal) would escalate the matter to higher office. The third witness/complainant of the employer was Madzibatlela Chuene Albert. Madzibatlela Chuene Albert testified under oath and in English that:
10. He was the CS1 educator at the school. On 24 February 2025 he was in the staff room. He met Mam Matshela with the learner, MGM. The learner told him that she was being treated unfairly but did not explain who was troubling her. He told the learner to report to Mam Matshela. The employee was at the door of another class.
11. During cross examination, he testified that at the time he met with the learner and Mam Matshela he did not know anything about the incident. He just knew that the school had cameras. The learner was not crying when he saw her. The fourth witness/complainant of the employer was Gabula Maggie Matshela. Gabula Maggie Matshela testified under oath and in English that:

12. She is a CS1 teacher at the school. She joined the school in 2018. On 24 February 2025 during her break time the learner, MGM came into the staff room. The learner requested to speak to Mam Mamabolo. The learner explained her story to Mam Mamabolo. After explaining the incident, Mam Mamabolo referred her (learner) to her. The learner explained the incident to her. After explaining the incident to her, she requested the learner to go to the class. She then went to the class of the deputy principal, Ledwaba RGM and explained what she was told by the learner. The deputy principal requested her to call the learner.
13. While she was calling the learner by her name in Grade 9, the employee entered the classroom. The employee started to panic and called the learner by her name. She put the learner in the corner of another class. After a short space of time, she over-heard the learner explaining to Madzibatlela that the employee was troubling her (learner). She then took the learner to the deputy principal’s.
    (Ledwaba’s) office. The learner told the deputy principal that the incident happened on Friday 21 February 2025. The learner told her that the employee touched her private parts.
14. During the cross-examination, she testified that they did not know the learner when she came to the staff room for the first time. She thought the employee was panicking when he (employee) called the learner by her name and the learner ran from her behind to the front. The learner was avoiding the employee. The employee should have spoken to her and not the learner when he (employee)
    saw that she was with the learner. The employee was not in Grade 9 class when she entered to call the learner. She would not have informed the employee that she was taking the learner to the administration because he was implicated. She knew that there were cameras at school but did not know where they were put. The fifth witness/complainant of the employer was MGM. MGM testified under oath that:

15. She was attending school currently in Grade 10. In 2025 the employee was her class teacher and teaching her English in Grade 9C. The employee would communicate with her normally like other teachers. There was no personal relationship with the employee after school.
16. On 21 February 2025 in the morning, the employee came to their class to take register. The employee was with books from other grades learners. After marking the register, the employee sent her to his office. The employee followed her to the office. When she got into the office, the employee entered as well and closed the office. The employee told her that he wanted to talk to her. When she inquired about the issue, the employee said he loved her and tried to get closer to her. She tried to get away from the employee, but he (employee) managed to grab her and started to touch her all over the body. The employee touched her breasts and buttocks. There was no one in the staff room when she visited the employee. After she got out of the employee’s office, she started to look for Mam Mamabolo and could not find her. She then decided to go home and reported the incident to her mother. Her mother advised her to report the incident to the school principal.
17. On 24 February 2025 during short break, Mam Kganyago told her that the employee wanted to see her (learner). She went to the employee’s office. The employee wanted to touch her, and she told him that she wanted to go. The employee told her to see him later. She went to staffroom and told Mam Matshela that the employee seduced her and touched her breasts, buttocks,
    and private parts. Mam Matshela told her to go to the class, and she (Mam Matshela) would come and call her. Mam Matshela came to call her during English class. When she left the class, she met the employee who called her, but Mam Matshela told her to follow her (Mam Matshela) to the principal’s office. Mam Matshela kept her waiting at the corner of grade 9D block. While she was still waiting for Mam Matshela the employee saw her and called her, threatening her (MGM) that she would make him dismissed from work and ask for forgiveness.
18. She also saw Mr. Madzibatlela while still waiting for Mam Matshela. Mr. Madzibatlela advised her to go to Mam Matshela. After that she, together with Mam Matshela went to the deputy principal, Mr. Ledwaba RDM (Ledwaba). She explained the incident to Ledwaba who went and reported the incident to the principal. She was called to the principal’s and explained the incident to him.
    (principal) as well.
19. On Tuesday the 25th of February 2025 her mother came to the principal’s office. She was not feeling well at school after the incident. She was badly affected by the incident. She was performing well before the incident. After the incident she had problem when entering the classroom. People around her area of residence already knew about the incident. She even told her mother that she would like to change school and move to Turfloop to stay with her grandmother.
20. During cross-examination, she testified that she failed grade 9 because of Geography and Mathematics. She was aware that there were cameras at the school. She could not ask the principal to check the cameras because she was confused by the incident. She did not have a smart cell phone and does not login to facebook. It was during short break when the employee said he wanted to talk to her. The employee told her that he would give her mother money and she must not throw him under the moving bus. The employee requested her to protect him. She heard the employee saying he would come to her home and pay her mother money so that the matter should be resolved. It was not correct that she slept in the classroom. The employee was not the one who made her fail Mathematics. Seducing is when one forces someone to do what she does not want like touching her inappropriately.

Summary of the employee’s evidence.

One witness, the employee himself, testified. Ntakadzeni Emmanuel Mudau     testified under oath that:

21. He did not touch MGM improperly. He was told about the allegation by the principal of the school on Tuesday, 25 February 2025. He was negatively affected by the allegation to an extent that he was sent to the Psychologist by his wife. He told the Psychologist that it seems like he has been framed. He even asked for a transfer from the school.
22. There were cameras at the school and the principal monitored them. He asked the principal if he (principal) checked those cameras and the answer was negative. He did not understand when the principal was telling him about the allegation.
23. MGM was disruptive in the class in a way that when he was teaching, she (MGM) would change the desk and make noise. Another thing, MGM was manipulative in that, when he told her to go back to her desk, she would tell him that the person she was seated with was disruptive. MGM was disobedient because she would wear sun hat inside the class. Even on the day of the alleged allegation MGM was asleep in the class and he awakened her. MGM told him that he made her slumber when he was teaching. All those happened before and after the allegation.
24. When he left the school after receiving the transfer letter, he told other learners in the presence of MGM that he was leaving the school because of her (MGM’s) lies. MGM then told him to come to her home and meet with her mother to sort out the allegation. He responded by saying he does not stay at Mashashane village. MGM told Matsimela that he was a womanizer.
25. During cross-examination, he testified that it was not true that he went to class to take the class register. He did not go to class with the books of other learners because from the Taxi he went to admin block to take the class register. He never had any contact with MGM beside that in the classroom because they agreed as teachers that they do not need learners in their staff room. There were eight (8) teachers in the staff room, including the departmental head (DH). Most of the time the DH would remain in the staff room. MGM was lying about the allegation of sexual harassment. He does not know the motive for MGM to allege that he sexually harassed her. There was no romantic relationship between him and MGM. He did not report the behaviour of MGM to the principal, because he (principal) did not encourage them to report minor incidents like sleeping in class. He was not aware of the allegation when he left the school on 24 February 2025. He did not threaten the learner not to report the incident. Mam Matshela just got into his class and called MGM without greeting him. When he left out of the class, he saw the MGM standing alone. He then called MGM and asked why she was standing alone, of which she did not respond. Analysis of the evidence and arguments
26. The employer was required to prove on the balance of probability that the employee is guilty of all the allegations. I have considered the closing arguments of the parties together with the oral evidence led, in determining the outcome of this matter. The employee was charged with committing an act of misconduct in terms of Sections 17(1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998 in that he committed an act of sexual assault on learner MGM who was then in Grade 9 at Tlakale Mashashane Secondary School.
27. It is common cause that the employee was an educator at the school and MGM
    was a learner at that school in 2025. The testimony of the employer’s witness,
    MGM showed that the employee touched MGM’s breasts, buttocks, and private parts. The employee did not challenge the evidence of MGM to the effect that she went to his office/staff room, and he touched her breasts, buttocks, and the private parts. What the employee did was to barely deny the incident. MGM testified that there was no one in the staff room when she visited the employee. It was only the two of them. Still, the employee did not challenge this evidence. I did not hear the employee testifying that he under no circumstances find himself with MGM alone in the staff room. The argument of the employee that the DH was most of the time found in the staff room does not hold water, because he was not telling me that the DH was in the staff room when MGM visited him
    (employee) there (staff room). In fact, the employee should have called the DH to attest to that evidence. There was corroboration of the testimony of MGM,
    the principal, Mam Matshela, and the deputy principal,
    Ledwaba as far as the indecent touching was concerned. If MGM was framing the employee, she would not have related the incident to all those educators.
28. The employee testified about the cameras which were supposed to be checked. It is my belief that the perpetrators of sexual harassment incident would not do it under the coverage of the cameras. He would make sure that he does it in place where there would be him and the victim. MGM testified that while she was waiting for Mam Matshela at the grade 9D block, the employee apologized to her and threatened her that she should not make him dismissed from work. This testimony is believable because the employee conceded that he saw MGM standing alone outside the classroom and called her. The employee was panicking because MGM was taken out of the employee’s classroom without his consent. The employee knew that MGM was going to report him.

29. The employee testified to the effect that the allegation affected him negatively to an extent that his wife took him to consult the Psychologist. He even asked for a transfer from the school. This was after he was told of the incident by the principal on 25 February 2025. The incident took place on 21 February 2025. I do not believe that the employee would have been stressed by the allegation if indeed he did not sexually harassed MGM. The stressful situation was caused by the fact that the employee knew the consequences of what he did. The employee did commit misconduct.
30. In view of this, I find the employee guilty of charge 1, and 2, together with their respective counts. It is my belief that the employer has on the balance of probabilities proved that the employee improperly touched MGM on 21 February 2025. The employee has sexually harassed MGM. The evidence of the employer outweighs that of the employee.
31. In view of the above analysis, it is therefore my finding that the employer has on
    balance of probabilities proved that the employee has committed misconduct as charged in terms of sections 17 (1)(b) and 18(1)(a) of the Employment of Educators Act, 76 of 1998.
32. Having found the employee guilty as charged in terms of, inter alia, section 17(1)(b) of the Employment of Educators Act, 76 of 1998, it follows that the sanction of dismissal is mandatory, irrespective of the mitigating factors. The interest of the learner should prevail. Sexual assault of learner by an educator is not acceptable in a school environment. Educators play the role of a parent at school. They must ensure that learners are educated.
33. The employer has in its closing arguments submitted that the employee is not suitable to work with children. Section 120(1)(c) of the Children’s Act, 38 of 2005 makes provisions 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”. The employee was found guilty as charged. Considering the above, I make the finding on the unsuitability of the employee to work with the children in terms of section 120(2) of the Children’s Act, 38 of 2005. Award
34. I find that the employee, Ntakadzeni Emmanuel Mudau, is guilty of charge 1,
    counts 1, 2, and 3 as well as Counts 1 and 2 of charge 2.
35. I impose the sanction of mandatory dismissal with immediate effect.
36. Mr. Ntakadzeni Emmanuel Mudau is found to be unsuitable to work with children in terms section 120(4) of the Children’s Act, 38 of 2005.
37. 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 this forum made in terms of Section 120(4) of the Children’s Act, 38 of 2005 that Mr. Ntakadzeni Emmanuel Mudau 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.

VICTOR MADULA

ELRC PANELIST
22 May 2026