IN THE ELRC ARBITRATION
BETWEEN:

Jaco H Delport “the Respondent”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Applicant”

ARBITRATION AWARD

Case Number: ELRC400/24/25KZN

Last date of arbitration: 07 April 2026

Date of submission of closing arguments: 04 May 2026

Date of award: 22 May 2026

NTOMBIZONKE MBILI
ELRC Arbitrator

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary matter (Inquiry-by-Arbitrator), which commenced on 26 November 2024, proceeded on 24 March 2025, 25 March 2025, 06 May 2025, 07 May 2025, 28 July 2025, 29 July 2025, 18 November 2025, 19 November 2025, 11 February 2026 and was finalized on 07 April 2026.
2. The applicant, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr. Thabani Mchunu, and the respondent was represented by Ms. Esther Meiring, a legal representative from Da Wet and Meiring Attorneys Inc.
3. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 27 April 2026. Both parties requested for an extension, the respondent’s representative due to her husband’s ill health, and the applicant’s representative due to the ongoing nature of the case. The extension was granted, and both parties were instructed to submit their arguments by 04 May 2026.
4. The arbitration was held at Empangeni High School which is situated in the Northen part of the Province of KwaZulu-Natal Department, this being a venue provided by the Department.
5. The proceedings were digitally and manually recorded. Mr. Robert Kayi provided services of an interpreter and Ms. Hlengiwe Phakathi was the intermediary.

ISSUES TO BE DECIDED

6. I am required to determine whether the Respondent is guilty or not of the charge levelled against him and if so, to determine the appropriate sanction. BACKGROUND
7. The Respondent is employed as a Departmental Head at Hoerskool Richards Baai and is charged with the following count of misconduct:

“It is alleged that on or about 2022 to 2023, at or near Hoerskool Richards Baai you allegedly had sexually assaulted a learner by the name of Learner A (Grade 11). In so doing you contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998 as amended.”

8. The Respondent pleaded not guilty to the charge and denied all the allegations against him.
9. Both parties submitted bundles of documents, marked as bundle “A” and “B”.
10. As of the time of the incidents, the complainant, applicant’s second witness and the group of learners mentioned were still minors. I will therefore refer to the complainant as Learner “A”. The applicant’s second witness as Learner “B”.
11. The group of approximately eight learners, seven girls and one boy, will be referred to as Learner B, Learner M, Learner D, Learner N, Learner W, Learner ML, and Learner LM

SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case

12. The employer led the evidence of four witnesses namely Learner A (Complainant), Learner B, Mrs. Renska and Ms. Thembeka Mlambo.

Applicant’s Case
Learner A

13. Learner A stated that she was 18 years old and attended Hoerskool Richards Baai, from 2020 until 2024. She confirmed that during the period 2022–2024, she was still a minor, being between 15 and 16 years old.
14. The witness testified that she knew the respondent, Mr. Delport, as her Physical Sciences educator. Initially, he conducted himself in a professional manner and that they had an educator and learner relationship. He was regarded by learners as a “cool teacher” because of his jokes and his understanding nature.
15. She testified that in 2022 she became part of a group of approximately eight learners, seven girls and one boy, which consisted of Learner B, Learner M, Learner D, Learner N, Learner W, Learner ML, and Learner LM. The respondent invited her and her group to spend time in his classroom during the lunch breaks, due to heat conditions.
16. Their relationship with the respondent developed and they had a close relationship, to the point where he would buy them snacks at the tuckshop and open credit for them at the tuckshop to use when required.
17. The witness stated that over time, the respondent’s attention became increasingly focused on her specifically, and she was singled out from the group. This shift in attention developed gradually during the course of 2022.
18. She further testified that the respondent engaged in inappropriate and sexually suggestive conduct in the presence of learners during class, including making sexual, drugs and alcohol related jokes. He would discuss his private sex life with his wife during lessons and would at times telephonically contact his wife and put her on speaker, to confirm their sexual activities, including having sex in the principal’s office. He further referred to markings on his classroom door as a “count” of his sexual activity with his wife.
19. The witness testified that the respondent obtained her cell phone number under the pretext of assisting her academically. Thereafter, communication became personal in nature. He sent her messages such as “sleep well” accompanied by a red heart emoji and expressed that he felt sad when she did not spend time with him. She further testified that he would call her to his classroom via the intercom and instructed her not to refer to him as “sir,” but rather as “Jaco.” On one occasion, she asked her friend Learner D to accompany her because she was afraid to go alone, during that such interaction, the respondent called her and Learner D into his store room which is located in the back of classroom, he kissed her on the cheek and forehead and requested for Learner D to take pictures of them.
20. She further stated that during break times he would touch her thigh while she was seated with her friends and whispered things in her ears. He also tied a blue ribbon around her hair, rubbed her back and whispered that he loved her.
21. The witness testified that during an examination period in November 2022, the
    respondent placed a note on her desk while she was writing and whispered in her ear that he loved her. She later discovered that the note was a love poem expressing his feelings for her.
22. She testified that the respondent attempted to give their group money, for a post-examination braai. Learner B returned the money, stating that he felt uncomfortable accepting the money, but the respondent refused to accept it back. The money was subsequently left on his desk by Learner B. The respondent later sent her a message stating that she had “broken his heart” by refusing to accept the money and that he was upset. He retaliated by setting a difficult chemistry test for the learners to write.
23. The witness testified that at the beginning of Grade 11 (2023), the respondent called her aside in the corridor and told her that if she allowed him to “take care of her” , the Grade 11 class would receive an easy Chemistry examination paper, but if she refused, and they received a difficult paper. She stated that the examination paper that followed was difficult and had been moderated by the respondent’s wife, Mrs. Tanya Delport, who is not employed by the school. She testified that many learners failed the paper and that complaints were raised by their parents.
24. She further testified that in September 2023, Learner LM wrote an essay disclosing concerns about the respondent’s conduct, which contributed to the matter being reported and escalated.
25. Under Cross-Examination she was referred to bundle B, page 31and she testified that this was a picture of her and her friends drinking alcoholic beverages at a local bar, Mojito’s. She said that the respondent assisted them in having photographs posted on the Mojito’s Facebook page removed. This contributed to their perception of him as a “cool” teacher. She added that a friend of Mrs. Delport owned Mojito’s and that the respondent requested the
    removal of the images as they were aspiring to become prefects at the school.
26. She further testified that the respondent would, on occasion, buy snacks or provide money for the tuckshop to other learners outside of their group.
27. She argued that the sexual conversations were more often than not initiated by the respondent, and that on occasion learners asked questions that may have been interpreted by the respondent as having sexual undertones.
28. When referred to the WhatsApp texts between her and the respondent, she testified that by approximately 04 November 2022, the relationship had become extremely uncomfortable for her. She stated that she tends to “freeze” when scared and, despite her discomfort, continued engaging in conversation because she feared attending his classes and believed he was capable of making her life difficult.
29. She confirmed that the respondent was initially a good educator, before the inappropriate sexual and drugs jokes and he crossed the line when he requested that she call him by his first name “Jaco”.
30. The respondent blocked her on WhatsApp on 20 November 2022, due to the breakdown of the relationship. The group thereafter spent a lot of time in Mr Van Rooyens classroom because she was afraid to face the respondent.
31. She denied being the class captain and that the respondent requested for her number to communicate with her regarding class related matters.
32. She stated that the respondent bought them a vape, and allowed them to vape in his store room, in his presence, which was against school rules.
33. She mentioned that the respondent approached her and Learner B, who was seated nearby, and gave her a poem. She further testified that after the examination, he hugged her and kissed her on the forehead in the corridor.
34. She added that Mr. Muller, the school principal, allegedly stated that he also hugged and kissed learners at the school. No action was taken after the matter was reported to him. She further confirmed that the respondent hugged her tightly approximately five times, kissed her multiple times, and told her that he loved her and did not see her as a school learner.
35. She added that he invited her to his house on several occasions and argued that Learner LM and her brother visited the respondent home because the brother required assistance with physical science and their mother was uncomfortable in him going alone.
36. She denied that the respondent brought a blue ribbon from home to gift her with because she normally wore a purple ribbon and it looked untidy, as it was not the school colours.
37. She denied that the marks on the respondent’s door symbolised the times that former learners had complained and said the respondent told them that it symbolised the number of his sex count.
38. The witness confirmed that she received personal messages from Mrs. Delport and explained that she continued to write messages to the respondent, like “you are great” and “I miss you”, even though the relationship was uncomfortable, because she became increasingly paranoid at school, to the extent that she was fearful of the respondent’s statements that he could make their lives “a living hell.” She added that he was Head of Department for Science, which made her fear he could negatively affect their academic experience, especially given his previous assistance in matters such as the Mojito’s incident and allowing vaping in his classroom. She added that he would call her and ensure she was alone before asking to see her. She further testified that their communication included frequent use of heart emojis, which became normalised over time. She was initially not scared by these messages, as they became a regular feature of their interaction.
39. She was directed to page 8, bundle B, and explained that it was not normal for an educator and his wife to say “ We love you” to a learner, as stated in the message from the respondent’s phone.
40. She clarified that although learners sometimes initiated general sexual questions, the respondent’s conduct and sexualised discussions were primarily driven by him and escalated over time.

2nd Witness
Learner B

41. Mr. Learner B testified that he attended Hoerskool Richards Baai from 2020, grade 8, until 2024, grade 12. He stated that Mr. Delport was their physics teacher in 2022.
42. The witness further stated that the they had an ordinary “learner-teacher” relationship initially.
43. In 2022 the respondent had taken Learner A’s number, and they would chat to him when they had extra questions about schoolwork.
44. He said that they went to the principal’s office at the beginning of 2023 to report the respondent and prior to that his registered educator, Mr. Van Rooyen, had questioned him about Learner A’s relationship with the respondent and he told him that the respondent would let them vape in the storeroom, he was particularly fond of Learner A, he would make sexual jokes throughout their lessons and talk about how he used to have sex with his wife on school grounds even noting that they were in “competition” with another couple from Witbank.
45. He added that he told the educator that the relationship between Learner A and the respondent was more personal and that in class the respondent would call Learner A “his secretary”.
46. The witness testified further that they would hang out in Mr. Delport’s class especially during the summer time because he had two air conditioners. He witnessed that the respondent would tie a blue ribbon onto Learner A’s hair and told her that she looked pretty.
47. He further testified that their relationship with the respondent took a turn at the beginning of 2023 as he did not seemingly like them anymore. The witness added that Learner A informed him that the respondent took her aside and told her it was up to her to decide which test they would write as it could either be the easier one or harder depending on whether she agrees to communicate with him. He gave her an ultimatum, stating that if she continued to distance herself from him, the class would write the difficult test and the test was indeed difficult, because Learner A continued to ignore him.
48. The witness mentioned that at the end of 2022 after end of year exams they had planned to have a party and braai at his house since his parents were way. The respondent gave him a brown envelope and slipped it into his pocket and stated that it was his contribution towards the braai they had planned. When he opened the envelope, he found R500.00. He returned the money as he felt uncomfortable to accept it, the respondent refused to take it back and he left the envelop on top of his desk.
49. The witness stated that Learner LM and Learner A were in a romantic relationship towards the end of 2022 and in 2023.
50. He confirmed the incident regarding the photograph of group at Mojito’s and how Mrs Delport assisted with removing the photograph from Facebook.
51. He stated that Learner A once told them a story in the respondent’s presence and she pulled down her skirt, as a joke, however she was wearing shorts underneath.
52. The witness reiterated that although some interactions appeared friendly at first, the nature of the relationship between the respondent and certain learners particularly Learner A became increasingly inappropriate and crossed professional boundaries.

3rd Witness
Ms. Renzka Sophia Elsje Goodwin

53. The witness testified that she was a learner at Hoerskool Richards Baai in 2005 and had classes with the respondent between 2003 – 2004. She further stated that their dynamic began as one of a teacher-learner relationship however it changed as he began to talk to them about more personal things and made jokes with them about things that are sexual in nature. They were a group of three and grew to be “friends” with him over time. He would even “touch” them on the shoulder and give them hugs.
54. The witness testified that on two different instances the respondent asked her to accompany him to the store room, which was positioned at the back of the class, during their time in the store room, he touched her breasts and showed her his penis, she thereafter distanced herself from him. She did not report the incident because she considered him a “friend” at the time and felt bad for him.
55. The witness stated that during the period of 2004 – 2005 her friends were, Tanya, Neil, and Nicoline and they used to hang out with the respondent and considered him as their “friend”, however later the respondent had an affair with Tanya and married her, which she found very confusing.
56. She added that they were scared to say anything as they didn’t think anyone would believe them and they were young. She noted that the incident was not reported to the school.
57. She submitted that Tanya Delport and Nicoline were sixteen/seventeen at the time and in grade 11. When Tanya and the respondent’s relationship came to light, Tanya parents addressed the issue with the school and Tanya denied having a relationship with the respondent.
58. She stated that she was called as a witness, after she told a colleague, Diane Nel, about the respondent’s conduct towards her during her time at Hoerskool, and Diane was friends with Rachelle Brit, who was the investigator in this matter. She said that she had no reason to lie as she had nothing to gain.

4th Witness
Ms. Thembeka Mlambo

59. Ms. Mlambo testified that she was employed by the Department of Education for the past 35 years and she is currently the circuit manager for the past 6 years, managing 31 schools. Her core responsibility is to ensure that the learners and parents are protected.
60. The matter was reported to her by the school principal Mr. Muller as he visited her to enquire about how to deal with the matter.
61. She submitted that the South African Council for Educators defines sexual harassment, not just sexual act, as long as the act is suggestive of sexual conduct. She added further that section 17(1)(b) deals with unwelcome conduct that could make learners feel uncomfortable and unsafe and therefore the department has an obligation to protect learners and to report such matters as a matter of urgency.
62. She said that she knew of the matter especially after she was informed of an essay that was written by Learner LM, who was a learner at the school.
63. The witness explained in her testimony that sexual harassment and sexual assault meant the same thing in the context of the school environment and in relation to the prevailing Act specifically.
64. The witness added that she was present during the interviewing of the witnesses. She further stated that the department is very consistent in dealing with similar matters.

Respondent’s Case

65. The respondent called four witnesses, namely Mr. Jacobus Hendrik Delport (Respondent), Mrs. Learner D Delport ,Ms. Raven Ashley Baines and Ms. Marianna Louw.
    1st Witness
    Mr Jaco Hendrik Delport (The Respondent)
66. The respondent testified that he is employed by the applicant and is stationed at Richards Baai Hoerskool. He has been an educator since the year 2000, teaching physical science, life science, chemistry, maths literacy, technology and geography. He was promoted in 2016 as the Head of Department. He initially taught across different grades, but over time focused mainly on grades 10 to 12 physical sciences.
67. He stated that his role as an educator is guiding learners and induct thinking, as his subject involves problem solving. He also would advise the learners on relationship related issues and if the learners were curious about anything, he would assisted with clarifying. He created a comfortable and relaxed environment for the learners.
68. He confirmed that discipline forms part of his responsibilities and learners can approach him for assistance. He emphasised compassion, kindness, and understanding, especially after becoming a parent. He stated that he intervenes in emotional matters only in extreme cases and refers learners to counsellors.
69. 5.8. He explained that the school environment depends on leadership and that the headmaster promoted a family-like atmosphere and even encouraged hugging as part of the schools mantra.
70. He identified learners including Learner A, Learner M, Learner B, Learner N, Learner M, Learner J and Learner AN, as being a strong academic group.
71. He stated that the learners sometimes sat in his classroom during free periods, because of the aircon, all learners had that privilege.
72. He stated that he knew the group before he taught them physics, they were noisy but well behaved learners. He mentioned that he had a stronger relationship with Learner A, Learner B and Learner N.
73. He explained that Learner A acted as a class representative and that she communicated with him on WhatsApp regarding any issues the learners had regarding the subject. He stated that at times his wife, Learner Tanya, would communicate with Learner A on his behalf, due to him being occupied. He confirmed that the messages on page B5, were sent by his wife. He explained that his wife would casually communicate with the learners because she was familiar with their families through church, and that he also spoke about his wife a lot in class and she would visit him at school and at times bring him lunch.
74. He confirmed that he sometimes bought snacks and drinks for learners but not excessively.
75. He remembered putting a ribbon in Learner A’s hair and commenting out loud that it looked better on her.
76. He claimed ownership of a vape found and allowed the learners to take a puff, but instructed them not to inhale. They all took turns vaping and blew bubbles with the vape smoke, which he found to be a beautiful sight.
77. He acknowledged giving occasional gifts like chocolates and drinks to the learners. Additionally, he confirmed telling Learner A’s that she could address him by his first name, “Jaco,” and that he expressed to her that he loved her.
78. He mentioned that Learner A initially asked for a hug, which led to more hugs, including two in front of the exam room. He noted that the principal promoted hugging and would hug learners as well. He admitted to kissing Learner A on her hair on two separate occasions.
79. He stated that he gave the poem to Learner A because it conveyed messages about overcoming challenges and providing comfort during difficult times.
80. He confirmed to giving Learner B R550, and that Learner B later returned the money.
81. He found it puzzling that they refused the money, especially since they had accepted money from him before. He stated that he was feeling upset, not heartbroken, and then proceeded to block Learner A.
82. He recalled his wife assisting with taking down the picture posted on Mojito’s Facebook page.
83. During cross-examination he stated that he considered himself as a good educator, who played a parent role to the learners.
84. He confirmed that he sent Learner A WhatsApp messages with heart emojis and that he told her more than once that he loved her.
85. He gave Learner A an ultimatum to identify the person who leaked the test paper. He informed the class that if no one confesses, they will have to take a challenging test.
86. He mentioned that he likely complimented Learner A on her appearance when he placed the ribbon in her hair.
87. He confessed to jokingly informing the learners that he and his wife engage in intimate activities in various locations. He explained to them that he and his wife had limited intimacy because of their special needs child.
88. He confirmed that he did not speak to the rest of the group after they rejected his money.
89. He further confirmed that Learner A was the only learner that he kissed and that she was the only that he blocked.
90. He submitted that he did not discipline or report Learner A when she pulled her skirt down in the class room because it was a joke.
91. He clarified that condoms found in his classroom were for scientific experiments.
92. He believed that Learner LM wrote the essay about him because she was jealous that Learner A enjoyed spending time with and Learner A was under the influence of Learner LM, her girlfriend.

2nd Witness
Mrs. Tanya Delport

93. Mrs. Tanya Delport testified that she was an IT operations manager at Saryx Engineering Group. She stated that she was a BCom Informatics Major in Accounting and a “qualified” moderator.
94. She further testified that she was married to the respondent for 18 and a half years.
95. Both families had a shared history of attending the same camp every December, and she has known the respondent since primary school.
96. She testified that the respondent taught her and her two sisters while they were learners at Richard Baai Hoerskool.
97. After matriculating, she started a romantic relationship with the respondent the following year when they both studied B.Com at UNISA. They got married a year later. The age gap between her and the respondent is 14 and a half years.
98. She recalled rumours of them dating towards the end of her high school year, leading to her parents being called in by the school to discuss the matter. However, nothing came of it.
99. She fondly remembered the respondent as the “cool teacher” who used a skateboard and entertained with captivating stories. She described him as approachable, relaxed, and generous with rewards like R10 or chocolates for good performance.
100. She stated that she did not view the respondent touching her shoulders and hugging as inappropriate behaviour. She confirmed that the respondent made “dirty jokes”. She matriculated in 2005 and their son Henko was born in 2012, seven years later.
101. She confirmed her friendship with Ms. Goodwin, mentioning that their bond strengthened after they matriculated.
102. She also submitted that the respondent often called her on speakerphone to interact with the learners. During one conversation, Learner A asked the respondent a personal question regarding how to use a tampon, she reprimanded the learner and told her to focus on biology.
103. Under Cross-Examination the witness testified to the following: She has never been employed by the school and has no formal contractual relationship with the school, aside from voluntary computer literacy training provided through her company.
104. She acknowledged that during her own time as a learner, there were informal interactions between the respondent and learners, including possible exposure to jokes with sexual connotations, although she could not recall specifics. She denied ever feeling targeted by the respondent during her school years and stated that she did not observe any targeting of other learners in her group. She confirmed that certain learners were referred to as “secretaries,” including Learner A, and that learners sometimes assisted with administrative tasks such as answering the landline.
105. She confirmed that she was aware that the respondent took photographs of learners A, discussed aspects of his personal or sexual life with learners, though she believed context mattered, that the respondent hugged and kissed Learner A including sending her messages with affectionate language and heart emojis, including expressions of love, that the respondent told Learner A that she was pretty and that he loved her.
106. She also confirmed that the respondent placed a ribbon in Learner A’s hair, which she interpreted as an innocent gesture. She had, on occasion, sent messages to Learner A from the respondent’s phone.
107. She maintained that she believed appropriate boundaries were in place because the respondent would inform her of his interactions with the learners. She acknowledged that she was not familiar with Department of Education policies and conceded that repeated sexual jokes or inappropriate comments in a workplace context could constitute misconduct.

3rd Witness
Ms. Raven Baines

108. She stated that she is 20 years old and works as a nail technician. The respondent was her former grade 12 physics teacher at Richards Baai Hoerskool and she matriculated in 2023.
109. She characterized the respondent as understanding, patient, and cool, which eventually led to a friendship between them.
110. She clarified that the respondent never behaved inappropriately or made sexual jokes and instead made his lessons enjoyable.
111. She also mentioned that the respondent used to buy snacks from the tuckshop for them if they were hungry and she still maintains a relationship with him and his wife.
112. During the cross-examination, she admitted that she did not have any knowledge of the specific allegations made by Learner A against the respondent. Her information is solely based on what the respondent and his wife have shared with her, as she does not personally know Learner A beyond what she has heard.

4th Witness
Learner ML

107. She mentioned that she is 21 years old and studies at the University of Pretoria. The respondent was her physics teacher from grade 10 to 12 at Richards Baai Hoerskool.
108. She said she felt more at ease talking to the respondent about home issues and school problems than with other teachers.
109. She said the respondent was known as the “cool teacher” because he let learners bunk class, use vulgar language, hang out in his classroom, buy snacks from the tuck shop, and vape in his storeroom.
110. She recounted an incident where she saw Learner A sitting on a desk in the classroom with the respondent tying a ribbon around her hair, while other learners were at desks and the two of them were by the computer, close together and rubbing shoulders.
111. She testified that the respondent had a folder on his phone with the majority photos of Learner A and other learners , which made her uncomfortable, especially a picture of Learner A showing a lifted school shirt.
112. She remembered a moment during break when Learner A joked about a crocodile bite and pulled her skirt down in front of the respondent.
113. She also stated that the respondent kept condoms in a drawer in his storeroom, which she found inappropriate as she had not seen him use the condoms for educational purposes.
114. She believed that the respondent had crossed boundaries with learner A by being too physically close and having personal conversations, although she didn’t witness any direct sexual misconduct towards Learner A.
115. She stated it was not appropriate for a teacher to discuss sexual topics or personal experiences with learner.
116. She shared that Learner LM disliked the respondent, called him a paedophile, and expressed a desire for his arrest. However she believed that Learner LM feelings were justified.

5th Witness
Gabrielle Greyling

117. She stated that she was a sport organizer and marketer at Richards Baai Hoerskool in the period 2022 to 2023 and taught physical science. She stated that she had no knowledge regarding Learner A and the respondent’s relationship or incidents relating to the allegations.

ANALYSIS OF EVIDENCE AND ARGUMENT

118. The primary substantive issue to be decided is whether the respondent, Mr Jaco Delport, committed an act of sexual assault against Learner A, within the meaning of section 17(1)(b) of the Employment of Educators Act 76 of 1998 (the Act), during the period 2022 to 2023.
119. The respondent pleaded not guilty, raising defenses that include consent, the absence of sexual intent, a school culture that encouraged physical affection, and that his conduct was merely that of a “cool teacher” building rapport with learners.
120. Section 17(1)(b) of the Act provides that an educator found guilty of committing an act of sexual assault on a learner must be dismissed. The term “sexual assault” is not exhaustively defined in the Act but must be interpreted in light of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, as well as the established jurisprudence of the Education Labour Relations Council (ELRC) and the Labour Court. Critically, for purposes of educator misconduct, sexual assault includes any non-consensual, unwanted, or inappropriate physical or non-physical conduct of a sexual nature that violates a learner’s dignity, bodily integrity, or sense of safety, regardless of whether the learner explicitly objected at the time.
121. The evidence of the complainant, Learner A, was detailed and largely consistent. She testified that the respondent’s conduct escalated over time from professional behavior to sexually suggestive jokes, personal messaging, physical contact such as kissing her on the cheek and forehead, rubbing her thigh, whispering “I love you”, tying a ribbon in her hair, and giving her a love poem during an examination. Her testimony was corroborated by Mr. Learner B, who witnessed the ribbon incident, the ultimatum regarding examination papers, and the respondent’s sexualised classroom commentary about his wife. Learner B, called by the respondent, also corroborated key aspects, including the ribbon-tying, close physical proximity, and the respondent’s inappropriate folder of photographs of Learner A.
122. The respondent admitted several material facts: that he kissed Learner A on the hair, told her he loved her, sent messages with heart emojis, invited her to call him “Jaco”, discussed his sexual activities with learners, allowed learners to vape in his storeroom, and gave money to learners. His defense sought to normalise these actions as part of a “family-like” school culture encouraged by the principal, including hugging. However, the evidence did not establish that other educators engaged in conduct of a comparable sexualised nature, such as discussing their own intercourse, whispering “I love you” to a specific learner, or singling out one learner for private affectionate messages.
123. The defence of consent or acquiescence by the learner cannot succeed. A learner, particularly a minor aged 15-16, cannot validly consent to sexualised conduct by an educator in a position of trust and authority. The power imbalance inherent in the educator-learner relationship vitiates any purported consent.
124. Moreover, Learner A testified that she felt scared, froze when frightened, and continued engaging only because she feared academic retaliation, given the respondent’s ultimatum about making her class write a difficult examination. This is a classic “grooming” dynamic, where an educator normalises inappropriate behavior, isolates a learner, and creates dependency.
125. The respondent’s reliance on the school’s hugging culture is misplaced. While the principal may have permitted hugs, there is no evidence that the principal sanctioned romantic kissing, thigh touching, whispered declarations of love, or sexual boasting in class.
126. The respondent’s conduct far exceeded any acceptable physical or verbal boundary. Furthermore, the respondent himself distinguished Learner A from all other learners: he admitted she was the only learner he kissed and the only learner he blocked on WhatsApp, indicating a uniquely personal and inappropriate fixation.
127. The evidence of Mrs. Tanya Delport, the respondent’s wife, inadvertently supported the employer’s case. She confirmed that the respondent kissed Learner A, sent loving messages with heart emojis, placed a ribbon in her hair, and called her “pretty”. She conceded that repeated sexual jokes in a workplace could constitute misconduct. Crucially, her own history as a former learner who later married the respondent, with an age gap of 14.5 years, demonstrates a pattern of boundary-blurring that ought to have alerted the respondent to the risks of his behaviour. Her testimony that she was not familiar with Department of Education policies further undermines any claim that the respondent acted within professional norms.
128. The evidence of Ms. Goodwin, a former learner, was admitted not to prove the specific charge against the respondent but to establish a pattern of conduct by the respondent. Prior similar conduct may be relevant to show absence of mistake, common scheme, or propensity, particularly where the respondent denies that his behaviour was sexual in intent.
129. Ms. Goodwin testified that the respondent touched her breasts and exposed his penis to her in the storeroom around 2004, and that he later married another former learner, Tanya Delport.
130. This evidence is highly probative: it demonstrates that the respondent has previously engaged in sexually inappropriate conduct with learners, that he has normalise crossing professional boundaries over decades, and that the current allegations are consistent with an established modus operandi.
131. The respondent called character witnesses, Ms. Baines and Ms. Greyling, who testified that he was a good teacher and that they did not witness misconduct. However, Ms. Baines admitted she had no direct knowledge of the allegations and relied on what the respondent told her. Ms. Greyling confirmed she had no knowledge of the incidents. Such evidence does not rebut the specific, detailed, and corroborated testimony of Learner A, Learner B, and Learner ML. It merely shows that the respondent could behave appropriately with some learners or in some settings, which is not inconsistent with having targeted Learner A.
132. The legal principles applicable to this matter include the constitutional rights of learners to dignity, bodily integrity, and safety in terms of section 12 and 28 of the Constitution of the Republic of South Africa, 1996. Educators stand in loco parentis and are held to a higher standard of conduct.
133. In MEC for Education, KwaZulu-Natal v Shongwe (2017) 38 ILJ 1669 (LAC), the Labour Appeal Court confirmed that any sexual misconduct by an educator towards a learner fundamentally breaches the trust reposed in the educator and ordinarily warrants dismissal, even if no “completed” sexual act occurs.
134. The ELRC has consistently held that conduct such as sending romantic messages, kissing learners, discussing one’s sex life with learners, and giving gifts to foster a private relationship constitutes sexual harassment or assault under section 17(1)(b). The respondent’s conduct created a sexually charged and intimidating environment for the complainant, who developed paranoia and fear of attending his classroom.
135. The respondent’s defence that the complainant’s girlfriend, Learner LM was jealous and fabricated the allegations is unsubstantiated. Learner LM wrote an essay reporting concerns, but the credible testimony of Learner B and Learner ML, who were not in a romantic relationship with Learner A, corroborated the central facts. Moreover, Learner ML described feeling uncomfortable about the respondent’s folder of photos of Learner A and his physical closeness, which she observed independently. The suggestion of fabrication does not explain why multiple witnesses, including one called by the respondent, gave consistent accounts of boundary violations.
136. On the balance of probabilities, which is the applicable standard of proof in arbitration proceedings, I find that the employer has proved that the respondent committed an act of sexual assault on Learner A. The respondent’s conduct of kissing, thigh touching, whispering “I love you”, sending love poems and romantic messages, tying a ribbon in her hair, and making an ultimatum linking compliance to examination difficulty collectively constitute sexual assault. The fact that the respondent did not engage in penetration or direct genital contact does not negate the finding: sexual assault includes any non-consensual physical or non-physical act of a sexual nature that violates a learner’s bodily integrity or dignity.
137. The respondent’s own conduct of blocking Learner A after she distanced herself demonstrates consciousness that the relationship was not merely friendly but had become problematic. His admission that he felt “upset” when his money was returned further underscores an emotional investment inappropriate for an educator. The attempt to reframe his conduct as paternalistic fails because a father figure does not whisper “I love you” in a romantic context, discuss his sex life, or give love poems. The use of heart emojis and the request to be called by his first name “Jaco” are hallmarks of grooming, not caregiving.
138. Accordingly, on the substantive merits, the respondent is found guilty of the charge of sexual assault of learner A in contravention of section 17(1)(b) of the Employment of Educators Act 76 of 1998. The defences raised, including consent, school culture, and lack of sexual intent, are rejected as without legal or factual merit.
139. The mandatory sanction prescribed by section 17(1) is dismissal, and no compelling circumstances exist to deviate from this sanction, given the seriousness of the misconduct, the breach of trust, the vulnerability of the learner, and the respondent’s prior pattern of similar conduct with former learners.
140. In the case of McGregor v Public Health and Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1643 (CC) the Constitutional Court held as follows:
     “…sexual harassment is the most heinous misconduct that plagues a workplace. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and are inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms and non-sexism. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth striking at the root of that person’s being.”
141. The context from which the circumstances of this case arose are a typical demonstration of sheer abuse of power and authority. The self-worth and the dignity of the victim was shattered. She clearly will suffer the effect of this experience for some time into the future.
142. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) the following was held:
     “In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
143. I am not satisfied that the respondent laid any foundation in demonstrating that dismissal was not an appropriate sanction for the proven misconduct. In this regard I find that the dismissal is the only appropriate and fitting sanction for the misconduct that he is found guilty on.
144. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

“Substitution of section 17 of Act 76 of 1998 The Employment of Educators Act,1998, is hereby amended by the substitution for section 17 of the following section:

Serious misconduct

17. (1) An educator must be dismissed if he or she is found guilty of —
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner. student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).

(2) If it is alleged that an educator committed a serious misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.”

145. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted the Girl Child in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. The employee is simply dismissed by operation of the law, after being found guilty of having sexually assaulted the child at the school where he was employed.
146. It follows, based on the provisions of the law (the ELAA), a dismissal is mandatory and the only appropriate sanction which must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the children.
147. Having found the employee guilty of the count, which is based on paragraph 17(1)(b) of the EEA, which provides for a mandatory sanction of dismissal, upon a guilty finding, by operation of law, the employee must be dismissed.
148. The employer, in its closing arguments, addressed me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of the children. Section 1 of the CA provides the following:

“1 Interpretation
(1) In this Act, unless the context indicates otherwise- ‘child’ means a person under the age of 18 years”

149. Section 1 of the Sexual Offences Act also defines a child as follows:

“1. Definitions and interpretation of Act
In this Act, unless the context indicated otherwise-
‘child’ means a person under the age of 18 years and ‘children’ has a corresponding meaning”

150. Section 122(1) of the CA provides the following:

“122

(1) Finding to be reported to the Director-General. The registrar of the relevant court, or the relevant administrative forum, or if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-

(a) of any findings in terms of section 120 that a person is unsuitable to work with children, and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.”

151. It follows that the finding which I have made necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.
152. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

AWARD

I accordingly make the following award:-

1. The Respondent is guilty of committing misconduct as set out in the charge sheet;
2. The Respondent is sanctioned to summary dismissal;
3. Mr Jaco Hendrik Delport is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005;
4. 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 of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that the Mr Jaco Hendrik Delport 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;
5. The General Secretary of the Education Labour Relations Council is directed to serve a copy of this was to the South African Council of Educators (SACE).

NTOMBIZONKE MBILI
Arbitrator 22 May 2026
ELRC400-24/25