IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN SEBOKENG (GAUTENG PROVINCE)

Case No ELRC 877-25/26GP

In the matter between

GAUTENG DEPT OF EDUCATION EMPLOYER

and

THASI PHILLIP MATOLO EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 25 February 2026, 28, 29 & 30 April 2026

CLOSING ARGUMENTS: 07 May 2026

DATE OF AWARD: 20 May 2026

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[1] This is an inquiry by arbitrator scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 (as amended) (LRA). The ELRC scheduled the inquiry to sit at the Sedibeng West District Offices in Sebokeng. Mr Kemang Tumeli, a SADTU full-time shop steward, represented the employee, Mr Matolo, while Mr Ntuweleni Mudau, who holds the position of Labour Relations Officer in the department, represented the employer.

[2] The ELRC arranged an interpreter who interpreted throughout the sittings as well as an intermediary who assisted the learner witnesses. The only bundle exchanged was that submitted by the employer, and which bundle contained the charges preferred against the employee and which bundle was used as a common bundle to the extent the employee did not exchange one. The proceedings were recorded, and typed notes were taken.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the charge preferred against him, and I am required to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee is Mr Phillip Thasi Matolo who is an educator at Mohaladitoe Secondary School in Sebokeng and has been teaching at the abovementioned school since 2014. Following reports of sexual harassment by various learners at the school, the employer levelled six (06) allegations against Mr Matolo, and five of these allegations related to misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended (the EEA) with the sixth charge relating to misconduct in terms of section 18(1)(q) of the EEA where he is alleged to have visited the parents of one of the learners to try and resolve the allegations of sexual misconduct reported by the learner.

[5] Mr Matolo pleaded NOT GUILTY to all the charges.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[6] Learner A was called as the employer’s first witness. She testified that she is seventeen years old and knows Mr Matolo and that he (Mr Matolo) is an educator who taught her English at Mohaladitoe Secondary School. During 2024 while she was doing Grade 9, the educator, who was her English teacher at the time, would touch her bums and breasts while pretending to be showing her something. Also, during this period, she was passing by the educator’s office when she stopped to enquire about how she had done in the speech exercise, to which the educator responded that she did well and proceeded to hug her, touched her bums and moved his hands down her bums. She walked away and left the educator.

[7] On a Tuesday on a date she could not remember in 2025, she was not feeling well and went to go outside as she felt like vomiting, and as she was about to exit the door, the educator asked her where she was going. She returned back to her seat and only went out after another learner who had gone to the toilet before her came back. When she left the classroom, she told another educator, Mr Motloung about what the employee had been doing to her and two other learners, learner B and learner C. She met Mr Motloung again the following Thursday and asked him if he had done anything about what she had reported to him, and Mr Motloung’s response was that the issue was going to be discussed during lunch time and that Mr Matolo would be reprimanded for what he had done. Her response to Mr Motloung was that that was not enough.

[8] Another incident happened after the school holidays in 2025 where she had lost her English paper. She reported to the educator that she had lost her paper, and the educator told her that she needed to write the paper again. She was seated and writing the paper in the educator’s office when two of her friends, learner B and learner C entered the office and greeted the educator who was sitting at his desk. When learner B offered a handshake, the educator did not shake leaner B’s hand but instead hugged her (learner B) and touched her bums. Learner B walked away and moved to the other side of the table. Learner C also offered a handshake which the educator also rejected and instead hugged learner C and touched her bums as well. Learner C moved away from the educator to the other side of the table.

[9] About a week later, she found out that the script that was missing was mixed up with Grade 11 scripts. Another educator, Mr Tsotetsi, asked one of the learners to give the script to her. She took the script to the educator who was in his office. On arrival at the office, she found the educator about to lock his office when she told him that she came to give him the missing script. The educator responded that he was still upset with her about an incident that happened earlier. The educator then opened the office and got inside, asked her to put the script on the table. As she was about to place the script on the table, she felt the educator coming behind her. She did not feel comfortable because she knew that he would touch her as he always did while pretending to be saying something to her. She placed the script on the table and when she was about to leave, the educator told her that from that day, they were not on speaking terms because of an incident where he said she banged the door after he refused her permission to go to the toilet when she was not feeling well.

[10] As she was going down the stairs, the educator was walking behind her when he lifted up her skirt, and she slapped the educator’s hand away. She quickly went down the stairs, and she was walking away when the educator told her that she knew that he could touch her anyway he wanted to. The following day, she decided to report the educator as she felt the situation was getting out of hand. She reported the educator to another educator, Mr Makhubo, who told her to report the incident to the principal, but the principal was not present at the school on that day. She approached another educator, Mr Molefe, who also informed her that it was better for her to report the incident to the principal. The principal later arrived at the school. She was called to the principal’s office where she found the principal with Mr Mokhele and Mr Molefe, and the principal asked her about what happened. She explained what happened to the principal in the presence of Mr Molefe and Mr Mokhele. She later heard from her friends that the educator was asking around about where her home was as he wanted to meet with her parents.

[11] The second witness called by the employer was learner B. She testified that she knew the educator and that the educator taught her English in 2023 at Mohaladitoe Secondary School when she was doing Grade 11. On 22 July 2025 and the school had just opened for the second term. They lost a script of one of her friends, learner A. Learner A was at the educator’s office when she and learner C decided to go and check up on learner A because they knew the educator had a habit of inappropriately touching learners. On arrival at the educator’ office, the educator who was sitting behind his desk stood up and hugged them.

[12] The educator appeared to be happy seeing them after the schools had reopened. The educator stretched his hands and started hugging learner C and put his hands down learner C’s bums. The educator then proceeded to also hug her and pulled his hands down her bums. The educator’s conduct did not sit well with her as it was her first time of experiencing such conduct. While she had heard from other learners that the educator had behaved inappropriately towards them, she did not believe the educator was capable of such conduct. She and the other two learners decided to leave the educator’s office.

[13] Learner C was called as the employer’s third witness. She testified that she is currently a learner at Mohaladitoe Secondary School and that the educator was her English teacher at Grade 11 in 2025. She reported three incidents of sexual misconduct involving the educator. In early 2025, she was walking with her friend towards the classroom with the educator walking between them. While they were walking with the educator on her right, the educator kept scratching and touching her buttocks with his left-hand thumb. She could not move away as the space between them was narrow. She initially thought it was a mistake and that the educator could have mistakenly touched her bums. She did not see the hand but could feel the educator’s thumb scratching her bums. While initially thought the educator mistakenly scratched her bums, she realised that what the educator did was not a mistake when he persisted with what he was doing.

[14] The second incident occurred in 2025. She did not recall the date and the month. She, while in class, asked the educator for permission to go and drink water. The educator patted her on her bums and told her she could go and drink water. She told her friends about the incident. She did not think other learners saw what happened as they were busy with their tasks.

[15] The third incident occurred after schools had reopened on 22 February 2025. Her friend, learner A, had lost her English script. She and her other friend, learner B, decided to go to the educator’s office where learner A was writing the script. When they entered the office, she extended her hand to the educator for a handshake, but the educator called her to his side of the table, lifted his arms up and indicated that he wanted to hug her. He hugged her and touched her moved his hands down her bums, and she moved the educator’s hand away. The educator also hugged learner B and touched her bums. She and the two other learners decided to report the educator.

[16] She and learner B went to the educator’s office after learner A sent her a text asking them to come and sit with her in the educator’s office because she was not feeling safe. Before the text, she and learner B had already planned to go to the educator’s office, and she saw the text while already in the educator’s office. Learner A had texted her using a phone she was no longer using, a Samsung. She and learner B decided to go to the educator’s office because she was afraid of what the educator could do to learner A given her experience where the educator had touched her inappropriately.

[17] Learner D was called as the employer’s fourth witness. She knows the educator as he taught her English when she was in Grade 10. She gave the statement contained on page 19 of the employer’s bundle. She wrote the statement because the educator was touchy-touchy with her at school. It was during school hours when she was having a conversation with the educator, and her friend, learner E on 17 March 2025 that the educator touched her breasts. The educator hugged her and touched her, and she moved away from the educator. This happened in the presence of her friend, learner E. She was coming from the toilets when the incident occurred. It was about to be her birthday, and they were discussing her birthday with learner E and the educator when the incident happened.

[18] She reported the incident the incident because she was not the only one subjected to inappropriate treatment by the educator, but other learners had reportedly suffered the same sexual harassment.

[19] Mr Matseledi Lucas Seritili was called as the respondent’s fifth witness, and he testified that he is employed as the principal at Mohaladitoe Secondary School and assumed this position on 01 April 2022 to date. The educator is one of the educators at his school. On 31 July 2025 during the afternoon, he was in a principals’ meeting at one of the primary schools when he received a call from an educator at the school, Mr Molefe, who informed him that a learner, learner A, had just reported that she was sexually harassed by the educator. He rushed to the school and, on arrival, found Mr Mokhele and Mr Molefe sitting in his office with learner A. He stood listening to what learner A was telling the two educators. And learner A stated that it was not the first time that the educator sexually harassed her. When asked by Mr Mokhele why she did not report the incidents, learner A stated that she was afraid that the educator would be dismissed. Learner A went on to mention other incidents where other learners were subjected to sexual harassment by the educator.

[20] Learner A was emotional when she narrated the events, and he assured learner A that she was protected and that she did not need to fear anything. When he asked if they should accompany learner A home after she told them what happened and because she was emotional all along, learner A told him that she was ok and would walk home alone. He asked Mr Molefe to call Mr Matolo to his office. He informed Mr Matolo that there were allegations of sexual harassment reported against him. Mr Matolo’s response was that if there was anything he had done wrong, he would be pleased if parents could be called so that he could apologise. He told Mr Matolo that while, according to him, he appeared to be admitting guilt, he was going to escalate the issue to the district. He put the phone on a speaker phone when having the conversation with the IDSO with the two other educators, Mr Molefe and Mr Mokhele listening in. He was requested by the district office to write a letter, and which letter he wrote on 01 August 2025 and addressed it to the department’s Labour Unit.

[21] Mr Molefe wrote a report on the allegations reported to him by the learner as contained on page 26 of the employer’s bundle. The report was also noted in the logbook at the school. He asked that the allegations be logged on the logbook while they were still fresh.

[22] The employer called Mr Themba Rodney Makhubo as its sixth witness. He is currently employed as an educator at Mohaladitoe Secondary School, and the educator is his colleague. On 31 July 2025 during lunch time when he was about to go on lunch, a learner, learner A, ran towards him telling him that the educator lifted up her skirt. He told the learner that he was going on lunch and that he would attend to her later. When he called the learner that day, the learner (learner A) told him that she had already reported the incident to Mr Molefe. When he went to Mr Molefe’s office, he found learner A narrating the incident to Mr Molefe. He did not want to disturb and decided to leave the learner with Mr Molefe.

[23] The seventh witness called by the employer was Ms. Vuyelwa (surname withheld) who testified that she is learner A’s mother. She gave a statement on an incident that occurred on 31 July 2025 where two males arrived at her workplace with one of her daughter’s friends wanting to talk to her. Because she was still busy serving customers at the time, she asked them to wait until she finished. After she was done, she approached the two gentlemen asking what it was that they wanted to talk to her about. Because her daughter had told her what happened, she knew what they wanted to see her about. She told them to meet her up after knocking off duty and when learner A’s father was present. Learner A’s father arrived in the evening to pick her up. She was surprised to see the two gentlemen still waiting in their car. The two gentlemen, which was Mr Matolo and another educator, followed them while walking with her husband and caught up with them requesting to sort out the issue between them as parents. She responded that she could not engage them outside school hours and that she wanted that engagement to happen in the presence of the principal. She left the educator and the other educator who was with him with learner A’s father.

[24] Learner A had earlier reported incidents of sexual misconduct where the educator had inappropriately touched her. Learner A would arrive home upset and lock herself in her bedroom, and when she confronted her, learner A would say that she was tired and not feeling well. When she persisted, learner A finally told her what happened at school and told her about what the educator was doing to her while she was at school. When the educator who was with Mr Matolo approached her and learner A’s father, he told them that they wanted to discuss the incident involving the learner as parents. But she outrightly rejected the suggestion. She left the two educators with learner A’s father and did not see them again.

[25] The educator would not be telling the truth if he said he and the other educator did not visit her workplace. The shop has CCTV Cameras and could show that the two educators visited the shops. Even if the educator were to deny having touched her child, she believed that her child would not lie about the incident. There were about four to five learners who had reported incidents of sexual misconduct against the educator. She did not believe that all those learners would lie about the incidents against the educator while there are other educators at the school. She still needed to understand why the two educators would go all the way looking for her at her workplace.

[26] Mr Zolile Sidiya was called as the employer’s eighth witness. He testified that he is the father to learner A who currently does Grade 12 at Mohaladitoe Secondary School. He was informed that there were two educators around the area looking for her daughter’s place of residence, but he did not know the educators. When he went to fetch his wife around 20h00 he realised that there were two gentlemen following them. His wife told him that the two gentlemen were the teachers who had earlier approached her at the shop. When he asked the two gentlemen why they were following him and his wife that late in the evening, the one gentleman responded that they were not fighting but came to discuss an issue with him. When he asked what it is they wanted to talk to them about, the one gentleman who was with Mr Matolo responded that they wanted to talk about the incidents involving learners. It was the first time he saw Mr Matolo that day. He was very upset, but his wife calmed him down.

[27] His wife left because it was cold and she was tired. He could not believe that the perpetrator was there, and he believed that the claims made by his daughter were true. He was very angry as a father and expressed his displeasure about the two educators approaching him at night. They told him that they wanted to meet with him at his office the following day. He recorded the interaction with the two educators and also obtained the CCTV footage from the shop the following day. When he showed the footage to her daughter, her daughter, learner A, confirmed that it was Mr Matolo who was on the video footage.

[28] Mr Tshepo Kenedy Molefe was called as the employer nineth witness. He testified that he is currently employed as the deputy principal at Mohaladitoe Secondary School and has held this position since November 2025. There were allegations reported to her by learner A on 31 July 2025 when learner A approached him saying that there was something urgent and personal that she wanted to discuss with him around 12h25. He told learner A that he first wanted to ensure that all learners were seated in their classrooms. After attending to the learners, he called learner A to his office.

[29] Learner A reported three incidents of sexual harassment where the educator had firstly, lifted her skirt while walking behind her, touched her bums and fondled her. Learner A also told him that she was not the only one subjected to sexual harassment by the educator and that there were other learners. He called the principal who was attending a principals’ meeting at the time to report the incident. The principal told him to look into the allegations. He took learner A to the principal’s office where learner A detailed the incidents. The principal arrived while he was still busy with the learner. Because learner A was emotional, the principal assured her that she was protected and that she must not be afraid and that they were not going to disclose her identity. After learner A had narrated what happened, they decided to call the educator to the principal’s office. When they informed the educator about the allegations, the educator indicated that he would like to have the parents called so that he could apologise. The principal advised the educator that he was going to escalate the complaints for a proper investigation. He and the principal compiled a report of all that happened.

[30] On 01 August 2025 he received a call from a gentleman who questioned the school’s conduct. He was surprised at hearing such claims and sought further information about his identity and what he was calling about, to which the gentleman told him that two educators had visited his wife’s place of work regarding the incidents reported to the school and asked if the school divulged the identity of his daughter.

[31] The tenth and the last witness called by the employer was learner E. She is currently a learner at Mohaladitoe Secondary School doing Grade 12. The educator was her class teacher and taught her English in Grade 10 in 2024. Learner D was her classmate, and she is aware of allegations of sexual harassment against the educator. During the month of March in 2025, she was walking with learner D from the toilets. They met up with the educator and greeted him. She did not see the educator touching learner D but learner D told her that the educator touched her breasts. When they arrived in class, learner D asked her if she (learner E) saw the educator touching her breasts, and she responded in the negative. She initially thought learner D was joking, but she could see that learner D was serious.

[32] After schools reopened in 2025, she was walking with learner D when they met up with the educator, and she jokingly asked the educator if he remembered that he still owed her a present. The educator hugged her and touched her breasts. She then remembered the incident related to her by learner D. She reported the incident to her mother.

Employee’s Evidence

[33] Mr Thasi Phillip Matolo, testified that he is employed by the department at Mohaladitoe Secondary School and has been at the school since 2014. In the period he has taught at the school, he had never been accused of misconduct.

[34] Regarding the first allegation where he is alleged to have touched learner A’s breasts, he denied the charge because he had never engaged in such conduct. In 2023 and 2024, the school had teacher assistants and other learners who could have seen what happened. He did not believe the whole class would not have seen what was happening. It was not true that he had touched learner A’s bums as alleged. To the extent learner A testified that the incidents occurred in 2023 and 2024, he could not have engaged in such conduct for the whole year. The incidents in respect of charge 1 did not happen. There were no allegations brought against him either by the principal or the learners in 2023.

[35] Learner A was one of the learners who participated in the English Reading competition and none of the allegations were ever raised. He had a normal relationship with learner A and had never picked up any indication that there was something untoward. He had a normal relationship with learner A in 2024 and never had issues with her. He believed learner A was told to bring up the allegations and did not believe the allegations emanated from her.

[36] When he was told about learner A’s allegation, he later met with another educator who told him that the principal was not happy with him and that the principal said he (Mr Matolo) was left with only three years to go on pension. He suspected that the principal wanted him gone. He had specific learners that he sent to his office and had never sent learner A to his office. He was still shocked that learner A would bring the kind of allegations she brought up against him. When learner A had gone out of the classroom without his permission, he thought learner A would apologise after returning to the class. Learner A had told him that she was pressed, and that is where the matter ended.

[37] Regarding allegation 2 he was not in the Vaal area on 22 February 2025 and had to take his child to a dentist in Alberton. He was not at the school on the above-mentioned date and any reference to an incident that occurred on 22 February 2025 would be a lie as 22 February 2025 was on a Saturday. Learner A’s allegation that he lifted her skirt was not true. Insofar as allegation 3, he again was not at the school on 22 February 2025. He only met learners B and C on 22 July 2025 he asked learner A to come and write her English script in his office because her script was missing. He made Mr Molefe aware that learner A was going to write her script later. On arrival at his office, he sent a male learner to go and call learner A to his office, learner A arrived at his office and started writing her paper. After a short while, two learners, learner B and C arrived at his office.

[38] If any incident of sexual harassment occurred in his office, the learners could have reported to Mr Molefe who was busy teaching next door. He believed that what the learners said was a fabrication. After learner A put her script on the table, he locked his office and left for another class. When he exited his class, learner A was still standing by and allowed him to pass. There were two steps between him and learner A, and he could not have lifted her skirt. To the extent learner A testified that Mr Motloung was behind her, she could have reported the incident to Mr Motloung. When he left his office, he was not walking too fast to have caught up with learner A.

[39] Regarding allegation 3 he denied having touched learner B on her bums. He could not have engaged in such conduct as he was not at school on 22 February 2025. He never invited learner B to his office. Learner B only went to his office when learner A was writing her script. The desk that he was seating on is facing the door, and there is another table where learner A was writing. There also is a small table that is next to the door. There also are shelves on the right of his table, and the space is too small for someone to have walked past. Learners B and C could not have walked to his table where he is alleged to have hugged them. He could not have done so. He had already greeted all the three learners inside the classroom and would not have greeted them again in his office. The three learners stayed in his office for about an hour and a half. When the three learners left, he remained in his office because he needed to mark learner A’s script for submission to Mr Molefe. He never received any allegations of impropriety on his part after the learners left his office on 22 July 2025.

[40] On 24 July 2025, learner A did came to his office to charge her phone. If he had sexually harassed her, she would not have felt free to charge her phone in his office. He taught all of the learners thereafter without any allegations of impropriety being brought about against him.

[41] It is not true that he touched learner C’s bums on 22 February 2025 as he was not in the office. On 22 July 2025, learner C left with learner A and learner B, and he never got any allegations of impropriety against him following his interaction with the three learners on 22 July 2025. He became aware of the allegations against him on 31 July 2025. Learner C did not offer a handshake when she got to his office as she (learner C) alleged. He believed that all the learners were coached to make the allegations against him. He never engaged in the conduct alleged by learner C where she claimed that he had touched her on her bums while walking on the corridor.

[42] Regarding allegation 5 he denied having sexually harassed learner D as he was not at school on 22 February 2025. He could not have engaged in the conduct in the presence of learner E who he was talking to around the time learner D alleged he sexually harassed her. He could not have touched learner D’s breasts while learner E was present. The allegation by learner E that he had ever touched her in an inappropriate manner was also not true. It appeared that the learners had a discussion about the allegations as they were friends. Learner A and learner D were friends residing in the same area, and it was possible that they had a discussion about the allegations.

[43] In respect of the allegation made about his having visited learner A’s parents, he did visit the shop where learner A’s mother works. He had to meet learner A’s mother to clear up the confusion around allegations made by learners against him. Because the principal had once said he (Mr Matolo) was left with only three years to go on pension was and was to make sure he did not see his pension, he suspected that there may have been collusion, and he went to see learner A’s mother to clear up the confusion around his name. He decided to take the initiative to try and solve the problem because nobody else could. When he met with learner A’s mother, he did not talk to learner A’s mother as she was feeling cold. They remained talking to learner A’s father. It is not true that he visited learner A’s parents because he wanted to bribe them. He had met Mr Motloung because Mr Motloung had told him that the allegations were serious and that they needed to do something about them.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[44] In terms of section 17 and 18 of the EEA read with the South African Council of Educators’ (SACE) Code of Professional Ethics any act of impropriety or inappropriate conduct by educators towards learners, especially sexual misconduct, is strictly prohibited and amounts to serious misconduct that does lead to an educator’s dismissal where an educator is found guilty. The provisions of section 17 and 18 and the Code of Professional Ethics are the result of the provisions of the Constitution of the Republic of South Africa which asserts the right of children to be protected from maltreatment, neglect, abuse or degradation . The Constitution further provides that a child’s best interest are of paramount importance in every matter concerning a child It thus follows that children have the right not to be harmed in any way whatsoever, including being sexually abused.

[45] But even if the EEA and the Constitution made no such provisions, it should follow naturally that educators, by virtue of their standing flowing from the in loco parentis concept, should know that they, just like the parents, have the Constitutional role of protecting and acting in the best interests of the children. Parents place their children in the teachers’ care and, whilst at school, parents should have no reason to fear that their children would be subjected to any conduct that would harm them or negatively affect their bodily integrity and deprive them the opportunity of receiving the much-needed education and values that would prepare them for life as adults. It, in my considered view, does not need to be put in writing in black and white for a teacher to know that a child, placed in his or her care for 80 % of the time at school, should be protected from harm. An educator or a teacher has a role of ensuring that a conducive environment where children would learn is created. And an educator who so much as acts in an inappropriate manner that places a child in discomfort should face the harshest of consequences.

[46] As I often state, the teaching profession is a noble profession, and those called upon to assume the role of a teacher ought to be above reproach. The expectation is that not only would they stand in the place of a parent, but that they would take upon themselves to treat children in their care with dignity and respect and prepare the children for their future roles of leaders of society. The prevalence of sexual abuse of learners by teachers suggests, and very sadly so, that some educators simply do not understand, do not appreciate or simply do not care about the enormity of their role. The ELRC has answered the call to ensure that truant, improper and abusive behaviour from educators towards learners is harshly dealt with where perpetrators are charged and found guilty. It is quite disheartening to still find that despite the dismissals, some educators still prey on children when they are supposed to be protecting and parenting whilst at school.

[47] Section 17 of the EEA mandates dismissal of educators who are found guilty of sexual misconduct., and rightly so because most learners subjected to sexual abuse are young enough to be children or grandchildren of their abusers. While there are many educators who take pride in and who embrace the role of standing in the place of a parent and whose work is commendable, harsher sanction should be meted out to those educators who prey on the naivety and vulnerability of learners. An educator dealing with learners should know that children are generally naïve, and the power balance between a learner and an educator is such that it is easy for an educator to manipulate a child. To the extent that the conduct by some educators persists despite their being dismissed when caught out, individuals charged with the role of holding these truant educators to account should equally not tire in their role of ensuring that perpetrators are caused or made to think twice before engaging in any improper conduct towards learners.

[48] The trite principle in law is that an employee, against whom misconduct is alleged, must, to the extent an employer fleshes out its version to a degree that rebuttal is required, put up as such defence as would show that the allegations are not true. The onus, of course, rests with an employer, but an employee equally must discharge the evidentiary burden where the allegations have been set against him that rebuttal is required. Where an employee raises a defence, it is up to an employee to prove such defence, and it is not enough for an employee to place as little evidence in rebuttal and hope to escape sanction.

[49] In the present case, a total of six allegations were preferred against Mr Matolo. He, of course, pleaded not guilty to all the allegations. It is unnecessary for me to detail the allegations in my analysis as evidence led by the learners and other witnesses called by the employer detail the allegations. The allegations, in short, related to Mr Matolo having engaged in conduct envisaged in section 17(1)(b) and section 18(1)(q) of the EEA. Having heard evidence, the finding that the educator engaged in conduct alleged is inescapable. While the educator’s refrain throughout the proceedings, in explaining the allegations, was that someone told the learners to say what they said and that the learners themselves, because they were friends, discussed the allegations and that the allegations are a fabrication, these assertions, however, fall to be outrightly rejected for the reasons I shall set out below.

[50] None of the learners, in my considered view, could have sought to falsely implicate Mr Matolo. Learner A’s version as to the events that occurred in Mr Matolo’s office could not have been manufactured. show in the following paragraphs. When learner A testified that she first reported the sexual misconduct by the educator to Mr Motloung, the educator did not dispute that version and pointed out to the learner that that was not the case, and to the extent that was so, call Mr Motloung as a witness to negate same. The only conclusion I draw is that the educator failed to do so because the allegations were indeed reported to Mr Motloung.
[51] Regarding the incident that happened in the educator’s office, it is my finding that the version of the learners as to the events that unfolded in the educator’s office are more probable than the version given by the educator. For starters, the circumstances of learners B and C visiting the educator’s office when learner A was writing the English script could not have been manufactured. Learner A sent a text to learner C requesting her and learner B to come to the educator’s office. Learner C only saw this text while already in the educator’s office. There was also a slight contradiction as to the cell phone that learner C had in her possession at the time, but I do not find this contradiction to be material. The three learners, A, B and C corroborated each other as to the reason they all found themselves in the educator’s office, with learner A having sent a text to learners B and C, and with learners B and C having already decided to go to the educator’s office because they feared what could happen with learner A in the educator’s office.

. [52] What became clear in their testimony was that they all believed that if they were not all there together in the educator’s office, the educator could sexually harass learner A. The reason for learner B and C having gone to the educator’s office, and the fear they had of what might happen, was confirmed when they go to the office. Learner B and C went on to explain how the educator, instead of shaking the hands they extended in greeting, hugged and touched their bums. The circumstances of how the misconduct occurred could not have been manufactured or practiced. Both learners testified that the educator hugged and touched their bums while sitting on his chair after asking them to come around the side he was sitting at. If the learners’ version was practiced or manufactured, the learners could have testified that the educator stood up and hugged them, which would ordinarily be a normal thing to do instead of stating he did so while seated at his chair.

[53] The educator did not dispute this version but belatedly stated that the learners were not telling the truth and that he could not have greeted them when he had already met them earlier in the classroom, and that there were shelves that would have made it impossible for him to hug the learners. He did not put that version to the learners.

[54] Also, I find it quite surprising that the two learners would go to his office, sit there for more than half an hour without the educator questioning their motive. If the allegations against the educator were not true, it highly unlikely that the two learners would have taken the unusual step of going to an educator’s office and sit there if they did not genuinely fear that the educator might sexually harass learner A. Regarding the allegation of the educator having lifted learner A’s skirt, learner A’s narration of what happened could again not have been manufactured. Learner A’s version was that the educator was walking down the stairs behind her when he lifted her skirt. Learner A testified that there was another educator present, Mr Motloung who was walking with them. If learner A wanted to falsely implicate the educator, she could have stated that it was just her and the educator and not mention the presence of someone else, something that could possibly negate her version. While the educator’s representative put to learner A that she possibly chose the spot where the incident occurred so that no one else could dispute her version, learner A’s retort was that the educator could have chosen that spot so that nobody would see what he wanted to do.

[55] That Mr Matolo engaged in the conduct alleged and insofar as it involves learner A, his conduct after learner A reported his conduct to the principal and his response when told of the allegations by the principal strongly suggest that he engaged in the conduct alleged and that he sexually harassed learner A as alleged. His response, according to Mr Molefe and the principal was that he would wish the parents to be called so that he could apologise. Such a response, in my view, was not a response of an innocent person. This view is confirmed by the educator’s own conduct after the encounter in the principal’s office. The educator, as testified by learner A’s mother and father, went to learner A’s mother’s workplace.

[56] Explaining why he visited learner A mother’s workplace, the educator said he and Mr Motloung went there to try and clear the confusion about the allegations against him. I reject that this was the real reason for him and Mr Motloung’s visiting the learner’s mother. I, on the contrary, find that he went to learner A mother’s workplace in order to try and influence her not to take any further steps against the allegations reported to her by learner A. There could not possible have been another reason. And the employer charging him for this conduct as per charge 6 was not unwarranted. Also, if learner A sought to falsely implicate him, learner A’s conduct before the allegations were reported to the principal suggest that such claim could not be true. Learner A was reluctant to report the sexual assault to her mother, but it took her mother’s persistence after she picked up behaviour that was unusual, that learner A finally opened up about the sexual assault. The explanation learner A gave, according to her mother, was that she feared that the educator would be dismissed if she reported the sexual assault.

[57] The allegations by learners D and E were also, in my view proven to be true on a balance of probabilities. Again, the circumstances of how the incident of the educator touching learner D’s breasts could not have been a fabrication or practiced. Learner D’s version was that the educator touched her breasts in the presence of learner E. Learner E’s version was that she did not see the educator touching learner D’s breasts and initially thought that learner D was joking when she told her back inside the classroom that the educator had touched her breasts, asking her if she witnessed the incident. If the intention by the learners was to gang up against the educator and falsely implicate him, and if they discussed the allegations between themselves as suggested by the educator, they could easily have tried to work out their version is such a manner that it suits their intention. For an example, if there was an agreement between the two learners that they falsely implicate the educator, learner E could have testified that she witnessed the incident and that she saw the educator touching learner D’s breasts. But that was not the case.

[58] Turning to whether the educator put up any defence against the allegations preferred against him, his refrain, as already alluded to, was simply that someone told the learners to make up the allegations. He also testified that the principal wanted to get rid of him and that the principal had demonstrated this when he told another educator that he (Mr Matolo) was only three years away to his pension and that he (principal) would make sure that he does not see his pension. But the educator failed to put that version to the principal when he testified. On being asked why he failed to put the version, not only to the principal but to the learners to the extent he disagreed with what they stated, his refrain was that he was waiting for an opportunity to do when he got a chance to give his version. But the educator had all the opportunity to put his own version to the principal and learners but failed to do so. While in respect of the charges 2, 3, 4, and 5, reference was made to the incidents having happened on 22 February 2025, and while the educator kept stating that he could not have committed the acts alleged because he was not at work, it became clear that there was a typo and that the date that the incidents could have happened on was the 22nd of July 2025. That date was confirmed as much by both the learners and the educator himself. While the charges reflected the date of 22 February 2025, none of the learners, including the educator, referred to that date.

[59] The defence by the educator amounted to no defence.at all He simply failed to explain his conduct and how all the five learners would pick him out as the culprit when the school had a number of male educators. Also, the principal testified that he had a good relationship with him, but Mr Matolo, to the extent he disagreed as he sought to belatedly do, did not put to the principal that their relationship was not good and that he (principal) wanted him gone from the school. It is my finding that all the allegations against Mr Matolo were proven.

[60] I thus find Mr Matolo guilty of all the allegations.

[61] The Constitution obligates protection of children and obligates prioritisation of a child’s best interests. Section 17 and section 18 of the EEA provide that sexual misconduct towards learners is serious misconduct and that an educator commits misconduct if he acts in a disgraceful, inappropriate and unacceptable manner whilst on duty. As mandated in terms of section 17(1)(b) an educator must be dismissed where he is found guilty of serious misconduct.

[62] Having found Mr Matolo guilty of the misconduct alleged, it follows that he is unfit to work with children, a finding that accords with the provisions of the Children’s Act 38 of 2005 .(CA) In the premises, I make the following award:

AWARD

[63] The employee, Mr Thasi Phillip Matolo, is guilty of serious misconduct in terms of Section 17(1)(b) as well as misconduct in terms of section 18(1)(q) of the EEA by sexually assaulting learners A, B, C,D and E and by visiting learner A’s parents to try and improperly influence them to stop the allegations of sexual assault reported by learner A.

[64] The sanction of dismissal is imposed effective upon receipt of this arbitration award.

[65] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[66] The employee, Mr Thasi Phillip Matolo, is found unsuitable to work with children in terms of Section 120(4) of the CA.

[67] The General Secretary of the ELRC must, in terms of Section 122(1) of the CA, 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 CA, that Mr Thasi Phillip Matolo, 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.

[68] The educator has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Senior Panellist: ELRC