Panellist: Themba Manganyi
Case No.: ELRC1301-24/25MP
Dates of Hearing: 11 April 2025 and 29 May 2025
Date of Arguments: 02 June 2025
Date of Award: 19 June 2025

In the Inquiry by Arbitrator between

HEAD OF DEPARTMENT: MPUMALANGA DEPARTMENT OF EDUCATION EMPLOYER

and

SIYABONGA NDABENHLE AUSTIN NDABA EMPLOYEE

Employer’s representative: Mr George Nkane

Employee’s representative: Mr Bongane Zitha (SADTU Official)

Details of hearing and representation

1. The arbitration proceedings in this matter were conducted in terms of section 188A of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, under the auspices of the Education Labour Relations Council (“the Council”).
2. The matter was set down to be heard on 11 April 2025 at Kriel High School in Mpumalanga. However, it could not proceed due to technical glitches. It was heard and finalized on 29 May 2025 at the Council’s Offices in Centurion.
3. Mr George Nkane (“Mr Nkane”), a Labour Relations Officer, represented the Employer, Mpumalanga Education Department. Mr Bongane Zitha (“Mr Zitha”), a SADTU Official, represented the Accused Employee, Mr Siyabonga Ndabenhle Austin Ndaba (“Mr Ndaba”). Ms S.M, Mboweni and Mr Sebastian Khuzwayo, the Intermediary and the Interpreter respectively, from the Council, assisted with their respective services in these proceedings.
4. Parties relied on bundles of documents and oral evidence. The Employer’s bundle was marked as Bundle A and the Employee’s bundles were marked as Bundle B1, B2 and B3. At the end of the proceedings, parties requested to submit their heads of arguments on 02 June 2025 and they duly complied. The proceedings were recorded and the recordings thereof were retained by the Council.

Issue to be determined

5. I am required to determine the innocence or guilt of Mr Ndaba. In the event that I find him guilty, I will be required to determine the appropriate sanction.

Rights and the procedure

6. All the rights commensurate with a fair process and the nature of the process were explained to the parties.

Charges

7. Mr Ndaba was called upon to respond to the following charges:

CHARGE 1:
You committed in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended, for committing an act of sexual assault on a learner, student or other employees, in that you asked a learner, Learner AM, to have sex with you in exchange for money around December 2024. (sic)

CHARGE 2:
You committed misconduct in terms of section 18(1)(r) of the Employment of Educators Act 76 of 1998 as amended, in that you assaulted or attempted to or threatened to assault, another employee or another person, by threatening to kill a learner, Learner AM, on WhatsApp during December 2024.

CHARGE 3:
You committed misconduct in terms of section 18(1)(u) of the Employment of Educators Act 76 of 1998 as amended, in that you intimidated or victimized fellow employees, learners or students, by threatening to kill a learner, Learner AM, on WhatsApp during December 2024.

Pleadings

8. Mr Ndaba entered a plea of not guilty to all the charges preferred against him.

Survey of evidence and arguments

The Employer’s case

9. Learner AM testified under oath with an aid of an Intermediary. She stated that she was fourteen (14) years old and that she attended school at Kriel High School. She testified that around 09 December 2024 during the night she was at her cousin’s place when Mr Ndaba texted him on WhatsApp asking her why was she not sleeping. He said that she was texting with boys. She stated that Mr Ndaba complimented her about her beauty and said that she should sleep with him and he would pay her R2 000, 00 or R3 000, 00. She refused and told him that he should try other people. She stated that she sent the WhatsApp texts between her and Mr Ndaba to her father during the day and told her friend about the conversation. She stated that her friend told the boy (Fortune) that she (Learner AM) was dating. Fortune texted her and said that she was lying about the WhatsApp texts with Mr Ndaba. She sent Fortune the WhatsApp texts. Fortune created a video and posted it on social media. Fortune’s friend, Bongani, searched for Mr Ndaba’s pictures on Facebook and posted them on the social media. Her father reported the matter at the Police Station.
10. She testified that Mr Ndaba texted her during the day asking her why did she post their WhatsApp texts and he threatened her that he would kill her in the manner her mother was killed. She testified that Mr Ndaba later called her on a video call, but the face was not visible because the camera was covered. Mr Ndaba threatened to kill her and her whole family. She stated that it was the first time that Mr Ndaba made sexual advances towards her.
11. Under cross-examination, she confirmed that Mr Ndaba never made any sexual advances towards her before. She further confirmed that she never had any interactions with Mr Ndaba. When a version was put to her that a person can write any name on a WhatsApp number, she stated that Mr Ndaba’s phone number was verified at the Police Station, but she did not have proof that Mr Ndaba’s number was verified. It was put to her that the WhatsApp conversations were between her and Fortune trying to solicit money from Ndaba. She submitted that she initially thought that it was Fortune and his friends who were scheming her pretending to be Mr Ndaba. She testified that she realized that it was not Mr Ndaba that texted her when she found out that Fortune sent Mr Ndaba a text to solicit money. She stated that Fortune was a very naughty and disrespectful boy and that he did not attend school. She submitted that Fortune could have done a sim swap and that when she read the texts, she realized that there were a lot of mistakes in the IsuZulu language that was used in the texts and that Mr Ndaba being from KwaZulu-Natal would not write such IsiZulu.
12. In re-examination, she stated that even her father was skeptical that the texts could have been from Mr Ndaba considering the mistakes in the usage of IsiZulu language. She stated that after talking to her father, her view changed, but she could not drop the charge because the police would think that she fabricated this whole thing.

The Employee’s case

13. Mr Ndaba testified under oath and stated that he is an Educator at Kriel High School since the year 2022. He stated that he taught Computer Technology for Grade 10 and 11 and that he was also a Site Steward. He testified that he became aware of the WhatsApp texts on 09 December 2024 around 12h00 when he was playing cards with Messrs Mongale and Maisela, his colleagues, in the Computer Lab. He stated that he received two (2) calls from a private number, but he did not take the calls. At 12h14, he received a WhatsApp call from a number that was not in his phone directory. The caller told him to check his WhatsApp messages. When he checked the messages, there was a once off view screen shot. He then spoke to the Deputy Principal, Mr Willemse, about the once off view message.
14. He testified that the caller said that he must pay him R3 000, 00 or he will leak the WhatsApp messages. He then went to the Police Station on 10 December 2024 because he feared that the situation could tarnish his name. He identified the name of the caller as Fortune through the Caller Identity App. At the Police Station, he was advised to get a protection order against Fortune. He went to the court to get the protection order and he was accompanied by the Police Officers to serve Fortune with the protection order. They found Fortune, his uncle and grandparents at home. Fortune panicked when he was served with the protection order and he took out his phone to show them the screen shot that he sent. He stated that he opened a case of defamation of character against Fortune.
15. He testified that Fortune confessed that the texts were sent by his friend, Bongani and not him. He testified that he met Learner AM’s father at the Police Station and they had a conversation about the allegations. The father left for work and on his way, the father called him and said that he did not believe that he could have written those texts considering the IsiZulu that was used in the texts. He stated that he did not contact the father after he was suspended because he thought that it was morally incorrect. He reiterated that he did not send the texts to Learner AM and stated that the texts are not his typing style.
16. Under cross-examination, he stated that Learner AM’s father believed that he (Mr Ndaba) was harassing her. Hence, he went to the Police Station. However, the father did not get a protection order against him because he believed his version. He conceded that Learner AM and her father initially believed that he sent those texts. He admitted that Learner AM and her father changed their minds after he engaged the father because he had evidence to prove that he did not sent the texts.
17. Mr Kwezi Sphamandla Maisela (“Mr Maisela”) testified under oath and stated that he was an Educator at Kriel High School. He stated that he knew Mr Ndaba from the year 2022 and that they stayed together and they were from the same village in KwaZulu-Natal. He testified that he regularly communicated with Mr Ndaba via video calls, telephone calls and WhatsApp messages. He disputed that he was protecting Mr Ndaba because they were friends and stated that they were both parents and that he would not defend such a thing. He stated that he met Learner AM’s father at the school and the father said he could see that the texts were not written by an adult. The father further said that the IsuZulu that was used in the texts was not written by a person who was proficient in IsiZulu. He referred to the texts on bundles B3 and A1 and pointed out the different typing styles between the texts.
18. Under cross-examination, he confirmed that he spoke with Learner AM’s father over the school’s phone to request him to address the parents that were protesting at the school. He disputed the version that he influenced Learner AM’s father and stated that Learner AM’s father was an adult who could make his own decisions.

Closing arguments

19. The parties’ closing arguments will not be restated herein. However, they will be considered in my analysis below.

Analysis of evidence and arguments

20. This is an arbitration award in terms of section 138(7) of the LRA. Therefore, this award only captures my brief reasons and not a verbatim account of all the submissions that were made during these proceedings.
21. Sexual harassment is a type of harassment based on the sex or gender of a victim. It can involve offensive sexist or sexual behavior, verbal or physical actions, up to bribery, coercion, and assault. Harassment may be explicit or implicit, with some examples including making unwanted sexually colored remarks, actions that insult and degrade by gender, showing pornography, demanding or requesting sexual favors, offensive sexual advances, and any other unwelcome physical, verbal, or non-verbal (sometimes provocative) conduct based on sex. Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault.
22. There is no doubt in my mind that Learner AM was sexually harassed via WhatsApp texts. The texts are so explicit that she was asked for sexual favours in exchange for money. Now, the question that begs for an answer is: was it Mr Ndaba that texted Learner AM requesting sexual favours?
23. It is trite that in these proceedings the Employer bears the onus to prove its case on a balance of probabilities that the allegations levelled against Mr Ndaba have merit and are substantiated. Learner AM impressed me as a witness as she was coherent and consistent in her testimony. Equally, Messrs Ndaba and Maisela were also impressive as witnesses.
24. Learner AM testified that she never had any interaction with Mr Ndaba, either through teaching and learning or socially. She testified that she did not have Mr Ndaba’s telephone number, that Mr Ndaba did not even know her and that they have never texted before. It is not a surprise that she was shocked when she received the WhatsApp texts on 09 December 2024 allegedly from Mr Ndaba. She reported the conversation to her father on the same day that it occurred and her father acted promptly by reporting the matter at the school and at the Police Station. Clearly, the father was concerned about the safety of her daughter. Similarly, when Mr Ndaba received the view-once screen shot, he reported the matter to the Deputy Principal and at the Police Station out of concern for his safety and reputation.
25. The usage of IsiZulu in the texts messages was the crux of Mr Ndaba’s contention that he was not the author of the messages. His version was corroborated by Mr Maisela. The Employer did not challenge Mr Ndaba’s proficiency in IsiZulu. There are so many incorrectly spelt IsiZulu words in the impugned texts. For example, words like ´ukuzinqisha’, ’kami’, ‘’ instead of ‘ukuzincisha’, ‘kwami’ and the manner in which the sentences were constructed.
26. In his arguments, Mr Zitha correctly pointed out that the person that was texting with Learner AM was a person that knew her and her family very well. It was not in dispute that Mr Ndaba and Learner AM never interacted before. Therefore, Mr Ndaba would not have known that Learner AM was in Natal on 09 December 2024 and Mr Ndaba would not carry any knowledge of how Learner AM’s mother was killed since they did not know each other. Surely, only a person that was acquainted to Learner AM would be privy to this information.
27. Mr Ndaba managed to identify the telephone number that sent him a view-once screen shot with the alleged WhatsApp conversation between him and Learner AM. He identified this number through True-Caller App. The telephone number belonged to one Fortune, who was Learner AM’s boyfriend at the time. Learner AM testified that Fortune was a disrespectful individual and that Fortune did not attend school regularly and that he liked to hang out at the shop / store. Learner AM even went on to testify that at some point she believed that it could have been Fortune and his friends who were trying to scheme her pretending to be Mr Ndaba. It is unfortunate that Mr Ndaba could not secure the presence of Fortune to come and testify in these proceedings to corroborate his version that Fortune confessed at the court that he and his friends were responsible for the WhatsApp messages that were sent to Learner AM. However, it is my considered view that the burden of proof did not rest with Mr Ndaba in these proceedings, but it rested with the Employer.
28. I do not for once believe that Messrs Ndaba and Maisela convinced Learner AM’s father and that they persuaded him to change his initial conviction that Mr Ndaba was the author of the WhatsApp texts. It was incumbent on the Employer to call Learner AM’s father as a witness if the Employer strongly believed that Messrs Ndaba and Maisela somewhat influenced him when they engaged with him. The texts that were sent to Learner AM were not only sexual harassment, but they even went to an extent of threatening her life. It is my strongly held believe that no parent would be persuaded to turn a blind eye and compromise the well-being of their child. I therefore find that Learner AM testified truthfully about what she knew and that she was not coerced by her father to change her version. I also find that Messrs Ndaba and Maisela were credible and reliable witnesses and that their version was not challenged.
29. Learner AM testified that she would have withdrawn the case at the Police Station upon realizing that the texts were likely not sent by Mr Ndaba. However, she did not withdraw the case because the Police would have thought that she fabricated this whole thing. There is no denying that she received the texts in question and she did not have any malicious intentions to cause any harm to Mr Ndaba. In my view, Fortune is the perpetrator of this entire debacle and he did all this for his own selfish reason of soliciting money from Mr Ndaba. The Employer did not establish that indeed the number that sent Learner AM texts messages was indeed Mr Ndaba’s number. The number in question could not even be linked to Mr Ndaba. I therefore find, on a balance of probabilities, that Mr Ndaba’s version is the plausible version after having considered all the evidence that was presented in these proceedings.

Award

I find

30. That the Employer did not succeed in discharging its burden of proof on all the charges that were levelled against Mr Siyabonga Ndabenhle Austin Ndaba.
31. That Mr Siyabonga Ndabenhle Austin Ndaba is acquitted of all the charges that were preferred against him.

Arbitrator: Themba Manganyi