23 June 2025 2025 – ELRC1406-24 25MP

Case Number: ELRC 1406-24 25 MP
Commissioner: M.A. HAWYES
Date of Award: 16TH of June 2025

In the ARBITRATION between

Department of Education: Mpumalanga
(Employer)

and

T. Madisha

(Employee)

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 25th of April 2025 and finalized on the 5th of June 2025. The first sitting took place at the Marapyane Circuit office and the inquiry by arbitrator was finalized at the Nkangala District offices at KwaMhlanga.
1.2 Mr. A.N Maseko a union official from SADTU, represented the employee.
1.3 Ms. G.S Chauke, a labour relations officer, represented the employer.
1.4 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 13th of June 2025. At the time of the drafting of this award on the 16th of June 2025 I had only received the closing arguments of the employee.
1.5 Detailed notes and a digital recording was also kept of the entire arbitration process.
ISSUE IN DISPUTE
Whether the employee is guilty of sexual misconduct as contemplated in section 17 (1) (c) of the Employment of Educators Act no 76 of 1998 (as amended) (EEA). The employee was charged that during the academic year of 2024, he had a sexual relationship with a learner where he was employed by the name of TM, who was a grade 9 learner at the time at Moepi Secondary School.
BACKGROUND TO THE ISSUE
3.1 The Respondent employs the employee at Moepi Secondary School and at the time of the alleged incident in 2024 he was a PL1 educator at the school.
3.2 The employee pleaded not guilty to the charge preferred against him.
3.3 The parties made use of a few loose documents at the arbitration, the first being the charge levelled against the employee and two statements, one made by the employee on the 5th of February 2025 and another made by TM on the same day.
3.4 The proceedings were assisted by an intermediary and interpreter.
SURVEY OF EMPLOYER’S EVIDENCE AND ARGUMENT
4.1 The Respondent led the evidence of Ms Amulegang Moagi, TM’s aunt who resides in the same household at Marapyane as TM.
4.2 Amulegang tendered an apology for TM’s mother who could not make the hearing due to work commitments. She works in another province.
4.3 On a certain day Amulegang testified that a friend of TM came to their home and reported that TM was sleeping with her teacher. TM was in grade 9 at the time and at the time of the hearing was 15 years old. This hearsay evidence was admitted i.t.o section 3 (1) (c) of the Law of Evidence Amendment Act, 45 of 1998 (LEAA), in the interests of justice.
4.4 Amulegang then approached TM and confronted her with the allegation and TM just kept quiet. Amulegang then testified that she told TM’s mother about what had been reported to her.
4.5 On a certain day when TM came home from school she started vomiting.
4.6 TM’s mother then asked Amulegang to take TM to the clinic to find out if she was pregnant. On the second visit to the clinic TM tested negative.
4.7 TM’s mother also directed Amulegang to report the incident to the school. She did so but the school insisted that TM be accompanied by her mother.
4.8 TM’s mother reported the incident to the school a few days later.
4.9 A short while later Amulegang noticed the employee waiting in the street near their home. He had arrived in a white Polo motor vehicle. The employee asked to speak to TM’s mother but she (the mother) refused to come out.
4.10 Amulegang testified that some weeks passed and on a certain day she noticed the employee coming to their home for a second time. The employee met TM’s mother but she (Amulegang) was not part of the meeting. The employee was accompanied by his uncle.
4.11 Amulegang then testified that after that she did not know what happened further.
4.12 During cross-examination it was put, inter alia, put to Amulegang that the employee had not slept with TM or had an affair with her.
4.13 Amulegang also mentioned during cross examination that TM had later admitted to her of having an affair with the employee and to having sex with him.
4.14 The second and last witness was TM herself.
4.15 TM confirmed that she was 15 years old at the time of the hearing and she was also a Grade 10 learner at Moepi Secondary School.
4.16 TM referred to a handwritten statement made by her on the 5th of February 2025. TM confirmed that it was her statement which she had signed. She then read the entire statement out. The statement contained a confession that TM had had an affair with the employee and gave a lot of detail about how the affair had started. In the statement TM admitted that she had had sex with the employee.
4.17 TM also admitted that her mother had consented to the statement being taken and had also consented to TM testifying at the hearing.
4.18 When asked to describe what had happened in her own words TM stated that “nothing had happened”.
4.19 TM testified that her friends had misconstrued what was going on and she emphatically denied having an affair with the employee who was her class register educator and specifically denied having sex with him.
4.20 When confronted with the contents of her statement TM testified that she was forced to make the statement by the employer’s representative.
4.21 I declared TM a hostile witness and Chauke commenced cross-examining her.
4.22 TM testified, inter alia, that she had finally decided to tell the truth “today”.

EMPLOYEE’S EVIDENCE AND ARGUMENT
4.23 The employee elected to close his case without testifying and called no additional witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The employer bears the onus of proving the allegations against the employee on a balance of probabilities.
5.2 This an unusual case where circumstantial evidence, direct evidence and hearsay evidence all play a part in setting the scene.
5.3 The first aspect requiring attention is the weight to be given to the respective witnesses for the employer.
5.4 Amulegang gave consistent testimony and was the one that dealt directly with TM’s friend that reported her suspicions that TM was having an affair with the employee, to her.
5.5 Amulegang also gave testimony that TM had later admitted having to having an affair with the employee.
5.6 Amulegang also testified that she had seen the employee come to their home twice and on the second occasion he had met with TM’s mother.
5.7 TM testified that she had made a written statement to Chauke where she gave a detailed account of her affair with the employee including initial interaction on Facebook. She stated that Chauke had coerced her to make the statement and that nothing had happened between the two of them.
5.8 I find that TM’s statement is detailed and consistent with the evidence of Amulegang.
5.9 I accept the version of Amulegang that the employee had come to their home twice and had spoken to TM’s mother on the second occasion. I also accept her evidence that TM’s mother had refused to see him on the first occasion.
5.10 If nothing had happened between him and TM why was there a need for the employee to come and speak to TM’s mother.
5.11 It is common practice for educators accused of sexual misconduct to approach the learner themselves or their parents in a desperate attempt to reach a deal that will prevent the employee from losing his/her job. I find that that is exactly what happened here.
5.12 When learners engage in affairs with educators they often fall in love/develop feelings with/for them and naturally wish to protect the educator from losing their employment. This means that learners often recant on earlier statements which I find is what occurred in this scenario as well.
5.13 The employee made a written statement on the same day as TM which materially accords with the contents of TM’s statement. His statement basically amounts to a confession that he had a sexual relationship with TM. The contents of this statement were studiously ignored by the employee’s representative during cross-examination of the employer witnesses.
5.14 The employee chose to remain silent and led no evidence at the inquiry by arbitrator. Obviously he did not want to confront and deal with the contents of the written confession he had made earlier to Chauke.
5.15 I find that both TM and the employee have not provided compelling reasons why the two written confessions should not be included in the evidentiary material.
5.16 Their late attempts to recant their confessions are simply recent fabrications designed to desperately avoid liability for their earlier conduct.
I find that the employer has succeeded in proving the charge of misconduct against the employee on a balance of probabilities.
AWARD
6.1 The employee is found guilty of having sexual relations with a minor.
6.2 Section 17 (1) (b) of the EEA states that an employee must be dismissed if found guilty of committing an act of sexual intercourse with a learner.
6.3 There is no need for me to call for submissions in mitigation or aggravation of sanction since dismissal is the only sanction that can be imposed in these circumstances.
6.4 The employee is hereby dismissed from the services of the employer with immediate effect.
6.5 The employee is also found to be unsuitable to work with children in terms of section 120 (4) of the Children’s Act no 38 of 2005.