IN THE ELRC ARBITRATION
BETWEEN:

Leonard Velenkosini Mfusi “the Respondent”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Applicant”

ARBITRATION AWARD

Case Number: ELRC472-24/25KZN

Last date of arbitration: 28 May 2025

Date of submission of closing arguments: 06 June 2025

Date of award: 19 June 2025

NTOMBIZONKE MBILI
ELRC Arbitrator

Education Labour Relations Council

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary matter (Inquiry-by-Arbitrator), which commenced on 02 December 2024, proceeded and was finalized on 28 May 2025. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 05 June 2025.
2. 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.
3. Mr Themba Xulu, a Union Official from SADTU, represented the respondent, Mr LVM Mfusi (hereinafter referred to as the respondent).
4. The Applicant, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Ms. Jabu Dumisa, employed by the Department as the Acting Director.
5. The proceedings were digitally and manually recorded, and the witnesses spoke in their native languages. Mr. Bheki Shabalala 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

8. The Respondent is employed as a Principal at Thanduyise High School and is charged with the following count of misconduct:

9.1 “It is alleged that on 21 February 2024, you sexually assaulted a learner A (the learner is underage and will therefore not disclose her identity in this award) in grade 8 thereby contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998 as amended.”

9. The Respondent pleaded not guilty to the charge and denied all the allegations against him.
10. Initially both parties did not submit any, bundles of documents. The Respondent made a request to submit statements of some witnesses. These witnesses were not going to be called at the hearing. These would not have been allowed nonetheless, as these amounted to inadmissible hearsay evidence, no justification was given for the admission of the evidence. The request was denied further on the basis that the statements sought to be relied upon were introduced very late in the proceedings, after the applicant had concluded its case, the application was opposed by the applicant, and I decided against the introduction of the documents.
11. The learner shall be referred to as Learner A, she is under the age of 18 years and her personal information shall not be published in line with the requirements of the law.

SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case

12. The employer led the evidence of two witnesses namely Sthembile Charity Myeni, (Learner A’s mother) and Learner A.

1ST WITNESS

13. Ms Myeni testified that she is the mother of the learner. She resided in White City with the learner, nanny and two-year-old daughter. She worked as a staff nurse at Ngwelezane Hospital at Empangeni and because of the incident she moved to Durban.
14. She confirmed that she knew the respondent from her daughter’s rape incident at school.
15. She stated that on the day of the incident she returned from work earlier than the learner and the learner returned at 14:00 to 14:20 hours from school. When the learner came through the door, she was not her usual self and she noticed that something was off about her, because she is normally very bubbly. The learner replied that she was fine when she asked if she was okay. She kept her eyes on her, while the learner made her way to the bedroom. She explained that they stay in an open plan house and had sight of the leaner from where she was seated. The learner started taking off her uniform and she noticed that the learner’s underwear was dirty, but her tights and school skirt was clean. She questioned her about the dirty underwear and the learner rubbed it off. She persisted with questioning her and put to her that it was impossible that her underwear was dirty, but her tights and skirt were clean. The learner went back and forth claiming that she cannot explain how that happened. She stated that she told the learner that she is being untruthful and instructed her to lay on the bed so that she could examine her and check if she was still a virgin. When she examined her and saw blood and clear fluid coming out of her vagina, it was clear that the learner had been penetrated.
16. She instructed the learner to sit up and get dressed and questioned her on whether she had a boyfriend and if she had sex with that boyfriend or if someone had forced themselves on her. She explained to the learner that if someone had forced themselves on her, they needed to report the matter to the police. The learner did not say a word, until she took a belt and started spanking her and the learner finally narrated the incident as follows: “It was 09:00 am at school and it was the first period. I requested and was granted from my teacher to go to the bathroom. I went inside the bathroom and when I came out the respondent was waiting for me outside the bathroom. He told me to come closer to him and said that he was aware that I was doing poorly in mathematics and that if I had sex with him, he would ensure that I pass the subject. I did not answer him, and he said I must follow him to the school kitchen. At the kitchen we were alone and that was strange because the school caters were normally in the kitchen. He closed the door but left it slightly opened, he told me to take off my skirt and underwear and lay on the floor, he took off his pants and underwear and got on top of me and raped me. After he was done, he fixed himself and told me that if I told anyone about what had happened between us, he would kill me and my family, and that if someone were to find out at home, I must blame it on Mr. Mhlongo. He left the kitchen, I got up, fixed myself and headed back to the classroom and did not see anyone along the way to class”
17. The witness stated that the learner told her that she did not tell anyone because she was afraid. They proceeded to the police station, and they took her statement, they thereafter went to Ngwelezane hospital, and the learner was examined by the doctor and referred to a social worker. The doctor confirmed that she had been raped and had to return to the hospital the following day to complete the administration process.
18. The following day she went back to the police station to follow up on their complaint. She stated that when the learner initially narrated the incident to her at home, she told her that Mr. Mhlongo was the preparator and that is why a case was opened against Mr Mhlongo.
19. She stated that she spoke to the respondent when she accompanied the police to collect Mr Mhlongo from the school. The respondent was extremely supportive and even took her cellphone number and they stayed in contact; he kept checking on them and were very close. He told her that he had suspended Mr Mhlongo.
20. The police went to the school to investigate before Mr Mhlongo appeared in court. The police came back with the report that Mr Mhlongo did not teach the learner and that he was not a grade 8 teacher. Mr Mhlongo was released, and the police advised me to speak to her and find out who had sexually assaulted her. She sat down with the learner and told her of the new developments from the police and pleaded with her to tell the truth. The learner told her that the respondent is the one that sexually assaulted her, and that she was afraid to identify him because he threatened to kill her and her family.
21. She submitted that when it came out that the respondent sexually assaulted her daughter, she started noticing strangers following her and the learner. She narrated that there was a time when they attended an appointment with the social worker which was booked by the respondent, and she noticed that there were people following them from their home to the hospital and from time to time the respondent would randomly be aware of their whereabouts without him asking. As a result, the learner had to be moved to a place of safety, and she relocated to Durban.
22. Under cross examination she stated that she narrated the version that daughter told her incorrectly. She said that when her daughter initially told her about the incident, she identified Mr Mhlongo as her rapist and did not mention the respondent. She submitted that she was not misleading the proceedings or being dishonest, the incident had taken place a while ago and she could not recall the finer details. Mr Mhlongo was arrested because he was identified by the learner as the rapist and only at a later stage when Mr Mhlongo was released and South African Police Service spoke to her, did the learner state that it was the respondent that raped her.

2ND WITNESS

23. The learner testified as the second witness. She gave her evidence virtually and was assisted by an intermediary.
24. In 2024, she was in grade 8 and was taking Maths, English, Zulu, Geography, History, Natural Science, and Life Orientation as her subjects. Mr Mawaba was her Maths teacher.
25. She described the incident as follows: “In February 2024, during a morning Maths class, I asked my teacher to use the bathroom. On my way back from the bathroom, I met the respondent, and he used his hand to signal for me to come closer to him. He told me he was aware that I’m struggling with Maths and have failed the subject. If I wanted to pass the subject, I should follow him. I followed him to the school kitchen, and when we entered the kitchen there was nobody inside. He closed the door and told me to take off my underwear and tights, he undressed himself and told me lay on the floor and open my legs. He kneeled in between my legs and raped me. Once he was finished, he put his clothes back on, and said If I told anyone about the incident, he would kill me and my family. He further said that if at home they discovered that I had been sexually assaulted I must blame it on Mr Mhlongo. He left me in the kitchen, I dressed, brushed the dust from my jersey and went back to class”.
26. She stated that when she got home, her mother picked up that she was not okay. When she was taking off her uniform in the room, her mom saw that her underwear was dirty and questioned her about it and she denied that her underwear was dirty. Her mother instructed her to lay on the bed so that she could examine her to check if she was still a virgin. Her mother discovered that she was no longer a virgin, gave her a chance to explain, and she denied everything and refused to speak up. Her mother took a belt and beat her with it, and she confessed that Mr Mhlongo had sexually assaulted her. They went to the police station and their statements were taken and then sent them to the clinic for an examination and she was given HIV prevention tablets and advised to seek counselling. She stated that Mr Mhlongo was collected from the school and arrested by the police.
27. Sometime later her mother came back from attending Mr Mhlongo’s court appearance and told her that Mr. Mhlongo had been released based on lack of evidence and that Mr. Mhlongo testified that he was not her teacher and did not teach her any subjects. She confessed to her mother that the respondent had sexually assaulted her and threatened to kill her and the family if she told someone.
28. She stated that prior to confessing that the respondent had sexually assaulted her, he had arranged a counselling appointment for her and her mother with a social worker, Ms Dludla and had committed to attending the session with them. On their way to the appointment, they observed a particular person making signals to the person that was accompanying them, and they suspected that the respondent sent those people to harm them.
29. On consultation with Ms Dludla, she suggested that they spend the night at her house, out of fear that the respondent would attempt to harm them. The following morning, they fetched her brother and sister from their house and was assisted by Ms Dludla to be transported to a safe house.
30. Under cross examination the learner confirmed that she was 14 years old and the incident took place in the first term of the school calendar.
31. She confirmed that the school had a feeding scheme and that she was not familiar with the caters neither was she aware of the venue that the caters used to dish up the meals.
32. She stated that first break was around 10am and that she did not recall what time the incident took place.
33. She stated that she did not feel targeted by the respondent but that it was a coincidence that she met the respondent on her way back from the toilet. She added that she believed that the respondent prays on girl children and was waiting for any girl child to appear and take his chance and rape her.
34. She mentioned that she does not have proof that the respondent targets girls but is aware that he once declined a gender-based violence presentation at school.
35. She said that she believed that the respondent had authority to change her Maths scoring as the principal of the school.
36. She confirmed that the respondent left the door slightly opened and that she did not look at him when he was undressing himself.
37. She did not cry or make a scene because the respondent threatened to kill her and her family.
38. She confirmed that she initially lied to her mother and the police about who had raped her because she was protecting herself and her family. She disputed that the respondent assisted them out of sympathy.
39. She does not remember when she identified the respondent as the rapist but recalls it was at a later stage.
40. It was put to her that the respondent denied raping her, and her version was fabricated and in fact a traditional leader paid her and her mother to destroy him due to him refusing the traditional leader to invade land which belonged to the school. She denied the allegation and said the incident took place and it was not fabricated.

The Respondent’s case

41. The respondent testified and stated that he held the position as a principal for 10 years and had been with Thanduyuse High School for 15 years.
42. He stated that on 22 February 2024 he received a call from the South African Police Service (SAPS) advising him that they were on their way to the school to arrest Mr. Mhlongo which had allergy raped a learner. SAPS arrived at the school, and he requested that Mhlongo not be arrested in front of the learners and educators to protect his dignity. Mr Mhlongo took annual leave immediately after his arrest.
43. He contacted the Department and was advised to report the matter to the district office. He was instructed by the District Director to lay a formal complainant and submit a report to Mr Mchunu, Employee Relations.
44. He stated that the incident took place in February 2024 and on 04 June 2024 he was suspended while waiting for feedback from Mr Mchunu regarding the report he submitted. His suspension came as a surprise because he was not interviewed or investigated. SAPS did not arrest him or charge him and did not require that he write a statement.
45. He denied that the sexually assaulted the learner and confirmed that on the day of the incident he was at work.
46. He submitted that in 2018 the school premises were invaded by a traditional leader, and he reported the matter to the Department. The Department challenged the leader and was successful in its application. Since then, his life has been in danger and there has been attempts to end his life even at the school premises. He added that he suspects that he is being framed by the traditional leader and that there are rumors that an amount of money has been paid to frame him. He continued to say that he is a trustworthy individual and has made it a point to interact with the community.
47. He stated that he supported the learner and her mother in his capacity as the principal of the school and that he would check in on them now and again.
48. Under cross examination he stated that in his report he recommended that Mhlongo be suspended to allow the investigation process to be finalized. He confirmed he investigated before submitting the report and his report was based on interviews with the food handlers, who stated that they did not witness any incidents and had remained in the kitchen throughout the day.
49. He said that he spoke with Mhlongo over the phone during his investigation but did not include the conversation in his report. He confirmed that he did not interview the learner nor the mother.
50. It was put to him that he was biased in his investigation, he happily assisted the family and eagerly reported the matter to the Department, he responded and said that he was not able to interview Mhlongo since he was on sick leave, his role as principal was to report the matter and he did not have the authority to suspend Mhlongo.
51. He disputed that he failed to collect evidence during the investigation to divert the focus from him and place it on Mhlongo, and stated that he followed due process, submitted the report to Mchunu and there were no objections from Mchunu.
52. He expressed his distrust of the police, citing media reports of officers accepting bribes.
53. He submitted that he did not have accessed to the learner’s marks, it was early in the year and formal assessments had not been done.
54. When asked why a parent would allow the traditional leader to use her child, be separated from her and relocate as a consequence of the incident, he stated that he suspected that it was for financial gain.
55. He said that he could never pray on girls because he has three daughters and one boy and is very sensitive towards girls, he is a father and grandfather and that he is not a monster.

ANALYSIS OF EVIDENCE AND ARGUMENT

56. In disputes such as the present where an employee is charged for misconduct. The onus is on that employer (the applicant) to establish that the respondent committed the act(s) of misconduct set out in the charge and that dismissal is an appropriate sanction for such an infraction.
57. Evidence must accordingly be placed before me to demonstrate on a preponderance of probabilities that misconduct has been committed and that dismissal is an appropriate sanction for the misconduct.
58. The respondent is charged for contravention of section 17(1)(b) of the Employment of Educators Act as outlined above. The section states the following:
    “An educator must be dismissed if he or she is found guilty of-
    (a)…
    (b) committing an act of sexual assault on a learner, student or other employee.”
59. The allegations are that the respondent had sexually assaulted a learner. In this regard the evidence must demonstrate on a balance of probabilities that the respondent is guilty of the misconduct for to be found guilty on this serious misconduct. Once found guilty it follows from the scheme of the legislative provision that dismissal must follow.
60. In the case of Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 SA 11 (SCA) the court held that a decision maker faced with two conflicting versions before him, must make a finding on the credibility of witnesses and on the probabilities of the two versions to determine where the truth lies.
61. There are mutually destructive versions that I will have to consider in turn when determining whether the version to be preferred is of either of the parties. This will involve the assessment of the evidence tendered before me. I will not repeat the evidence that served before me but will highlight the salient aspects as and when I deem it appropriate to do so.
62. The learner provided a detailed, consistent account of the alleged assault, including the Respondent’s threats and the location of the incident. She recalled the finer details of the incident and was consistent in her testimony.
63. Learner A’s initial false accusation against Mr. Mhlongo is concerning, but she explained that she lied out of fear due to the Respondent’s threats. Her eventual admission that the Respondent was the perpetrator aligns with the fact that Mr. Mhlongo had no connection to her, as he did not teach her.
64. Her mother’s testimony corroborates the discovery of the undisputed physical evidence, blood and fluid, consistent with sexual assault.
65. The respondent on the other hand denied the allegations and suggested a conspiracy by a traditional leader to frame him and his claim that the learner and her mother were bribed lacks any documentary evidence. He stated that there were attempts to end his life and he continued to live in fear, however this version was not supported by collaborating evidence such as witness accounts or that the matter was reported to the police. There is also no evidence that the respondent attempted to relocate because of these threats. This version accordingly lacks substance and stands to be rejected.
66. His conduct after the incident, supporting the family, arranging counselling, purchasing airtime for the mother, and the consistent check ins, cannot be seen as genuine concern but an attempt to manipulate the situation.
67. His argument that he had no access to learner marks is weak, as he could influence academic outcomes as principal.
68. The respondent’s failure to properly interview the learner or Mr. Mhlongo weakens his claim of impartiality during his investigation. His reliance on food handlers’ statements, who may not have been present at the exact time, is questionable.
69. The learner’s version is more probable for the following reasons: Firstly, she had no motive to falsely accuse the Respondent, especially given the trauma of the incident. Secondly, the Respondent’s conspiracy theory lacks substantiation and there is no evidence of payments or involvement by a traditional leader. Thirdly, the undisputed presence of liquid and blood on the learner supports her claim of being sexually assaulted. Lastly the Learner and her mother’s relocation also supports the trauma experienced by both the Learner and her mother because of the incident.
70. The Respondent’s claim that the mother and learner would fabricate such a serious allegation for financial gain is highly speculative. If he were truly innocent, his actions of supporting the family to the extent of buying the mother airtime and booking counselling appointments on their behalf is unusual and gives an impression of burying guilt more than a mere act of kindness.
71. I have not been given enough evidence to doubt that the allegations that are contained in the charge sheet are true. On the contrary, I find no reason to doubt that the respondent committed the misconduct for which he was charged. He could not explain with sufficient evidence why the complainant would finger him on such serious allegations of misconduct, except a bare denial.
72. 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.”
73. 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.
74. 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.”
75. 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.
76. 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.”

77. 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.
78. 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.
79. 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.
80. 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”

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

“1. Definitions and interpretation of Act

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

82. 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.”

83. 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.
84. 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 Leonard Velenkosini Mfusi 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 Leonard Velenkosini Mfusi 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 19 JUNE 2025
ELRC472-24/25KZN