SECTION 188A INQUIRY

Commissioner: Jacques Buitendag
Case No.: ELRC930-25/26WC
Date of Award: 24 April 2026

In the INQUIRY between:

JONES, D
(Employee)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Employer)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 9 February- and 31 March 2026 via the Teams platform. .
2. Mr. F Tassiem, an official of NAPTOSA represented the educator, Ms. D Jones. The Western Cape Education Department (WCED) was represented by its Labour Relations Officer, Ms. L Diedericks. Ms. B Marx, a registered counselor attended the proceedings as the intermediary.
3. The proceedings were conducted in Afrikaans and were digitally recorded.
4. The parties submitted heads of arguments on 7 April 2026.

BACKGROUND

5. On 25 September 2018, the parties to the ELRC entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.
6. Ms. Jones is employed by the WCED as a Post Level 2 Departmental Head at the West Coast Special School in Saldanha Bay.
7. The WCED received allegations of misconduct of a sexual nature against Ms. Jones and the WCED then requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations. Ms. Jones was suspended pending the outcome of the inquiry.
8. The WCED charged Ms. Jones with misconduct in terms of section 18(1)(q) of the Employment of Educators Act, Act 76 of 1998 (EEA) in that she allegedly sexually pestered leaners at the school during the 2nd or 3rd term of 2025.
9. The specific charge reads as follows:
   “Daar word beweer dat u skuldig is aan wangedrag in terme van Artikel 18(1)(q) van die Wet op Indiensneming van Opvoerders, Wet 76 van 1998, deurdat u op of omtrent die tweede en/of derde kwartaal van 2025, Graad 9 leerders verbonde aan Weskus Spesiale Skool seksueel geteister het, deur die volgende vir hulle te sê:
   a) “jy is klein en weet nie waneer om uit te haal nie”; en/of
   b) “jy kan nie kind maak nie”; en/of
   c) “Ek hou van, van agter af indruk”; en/of
   d) “Ek gaan hom soos ‘n stukkende perd gaan ry”; en/of
   e) “Ek kannie wag om na Aurora te gaan nie dan gaan ek ‘n lekker naai vat”; en/of
   f) “AI is my man hoe oud, my man se piel satisfy my”; en/of
   g) “My koek klop dat ek nie kan wag om na my man te gaan om te naai nie”; en/of
   h) “Ek gaan vir my ‘n vibrator kry want daar is nie gevoelens in daai ding nie”; en/of
   i) “jy kan nie ‘n vrou satisfy nie, want jy kom binne 10 sekondes”; en/of
   j) “Ek praat van naai man!”; en/of
   k) “As julle naai ne, hoe weet julle, julle naai die meisie lekker en dat sy haar geniet?”; en/of
   l) “ Waneer weet julle as julle besig is om te naai, jy laat kom ‘n meisiekind?”; en/of
   m) “Weet julle hoe om kind te maak en hoe om te stop”; en/of
   n) “ Is julle lief vir binne los, of haal julle, julle trille uit?”; en/of
   o) “’n Man het nog nooit vir my geseks dat ek spuit nie. My boyfriend van destyds het my so laat spuit”; en/of
   p) “… het ‘n klein piel”; en/of
   q) “ My man doen beter seks as julle jong kinders”; en/of
   r) “ Ek soek ‘n jong piel. ‘n Jong piel is beter as ‘n ou piel”; en/of
   s) “Julle weet nie eens hoe om ‘n vrou te bevredig nie”.
10. At the commencement of the inquiry Ms. Jones acknowledged that she understands the allegations levelled against her. She denies the allegations.

THE ISSUE IN DISPUTE

11. I must determine whether Ms. Jones is guilty, on the balance of probabilities, of the allegations levelled against her and if so, I must determine the appropriate sanction. SUMMARY OF EVIDENCE AND ARGUMENT
12. I have considered all the evidence and arguments presented, but because section 138(7) of the LRA requires an award to be issued with brief reasons for the findings, I shall provide a brief summary of the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s evidence and argument

13. The WCED presented a five (5) page bundle of documents into evidence and called the Principal of the school, three (3) educators and six (6) leaners as witnesses. The learners are minors and their names shall not be disclosed for the purposes of this award. They shall be referred to as leaners A-F.
14. Mr. W van Heerden is an Educator at the school. On 11 September 2025 he wrote a report (page 5 of the bundle) about an incident on 8 September 2025. He presented the report to the Principal Ms. Engelbrecht.
15. Mr. van Heerden testified that on 8 September 2025 he took his class to play touch rugby. Ms. Jones arrived shortly thereafter with her class. He overheard a conversation of a sexual nature between Ms. Jones and some of the learners on the pavilion which made him very uncomfortable. He recalled that during the conversation with the learners Ms. Jones asked them if they know how to make babies and that she said something to the effect that “julle pieletjies is te klein om dit te doen”; and “Julle weet nie hoe werk dit nie en hoe om ‘n vrou te bevredig nie.” Mr. van Heerden testified that one of the leaners made movements to show how he would have sex.
16. Mr. van Heerden attributed (a); (b), (i) and (m) as what heard Ms. Jones said to the learners on the pavilion.
17. Under cross-examination it was put to Mr. van Heerden that it was Learner B who started the sexual conversation. Mr. van Heerden testified that he did not hear what Learner B said to Ms. Jones. He overheard the conversation from where Ms. Jones told Learner A that he does not know how to raise children.
18. Learner A is 15 years old. He confirmed that he wrote a report (page 3 of the bundle) about the incident on the pavilion on 8 September 2025. Learner A testified that he and some of his friends were sitting on the pavilion when Learner B came to sit with them. They spoke about rugby. Ms. Jones then approached them and said that Learner B cannot teach them about sex if they don’t know when to “take it out”. Learner A testified that he responded by saying that he “knows when to take it out.”
19. He attributed (a), (b) and (m) as to what Ms. Jones has said to them on the pavilion.
20. Under cross-examination Leaner A denied that it was Learner B who teased him by saying “Jy is klein en jy weet nie wanneer om dit uit te haal nie.” Learner A testified that there was no conversation of a sexual nature between them before Ms. Jones arrived. He testified that she started the conversation. Learner A admitted that he said the words reflected in (c) during the conversation.
21. Learner B is 17 years old He confirmed that he wrote a report (page 4 of the bundle) about the conduct of Ms. Jones. He testified that when he arrived at the pavilion Learner A and his friends were sitting on the pavilion. He joined them and they had a conversation. Ms. Jones approached them and asked them if they know how to make children and how to satisfy a woman. The conversation turned to sex and they answered her. During the conversation Ms. Jones also told them that they should ask him about the consequences of having a child. He testified that Ms. Jones was under the incorrect impression that he had a child.
22. Learner B attributed (i) and (k) to what Ms. Jones said during their conversation on the pavilion.
23. Learner B testified that in Ms. Jones’s class periods they would have discussions of a sexual nature. He attributed (d) and (e) to that Ms. Jones has said. He testified that Ms. Jones said “Ek kannie wag om na Aurora te gaan nie dan gaan ek ‘n lekker naai vat” when someone in the class asked her about her husband. Learner B testified that they once asked Ms. Jones what a vibrator is, although they knew what it was and Ms. Jones said that “Ek gaan vir my ’n vibrator kry want daar is nie gevoelens in daai ding nie” as referred to in (h).
24. Learner B testified that Ms. Jones once said to Leaner C that he has a small penis (as referred to in (p) Learner C then responded with “ek sal vir juffrou lekker satisfy.” And Ms. Jones replied with “My man doen beter seks as julle jong kinders.” (as referred to in (q)).
25. Under cross-examination Learner B testified that Ms. Jones is lying if she denies that she asked them if they know how to satisfy a woman and that they initiated that conversation on the pavilion. It was put to Learner B that it was him that said to Learner A “Jy weet nie wanneer om uit te haal nie.” and “Jy kan nie kind maak nie.” Learner B maintained that it was Ms Jones that have said this to Learner A.
26. Learner B denied that the leaners teased Learner C and said that he has a small penis when Ms. Jones told Learner C that he is small and immature.
27. Learner B denied that it was the class that said to Ms Jones the words referred to in (f) and (g). He maintained that Ms. Jones said these things to them. He added that he will not talk to an adult in such a way.
28. Learner C is 17 years old. He testified that Learner B and Ms. Jones would start conversations of a sexual nature in class and that other learners would then join them in the conversations. He attributed (f), (k), (l), (q) and (r) to what Ms. Jones had said during some of these conversations. Learner C testified that he would feel uncomfortable at times about the contents of the conversations.
29. Learner C confirmed that Ms. Jones had once said to him that he is small and immature. She also told him that he has a small penis.
30. Under cross-examination Learner C that testified that it was unnecessary of Ms. Jones to say to his that he has a small penis (as referred to in (p)).
31. Learner D is 17 years old. He testified that Ms. Jones said (o) during one of the English periods. Ms. Jones and some girls were having a conversation and he overheard her saying this. He testified that most of the conversations in Ms. Jones’ class was around sex. It got to a point where he felt so uncomfortable and that he had to report it.
32. Under cross–examination Learner D testified that the words uttered by Ms. Jones remained etched in his brain. He testified that he reported it to Ms. Hully. Learner D explained that the girls in his class do not have conversations of a sexual nature with other educators at the school.
33. Mr. E Meintjies is the Deputy Principal at the school. He testified that Learner B reported to him that there are inappropriate conversations of a sexual nature taking place between learners and Ms. Jones. He asked learner B to put it in writing. Learner B then presented him with a report (page 4 of the bundle).
34. Ms T Hulley is a Head of Department at the school. She testified that Learner D reported to her that he is uncomfortable with the conversations of a sexual nature taking place in Ms. Jones’ class. She said that Learner D conveyed to her that Ms Jones have been telling them about her “ex”, her husband and about sex.
35. Under cross-examination Ms. Hulley confirmed that Learner D mentioned to her that Ms. Jones said the words referred to (o). Ms. Hulley testified that in her six (6) years at the school she never talked about menstruation with the leaners.
36. Learner E is 17 years old. She testified that one day in Ms. Jones’ class they did not have much work to do and the conversation turned to sex. During this conversation Ms. Jones used the words referred to in (o).
37. Learner E confirmed that they asked Ms. Jones if a girl can have sexual intercourse during menstruation. She testified that Ms. Jones has once told them to eat oysters to get into the mood and to use a “rubber”.
38. Under cross– examination Learner E confirmed that the girls asked Ms. Jones about menstruation and sex. Learner E testified that during once such conversation Ms. Jones talked about her husband who cannot get an erection. She was adamant that Ms. Jones used the words referred to in (o).
39. Learner F is 15 years old. He testified that he was part of the group on the pavilion. They were having a conversation about rugby when Ms. Jones joined them. She asked them if Learner B is teaching them about sex. They replied that they were talking about rugby. Learner A said something to the effect that he like to put it in from behind to which Ms. Jones responded that he must keep quite because he is too small and does not know when to take it out. Learner F confirmed that Ms. Jones used the words referred to in (a) and (b).
40. Under cross-examination Learner F maintained that it was Ms. Jones that has started the conversation of a sexual nature and not Learner B.
41. Ms D. Engelbrecht is the Principal at the school. She testified that she was very upset when she heard about the allegations against Ms. Jones. She explained that the learners are mildly intellectually disabled. In her experience these learners are honest and do not have filters. She testified that the trust relationship between her and Jones is broken and that she cannot trust Ms. Jones to again work with the vulnerable learners.
42. Ms. Diedericks argued that the evidence presented by the employer is consistent, credible, corroborated and prove the misconduct perpetrated by Ms. Jones. Ms. Diedericks submitted that the trust relationship has irretrievably broken down, and that dismissal is the only appropriate sanction.

Ms. Jones’ evidence and argument

43. Ms. Jones testified that she has 10 years’ experience as an educator.
44. With regards to the pavilion incident Ms D. Jones testified that she took her class to play “touchies”. Mr. van Heerden and his class was already there. She went to the pavilion where some of the learners were sitting. Learner B then started a conversation of a sexual nature. Learner A said something to the effect that he like to put it in from behind (as referred to in (c)). When she told them that they are too young to have such conversations, the learners responded that they are big enough and know what is going on. Ms. Jones testified that she told the learners they must ask Learner B what would happen if they have children and that she is not going to engage in such conversations. Ms. Jones testified that she then walked away.
45. Ms. Jones testified that learners A and F are not in her class. She does not know why they would have the boldness to speak to her in such a manner. Ms. Jones testified that Mr. van Heerden could not have overheard the conversation because he was some distance away from them.
46. Ms. Jones said that Learner B’s discipline is a problem. He influence the learners and he will provoke conversations of a sexual nature in her class. She would then tell the learners that she does not want to be part of such conversations. Ms. Jones testified that she would at times make comments but not of the nature as reflected in (a) – (s).
47. Ms. Jones explained that the learners know that she goes home over the weekends and that some of the learners will then say something to the effect as referred to in (e) and that she wants a younger man. Ms. Jones referred to the words in (i) and said that she would not discuss her private life with the learners.
48. Ms. Jones testified that Learner E had a difficult year. The girls would question her about sex and if they can have sex during menstruation. She would educate them as a mother would educate her daughter but would not go into detail.
49. Under cross – examination, Ms. Jones denied using the words referred to in (a) and (b) in the charge sheet and suggested that Learners A and F might have been influenced by learner B.
50. When Ms. Jones was questioned why she is not calling learners to corroborate her version, Ms. Jones responded that she is afraid to call other learners because she feels that she cannot entirely trust them.
51. Ms. Jones confirmed that she has no issues with Mr. van Heerden. She does not know why Mr. van Heerden would report her to the Principal.
52. Ms. Jones testified that Learner C is changing her words and that she might have said to him that he is small and immature when he interrupted her in her class.
53. Ms. Jones testified that she and Learner D have a good relationship but that he would at times focus on one side of the story. She testified that if she recalls correctly it was the girls that said the words referred to in (o) to Leaner D. Ms. Jones testified that she cannot explain why Learner E have also testified that she said the words as referred in (o).
54. Ms. Jones confirmed that learner F is not in her class and that she does not know him. She cannot explain why he would testified that she said (a) and (b) and that Learner A replied with (c).
55. Mr. Tassiem argued that Mr. van Heerden could not give context to the discussion on the pavilion and could not have overheard exactly what was said because he was some distance away. Mr. Tassiem argued that although the learners testified that Ms. Jones initiated the sexual conversations in class they could not give context and that it appears that the testimony was rehearsed. He further submitted that none of the learners reported the alleged sexual discussions and it was only after Mr. van Heerden reported it that their versions came to the fore. Mr. Tassiem argued that no evidence was presented that Ms. Jones sexually pestered the learners as referred to in the charge. He further argued that conversations were taken out of context and that Ms. Jones should be found not guilty of the allegations leveled against her.

ANALYSIS OF EVIDENCE AND ARGUMENTS

56. The WCED bears the onus to proof the allegations against Ms. Jones on a balance of probability.
57. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.
58. Mr. Tassiem argued that the testimony of the learners seemed rehearsed and that they could not give context to the alleged conversations of a sexual nature. I disagree. The learners testified independently and there were subtle, although insignificant, differences in their testimony which show that their testimony was not rehearsed.
59. About the incident on the pavilion the corroborated evidence of learners A and F is that they, along with learner B had a conversation about rugby when Ms. Jones joined them and the conversation then turned from rugby to one of a sexual nature which was initiated by Ms. Jones. They both testified that Ms. Jones used the words referred to in (a) and (b) during that conversation. Learners A and F was not Ms. Jones’ class and I can find no reason why they would be dishonest about the incident on the pavilion. Learner A testified that Ms. Jones also used the words referred to in (m) during the conversation and Leaner B added that Ms. Jones used the words referred to (i) and (k). Mr. van Heerden testified that he overheard Ms. Jones using the words referred to in (a), (b), (i) and (m) during the conversation. I have no reason to believe that Mr. van Heerden had not overheard the conversation as was alleged by Ms. Jones. His evidence is also consistent with that of the three learners.
60. Learners B, C, D and E testified that Ms. Jones had conversations of a sexual nature with learners in her classroom and I have no reason to reject their corroborated testimony on this score.
61. In this regard Learner D testified that during one of the English periods he overheard Ms. Jones said the words as referred to in (o). His evidence is corroborated by Learner E who testified that one day in Ms. Jones’ class they did not have much work to do and the conversation turned to sex and that it was during this conversation that Ms. Jones said the words referred to in (o). Learner D testified that he was so uncomfortable with the conversations of a sexual nature that Ms. Jones had with the girls that he reported it to Ms. Hulley. Ms. Hulley confirmed during her testimony that Learner D reported to her that he is uncomfortable with the conversations of a sexual nature and she further confirmed that Learner D mentioned to her that Ms. Jones said the words referred to (o). I have also no reason to doubt the credibility of Ms. Hulley’s testimony.
62. Learner B testified that Ms. Jones used the words referred to in (d), (e), (f), (g) (h) during conversations in her classroom. Both he and Learner C testified that Ms. Jones used the words in (p) in referring to learner C. Leaner C further corroborates Learner B’s evidence that Ms. Jones used the words referred to in (f) and (q) in class.
63. Ms. Jones’ version is not much more than a mere denial of the allegations. She has provided no credible explanation as to why the learners, Mr. van Heerden and Ms. Hulley would fabricate their testimony and she also did not call any learner or any other witness to refute the allegations or to provide a different context to it.
64. Ms. Jones has been charged with misconduct in terms of section 18(1)(q) of the EEA. This section reads as follows:
    “(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
    (q) while on duty conducts himself or herself in an improper, disgraceful or unacceptable manner.”
65. The evidence shows that Ms. Jones had multiple conversations of a sexually explicit nature with minor learners. Her conduct was indeed improper, disgraceful and unacceptable. I am satisfied that the WCED has proven, on a balance of probability, the charge levelled against Ms. Jones.
66. I must now consider the appropriate sanction.
67. The WCED has argued that Ms. Jones has broken the trust relationship and has called for her dismissal.
68. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. Mr. Tassiem has presented no mitigating arguments, probably because he argued that Ms. Jones is not guilty of the allegations. Ms. Jones has not provided much information about her personal circumstances. What I could gather is that she is married, has a child / children and has about 10 years of service as an educator. These factors I have considered.
69. I took into account that the South African Constitution stipulates that every person has the right to human dignity (section 10) and that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.
70. I considered the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE), Act 31 of 2000, which provides that an educator must inter alia: respects the dignity and constitutional rights of learners; avoid any form of humiliation, and refrains from any form of abuse, physical or psychological; refrain from any form of sexual harassment (physical or otherwise) of learners; take steps to ensure the safety of the learner; and not abuse the position he or she holds for inter alia personal gain.
71. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards learners because society must be able to trust educators unconditionally with their children. Ms. Jones’ conduct towards the learners she was entrusted to was indeed inappropriate, disgraceful and unacceptable and far removed from acting in the best interest of the learners. She has failed in her obligations as an adult; as an educator; and as a protector of children. As an educator Ms. Jones has breached this trust where the in loco parentis principal reigns supreme.
72. What is also concerning and taking into account as an aggravating factor is that Ms. Jones has maintained her innocence and has displayed no remorse for her conduct during this Inquiry in spite of the overwhelming evidence against her. In De Beers Consolidated Mines Ltd v CCMA and Another (2000) 21 ILJ 1051 (LAC) the Court held that dismissal is justified if misconduct is serious and of such gravity that it makes the employment relationship intolerable. In this case the Court also observed that: “Acknowledgement of wrongdoing is the first step towards rehabilitation.” What weighs heavily against Ms. Jones is her lack of acknowledgment of wrongdoing and that she has not shown any remorse for her conduct.
73. The seriousness of Ms. Jones’ misconduct is such that an employment relationship between her and the WCED cannot possibly continue. I must exercise my duty in terms of the Constitution to consider the interest of children as paramount. I find summary dismissal to be the only appropriate sanction in this instance.
74. In terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on du
75. Lastly, section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable
    to work with children may be made by “any forum established or recognised by law in any disciplinary
    proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides
    that a finding that a person is unsuitable to work with children may be made by such forum on its own volition
    or on application by an organ of state or any other person having sufficient interest in the protection of
    children. Having regard to the seriousness of Ms. Jones’s conduct, I find her unsuitable to work with children.

AWARD

1. I find Ms. Jones guilty as charged.
2. The sanction is summary dismissal.
3. The WCED must inform Ms. Jones of the date of her summary dismissal.
4. I find Ms. Jones unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005. 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 for the Director-General to enter her name as contemplated in section 120 in Part B of the register.
5. The ELRC must send a copy of this award to the South African Council for Educators (SACE) to consider revoking Ms. Jones’s SACE certificate.

ELRC Commissioner: Jacques Buite