IN THE ELRC ARBITRATION
BETWEEN:

Dr Joel Osei-Asiamah EMPLOYEE
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL EMPLOYER

ARBITRATION AWARD

Case Number: ELRC221-24/25KZN

Last date of arbitration: 06 January 2026

Date of submission of closing arguments: 12 February 2026

Date of award: 24 February 2026

NTOMBIZONKE MBILI
ELRC Arbitrator

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary proceedings (Inquiry-by-Arbitrator), which commenced on 11 September 2025, proceeded on 17 October 2025, and was finalized on 06 January 2026.
2. The arbitration was held at the Department of Education Newcastle Office, this being a venue provided by the Department.
3. The Employee, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Ms. Jabu Dumisa, employed by the Department as Acting Director. The Employer was present and represented by Mr. Klaas Mohlatlole.
4. The proceedings were digitally and manually recorded. Ms. Nontethelelo Ndlovu provided interpreting services and Ms. Hazel Mabaso was the intermediary.

ISSUES TO BE DECIDED

5. I am required to determine whether the Employer is guilty of the charge levelled against him and if so, to determine the appropriate sanction.

BACKGROUND

6. The Employee is employed as an Educator at Manor High School and is charged with the following count of misconduct:

6.1 Charge1
“It is alleged that on 21 February 2024, while on duty you conducted yourself in an improper, disgraceful, unacceptable manner in that you proposed love to a learner by the name of” learner A”, A grade 10D thereby contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended”.(EEA)
Charge 2
It is alleged that on 5 to 6 March 2024 you committed an act of sexual assault on a learner by the name of “learner A”, a grade 10D thereby contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998 as amended”.(EEA)

7. Even though the learner is currently 18 years old, she shall be referred to as Learner A, because at the time of the alleged incidents she was under the age of 18 years, and her personal information shall not be published in line with the requirements of the law.

The Employer’s Case

8. The Employer called learner A as the first and only witness. She testified that she was a new learner at Manor high school during 2024. She was staying with her grandmother and little brother.
9. She testified that on 21 February 2024 after the selection of the RCL, she left the classroom with Ms Sithole and headed to the staff room to fetch textbooks. She saw the Employer standing outside his classroom, on his phone. The Employee requested to meet with her during lunch break, he obtained her cell phone number and requested to meet her after school. During that meeting, he confessed his love for her, asking if she would be his girlfriend and promising to take care of her. Later that day, he sent her a text message, which she could not recall.
10. She stated that on 01 March 2024, the Employee summoned her to his office and requested sexual activity with her. She delayed him, and told him that she would return after school and did not. She later confided in a former educator, Ms Nxumalo, who contacted her mother.
11. She proceeded to testify about the events of the morning of 05 March 2024. She said the Employee called her to his office in the morning. Upon her arrival, he checked to see if anyone was around, then closed the door and approached her. He touched her thighs, forcefully kissed her, and pushed her towards a small table and a chair while facing him. Despite her resistance, he continued to lift her skirt, and she tried to pull it down. He told her to stop resisting, turned her around so her back was facing him, pushed her lower back down, and attempted to separate her thighs with his knee. Despite her efforts to fight back, he overpowered her, held her hands together against the wall, pulled down her skirt and tights, and raped her. She explained that she did not scream for fear of being heard by classmates and out of humiliation.
12. When she got home, she messaged her friend about the incident. Her friend then shared the message with Ms. Nxumalo, who informed her mother and grandmother. Her mother tried to reach her; she had turned off her phone because she felt responsible for the assault.
13. On 06 March 2024, she testified that after school the Employee summoned her again. When she arrived, he left the matric learners with instructions to continue working, he returned and expressed his hope that she would behave this time. He then proceeded to forcefully grab her, push her onto a chair, and pin her down with his chest, making it difficult for her to move. He then took her legs, placed them on his arms, and proceeded to rape her. After he finished, he removed the condom, got dressed, and handed her toilet paper to clean herself. He then disposed of the condom and tissue in his lunch bag. When he left the room, she took the condom and tissue and kept it as evidence.
14. She decided to travel to her uncle’s house, where she gave her uncle and aunt the used condom and tissue. The following day they went to the police station to report the assaults.
15. Under cross examination the learner provided detailed explanations regarding the layout of the office, confirming that the door was functional and that while noise might be audible in the adjoining EGD class, the positioning of the windows prevented anyone from seeing the inside.
16. She submitted that she delayed in reporting in fear of the Employee, who had threatened that no one would believe her as everyone was afraid of him.

The Employees case

17. The Employee submitted that the learner was used as a ‘tool’ to secure his dismissal.
18. In November 2023 he was shortlisted and interviewed for a Deputy Principal post and ranked number one. Despite initially ranking first in the interviews, the School Governing Body (SGB) changed his position to third. He suspects foul play in the decision-making process and believes that the newly appointed Deputy Principal plotted with the learner and SGB chairperson to remove him out of a sense of threat.
19. He further alleged that the principal viewed his PHD qualification as a threat and that the learner was in a relationship with the SGB Chairperson’s son, which motivated her to make false allegations.
20. The Employer claimed that the learner had made similar allegations of sexual harassment at her previous school, though no evidence was tendered to support this assertion.
21. He denied teaching grade 10 and stated that he did not have an assigned office or classroom. Instead, he shared the EGD classroom along with other Educators and argued that another Educator was conducting an EGD class at the time of the alleged sexual assault and that he was in charge of gate control in the morning and that he did not leave the gate until after assembly.
22. He denied that the classroom door was functional and argued that it had a crack and could not lock.
23. He further stated that the medical evaluation of the learner did not indicate any evidence of rape.
24. During the cross-examination, the Employee was confronted with the fact that during his cross-examination of the learner, he did not put to her his version denying the rape or the love confession. He argued unconvincingly that he was not allowed to speak when she was on the stand.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. This matter turns largely on the credibility of the respective versions. Having observed the witnesses under oath, I make the following findings.
26. Learner A testified in a clear, consistent, and composed manner. Her account of both the love proposal and the two sexual assaults was detailed and logical. She did not waiver under a lengthy and at times aggressive cross-examination.
27. Her explanation for why she returned to the Employee’s office on 06 March is that she was fearful of his threats and felt she had no choice, is entirely consistent with the psychological profile of a vulnerable minor subjected to grooming and abuse by an authority figure.
28. Critically, Learner A’s version is corroborated by her own conduct in preserving the condom and tissue from the 06 March incident, which is an act inconsistent with fabrication but entirely consistent with a genuine complaint.
29. Her immediate disclosure to Ms Nxumalo, her family, and the police further supports the probability of her account.
30. The Employee, by contrast, was a poor witness. His defence was not a direct denial of the events, but a convoluted conspiracy theory involving the Deputy Principal, the Principal, the SGB Chairperson, and the learner. He failed to provide any credible evidence to support these serious allegations.
31. His explanation that Learner A had made similar allegations at a previous school was baldly stated with no documentary or witness evidence to support it. This amounts to little more than an attack on the character of the complainant without factual foundation.
32. Regarding the EGD class defence, the Employee’s version that a teacher was conducting a class at the time does not, on Learner A’s own evidence, negate the possibility of the assault. She explained the layout of the office and that while noise might be audible, visibility was obstructed. The presence of learners in an adjoining class does not render an assault impossible.
33. The Employee’s failure, under cross-examination, to put his version of events to Learner A when she testified is fatal to his credibility. The legal principle is well established that a party must put their version to a witness to allow them an opportunity to respond. The Employer’s explanation that he was “not allowed to speak” is disingenuous, he was represented and had every opportunity through his representative to challenge the learner’s account on a point-by-point basis.
34. The Employee’s conspiracy theory regarding his failed promotion is a classic example of an ad hominem attack, seeking to discredit the messenger rather than addressing the message.
35. Even if the Employee held genuine grievances regarding his non-promotion, which is not admitted, this does not provide Learner A with a motive to fabricate two separate rape allegations. The suggestion that a 16-year-old learner would subject herself to the trauma of police statements, medical examinations, and testifying in multiple forums merely to assist adults in a staffing dispute is inherently improbable and was not supported by any evidence.
36. Section 17(1)(b) of the EEA provides that an educator commits serious misconduct if he or she “commits an act of sexual assault on a learner” . A finding of guilt under Section 17 attracts a mandatory dismissal sanction.
37. Section 18(1)(q) of the EEA provides that an educator commits misconduct if he or she “while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner” .
38. The Employee has discharged its onus of proof on a balance of probabilities. The version of Learner A is accepted as credible and reliable. The Employee’s version is rejected as false and an afterthought.
39. Regarding Charge 1, the evidence establishes that the Employee, an educator in a position of trust, in loco parentis, proposed love to a 16-year-old learner who was under his care and authority. This constitutes disgraceful and unacceptable conduct as contemplated in Section 18(1)(q) of the EEA. The Employee’s actions represent a gross breach of the professional boundaries that must exist between educators and learners.
40. Regarding Charge 2, the evidence of Learner A establishes two separate acts of rape on 05 and 06 March 2024. These acts constitute sexual assault within the meaning of Section 17(1)(b) of the EEA. The fact that the Employee used a condom does not negate the assault; it merely indicates a level of premeditation that aggravates, rather than mitigates, the misconduct. The preservation of the condom by Learner A, which was undisputed, provides compelling corroboration of her account.
41. On a balance of probabilities, and for the reasons set out above, I find as follows:
42. Charge 1: Guilty.

41.2 Charge 2: Guilty.

42. The impact of such conduct on Learner A, on the school community, and on the teaching, profession cannot be overstated. The message must be clear that such behaviour will not be tolerated and will result in the severest possible sanction.
43. In the circumstances, and as mandated by law, the only appropriate sanction is dismissal.
44. 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 the provisions of section 17 (1)(b) of the EEA.
45. 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 a girl child at the school where he was employed.
46. The employer, in its aggravating submissions, 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”

47. 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”

48. Section 122(1) of the CA provides the following:

(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.”

49. It follows that the finding which I have made necessitates that the decision 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.
50. 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 Employee, Dr Joel Osei-Asiamah is guilty of committing both misconducts as set out in the charge sheet;
2. The Employee is sanctioned to summary dismissal;

3. Dr Joel Osei-Asiamah is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the CA;
4. 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 the Employee is unsuitable to work with children and 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 award on the South African Council of Educators (SACE).

NTOMBIZONKE MBILI
Arbitrator