IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN SOSHANGUVE
CASE NO.: ELRC 1174-25/26 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GP EMPLOYER

AND

KUNENE ANDILE EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 04 March 2026 ;03 and 04 June 2026
Closing Argument: 11 June 2026
Mitigating / Aggravating Factors: 11 June 2026
Date of Award: 24 June 2026
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Enquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held on 04 March 2026, 03 and 04 June 2026, and 26 November 2024, at the employer’s Soshanguve Offices. Ms. Lungile Mathobela represented the employer. Mr. David Phiri, a NATU union official, and later Mr. Lungisani Ngcobo, fellow employee, represented the educator. The proceedings were recorded digitally. The employer’s bundle is marked ‘E’ and ‘E1,’ and the Educator ‘s is ‘ A’. The employer had subpoenaed the educator’s bank statements and proof of payments from the educator’s bank as displayed on E1. This was prompted by the educator’s vehement denial of ever paying the alleged learner any money and the authenticity of the statements the employer presented.
   ISSUE TO BE DECIDED
2. I am required to determine if the Employee had committed sexual assault offences against a learner as proffered by the Employer. If I find in favour of the Employer, I will determine the appropriate sanction.
3. The following factors are in dispute: 3.1 That there was a sexual relationship between the learner and the educator while teaching at the school and beyond; 3.2 Money transactions from the educator to the learner; 3.3 WhatsApp communication exists from the educator, which proves a sexual relationship. ALLEGATIONS PROFFERED AGAINST THE EMPLOYEE
   3. The Employer leveled one count of misconduct against the employee in
      terms of Section 17 (1)(b) of the Employment of Educators Act, Act 76 of 1998
      (“Act”): –
      Allegation 1: It is alleged that on or around November 2024, or any time incidental thereto,while on duty at Lotus Gardens Secondary School, you sexually assaulted KMM, who was a Grade 12 learner at the school, which resulted in her becoming pregnant.
      Alternatively
      It is alleged that on or around November 2024, while on duty at Lotus Gardens
      Secondary School, you had a sexual relationship with a Grade 12 learner, KMM.

EVALUATION AND SUMMARY OF EVIDENCE

4. The following issues are common causes between the parties:

4.1 The Educator has been employed at Lotus Gardens Secondary
School since 01 August 2023 and was teaching at the school in 2024;
4.2 He is a Departmental Head;
4.3 The educator knows the learner and has communicated with her through
WhatsApp channel and cell phone. The educator had a meeting with the
learner’s mother and police officials at the school.

5. The employer applied for the declaration of KMM, the alleged learner, and her mother, Ms GM, as hostile witnesses. The application was granted for the reasons provided below.
6. Fikile Martha Manganyi testified that she was one of the Community Leaders of the Civil Community group. They assist the community in resolving issues. Around 17 September 2025, she received a call from Mr. Albert Matloga. He introduced himself as an SGB member of Bokgoni Secondary School.
7. He indicated to her that Ms. GM needed assistance regarding an educator, Mr. Kunene, who impregnated her child, KMM. Mr Kunene was sleeping with other learners, not only her daughter. Ms. GM wanted the community leader to assist her in reporting the allegations at the police station.
8. She requested the parent’s contact numbers to verify if the allegations were true. She called Ms GM, who was at the police station and she confirmed the allegations to be true.
9. In the afternoon, Ms.GM called her and confirmed that she could not open a case at the police station due to her daughter`s age. However, the police officials accompanied her to report the matter at Lotus Garden Secondary School, where she met with Mr. Kunene. She held a meeting with Mr. Kunene and the police officials at the school. She informed her that the meeting was productive because she served Mr. Kunene with maintenance court papers and wanted him to support her grandchild.
10. She was surprised that Ms.GM had changed her mind from exposing Mr. Kunene’s wrongdoing to seeking maintenance from him. She reported back to David, Thabo, and other community leaders that they should not allow an educator who sleeps with school children to be permitted on the school premises. David and Thabo followed up with the school on the actions to be taken against Mr Kunene.
11. On 18 September 2025, Ms. GM shared about 99 WhatsApp screenshots of conversations between Mr. Kunene and KMM in the community WhatsApp group.
12. On 19 September 2025, Ms. GM deleted the screenshots from her side. Fortunately, she had already saved them on her phone. The community was furious about the educator’s conduct.
13. The WhatsApp screenshots demonstrate from E 34- 71, amongst others, when and how sexual intercourse occurred, frustrations and arguments about pregnancy when KMM informed Mr Kunene about pregnancy on 22 December 2024. When the former learner demanded R3000 for pregnancy expenses and baby preparations. Ms GM `s intervention, wanting to engage with Mr Kunene. When KMM sent him a bank card copy with account details to send money. When Mr Kunene sent food orders for pregnancy cravings and a loan he took to get his life back. When KMM sent Mr Kunene her address to visit her, and his visit by Bolt. R85 to 88 are money transactions, Mr. Kunene sent to KMM.
14. During cross-examination, she confirmed that she obtained WhatsApp screenshots from Ms. GM, who gave her consent or permission to share the screenshots with the community group. She had no relationship with Ms.GM and KMM and had not met them and Mr Kunene before or at any stage. She only communicated with Ms. GM over the phone. Ms GM changed her mind to meet with the community leaders and pursue the matter after she met with Mr Kunene. Ms GM informed them that the baby was 1month old.
15. Rhoeen Majothi testified that at the time she was the school’s deputy principal and the Acting Principal. On 18 September 2025, Ms. Moche, the current Deputy Principal, reported to her that KMM’s mother came to school accompanied by SAPS officials.
16. The mother alleged that Mr. Kunene was the father of her one-month-old granddaughter, born in August 2025. She wanted to open the criminal case with SAPS, but could not be assisted because her daughter was 18 years of age. Ms. Moche wrote a report and submitted it to the district offices. She confirmed that E21 was her statement.
17. The same day, around 13h00, the community leaders approached her regarding the circulating message that Mr. Kunene impregnated KMM. They presented themselves as Mr. Thabo and David from the LAS Family and Dudula. They demanded his immediate removal and suspension from school, failing which they would disrupt the school activities. The applicant opted not to cross-examine Ms Majothi.
18. Ms GM, who has been declared a hostile witness, that she was KMM’s mother. She reported allegations that Mr. Kunene impregnated her daughter and that he was the father of her grandchild to the district. She sent a WhatsApp screenshot containing conversations between KMM and Mr. Kunene and money transactions as proof that there was a sexual relationship.
19. She went to SAPS to open a criminal case because she was very angry with Mr. Kunene for what he did to her daughter. She believed what KMM informed her, that Mr. Kunene impregnated her, and he was the father. The SAPS officials could not open a case because KMM was 18 years. However, they accompanied her to school to report the matter.
20. At school, she held a meeting with Mr. Kunene in the presence of SAPS officials. Mr. Kunene denied paternity of her grandchild. She later found out that Mr. Kunene was not the father of her grandchild. She had sent the district office a withdrawal statement of the case as she had been misinformed. She denied that she told the deputy principal that Mr Kunene impregnated her daughter. She only mentioned that he had a relationship with her. She denied requesting community assistance from Matloga.
21. She could not explain why she reported the matter in September 2025, yet she knew that Mr Kunene impregnated KMM back in December 2024. She conceded that she had shared the E89 and 90 with the employer representative. When KMM informed her that she was not sure that Mr Kunene was the father of her baby, she instructed her to cancel the maintenance case. She had earlier instructed KMM to open a maintenance case.
22. She changed her statement on 19 September 2025, a day after she reported the matter to the school and the department, because she relied on the wrong information. She did not read WhatsApp conversations/screenshots, as she believed KMM’s information, believing what her told her. She confirmed that E58 is K’s Capitec bank card. She confirmed about twelve (12) payment transactions by Mr Kunene into KMM’s bank account on E1: 1-12.
23. She denied mentioning to anyone that Mr Kunene had a sexual relationship with KMM. However, she mentioned that they were in a relationship. She shared the proof of the relationship with the employer’s representative. Mr Kunene denied having a relationship with KMM during their meeting at the school with SAPS members.
24. She informed the employer representative to stop investigating the matter. KMM was 17 years old in 2024. Mr Kunene paid KMM money in 2025 when she was no longer a learner.
25. KMM testified that she was born on 19 December 2007. She is a Rosebank College student. E17 is her statement that she gave to the employer’s representative. The incident happened when she was no longer a learner.
26. According to paragraph 3 of her statement, she had sexual intercourse with Mr. Kunene twice at his place in November 2024. She became aware that she was pregnant on 23 December 2024. The WhatsApp screenshots support her assertion. She was still a learner.
27. She shared the WhatsApp conversations and money transactions with her mother as proof that he and Mr. Kunene had a sexual relationship. The WhatsApp conversations are the information on how the sexual relationship started, arguments, and their conflicts regarding the pregnancy and child’s support. Mr Kunene was not giving her money as he had to. She also shared the court maintenance papers for the baby’s support claims.
28. She lied to her mother that Mr Kunene was the father of her baby. He gave her the money from January 2025 until the end of 2025 and stopped in 2026. The money transactions are on E85 to E88 and E1; 1-12. The money was for the baby. He had sex with Mr Kunene but was impregnated by someone she could not disclose. The screenshots from E30 to E106 are their communication about their pregnancy.
29. E90 is the maintenance court directive against Mr Kunene. Her mother had instructed her to claim maintenance when she informed her that he was the father. E82 is her baby’s picture and video she had sent to Mr Kunene because she had lied to her that he was the father. He had trapped him. E76 is Mr Kunene acknowledging that they had sexual intercourse. She sent her home address to Mr. Kunene, so he could send the food he had ordered to her.
30. When asked by the educator’s representative, she stated that E89 is a copy of her identity document, which she believed had been tampered with. She had a sexual relationship with Mr Kunene after she finished school in 2025. She fabricated the story in her statement that they had a sexual relationship in 2024. She wanted to retaliate because he was not giving her the money as he was supposed. She visited him in 2025, and she gave him her money in 2025. The baby was born on 15 August 2025.
31. Andile Malusi Kunene testified that the allegations levelled against him are not factually accurate, that he had a sexual relationship with a learner where he works. He met KMM at Rosebank College in 2025, where he also registered as a student. He became aware that KMM was a learner at the school whilst they were enrolled at the College when she made him aware. He did not know her before. He only relocated to his current home in January 2025.
32. His sexual relationship with KMM started in 2025 at the College. She became pregnant. That he had a sexual relationship with a student, not a learner. She fell pregnant. He had a sexual relationship with a student, not a learner.
33. During cross-examination, he conceded that the WhatsApp conversations are between him and KMM. She deleted some and fabricated some. E39 was fabricated and manipulated as he disagrees with the 22 December date. E71 conversation is manipulated. He admitted that the following conversations are accurate and his: E 62,63,66,68,71,74,77,78,79,80,81,84.
34. On E62, he called Bolt for her. He denied knowledge of the E71 contents, as they implicated him in the December 2024 sexual incidents. He denied admitting that E71 is his conversation. On E74, he was made to believe that the baby was his. The baby had already been conceived when they had sexual intercourse. She informed him in January that she was possibly pregnant with his child. The money was for the baby.
35. He denied paying KMM money on 21 January 2026 as on E1:1.He admitted payments on E1: 2-12. He admitted that the Bank provided the parties with Proof of Payments on E1 in both their presence. E18, which speaks to E1;1 was fabricated. He was hospitalized during E17 and E71 conversations. Therefore, it was fabricated. He conceded that he had a meeting with KMM’s mother at the school in the presence of SAPS members.
36. Kabelo Montshioage testified that he is a former SGB chairperson in 2024 and 2025.A member of the civic movement called him to check if he knew about the sexual relationship allegations. He went to school to verify the allegations. He realized that the incident did not occur when KMM was a learner. It was after she left the school when Mr Kunene was not on duty.
37. During cross-examination, he confirmed that E113-114 was his statement. He does not know if they had a sexual relationship in 2024.
38. Shai Mogano testified that he is the Ward 7 SANCO leader. A voice note circulated on the community WhatsApp group about allegations that there was a teacher who had a sexual activity with the learner, and the learner was pregnant. They had a meeting to discuss what happened.
39. Mr. Kunene confided in him that there was a relationship and he was providing for the child financially, but the sexual relationship happened when the learner was no longer at school in 2025. Ms. GM apologized to Mr. Kunene about the allegations, and both made peace. He reported back to the community and was able to diffuse the community, who wanted to attack Mr. Kunene.
40. During cross-examination, he read KMM ’s statement and that she came and testified that the sexual relationship started in November 2024 while she was a learner at Lotus Gardens Secondary School. After reading the statement, he admitted that Mr. Kunene had misinformed him.
    CLOSING ARGUMENTS
41. The employer argued that Mr. Kunene was not a credible and reliable witness due to his contradictory testimony. He initially vehemently denied that he had a sexual relationship with KMM. He later said the sexual relationship started in January 2025.
42. The WhatsApp referred to events that happened in 2024 when KMM fell pregnant (E 45-71). All the employer’s witnesses, including Mr. Kunene, proved the existence of the sexual relationship between KMM and Mr. Kunene in 2024. The WhatsApp conversations have proven that on 23 December 2024, KMM was already pregnant. Mr. Kunene did not deny being responsible for the pregnancy. He continued to support KMM during her pregnancy and beyond the birth of the baby.
43. The WhatsApp conversations corroborate KMM’s statement and testimony during the hearing. The employer’s version is consistent in this regard. Additionally, proof of payment and the bank statements, which display payment transactions by Mr Kunene to KMM. Thus, the employer has proven on the balance of probabilities that Mr. Kunene had a sexual relationship with learner at his school where he was employed.
    In the premises, the employer has proved that Mr Kunene committed the offence. They pray that Mr. Kunene be found guilty of the offence.
44. The educator argued that KMM unequivocally confirmed that she was not a learner when the complaint was lodged and the occurrence of the alleged incidents. It proves that the allegations did not arise from any workplace. Rather, the dispute originated from a private and personal disagreement between him and KMM.
45. KMM admitted that she deliberately misrepresented her enrollment status and provided false information. Her testimony and admission reveal that the objective was to have him dismissed. This was motivated by anger, revenge, not by a genuine pursuit of accountability.
46. One of the significant weaknesses in the employer`s case is the timeline and location of the alleged incident. The employer alleges that the incident took place at Mr Kunene’s residence in December 2024. However, the evidence in A13 (Lease agreement and proof of residence ) establishes that he only moved to the address in January 2025. The employer has failed to demonstrate how he could have committed the alleged misconduct at the place he only moved to in January 2025.
47. The date and location of an alleged incident are fundamental elements of any disciplinary case. If the employer cannot establish where he was and when the alleged misconduct occurred, then the reliability of the allegation itself is seriously undermined.
48. During the period in November and December 2024, he was critically ill and admitted to the hospital for 29 days, at Dr George Mukhari, Mukhari Academic Hospital. Proof of hospitalization, leave, and medical certificate is on A 16.
49. The employer also relied on bank statements. However, those statements do not have any transactions during 2024, the period during which the alleged misconduct is said to have occurred. Instead, the transactions relate to 2025. This is a contradiction. The bank statements related to his personal financial affairs fall outside the scope of his employment and the employer’s authority. The employer has failed to demonstrate any nexus between these private transactions and any workplace misconduct.
50. The WhatsApp screenshots cannot simply be accepted at face value. Electronic evidence must be shown to be authentic, complete, and reliable before significant weight can be attached to it. The screenshots presented in this matter appear incomplete and selectively presented, and substantial portions of the underlying conversations are absent.
51. The Employer has not produced the complete chat histories, metadata, or any independent verification capable of establishing that the screenshots accurately reflect a conversation with him, or the entire communications. In the absence of such verification, the reliability of the screenshots remains questionable, and limited weight should be attached.
52. KMM alleged that she became pregnant from the sexual relationship with him. However, her affidavit reveals that she became pregnant in December 2024 in Limpopo through an unrelated relationship. This admission directly contradicts the version that was presented to the Employer and demonstrates that a material aspect of the complaint was false.
53. She misrepresented a WhatsApp conversation involving another individual and presented it as though it were a conversation with him. This was not a minor mistake or misunderstanding. It was a material misrepresentation that created a false impression and improperly influenced the Employer’s perception of the allegations.
54. She falsely alleged the existence of a relationship with him during 2024. The objective evidence presented before this inquiry (particularly my proof of address, proof of hospitalization, bank statements, and legal correspondence) has shown that this allegation was untrue. The Employer nevertheless relied upon this false narrative when initiating and pursuing disciplinary proceedings. Mitigating Factors
55. Mr Kunene submitted that he has a clean disciplinary record. There was intentional wrongdoing. Dismissal is generally reserved for conduct demonstrating a serious degree of culpability, which is not clearly established on the facts before this inquiry. Aggravating Factors
56. Section 28 (2) of the Constitution provides that a child’s best interest is of paramount importance in every matter concerning a child. In terms of section 3(4) of the Labour Relations Act 66 0f 1995, Schedule 8 of the Code of Good Practice, dismissal must be reserved for serious or repeated offences. Inquiry By Arbitrator matters are taken with serious light in the sense that the confirmed misconduct has long-term, irreparable consequences on the life of the complainant.
57. Mr. Kunene has a clear disciplinary record. However, the nature and the extent of misconduct committed, his clean disciplinary record is not sufficient to mitigate the deviation from the mandatory sanction provided for by EEA section 17 (1).
58. A dismissal is an appropriate sanction for Mr. Kunene. It will deter him from exposing Lotus Gardens learners to the risk of being turned into sex tools. The employment relationship with Mr. Kunene has broken down irretrievably. The employer prays for the dismissal of Mr Kunene and that he be struck off the roll of SACE as an educator.

ANALYSIS OF EVIDENCE AND ARGUMENTS

59. Mr Kunene submitted in the pre-arb minutes that he denied having a sexual relationship with KMM whilst teaching at school and beyond. He further denied paying KMM any money whatsoever. Thus, prompting the employer to subpoena his bank statements and proof of payments from his bank. It is common cause that he communicated with KMM through WhatsApp and cell phone.
60. Ms Manganyi, the community leader, testified about how the allegations came to their attention.GM confirmed that she never met with Manganyi and that she had reported Mr Kunene and KMM’s relationship to Mr Matloga, SGM member of Bokgoni School. Mr Matloga escalated it to the Community leaders.
61. Ms GM’s testimony as a hostile witness is treated with circumspection. She denied informing Matloga that Mr Kunene had a sexual relationship with KMM. She insisted that she said they were in a relationship. This contradicts her version that she reported Mr Kunene to SAPS, the school, and the department that Mr Kunene fathered her granddaughter and her 19 September 2025 statement on E19.
62. The granddaughter could not have been born in the absence of a sexual relationship. Furthermore, there could not have been any other relationship other than a sexual relationship that she could report under the circumstances. She deliberately misled the proceedings to cover up for Mr Kunene.
63. Her change of heart against Mr Kunene is intriguing. This suddenly came up after she had a meeting with him at the school, leading to an attempt to withdraw the complaint from the department. She admitted that she sent the WhatsApp screenshots she received from KMM to the employer representative. The screenshots bear the conversation between KMM and Mr Kunene. However, her version that she did not read the conversation is improbable. The truth is that conversations and cash transactions from Kunene to KMM are the basis for her fury that prompted her to report the sexual intercourse.
64. The basis for subpoenaing Ms GM and KMM to testify and the application for declaring them hostile witnesses was their refusal to testify and GM’s withdrawal of the complaint as per the statement dated 28 February 2026. She stated reasons that Mr Kunene was falsely implicated. This is concerning as this contradicts her admission that Mr Kunene was in a sexual relationship with her daughter and that she instructed her to open a maintenance case against her.
65. I declared GM a hostile witness to allow the employer to cross-examine her. The grounds were that despite all that had transpired, actions she took to report the sexual relationship to the community leaders, SAPS, the Acting principal at school, and the department, she was refused to testify, withdrew the case, and contradicted her earlier statement to the detriment of the employer. The application was unopposed.
66. She wrote the statement freely and was not coerced. Her complaint was in pursuit of safeguarding the interests of her minor learner. She is vested with the responsibility to protect KMM against all ills. I was persuaded that it was in the interest of justice to allow the employer to cross-examine her.
67. It is common cause that the Maintenance officer directed Mr Kunene on 01 September 2025 to appear in court on 3 November 2025. The withdrawal of the maintenance claim is not presented. Furthermore, such a withdrawal would not be sufficient to rebut the existence of a sexual relationship whilst KMM was a learner. The employer does not rely only on the baby’s paternity to prove that he committed the offence. The paternity corroborates other evidence. She is not a reliable and credible witness. I am persuaded that she was coerced into fabricating the latest version to protect Mr Kunene for selfish reasons.
68. . There are no DNA tests presented to establish the biological father of KMM’s baby. The allegation of fathering KMM’s baby has been a burning issue not only for him but also for AM and the community leaders. This occurs despite having financially supported KMM from conception, throughout pregnancy, and the baby. In my view, an educator facing a serious charge of a sexual relationship with a minor could have quelled the suspicions by administering a DNA test. The baby was born in August 2025, allowing ample time to clear himself, but chose not to. His action is suspect.
69. GM’s conduct should be discouraged at all costs. This contributes greatly to the exponential rise of sexual abuse cases of girl children. The perpetrators get away with this heinous offence by coercing the parents and sometimes the victims. Educators who are ruthless take advantage of the economically challenged community.
70. Similarly, it is probable that KMM was coached to retract her earlier statement to favour Mr Kunene. Her WhatsApp conversation with Mr Kunene corroborates her statement that the sexual intercourse started in November 2024. The pregnancy and date of birth of the baby in August 2025 support the probability that they had intercourse in November 2024. Her new version that the intercourse occurred for the first time in January 2025 is a fallacy and not supported by any evidence.
71. Furthermore, she is not honest to suggest that she had been playing with Mr Kunene about him being the father of her baby. Why did he continue to pay her maintenance even in January 2026 if she told him who the father was?
72. Mr Kunene had denied ever having a relationship with KMM. For this reason, he did not put the version that the relationship occurred only in 2025 to the Acting Principal and the Community leader for testing. He knew that at the time of reporting the incident, he never stated this version, but denied the relationship in its entirety. I attach no probable value to this untested version.
73. I explained to him and his representative that at the commencement of the proceedings, to challenge the employer’s witnesses by putting his version. In addition, the period of the relationship was not placed in dispute when the parties concluded the pre-arb minutes.
74. He only introduced this version to KMM and GM. The witnesses, I am persuaded, that he coerced them to testify in his favour and retract the earlier version to protect him. I attach probable value to the WhatsApp conversations that Mr Kunene admitted are accurate and his. The conversations prove on the balance of probabilities that the relationship commenced in November 2024, when KMM was a learner at Lotus Gardens High School. This also explains why the period of the relationship was never disputed from the onset.
75. He admitted during crossexamination that he participated in E62,63,66,68,71,74,77,78,79,80,81,84 conversations. However, he later retracted E71 upon realizing it pinned him. These conversations are from February 2025. On E66, on 21 March 2025, he informs KMM that he had sent her the money for the doctor’s consultation about the pregnancy. This is contrary to his denial that he sent any KMM money.
76. On E71, KMM says to him:
    ‘There’s a baby coming, she doesn’t have baby clothes, she has nothing.
    His response is ‘It’s still May’. Her response is ‘ only 2months left’.
77. In E81, on 26 July 2025, KMM asked him for money to buy some items for the baby as the baby was due from 1 to 17 August 2025. Still, he did not question why the baby was due short of 9 months from their January 2025 sexual encounter.
78. The conversation contradicts his contention that he started the sexual relationship in January 2025. In addition, he was not aware that KMM had already conceived the baby by someone when he had sex with her in January 2025. He was aware in May 2025 that KMM was 7months pregnant, and had two months left to deliver the baby.
79. Indeed, the baby was born two months later on 15 August 2025. If he had sex with her in January, he could not have said in May that only left 2 months were left to deliver. He did not ask her why she was left with two months because he knew it was factual.
80. At the bottom of the E71, corroborate KMM’s initial statement that she became aware of pregnancy in December 2024. KMM says
    ‘I told you in December you said I’m dramatic, I knew this would happen … an abortion.’
81. Most of the pages he owned, KMM demanded money for pregnancy and the baby. He paid her the money into her Capitec bank account. Which fact he initially denied. He admitted the money transactions in favour of KMM due to the glaring evidence on E1: pages 1 to 59 that he could not challenge. E1 proves the monthly payments he made to KMM from February 2025 to January 2026, except for August and September 2025.
82. The noise about the sexual relationship occurred around 17 September 2025. I am of the view that noise was not a coincidence that it occurred during the two months of non-payment. This probably created the conflict. The highest amount paid from February 2025 to July 2025 was R650.00. Strangely, in October to December 2025, the payments increased to R3000.00. This explains why KMM and her mother changed their tone and decided to withdraw the complaint and retract the truth.
83. Mr Kunene contends that he stopped paying the maintenance in November 2025 when he became aware that he was not the biological father of KMM‘s child. He is contradicting himself because he paid R3000.00 in December 2025 and R1000.00 in January 2025.
84. Mr Kunene raised two incidents of alibi as a defence. As such, he bears the onus to prove the alibi. Firstly, that during November and December 2024, he was hospitalized and could not have had intercourse with KMM. This version was not put to the Deputy Principal for testing. For this reason, the authenticity of the alleged sick notes was not interrogated, as it was with the money transactions. Additionally, it was not raised in the pre-arb minutes.
85. If the version were true that he was hospitalized during this period, as he contends, he could have raised the impossibility when she told him in May 2025 that two months were left for the birth of the baby. He could have again questioned the impossibility when the baby was born in August 2025. Instead, he financed the pregnancy and the baby.
86. Secondly, he alleged through the lease agreement and the landlord’s affidavit that he relocated to the place in January 2025 and could not have sex at the place in 2024. The landlord was not called to speak to the affidavit, thereby allowing the employer to cross-examine him. The issue is whether the sex took place at the address or not. He does not have to be a tenant or the owner of the property to be at the specific place at a given time.
87. The court in the Bargaining Council fo Furniture Manufacturing Industry, Kwazulu- Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.
88. Mr Kunene is not a credible and reliable witness. His version is full of contradictions, fabrications, and selective to suit his defence. If he were credible and reliable, he could have come clean about the payments to KMM and the sexual relationship from the onset and explained a defence. His witnesses were not of assistance to his defence.
89. It is a common cause that KMM was a grade 12 learner in 2024. Therefore, she ceased to be a learner in January 2025 when the matric results were released. The educator is accountable for sexual intercourse occurring during this period. In this case, the first one occurred in November 2024. She became aware of pregnancy in December 2024.
90. I am satisfied that the employer has proved on the balance of probabilities that Mr Kunene had a sexual relationship with KMM, which resulted in pregnancy. Therefore, the employer has discharged its onus in proving on the balance of probabilities that Mr Kunene had committed an offence. I find him guilty of contravening Section 17. (1) (c) of the Act.

SANCTION

91. Section 17 (1) (b) of the Act carries a mandatory sanction of dismissal for a sexual assault of a learner. I have found Mr Kunene guilty of having a sexual relationship with a 17-year-old learner from his school.
92. . In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021), the court
    held that “The interests of the community cannot be ignored in determining an appropriate sentence. Some of the components of the offences occurred on the
    premises of a primary school. It is also necessary to continue to impress upon
    people in positions of responsibility who cannot leverage their power and the esteem
    with which they may be regarded to satisfy their sexual lust.
93. In light of the seriousness of the offence and the mandatory sanction it carries, I have no discretion to impose any other sanction, regardless of mitigating factors. For this reason, the mitigating and aggravating factors become academic.
94. He committed the offence against a young adolescent girl. He did not only engage in a sexual relationship, but it is also probable that he fathered her child. The parents and the Community have entrusted him with the care and protection of learners. However, he shamefully destroyed that relationship of trust.
95. The young girl expected care and protection from her educator; instead, he turned her into his prey. Clothed in sheepskin, he abused his position as educator and loco parentis. I find that dismissal is an appropriate sanction as mandated by the Act.
96. Furthermore, I find Mr. Kunene unsuitable to work with children. I invoke Section 120(4) of the Children’s Act No 38 of 2005 to declare him, on my own accord, unsuitable to work with children.
97. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 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 No 38 of 2005, that Mr. Andile Kunene is unsuitable to work with children, for the director General to enter his name in Part B of the National Child Protection Register.
98. The attention of SACE is drawn to the fact that Mr Andile Kunene had engaged in a sexual relationship with a 17-year-old learner. The relationship has probably produced a baby.

FINDING

99. The Employee, Andile Kunene, is found guilty of a count of having a sexual relationship with a minor learner in terms of Section 17 (1) (c) of the Act, which imposes a mandatory sanction of dismissal.

100. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act No 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 No 38 of 2005, that Andile Kunene is unsuitable to work with children, for the Director General to enter his name in Part B of the National Child Protection Register.

101. The ELRC is directed to forward a copy of this award to SACE.
Signed and dated at Pretoria on 24 June 2026.

MG Rabyanyana
ELRC Panellist