Panellist: Khuduga Tlale
Case Reference No.: ELRC824-25/26FS
Date of award: 24 June 2026

In the matter between:

Department of Education – Free State Employer

And

Moagi Thooe Jacob Moletsane Educator

ARBITRATION AWARD

Details of hearing and representation

1. This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
   Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Free State (“employer”), and Mr. Moagi Thooe Jacob Moletsane (“educator”) at the employer’s offices in Bloemfontein, on 10 June 2026. Mr. Teboho Mokoena, Deputy-Director: Labour Relations, represented the employer. The educator appeared in person, and Mr. Desmond Serape, SADTU full-time shop steward, represented him. Background to the dispute
2. The educator is currently employed as an educator (PL1) at St. Bernard Secondary School in Bloemfontein, Mangaung Metropolitan Education District. The educator acknowledged receiving the allegation against him well in advance on 07 October 2025. The notice of set down was served to the educator. The Education Labour Relations Council (“Council”) appointed Ms. P Nyezi, as interpreter, and Mrs. M Mphatane, as intermediary.
3. The allegation levelled against the educator was as follows:

Charge one- “In terms of section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (“EEA”), in that around September 2024 while on duty, he committed an act of sexual assault on a (learner) when he sexually harassed her by putting his hand on the left side pocket of her shirt where there was fake money, and squeezed her left breast”. Charge two- “In terms of section 18(1)(q) of the EEA, in that around September 2024 while on duty, he conducted himself in an improper, disgraceful or unacceptable manner when he sexually harassed a learner by putting his hand on her left side pocket of her shirt where there was fake money, and squeezed her left breast.

4. For the purpose of this award, the name of the learner will be kept confidential, and the learner will simply be referred to as “the learner”. The educator registered a plea of not guilty to the charges levelled against him.
5. These proceedings were conducted in English, and were manually, and digitally recorded. The parties submitted a bundle of document, which was marked bundle “E”. The parties agreed to submit the written heads of argument on Monday, 15 June 2026, and they both submitted.
6. In all matters in which an employer wants to take disciplinary action against an educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Council, shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the Council.

Issue to be decided

7. I have to decide whether an educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction. Survey of Evidence EMPLOYER’S EVIDENCE

First witness: the learner

8. The learner testified under oath that she was doing grade 12 in the year 2024. She stated that the alleged incident occurred in September 2024, at the classroom. On the day in question, she stapled a fake R200, 00, in her shirt. The educator entered the classroom, and he came towards her, looked at the fake money, entered his hand in her left pocket of a white shirt, and he squeezed her left breast. Another learner came to her, and asked whether or not she had a relationship with the educator. She testified that maybe that learner was referring to an intimate relationship when he asked whether there was a relationship between her and educator.
9. She further testified that the educator never proposed love to her. She maintained that the educator entered his hand in her shirt, and he squeezed her shirt. She was scared about the educator’s conduct. The reason she did not report this incident was because she did not want her studies to be affected, and she intended to inform her mother after the final examination. The educator was always friendly towards her.
10. Under cross-examination, she stated that she was 20 years old, and she was not a learner anymore. She stated that this incident was reported during the year 2025, and she was not a learner in that year. She was a learner in the year 2024. There was another incident that occurred in the year 2024, and she did not want to complicate herself because she wanted to concentrate on her studies. This was the reason she did not report this matter.
11. The educator touched her improperly and it amounted to sexual assault. This alleged incident occurred in the classroom, in front of other learners, and she was not sure who saw the educator’s conduct. Maybe the learner who asked her whether there was a relationship between her and the educator, saw something. This allegation was true and occurred. She denied the allegation to say it was during lunch break, educator was going around when he heard the noise from their classroom. There was no learner who said she was in the possession of a fake money.
12. The educator did not ask her to take out the money, and the educator did not take it back to her after looking at the money. She was scared after the educator squeezed her breast. She confirmed that the educator was friendly to every learner including herself. She denied the allegation to say she overthink about the said allegation.
13. Under re-examination, she maintained that the educator squeezed her breast, and she was not satisfied with that conduct. She was doing grade 12 in the year 2024, and this incident occurred in September 2024.
14. Under clarity questions, she stated that she was scared and shocked at the same time because she never thought the educator would do such a thing. They continue to have a learner and educator relationship after this alleged incident. She had no motive against the educator. The incident occurred in the year 2024 inside the classroom. She was sitting in her chair alone when the educator came to her. THE EDUCATOR’S EVIDENCE First Witness: Mr. Moagi Thooe Jacob Moletsane
15. The witness testified under oath that he denied the allegation levelled against him. He testified that the learner had a fake money in September 2024. It was after the bell rang after lunch break. The period time-table directed him to grade 12b, and he heard the noise from the same classroom. The learners were aware that he does not like noise in his classroom. When he entered the classroom, he found the learners standing, and it was chaotic. They were gathered at the back of the classroom. He asked them why such a noise? They replied by saying the learner made a chaotic with a fake money. He approached the group at the back of the classroom, and the learner was also there. He stands in front of her in the presence of other learners.
16. He asked the learner a direct question, why such a noise? The learner replied by saying she was having a fake money, and they used it at the previous period. He requested her to take it out so that so that when he reported to the principal, he would know what he was going to say. The learner took the money out of her left hand pocket of her shirt, and she gave it to him. He checked it, and he realized that it was indeed a fake money. He reprimanded her not to play with money during his period, and he gave it back to her. He denied ever sexually assaulting the learner. They had an educator and the learner relationship. This incident did not occur that was the reason it was not reported in the year 2024. He was always friendly towards all the learners. The learners who were in the classroom in the day in question were supposed to witnessed his conduct.
17. Under cross-examination, he stated that he knows that other educators by the names of Messrs. Moloi and Moitse were dismissed due to sexual misconduct. They were his colleagues. He confirmed that it was his statement as per “E5-E7. This statement was not in details about the learner. He denied having a sexual relationship with the learners. He denied the allegation levelled against him. He took the money from the learner’s hand, not from her pocket as alleged.
18. Under clarity questions, he stated that there was no stage he had an altercation with learners. There were nine male educators at their school in the year 2024, and three male educators taught the learner. He had no knowledge why she singled him, out of three educators. He was shocked about this allegation and he did not expect it from the learner because they never had any disagreement. Survey of Argument

THE EMPLOYER’S ARGUMENT

19. The employer’s representative submitted that the learner as the witness provided credible, consistent, honest, and reliable evidence throughout the proceedings. Her evidence showed no fabrication against the educator. Her version aligns with the objective probabilities and surrounding circumstances. Her evidence satisfies the cautionary rule applicable to single witness. The employer’s representative referred me to Ngcobo v S (115/2024) (2025) ZASCA (handed down on 12 February 2025) and argued that this case was his authority that the correct approach is not to reject single witness evidence automatically but to apply caution, assess credibility and determine whether the version is probable and not contradicted.
20. The educator appeared to be dishonest, inconsistent and unreliable witness, and therefore, failed to meet the requirements of the cautionary rule. The educator’s conduct violated SACE Code of Ethics, and he brought the image and dignity of the employer, school, and the profession into disrepute. The educator should be found guilty as charged, and be dismissed with immediate effect, and declared unsuitable to work with children.

THE EDUCATOR’S ARGUMENT

21. The educator’s representative submitted that the educator categorically denied touching the learner’s breast or acting in any inappropriate manner. The educator’s evidence remained consistent with his written statement furnished to the employer. The educator’s representative referred me to Satani v Department of Education, Western Cape and others (CA 10/15) (2016) ZALAC 38 (2016) 37 ILJ 2998 (LAC) (handed down on 13 June 2016) and argued that this case was his authority that the evidence of a single witness requires the evidence to be clear and satisfactory in every respect. The question that should be answered was whether the probabilities favour the party that bears the onus of proof. The employer bears the burden of proving that its version was more probable than that of the educator.
22. The learner’s evidence raises serious credibility concerns, and her evidence was unsupported by any direct witness. The delay of several months before reporting the matter negatively affects the reliability of recollection. The probabilities favour the educator. The employer could not succeed merely because an allegation was made. The educator is a married man, and he is 55 years old. He has three dependants, and he has 30 years of service. The employer failed to prove the allegation against him on a balance of probabilities. The learner’s evidence was not sufficiently credible, reliable or probable to justify a finding of guilt. The educator’s representative prayed for not guilty finding.

Analysis of evidence and argument

23. Section 28(1)(d) of the Constitution of the Republic of South Africa, 1996, provides that every child has the right “to be protected from maltreatment, neglect, abuse or degradation.” Section 28(2) further provides that “a child’s best interests are of paramount importance in every matter concerning the child.” These constitutional imperatives are central to the determination of disputes involving allegations of sexual misconduct against learners and must inform both factual findings and the assessment of sanction. Procedure Delay in instituting disciplinary action
24. The incidents giving rise to the charges occurred in September 2024, whereas the matter was only reported and pursued in 2025. This constitutes a delay that requires consideration in determining the overall fairness of the proceedings. It is accepted that, in terms of the LRA, there is no prescribed time period within which an employer must institute disciplinary action. The test is whether the delay was unreasonable and whether it resulted in prejudice to the educator. In matters involving allegations of sexual misconduct, particularly where the complainant is a learner, delays in reporting are not uncommon. Learners may be reluctant to report such conduct due to fear, intimidation, embarrassment, or lack of understanding of appropriate reporting mechanisms. In this context, a delay in reporting does not necessarily render the subsequent disciplinary action unfair.
25. In the present matter, there is no evidence before me to suggest that the delay was deliberate or intended to prejudice the educator. Importantly, there was no version before me regarding prejudice suffered as a result of the delay. There was similarly no indication that the delay impaired the educator’s ability to respond to the allegation. The central evidence relates to the direct testimony of the learner, which remained available and was presented at the proceedings. While the educator remained in employment during the period between the alleged incident and the institution of proceedings, this factor is not decisive. In the absence of evidence that the employer was aware of the misconduct at an earlier stage and failed to act, the continued employment of the educator does not render the disciplinary action unfair. Having regard to the serious nature of the allegation, the constitutional imperative to protect children as envisaged in section 28 of the Constitution of the Republic of South Africa, 1996, and the absence of demonstrated prejudice, I find that the delay does not render the disciplinary action.

Substance

26. The allegation against the educator is that he committed misconduct by sexually harassing a learner when he put his hand on her left side pocket of her shirt where there was fake money, and squeezed her left breast. Allegation of this nature are extremely serious. On the one hand, a false allegation of sexual assault may have devastating consequences for the accused, including loss of employment, reputational harm, and permanent exclusion from the profession. On the other hand, where such allegations are proven, the arbitrator has a duty to ensure the protection of children, and to determine whether the educator remains fit to work in an environment involving learners. Where an educator is found unsuitable to work with children, the Council is obliged to report the matter to the Director-General of Social Development for inclusion in the National Register for Sex Offenders. Whether the educator is guilty
27. The educator pleaded not guilty. In Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA 4/11) [2013] ZALAC 29, the Labour Appeal Court reaffirmed that the applicable test in dismissal disputes is proof on a balance of probabilities. Mere suspicion, even if strong, is insufficient to justify dismissal. The employer bears the onus to adduce credible evidence demonstrating that the employee committed misconduct warranting dismissal.
28. The educator is placed at the scene from the onset, and himself, and the learner version of events leading up to the alleged incident of assault are not dissimilar. For an example, the version to the effect that both the educator and the learner were inside the classroom, was similar; the learner had fake money, and the educator went to the learner, was similar. What then appears to be in dispute is whether the incident of squeezing the learner’s breast occurred as alleged?
29. The learner testified that the educator placed his hand in the vicinity of her shirt pocket and squeezed her left breast. It is learner’s version that she was not sure whether there were other learners who witnesses the incident. It is the educator’s version that when he entered the classroom the learners were standing and chaotic, other learners gathered at the back of the classroom. He asked the learner a direct question, why such a noise? The learner replied by saying she was having a fake money, and they used it at the previous period. He denied putting his hand in the learner’s skirt. He denied any conduct of a sexual nature towards the learner.
30. The question therefore becomes one of whose version should be believed. In resolving mutually destructive versions, the commissioner is guided by the principles set out in Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie, which require an assessment of credibility, reliability, and probabilities. The central issue is whether the educator putted his hand on the learner’s shirt, where there was fake money, and squeezed her breast. It is common cause that there was fake money. It was put to the learner during the cross-examination that the educator was making rounds at the school yard when hearing a noise from their classroom.
31. It is the educator’s version during his evidence in chief that it was after lunch break and the table time directed him to grade 12b. He heard the noise from grade 12b, and when entering the classroom, the learners were standing and it was chaotic. Others learners gathered at the back of the classroom and the learner was also there. He went to the back of the classroom and asked the learner a direct question, why such a noise? The learner replied by saying she was having a fake money, and they used it at the previous period. This version was not put to the learner during the cross-examination. The learner was therefore not afforded an opportunity to respond to the educator’s explanation of events. As a result, the educator’s version remained untested and cannot be afforded significant evidentiary weight.
32. In NUM and Another v CCMA and Others (2018) 3 BLLR 267 (LAC), the Labour Appeal Court confirmed that a commissioner commits a reviewable irregularity by relying on a version that was never put to the opposing party’s witnesses. The Court emphasized that proper cross-examination serves to place an opposing version before the witness so that evidence may be fairly and properly assessed. Where material aspects of a party’s case are not put to the opposing witnesses, the decision-maker is deprived of the ability to determine the dispute on a proper evidentiary footing.
33. In assessing the probabilities, I have consequently attached limited weight to those aspects of the educator’s evidence that were not put to the learner during cross-examination. The remaining question is whether the evidence establishes on a balance of probabilities that the educator placed his hand on the learner’s shirt pocket and squeezed her left breast. The learner testified that the educator placed his hand in the vicinity of her shirt pocket, where the fake money was located, and squeezed her left breast. Her evidence in this regard was clear, consistent and remained materially unshaken during cross-examination. Although no eyewitness was called to corroborate the learner’s version, corroboration is not a legal requirement where a witness’s evidence is credible and reliable. Furthermore, the learner testified that after the incident another learner approached her and asked whether there was a relationship between her and the educator. While this evidence does not constitute direct proof of the touching, it is consistent with the possibility that other learners observed conduct they regarded as inappropriate.
34. In evaluating the credibility of the witnesses, I have considered not only their demeanour but also the consistency of their evidence, the probabilities, and whether their versions were supported by the surrounding circumstances. The learner readily conceded matters that were not favourable to her case. She testified that the educator had never proposed a romantic relationship to her and that he remained friendly towards all learners, including herself, after the incident. These concessions tend to support the conclusion that she was attempting to provide an honest account rather than exaggerate the allegations. Her evidence was coherent and remained substantially consistent throughout the proceedings. By contrast, material aspects of the educator’s version differed from what had been put to the learner and therefore remained untested. This diminishes the reliability of his explanation.
35. The probabilities favour the learner’s version. It is common cause that the educator approached the learner after learning that she had fake money in her possession. The educator therefore had direct physical proximity to the learner at the relevant time. The touching occurred in an intimate part of the learner’s body and there is no persuasive innocent explanation before me for how such contact could have occurred accidentally. Significantly, the educator did not merely dispute the intention behind the touching; he denied that any touching occurred at all. Having considered the evidence as a whole, I find the learner’s version to be more probable than that of the educator. I accordingly find that the educator placed his hand on the learner’s shirt pocket and squeezed her left breast. On the probabilities, such conduct was deliberate, unwanted, and of a sexual nature. Conclusion
36. I accordingly find that the educator committed serious misconduct in terms of section 17(1)(b) of the EEA, namely sexual assault of a learner.

Sanction

37. Section 17(1)(b) of the EEA prescribes dismissal as a mandatory sanction for serious misconduct involving sexual assault of a learner. Even if dismissal were not mandatory, the gravity of the misconduct would render dismissal both fair and appropriate. Educators occupy a position of trust and authority. They assume a parental role while learners are under their care and are required to provide a safe and secure educational environment. Sexual misconduct by an educator fundamentally breaches this trust and irreparably damages the employment relationship. Such conduct is expressly prohibited by legislation and is in direct conflict with the South African Council for Educators (SACE) Code of Professional Ethics.
38. Section 120(1)(c) of the Children’s Act 38 of 2005 provides that a finding of unsuitability to work with children may be made by any forum recognized by law in disciplinary proceedings concerning conduct relating to a child. In terms of section 120(2), such a finding may be made on the forum’s own initiative. Given the seriousness of the misconduct and the constitutional imperative to prioritize the best interests of children, I find that the educator is unsuitable to work with children. The absence of previous misconduct does not negate the risk posed by the educator’s conduct. This finding is made solely for the protection of children. Award
39. The educator, Mr Moagi Thooe Jacob Moletsane, is found guilty of the charge preferred against him and is dismissed with effect from 01 July 2026.
40. Mr Moagi Thooe Jacob Moletsane is declared unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
41. The General Secretary of the Council is directed, within 14 days of receipt of this award, to refer the matter to the SACE.
42. The General Secretary of the Council is further directed, in terms of section 122(1) of the Children’s Act, to notify the Director-General of the Department of Social Development for the purpose of entering the educator’s name in Part B of the National Child Protection Register.
43. The educator has the right to apply for review of this award in the Labour Court in terms of section 145 of the LRA, within the prescribed time-frames.

Signature:
Commissioner: Khuduga Tlale
Sector: Education