IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT KRIEL HIGH SCHOOL
CASE NO.: ELRC243-25/26MP
In the matter between: –

DEPARTMENT OF EDUCATION- MP EMPLOYER

AND

DOCTOR SIYABONGA BUTHELEZI EMPLOYEE

ARBITRATOR: Mmamahlola Gloria Rabyanyana
Heard: 10, 15 July;07,15 August, And 08 September 2025
Closing Arguments: 15 September 2025
Mitigating / Aggravating Factors: 15 September 2025
Date of Award: 24 October 2025

SUMMARY: Labour Relations Act 66 of 1995 –Section 188A: Enquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held physically at Kriel High School on 10 and 07 August, and virtually on 15 July,15 August, and 08 September 2025.
2. Ms P.N. Sibanyoni, the labour relations official, represented the employer. Mr B.C Zitha, SADTU union official, represented the employee, Mr D.S. Buthelezi. The proceedings were recorded digitally. The Employer’s bundle of documents is marked “R”. The applicant did not present a bundle. The parties were allowed to submit closing arguments, mitigating and aggravating factors by 15 September 2025.

ISSUE TO BE DECIDED

3. I am required to determine if the Employee had sexually harassed a learner as proffered by the Employer. The employer contends that Mr Buthelezi sexually assaulted KM. The employee denies sexually assaulting KM and that he initiated the hug. He contends that the learner initiated the hug.
4. If I find the Employee guilty of the offences, I will determine the appropriate sanction. ALLEGATION PROFFERED AGAINST THE EMPLOYEE
5. Mr Buthelezi pleaded not guilty to four counts of misconduct levelled against him
   in terms of Section 17 (1) (b) of the Employment of Educators Act, Act 76 of 1998(“Act”): – Allegation 1 That on 25 November 2024, he sexually assaulted a learner, KM, by touching her bum. EVALUATION AND SUMMARY OF EVIDENCE
6. The following issues are common cause between the parties:

6.1 Mr Buthelezi (“Sir”) was employed as an educator at Marlin Primary School
in April 2018. He taught the learner Mathematics.
6.2 He was at school on 25 November 2024. There was a physical contact between him and the learner in the form of a hug outside the classroom, around the school

7. KM testified that she is 13 years old. She was born on 02 July 2012. On 25 November 2024, Sir strangely called her from the classroom. It was strange because he picked her from the other learners. He wanted her to assist him in fetching papers from Madam Baloyi’s office, which is situated upstairs.
8. As they climbed the stairs, Sir started touching her on the waist, uttering that he
   missed her. When they ascended the second flight of stairs, he hugged her and
   moved his hands and grabbed her buttocks. She cried because she did not like it.
   There were other learners around when he touched her. They proceeded to
   Baloyi’s office. Sir collected the papers and returned.
9. She went back to the classroom. Her friends noticed that she was not fine and
   asked what had gone wrong. She explained to them that Sir touched her buttocks. They insisted that she report the incident to her aunt, who is an educator at the school. They accompanied her to the aunt, who took her to report to the principal. On the way, they met Mr. Nkosi, who was looking for her. She narrated the incident to him. They went to the principal to report.
10. During cross-examination, she stated that Sir treated her like his daughter. They
    had a father-daughter relationship. She denied ever confiding in him about feuds between her and her mother. She was very disappointed in him.
11. She denies that after the incident, she pestered Sir. Z, B, and NL were standing next to the door when Sir called her to fetch the papers. As she walked with Sir, they peeped through to see where she was going with Sir and saw him touching her buttocks. The hugging occurred on the first flight of stairs.
12. When she returned, they told her that they had seen what happened. She denied that the hug took place next to the classroom in full view of other learners who were standing by the door. She demonstrated that Sir hugged her and sensually brushed her buttocks. She saw that her friends were watching when Sir touched her bum.
13. Sir disputed the possibility of her friends being able to view what was happening at the staircase from the classroom door. Thus, prompting a need for inspection in loco. Inspection in loco observations
14. There is a wall that blocks the view of the stairs from the classroom. To view the
    staircase, one must walk around that wall to the small foyer. When standing in the foyer, one has to climb the beginning of the flight of stairs to view the occurrences on the second flight of stairs.
15. It is difficult for a short person (the height of KM’s friend) to view the incident
    closer to the end of the second flight of stairs when standing at the beginning of the bottom of the first flight.
16. Peaceful Mbali Kgomo testified that she is KM’s aunt and teaches at the school.
    On 25 November 2024, KM went to her class crying. She stated that Sir had touched her inappropriately. She said Sir touched her bum. Her statement is on E4, which she wrote on 26 November 2024.
17. During cross-examination, she stated KM told her that Sir had asked for a hug.
    As he hugged her, he touched her bum. She denied fabricating the story. She took her to the principal to report. KM told the principal what she told her, and that there were no other learners who witnessed the incident.
18. Thembinkosi Aaron Nkosi testified that he is the school’s Departmental Head. On
    the day, he met a group of learners who told him that KM was crying. He met KM and Kgomo, and together they went to the principal`s office. KM told the principal that Sir touched her inappropriately. E5 is his statement.
19. During cross-examination, he stated that he did not ask KM the details of the
    touching. He left KM with the principal to take over and establish the details, as he was busy with exams.
20. Babeni Lucky Shongwe testified that he is the school principal. E3 is his
    statement. On 25 November 2024, KM, Kgomo, and Nkosi came to his office.KM stated that Sir asked for a hug. As they hugged, he touched her bum inappropriately. She was not crying in the office. As the transport was taking learners home, he released her.
21. The following day, he relayed what KM reported to Sir. Sir denied the allegations.
    He asked KM, Kgomo, Nkosi, and Sir to write statements. He sent them to the circuit office.
22. During cross-examination, he stated that KM told him that Sir beat her on the
    bum. He wrote what she reported to him. She told him that there were no leaners in the block when she touched him. It was only her and Sir. She narrated the story in the presence of Kgomo and Nkosi. Later, Sir informed him that KM requested him to intervene when other boys were mistreating her and that she shared information about her boyfriend.
23. NL testified that she is 12 years, born on 18 March 2013. On 25 November 2024,
    she and a friend followed KM and Sir when they went upstairs. They saw Sir touching KMs bum. He hugged her and told her he missed her. Sir touched KMs bum at the bottom of the second flight of stairs. They did not climb the stairs. After witnessing the touching, they went back to class. KM came back crying. They took her to her aunt. She did not tell them why she was crying.
24. During cross-examination. She stated that the hug occurred at the bottom of the
    second staircase. They followed Sir and KM as they wanted to see what they were doing because Sir would usually go with KM. They were not called to explain to teachers what they saw.
25. Doctor Siyabonga Buthelezi testified that he called KM, who was standing by the
    classroom door, to assist him in collecting papers. As they ascended the last flight of stairs, she informed him that she was not returning to school in 2025. She told her to behave at the new school. As usual, she hugged him. She told her to return to the class.
26. Shortly after separating from KM, his colleague told him that there was a discussion that he had touched KM inappropriately. He called Ms Mgudlandlu his HOD and KM`s class teacher. They arrived simultaneously with KM and Ms Xulu.
27. She asked KM what he did to her. She said he had harassed her. Madonsela and
    Mgudlandlu requested him to apologize. He refused because he did nothing wrong, requiring an apology. He denied touching KM`s bum. There were other learners in the corridor and on the stairs. They hugged close to the classroom as they were about to enter, not at the stairs. He told KM that they “say I must apologize”. It was not an acknowledgment of guilt.
28. He denied telling KM that he missed her. If he intended to touch KM, he could
    have taken advantage of Baloyi’s office because it was empty. He entered alone and left KM by the door. He had a father-daughter relationship with KM. Perhaps she lied about him because she was obsessed with her.
29. During cross-examination, she stated that he did not check who the learners
    were, who were in the corridors and on the stairs. They hugged on their return from the office, next to the classroom. He told KM that they said I must apologize. He did not apologize.
30. Matshidiso Mleta Madonsela testified that she was KM`s class teacher in 2024.
    KM explained that Sir touched her buttocks. She asked him to apologize for peace’s sake. He refused to apologize as he said he denied touching her.
31. During cross-examination, she said she was surprised to see Sir standing with
    KM in 2025. She thought she would be disappointed in Sir after the allegations. Sir told her that KM was sharing her problems with him.
32. Cikizwe Roseline Mgudlandlu testified that he is the HOD. KM told them that Sir had touched her buttocks whilst hugging her. Sir denied touching her but admitted the hug. During cross-examination, she stated that she asked Sir to apologize, which he refused. She forced him to apologize to restore the good relationship. He apologized and said he was apologizing for touching KM.

CLOSING ARGUMENTS

33. The employer’s representative argued that, according to KM, the incident
    happened three times. It happened during the hugging process and twice along the stairways towards the upper floor of the school building. NL witnessed the touching and corroborated KM. The Inspection in loco confirmed that peeping was possible by learners.
34. All three witnesses, that is, Peaceful Kgomo, Mr Nkosi, and the principal, Mr
    Shongwe did not see the incident happening, but their testimony corroborates the main issue. Both NL and Kgomo confirm that KM cried because of Sir touching her bum. Mr. Nkosi and Mr. Shongwe did not see KM crying, but they affirm that her face was that of a person who was not happy.
35. Sir’s testimony confirms the events as KM alluded. He even confirmed that there
    were learners around the corridor. This confirms the assertion by NL that learners peeped while he and KM were ascending the stairway and saw him touching her bum. This testimony places Mr Buthelezi, KM, and other learners in the vicinity where the incident occurred. This testimony proves that KM’s version is more probable than that of Mr Buthelezi.
36. Sir’s two witnesses, Ms Madonsela and Ms Mgudlandlu, also confirm the KM’s
    assertion that Mr Buthelezi touched her bum. He tried to arrest the issue before it was reported to the principal or authorities. He did this by apologizing to KM. He did not dispute the report contained on page 6 of the bundle. He apologized to KM after being asked by Ms Madonsela. He did not mention that he was persuaded to apologize, as alleged in his testimony.
37. Furthermore, he tried to create a scenario in which KM was obsessed with him. It was he who was obsessed with KM. He made his move on 25 November 2024 and touched the learner’s bum, and his plan immediately backfired because the learner noticed his evil intentions.
38. Sexual assault is when someone intentionally sexually touches another person
    without consent. KM was touched inappropriately by Mr Buthelezi. She cried and reported the act. The cry confirms that she was uncomfortable with the touching and did not give any consent.
39. Mr Buthelezi argued that KM attempted to deny that she confided in Sir about
    her feuds with her mother and that she was afraid of Sir. She portrayed him as a stranger as she was astonished that he asked for her out of everyone.
40. She further stated that Sir disappointed her. This contradicts her comfort in
    talking to the same Sir. The principal also corroborated the fact that Sir reported to him that KM continued to share her private stuff with him, despite the allegations. Madonsela corroborated this as she saw KM and Sir after the incident and reprimanded him.
41. KM gave different versions. In the principal’s report, she stated that Sir hit her on
    the buttocks, while in the other reports, she states that he touched her inappropriately. In her demonstration and testimony, she stated that Sir grabbed her.
42. She omitted the details on what KM had reported to her, and when pursued
    further on the reasons why the details were not incorporated in her report, she failed to budge. The principal, in his attempt to give a detailed report, stated that KM reported that Sir beat her on the bum, and at that time, there were no learners around the area where the incident occurred.
43. Nkosi alleges that he did not hear what KM told the principal and did not know the details. However, he agreed that he is the author of one of the reports that describes the story told by KM. During the cross-examination, Nkosi testified that he was not there when KM relayed the story to the principal, contradicting the principal.
44. The principal confirms the beating, as opposed to grabbing. NL testified that she was with a group of learners and that she was at the bottom of the first flight of stairs when she saw Sir touching KM’s buttocks at the top of the first flight. However, this is contrary to KM’s testimony following the inspection in loco. She said the touching happened at the top of the second flight of stairs. She noticed that NL and a group of other learners were peeping to see what Sir was doing to her.
45. In the CCMA Arbitration case in L. Naidoo v Lever Ponds, [ Case number
    KN22081], it was noted that “ when deciding on a balance of probabilities, the ultimate question remains whether contentions of the party bearing the onus are more probable than not….what is being weighed in the ‘balance’ is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case. If the evidence is such that the tribunal can say ‘ we think more probable than not’, the burden is discharged, but if the probabilities are equal, it is not”. ANALYSIS OF EVIDENCE AND ARGUMENTS
46. The court in Rustenburg Platinum Mines v UASA obo Petersen (JR
    641/2016)[2018] ZALCJHB 72;39 ILJ 1330 (LC) held that the standard of proof in labour disputes is that of a balance of probabilities and requires direct evidence in sexual harassment cases, as the Commissioner sought to do was to set the standard of proof too high and is insurmountable, which constituted a reviewable irregularity on the part of the Commissioner.
47. Therefore, it is trite that the employer bears the onus to prove on the balance of
    probabilities that Mr Buthelezi has sexually harassed KM. In doing so, it must prove the existence of the following elements are present: –
    • if his conduct was sexual;
    • if his actions resulted in the victim’s sexual integrity being impaired or inspiring the belief that it will be impaired.
    • If his actions were intentional
    • If there are no justifiable grounds for the actions.
48. In Sasol Mining (Pty) Ltd v Commissioner Ngeleni & others13 and SFW Group Ltd & Another v Martell Et Cie& Others14 2003 (1) SA 11 (SCA), the court held that “The technique generally employed by Courts in resolving factual disputes of this nature may conveniently be summarized as follows. To conclude the disputed issues, a Court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability, and (c) the probabilities.
49. KM’s version is full of contradictions that change as and when she wants to suit her. Her version is that it was strange for Sir to call him out of the other learners. Thus, contradicting her version that they had a father–daughter relationship. Sir was very close to him and had shared much with him. The nature of the relationship with Sir is common cause.
50. KM creatively builds this foundation to display a picture that she was suspicious of Sir from the beginning when he called her, which was confirmed by the alleged touching of her bum. However, it is not my view that the daughter-father relationship, per se, excludes probabilities of sexual harassment occurrence.
51. Furthermore, her friend NL testified that the reason they followed and peeped on Sir and KM was because Sir usually took KM with him, so they were curious to see what they were doing. Therefore, in consideration of these facts, I find it improbable that KM was truly skeptical of the Sir’s call.
52. Sir concedes the occurrence of the hug. According to him, KM initiated the hug when she told him that she would not be returning to school in 2025. He accepted her hug, which was in full view of other learners outside the classroom. It was after they returned to collect the papers. Sir was consistent with his version on how and where the hug occurred, which I find him a reliable witness. However, KM’s version on these aspects is inconsistent.
53. I must point out that KM does not take issue with hugs. The issue is touching her bum during the hug. Having stated this, I do not encourage the hugging of the educators and learners. However, each case must be determined on its own merits.
54. According to Sir’s version, KM was standing by the door when he called her. This version was not sufficiently challenged. KM’s version of how she was touched and the geographical area in which it occurred is inconsistent. Initially, she stated that Sir started touching her buttocks from the first flight of stairs, and as they went up, he touched her again as they approached the second flight of stairs.
55. The reason the inspection in loco was conducted in the course of the arbitration was that KMs initial version was that her friends witnessed the incident whilst standing outside the classroom. Buthelezis version put to her was that it was impossible to view the staircase from outside the classroom.
56. When it became apparent from the inspection in loco that there was a wall obstructing the view of the staircase from outside the classroom, she changed the version. She said the hugging and touching of the bum occurred towards the end of the second staircase, contrary to the initial contention.
57. She also changed the area where NL and friends were watching from. She said they were standing close to the first step of the first staircase. This contradicts NL`s version. According to NL, it happened at the beginning of the second staircase. It is not easy to view the events at the top of the second staircase whilst standing at the bottom of the first flight of stairs.
58. Buthelezis version is that the hug occurred in full view of other learners outside the classroom. He did not take notice of who the learners were. In consideration of the material contradictions of KM and NLs version and the inspection in loco observation, I find Buthelezi`s version of events to be more probable.
59. He conceded that he told KM that he would miss her in 2025, as she just told him that she would not be returning to the school the following year. I am not persuaded that such an utterance in isolation proves that he committed the offence.
60. KM claims to have seen her friends when Sir was touching her buttocks. However, she failed to inform the principal of this important aspect when he asked her. Her version is that when she returned from upstairs, she was not okay, and her friends asked her why she did not look okay.
61. They took her to her aunt. If indeed they had witnessed the incident, they could have informed her aunt what they saw. The only inference I could draw from their failure to inform her aunt was that NL and friends did not witness anything. They fabricated the story to suit their friend`s story. Had they informed Kgomo, she could have shared the information with the principal when KM failed to do so. This could have formed part of their statements.
62. Nkosi is not a reliable witness, as he stated that he did not know what the inappropriate touching entailed because he did not ask KN the details. He left everything to the principal as he was busy with the exams. This is contrary to the principal`s version, which is that KM explained that Sir beat her buttocks in the presence of Nkosi and Kgomo. Kgomo corroborated the principal’s version that Nkosi was present when KM explained the details.
63. She told the principal that Sir beat her buttocks after hugging, which contradicts her demonstration of how Sir allegedly touched her. Her demonstration was sensually touching them. At some point, she stated that he grabbed her buttocks, which is a further inconsistency.
64. In ABSA brokers (Pty) Ltd v Moshoana NO and Others [2005] 10 BLLR 939 (LCA), the court held that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has a responsibility to cross-examine a witness if it is intended to argue later that the evidence of a witness should be rejected.
65. Sir’s version relating to the motive for KM to lie about him, that she was obsessed with him, and examples of incidents which make him believe such a narrative were not put to her for testing. Therefore, I attach no weight to Sir’s untested version. However, the absence of KM’s motive does not solely prove that her version is probable.
66. The motive is relevant together with other relevant factors to prove that the version is truthful. As I have found that KM’s version is not probable, there are no relevant factors that, together with the absence of motive, persuade me otherwise.
67. The testimony of Sir’s witnesses is only relevant to establish if he had apologized for touching KM’s buttocks. Both witnesses confirmed that they forced him to apologize for the peace’s sake. He persistently refused, as he denied touching KM. Although the witnesses are not charged with misconduct, their action of mediating the alleged sexual offence is untoward. This is because it constitutes covering up the alleged heinous offences by interfering with the evidence/witnesses.
68. It was not their place to engage the educator and the alleged victim. This discourages learners from reporting. I condemn their action as it compromises the discipline of educators. However, I accepted his version that he told KM that they said he must apologize. He did not apologize.
69. I disagree with Sir that the fact that KM continued to speak and share private issues with him after the incident solely disproves the employer’s case. This emanates from the fact that they have a close relationship. I must caution that sexual groomers build a trust relationship with children that enables them to manipulate them. Special treatment and attention by an educator to a particular learner is a concern. However, it is not my finding that Sir has groomed KM.
70. KM and NL understood that they were narrating the events relating to the allegations. They projected confidence and understanding of the issues. However, their testimonies were materially inconsistent with each other. Furthermore, KM contradicted herself. I have considered their age, their confidence in their presentation of evidence, and their understanding of the subject, and concluded that they are not credible and reliable witnesses. Their version was less probable than that of the employee.
71. KM was not crying when she returned to the classroom and when she was in the principal’s office. NL’s version is that she was not okay, hence they asked her what was wrong. But for KM and NL‘s inconsistent version, I would link her upset and crying to what occurred with Sir.
72. I find the employee`s witness credible and reliable. Their testimony was consistent. They corroborated each other. The employer failed to prove on the balance of probabilities that the employee had committed the sexual harassment offence, i.e., he touched K’s buttocks. FINDING
73. I find The Employee, Doctor Siyabonga Buthelezi, not guilty of the
    offence charged.
    Signed and dated at Pretoria on 24 October 2025.

MG Rabyanyana
ELRC Panellist