Panellist/s: Seretse Masete
Case No.: ELRC918-25/26MP
Date of Award: 24/03/2026

In the ARBITRATION between:

Education department of Mpumalanga

(Union / Applicant)

                                                                                And
Mhaleni Godfrey

(Respondent)

Union/Applicant’s representative: Donald Ntimane
Union/Applicant’s address:
Telephone:
Cell:

Respondent’s representative: Reuben Makhubedu, Attorney from Makhubedu Reuben Attorneys.
Particulars of the proceedings and representation

1. The matter was held on 23 and 24 February 2026 at the employer’s premises in Bushbuckridge.
2. The Education Department of Mpumalanga (employer) was represented by Donald Ntimane, while the respondent, Mhaleni Godfrey (employee), was represented by Reuben Makhubedu from Makhubedu Reuben Attorneys.
3. The employee confirmed to have received the allegations well in time and understood them.
4. The proceedings were in English interpreted into Xitsonga by Sebastian Khuzwayo, and digitally voice recorded.
5. The employer called the learner to testify as a sole witness and submitted one bundle of documents marked “employer’s bundle” and the employee called three witnesses to corroborate his case and submitted a one-page document (Affidavit).
6. Ms Mohaule Mboweni was the intermediary.

Issues to be decided

7. To determine whether or not the employee breached the rule with regard to sexual offenses in terms of the Employment of Educators’ Act 76 of 1998 as amended (EE Act).

Pre-liminary issues

8. The employee made an application for the audio recordings not be used in the hearing, due to reliability, because it was transferred from one device to another. The original device needed to be submitted. The recordings made in the absence of the other party is in violation of that party’s rights in terms of the Rica Act. It was only in the interest of justice that it could be allowed.
9. The text messages as well, should be excluded because they did not reflect the number, dates and time of the incidents.
10. The employer responded that it would try to find out the original recordings. However, the recordings were made by the learner and she was available to testify on them. Disciplinary hearing matters are determined on the balance of probabilities and not beyond reasonable doubt.
11. WhatsApp has a feature called disappearing messages. The messages showed that some messages disappeared. No human being can remember everything.

Ruling

12. Recordings are generally admissible if they were not obtained in a way that violate the constitutional rights of the other party. I have considered that, factors like the custody of the recordings, like the first device used to make those recordings, and whether the recordings moved from one custody to another. The employer should therefore demonstrate that it is an accurate presentation of the original device’s events, and was not tempered with.
13. It is trite that disciplinary cases are determined on the balance of probabilities. What is important is the knowledge of the allegations by the employee. As a commissioner I need as much information as possible to make it easy for me to determine the matter objectively. What should be taken into consideration is the probative value of what is contained in those recordings and messages in relation to evidence presented by the learner and or her witnesses. I also considered that it is important that voices in the recordings should be identified. At the same breath, I also considered s35(5) of the Constitution of the Republic of South Africa. That section makes a provision that evidence obtained in a manner that violates any right, must be excluded if the admission thereof would render the trial unfair or otherwise be detrimental to the administration of justice. In this case, the recordings will not be detrimental to the administration of justice. Matters of sexual offences with children are of public interest. In S v Baleka (1) 1986 (4) SA 192 (T), The high court held that the mere fact that there are interruptions in the video and or sound, does not call for the inadmissibility of the video as evidence, depending on the merits of each case. It was further held in Afrox v Laka and others (1999) 20 ILJ 1732 (LC), that it is irregular to disallow video evidence when the evidence is relevant to the case. Therefore, even illegally obtained recordings may be admitted if it is in the interest of justice, see s35(5) of the Constitution. Sexual offenses catch the interest of the public so badly due to the escalating GBV and child abuse in the Country. I have also considered that the learner, who made the recordings was available to testify on them. As a result, I ruled that both the WhatsApp messages and the recordings be allowed in the hearing for me to be able to determine the probative value thereof. In issuing this ruling I also considered section 138(1) of the LRA which empowers commissioners to conduct arbitration proceedings in a flexible, fair, and expeditious manner, focussing on the substantial merits with minimal legal formality.

Reading of the charges

14. The charges, see page 3 and 4 of the employer’s bundle, were read into the record and the employee pleaded not guilty to all the charges but protested that they were vague and made it difficult for them to plead. They were vague in the sense that they did not contain the dates and times of the alleged incidents.
    Opening statements.
15. The employer representative, Donald Ntimane, presented their opening statement by indicating that the employer would prove its case by using the messages and the video footage as well as the learner who will corroborate.
16. The employee representative, Reuben Makhubedu, opened by presenting that the employee is going to prove that there was never any sexual inter-course, nor threats against the learner. There was a conspiracy against the employee where even his car was torched and he was arrested. The employee was arrested and the learner was involved in those conspiracy.

Evidence by the employer.

The learner testified under affirmation as follows;

17. She promised to tell the truth and proceeded that last year (2025) she was in grade 11 at Magwagwaza school. The employee was a principal at the school but she also used to chat with him. She had a sexual relationship with the employee. He used to take her to his room where they would have sex. After every sexual intercourse they would communicate through WhatsApp and making a review on how the sex was good and not. The employee would also take her to the tavern where they would drink and end up having sex. He would tell her how he enjoyed her sex and she would also do so. He would also tell her when next he would want to see her, and she would also do the same. The employee used to tell her that she should not tell anyone that they were dating and she promised to do so. He further told her that telling people about their affair would make him loose his job. He told her that should that happen; he would kill her by poison because a gun may cause him to be the suspect. She then decided to record their conversation for her to keep a record of the threats. The recordings which were played at the hearing, were made by her when she was in the employee’s bakkie. The employee also wanted her to go for HIV/AIDS test but she declined. He however promised to buy her some tablets to clean her.
18. Her grandmother fell sick and she went home to go stay with her with the aim of travelling by a taxi to the school. While at home, the employee called her and told her that he received a letter from the Department indicating that he slept with a school child. She told him that she did not tell anybody about it, but he insisted that it was her who reported him. Because he promised her that should she tell anybody about their affair he would kill her, she resorted not to go back to school because she was afraid he would kill her as he threatened. She was not aware of the torching of the employee’s car nor his arrest for the alleged rape. She also denied that the employee’s phone was hacked. She further denied that the WhatsApp messages were created by somebody else who had a mission of framing the employee. She further denied to have known any person in the name of Mashiloane. She denied to have been sent by someone to discredit the employee. She insisted that the employee slept with her but she did not know who opened the case against the employee. She denied to have smoked dagga and denied that she used to have transactional sex with men. Evidence by the respondent party.

The employee, Mhaleni Godfrey, testified under oath as follows;

19. He was appointed at Magwagaza school in 1991 as a principal. He was never charged with misconduct before. He never slept with the learner and never met her outside the school context. The learner joined his school after failing grade 12 somewhere. He never slept with her; he never drank an alcohol with her. The incident was circulating on the social media and it caused a stir at his house; His children and his wife no longer trusted him. He did not have the cell number of the learner and issues of absenteeism was reported to the class teachers, not to him. He never talked to, or WhatsApp her. The voice in the recordings was not his, the recordings were tempered with. There was one attorney, Mpho Mashiloane (Mashiloane) who was after him. He was the one who fabricated rape case against him and also sent people to torch his car. He was suspended on the 24th of June 2025. He believed that Mashiloane was the one who conspired with the girl(learner) to frame him. Mashiloane could be the one who manufactured the WhatsApp messages for the learner and bought the learner to use them against him. He was told by Nxumalo (deceased) that Mashiloane was the one who bought the learner to frame him. He did not inform the investigator about Mashiloane and Nxumalo. What made him not to bring evidence to that effect, was that the charges were vague as they lacked time frames and dates, hence he could not prepare well. His phone was hacked two times, first in April 2025 and secondly on 10 November 2025. He became aware on 13 April 2025, reported it on 14 April 2025 and it was unhacked on 15 April 2025. He did not have proof of the report to MTN because the one he had, was just black and not visible, hence he did not submit it to the hearing.

2nd witness, Nollen Radebe(Nollen), testified under oath as follows;

20. He was making a living by selling Tshisanyama. He knew the employee because he taught him. He also knew the learner because they dated for about three months but they remained friends even after they stopped dating. The learner was a party person, she liked grove, she liked men and he caught her several times with men. Men would take her to their rooms and they would also go to her room. She was confiding in him to an extent that she would tell him her boyfriends. He used to give her money for rentals and would drink alcohol with her. She one day made a man to pay for having sex with her. He asked her about the allegations against the employee but she denied the knowledge of everything. He left her after finding that she was a learner, but he later said he left her because she liked men.

3rd witness Humprey Madonsela (Humphrey) testified under oath as follows;

21. He was teaching English at Magwagwaza and he was also responsible for discipline and safety of learners at the school. He was told in January 2025, that the learner brought dagga at the school, but when he went to check, he could not find it. He, however, could tell that she was intoxicated. He could not discipline her because she disappeared and he could not trace her parents. He was very close to the employee and used to drink with him before he (Humphrey) left for Gauteng. After coming back, they were no longer drinking together like before. He heard about the incident from his wife. The employee once told him that one attorney was breathing on his neck and that his car was once torched in 2024. He would not know what the employee was involved in, during his (employee’s) social and private life. He would not tell as to whether all what he said would erase the allegations against the employee. The learners were communicating with teachers and not the principal. The employee was a good person and could not have committed such a misconduct.

4th witness, Ndlovu Cedric Kally (Cedric), testified under oath as follows;

22. He was a community worker and had a degree, education wise . The employee was his friend both politically and socially and their wives were also friends. He was always with the employee and they shared everything together, be it business, politics or family problems and they adopted not to have any extra marital affair. If there was any affair, the employee would have told him. He heard of the incident through an anonymous number around June or July 2025. He tried to call that number but it was not reachable. He checked with the employee and the employee said he knew nothing about the matter. The employee told him about the charges that he slept with the school child. There was once an attempt to his life and the perpetrators came to confess. One guy confessed that there were boys who were sent to torch his car. There was also a fake rape allegations and the SAPS head office, did not want to bring the docket to Mapulaneng. He was also framed to have been abusing Mashiloane’s wife. The people who opened the case opened it in Tzaneen around Lenyenye. It was unlikely that the WhatsApp messages were a true reflection. The employee’s phone was hacked in December 2025. He (employee) could not have had a beer with the learner because he would always drink with him. The employee was harmless and he could not have threatened the learner. He maintained that it was 1001% that Mashiloane was responsible for fabricating the case linking the employee. In one event after the case, someone told him that Mashiloane and other guys were celebrating saying that it was done with the employee. The very same person who told him, went on to say Mashiloane wanted to see the employee dying. The WhatsApp messages were created from artificial intelligence. Mashiloane boasted of having a machine that could take information from other sources but he has not seen it.
23. He would only be with the employee after school. He conceded that he was not always with him. He conceded that there would be instances where he would not be with him and not knowing what he was doing. When he was asked as to why he brought the issue of hacking the phone in the tribunal, he said he just wanted to show that people would hack phones. The employee would never move without his knowledge. He was only told the previous day that he would be serving as a witness. He denied that the employee has slept with a learner, gave her liquor and threatened her. In terms of the employee’s conduct, he would never sleep with a learner.

Analysis of the evidence

24. The dispute before me was about sexual offences by an educator against a learner at the school in terms of s17(1) (c), s18(1)(g), s18(1)( r) of the employment of Educators Act 76 of 1998( EE Act), see page 3 and 4 of the employer’s bundle.
25. Common cause issues: The employee was an educator (principal) at Magwagwaza school at the time of the alleged incident. The victim was a learner at the same school.
26. Issues in dispute: The employee had sex with the learner between March and June 2025. He bought alcohol for the learner and consumed it with her between March and June 2025. Between March and June 2025, the employee threatened to kill the learner should she divulge that she slept with him.
27. The contention by the employee throughout the process, was that the employee was framed and the learner was used by one Mashiloane who was allegedly an enemy of the employee. The last two witnesses of the employee, Humphrey and Cedric, related how Mashiloane allegedly framed the employee, torched his car and laid fake rape charges against the employee. Cedric further alluded to the issue that Mashiloane accused the employee of having an affair with his wife. The employee further argued that Mashiloane connived with the learner and created the “fake” WhatsApp messages and used them against the employee. The employee further argued against the learner’s version that it was not her who reported the matter to the employer. His (employee) argument was that the complainant (allegedly Mashiloane) would not have got the messages from anybody, because the phone belonged to the learner. The second witness of the employee party testified that he was a friend to the learner and they once dated for three months. He testified that he sometimes assisted the learner by paying the rentals for her. She was too much in men and sometimes had transactional sex with men.
28. I have to decide on a balance of probabilities whether or not the employee had a sexual relationship with the learner. The allegations of one Mashiloane framing the employee and being responsible for his misfortunes, are improbable. I also find the allegations that the employee had an affair with Mashiloane’s wife to be improbable. A mere speculation that the alleged complainant (Mashiloane) connived with the learner to frame the employee is not enough. No substantive and probable proof thereof was provided. No real evidence of collusion was provided, also no proof that the learner knew Mashiloane. Nothing was produced to link the interaction between the learner and Mashiloane. No one came to corroborate that Mashiloane said the mission against the employee was accomplished. The whole issue was speculative. The allegations that the learner was too much into men and that she engaged in transactional sex with men, also had nothing to do with the issue in dispute. Whether the learner liked men or not, educators are not allowed to have sexual relationship with them. Educators/teachers, are in loco parentis. The learner testified that she had a sexual relationship with the employee, she narrated how they were communicating, and that they would go to a tavern, drink alcohol bought by the employee who would end up taking her to the room and have sex with her. That was the right time for the employee to deny the version of the learner and he did not. She even explained one of the rooms to be on the road to Hoedspruit and that was not challenged. During the testimony of the learner and during her cross questioning, the employee did not deny the knowledge of that room as well. I did not hear the employee putting it to the learner that he did not have sex with her. I did not hear the employee putting it to the learner that he did not take her to a tavern. I did not hear the employee putting it to the learner that he did not buy alcohol for her. I did not hear the employee denying that he threatened to kill the learner should she divulge their relationship. He did not deny that the learner was with him in his car (at the time when she recorded him). The cross-questioning session is crucial in disciplinary hearings and or arbitrations. It is the opportunity for the alleged offender to deny the allegations and put their own versions to the witness denying the allegations. It is not enough to deny the listed allegations one by one when the witness had already left. The employee only denied having sex, having threatened the learner and having bought alcohol for the learner when the learner had completed her testimony and left, and that is not enough. His denial after the fact, lacks evidentiary weight, as a version not put to a witness is generally regarded as an afterthought and it is not credible. In President of the Republic of South Africa v South African Rugby Football Union and Others (SARFU) (CCT16/98)[1999] ZACC 11;2000(1)SA;1999(10) BCLR 1059, the Constitutional Court held that if a party intends to argue that a witness is lying or mistaken, that version must be put to the witness so they have an opportunity to respond. The principles here, are credibility of the witness, reliability of the evidence and probabilities of each version, see Stellenbosch Farmers’ winery Group Ltd v Martell CIE (2003). The probability that the learner’s version is true, outweighs that one of the employee. The testimony of the learner was consistent with a human behaviour. The WhatsApp messages, nude pictures and the audio recordings, were consistent with the testimony of the learner. Their probative value on the balance of probabilities outweighed the employee’s version. Immaterial inconsistency by the learner, like, having forgotten the dates, times, the name of the tavern, etc has got nothing to do with the material substance of the dispute. We cannot expect the learner to remember everything, I mean even an educator cannot be expected to remember everything, see CS and another v Swanepoel and others.
29. When I listened to the recordings, during the cross questioning of the learner by the employee representative, the learner indicated that she went home to be near her grandmother because she (grandmother) was sick. She further said she had to travel using a taxi to the school at the time when she was at home with her grandmother. She also testified that the employee, while she was at home, phoned her to tell her that he received a letter which accused him of sleeping with a learner. She told him that she did not know anything about that and further that, it was not her who divulged the incident. She was afraid to return to school because the employee threatened her that should she tell anybody about their affair, he would kill her, hence she stopped going back to Magwagwaza school. The employee, did not challenge her version that he called her while she was at home. He only challenged the reason that her grandmother was sick and added by putting a version to her that, she stopped going back to Magwagwaza because her mission of framing and destroying the employee was accomplished. I expected the employee to have engaged the learner on the issue of her being afraid that the employee would kill her as promised. That would have supported the employee’s argument that the recordings were not a true reflection of what happened. The employee chose to let it pass. There was a version put to the learner that there was no communication between her and the employee. However, the employee made a turn and put another version to the learner that between March and June 2025, she deliberately commenced communication with the employee with the aim of being next to him. The latter version suggested that the employee conceded that there was a communication between the employee and the learner, which contradicted the prior version that there was no WhatsApp communication between the two.
30. On the issue of the absent original device, there was a time when the employee argued that the learner indicated that the phone was taken by her uncle in June, and she denied, citing that it was in November. I listened to the recordings and I could not find where she mentioned that it was taken in June. My understanding on the balance of probabilities is that, it does not matter who reported the matter, remember that anonymous whistle blowers are also allowed to report any unlawful incidents without disclosing their names. Anyway, the testimony of the learner was consistent with the audio recordings and the WhatsApp messages.
31. It is common knowledge with a hacked phone that, once the owner becomes aware, they can phone the network company at the same time and it would not take two days to deal with the hacking because once it is reported, the network blocks it. Those are the first things one would be expected to do before trying any other ways. The employee’s phone was allegedly hacked on 11 April 2025, he became aware of the hacking on 13 April 2025, reported it on 14 April 2025 and it was unhacked on 15 April 2025. What was not clear was, why was the phoned hacked on 11 April 2025 but the employee only became aware on 13 April 2025. How did he know it was hacked on 11 April 2025. He did not explain the activities of the phone between 11 and 13 April 2025. Was he able to use it or not, was it off, during that period, if yes, how, because he only became aware on 13 April 2025. He further did not explain what stopped him from reporting it on the day on which he became aware ( the 13th of April 2025).The employee’s argument did not add up. His affidavit showed that his phone was hacked on 10 November 2025. There was no affidavit about the hacking in April 2025. He never mentioned April 2025 in his affidavit. He defended that by saying, the document to proof that he reported the hacking in April 2025, was black and not visible. He argued that he did mention it to the investigator and the employer did not deny it during the hearing. But why did not he make an affidavit to that effect! It is correct that the employer did not deny that he (employee) told them about the invisible document, but the employer insisted that it needed a proof to that effect, not invisible paper. The employee himself conceded that the black document he had, would serve no purpose because it was not visible, hence he did not use it. My finding the balance of probabilities is that the employee’s evidence about the hacking of his phone is not credible. .
32. The employee failed to live up to the principle of “in loco parentis” as an educator. The Constitution of the Republic of South Africa, s28(2) provides that, a child’s best interests are of paramount importance in every matter concerning the child. This was emphasised in the matter between the Governing Body of the Juma Musjid primary school v Essay NO and Others(2021) where a private property owner evicted the school on their property(land), which cited that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interest of children.

Findings

33. I find on a balance of probabilities that the employee contravened the provisions of section 18(1)(q) of the EE Act, in that his conduct was improper disgraceful and unacceptable. I therefore find the employee guilty of all the allegations levelled against him.

Sanction

34. The employee as seen above, breached the rule in terms of the EE Act which he was aware of or expected to have been aware of by having a sexual relationship with a learner, see s17(1)( c) provides that an educator must be dismissed if he is found guilty of having a sexual relationship with a learner of the school where he is employed. The offences of the employee should be regard ed in the same serious light. He misused his position and threatened the learner . The rule was valid as it was meant to protect the interest of the learners, including his(employee) children, as intrenched in the Constitution. That rule is consistent with the Constitution, the views and outcomes of the courts mentioned above as well as the provisions of the EE Act. The employee did not show any remorse during the hearing. I did consider that he did not have any previous sexual offenses with a learner, but it was held in Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) that there are cases which are so serious to an extent that mitigatory factors like length of service and lack of previous offences may not safe the employee from being dismissed. The sanction of dismissal would therefore be commensurate with the offence committed by the employee. The employee must therefore be effectively and immediately dismissed from the employment on receipt of this outcome.
35. I further make a conclusion that the employee is unsuitable to work with children in terms of s120(1)(c) of the children Act 38 of 2005.
36. This findings must also be referred to the South African Council for Educators (SACE) to determine whether or not the employee has breached its code of ethics.
37. Should the employee not be satisfied with this outcome he may choose to file a review application in the Labour court.
38. There is no order as to costs.

S.A. Masete
Elrc Panellist. 24/03/2026