IN THE ELRC ARBITRATION
BETWEEN:
DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the Applicant
and
VUSUMUZI PRINCE SIKHAKHANE the Respondent

ARBITRATION AWARD

Case Number: ELRC485-23/24KZN
Last date of arbitration: 16 April 2025
Date of award: 25 November 2025
Arbitrator: Scelo V Mkhize

DETAILS OF THE HEARING

1. The matter was enrolled before me for an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (the Act). The arbitration was held at the offices of the Department of Education in Pietermaritzburg. The arbitration was held on various dates being 22 February 2024, 16 and 17 May 2024, 15 and 16 July 2024, 03 and 04 October 2024, 26 November 2024, 05 and 06 March 2025, and 15 and 16 April 2025.
2. The Applicant, the Department of Basic Education, was represented by Ms J Dumisa who is employed by the Applicant as a labour relations practitioner. The Respondent, Mr V Sikhakhane, appeared in person and he was represented by Mr N S Mtolo from NATU.
3. The proceedings were held in English and were interpreted by various interpreters. The intermediary services were provided by Ms B F Khanyile. The proceedings were also mechanically recorded.

BACKGROUND

4. The Applicant is the Department of Education KwaZulu Natal, a governmental department duly fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal. I shall herein after referring to the Applicant as the “employer”.
5. The Respondent is Vusumuzi Prince Sikhakhane, who is currently employed by the employer as the principal at Dumabezwe High School. I shall herein after referring to the Respondent as the “accused”.
6. The accused was charged by the employer with the following count of misconduct:

“in that during or about the year 2022 during term 3 at or near Dumabezwe High School, you committed an act of sexual assault on a leaner, in that you allegedly sexually assaulted a leaner who was in grade 11 at the time. It is alleged that you called the said learner into your office and proceeded to touch her breasts and tried to touch her thigh area while making sexually explicit and inappropriate remarks to the learner. In doing so, you contravened Section 17 (1) (b) of the Employment of Educators Act No 76 of 1998 as amended”.

7. The accused denied the allegations against him and pleaded not guilty to the charge that was levelled against him, hence this arbitration award.

ISSUE TO BE DECIDED

8. In these proceedings, I am required to decide whether the accused committed an act of sexual misconduct against the learner of his school, BM. If so, I am required to determine an appropriate sanction.

SURVEY OF EVIDENCE AND ARGUMENTS

Employer’s case

9. First witness- The employer called four witnesses in support of its case. The first witness was Zodwa Irene Memela who testified as follows: She is the mother of BM. The accused came to her home in the year 2022 on the 11th of October. There were five of them when they arrived, as he came with members of the School Governing Committee (SGB), a cleaner, and one grade 12 learner. On this day, the accused reported to her that her child had exposed him on Facebook, tarnishing his reputation by posting that he is sleeping with learners, and so because of this, he can no longer have her at the school. That on the day of this unexpected visit was the very first time such a thing had come to her attention, she was not aware that there was any issue between her daughter and the principal over and above the incidences of inappropriate behaviour from the principal toward BM.
10. She was aware of two instances when the accused had treated her daughter inappropriately. The first being on an afternoon after school, when BM was with Amanda and had gone to the girls’ toilet with her at school before returning to the empty classroom to collect their bags. When they returned to collect their bags, Mr Skhakhane was standing outside on the veranda and called BM to him, saying, “hey girl, come here”.
11. BM reported to her that she followed the principal into his office, after which he closed the door behind them. He asked her for her number, to which she responded that she does not have a phone. He said that he could buy her a phone then proceeded to touch or pull her skirt zip while touching her breasts, furthermore, telling her that he loves her. After this BM left the principal’s office and went home. Amanda had already left the school grounds, and so she caught up with her at the school gate, and she told Amanda what had happened.
12. That the second incident happened on 07th September 2022, during examination season as she was writing an isiZulu paper on that day. Amanda was not feeling well and so she did not attend school on that day. It was after the examination and BM was making her way home when she reported that the principal approached her in his vehicle and told her to get into the car. She walked over to one of the back doors, but the principal told her to sit up front, so she listened to him and sat in the passenger seat.
13. Bogekile reported to her that the principal would brush her thighs whilst driving, between changing gears. He also asked her if she has a child to which she replied no, he said how come she is such a big girl with no child, and that if they were to be in a relationship and if she were to have a baby with him that he would take care of it, he would buy her phone and do anything for her.
14. The principal effectively suspended BM from school on 11th October 2022, when he visited the Memela home, hence, BM did not go back to school until the circuit manager, Mr Xulu, directed that she goes back to school.
15. The community was angry at the principal and had passed by the Memela household on its way to the school and asked BM’s parents if they would be joining them in protest of the principal’s alleged sexual involvement with students of the school.
16. Mrs Memela and her husband proceeded to get ready and joined the crowd and approached the school. On this day Mr Skhakhane was not at school and the parents spoke to Mr Xulu on this day. It was a Friday morning. At this time Mrs Memela knows BM to have been away from school for five (5) days after the principal had said he can no longer work with her at the school. BM had informed her that she had reported these incidents to a teacher at the school, Mr Bhengu.
17. Second witness- The Applicant’s second witness was BM, who testified that she was schooling at Dumabezwe in 2022 and was 19 years old at the time. She was doing grade 11. She confirmed that the school principal at the time, Mr Skhakhane did indeed visit her home on 11 October 2022. He was accompanied by three SGB members, a cleaner by the name of Mrs Gumede, and a grade 12 learner called Asavela Miya. She had believed that perhaps the school principal had visited her home to apologise to her for the way he had conducted himself toward her on two occasions. She recalls the first incident between them happening after school on a certain day when she had gone to the girls’ toilet and was accompanied by Amanda. When her and Amanda returned to the empty classroom to fetch their bags, he was on the veranda and called out to her saying, “hey girl, come here”, she then followed him into his office while Amanda continued to the class to retrieve her bag.
18. After she entered the principal’s office, he closed the door behind them. He then asked her for her number, to which she replied that she had no phone. He then said that he could buy her a phone, while touching her zip and touching her breasts. He also told her that he loves her while doing all this. She says she showed him that she did not like what he was doing and told him to leave her alone. She then left. At this stage, Amanda had already left, and she caught up with her at the school gate. She told Amanda about what happened.
19. The following incident between herself and Mr Skhakhane was on or about 7th September 2022, this was the day on which she was writing an isiZulu exam paper. Amanda was not feeling well and had not gone to school. Mr. Skhakhane approached her after school in his car while she was on the way home and told her to get in. She proceeded to open the back door to enter, and he told her to get in at the front instead. So, she listened to him and climbed into the passenger seat of his car. While he was driving, he would brush her thighs with his left hand, between changing gears. He asked her if she had a child and she said that she does not. He replied by saying, “you’re such a big girl but you don’t have a child” she replied that she does not want one. He then stated that if they were to be in a relationship and if she had his child, he would take care of it and that he would buy her a phone.
20. She was worried that he would not drop her off where she was going, but luckily, he ended up dropping her off at the bus stop and then she went home. She informed her mother of what had happened on that day.
21. On the date the principal visited her home, she thought the principal would address the above incidents. But it was not so, the principal had come to complain about a Facebook post that he alleged had been posted by BM regarding his sexual involvement with school children, particularly matriculants. She denied any knowledge of the post or having been the person to publish it, stating that perhaps her Facebook had been hacked by someone else, hence it being in her name. Prior to this, she confirmed that the school principal had communicated with her on Facebook, through her sister, Phumla’s, phone. In this conversation he asked her about this said post, asking why she had exposed him, especially since the teachers of the school want him gone from the school grounds. He further said that she will ‘reap the consequences of her actions’ as the post will get him fired.
22. On the date of his visit to my home, he spoke about this post, which I denied having any knowledge of, as I had told him before, but he said that I have defamed him and so he can no longer have me at the school, and that he will not be issuing a remover for me. The principal and the other people who accompanied him then left. She confirms that she did not go to school after this, she only returned to school after having been directed by the circuit manager, Mr Xulu, through her father, to do so.
23. Under cross examination she maintained that she reported the incidents between her and the principal to her mother and the social worker, and further that she had informed her mother and the social worker about the messages the principal had sent her on Facebook; notwithstanding that the social worker left it out of her report statement. She stated that on the date of the visit, the SGB members who came to her home had no idea of the messages between her and Mr Skhakhane at the time. They heard about them for the first time on this date. And she confirmed that she was using Phumla’s phone. She confirmed that she indeed reported the incidents to Mr Bhengu and she also confirmed that she had opened a criminal case against Mr Skhakhane which she later withdrew, and she also knows that he has opened a case against her too – although she did not know it was pending.
24. Third witness – The Applicant’s third witness was Amanda Khumalo who testified that she was schooling at Dumabezwe in 2022, she was 18 years old, and she was doing grade 11. She was with BM when the principal called her into his office. She walked off while BM followed Mr Sikhakhane into his office, as per his direction. When BM came out of school on that day, she informed her that the principal had touched her zip and her breasts while she was in his office and he had also asked her for her number, offering to purchase a phone for her when she had replied that she does not have one. She confirms that the matric students were already in their extra classes when the principal called BM from the veranda on that day.
25. Fourth witness- The Applicant’s fourth witness was Kenneth Xulu who testified that he was employed as the circuit manager of the Harry Gwala District schools, including Dumabezwe under his circuit in 2022. He became aware of the alleged incident between BM and Mr Sikhakhane before the 14th October 2022 as Mr Nhleko had called him to urgently attend to Dumabezwe School on 14th October 2022 at 10h00, as the DDG had received a letter of complaint from the surrounding community containing negative accusations against Mr Skhakhane, namely that he was having a sexual affair with a learner in the school, that he had faced similar allegations in 2020 but now the matter had become escalated.
26. Consequently, he reported this information to Mr Mpemba as well as the social worker who had been assigned to the matter. On 14th October 2022, when Mr Xulu attended the school, there was a big mob in front of the school which was blocking students’ access into the school. He states that this crowd comprised mainly of drunk young men. Mr Skhakhane was not at school on this day and Mr Xulu was aware that Mr Skhakhane would not be reporting to school the day before, when he reported his absence beforehand as he would be attending to some other personal issue.
27. When he spoke to BM’s parents, after calling them from among the mob, he discovered that the principal had allegedly suspended their daughter from school due to a certain Facebook post they made him aware of. Mr Xulu told the parents that a principal has no right to dismiss, suspend or expel a pupil without the permission of the SMT or the Head of Department. Therefore, he ordered that the learner return to school the following Monday, as it was a Friday on the 14th October 2022. He confirmed that the accused had not given him his version of events, he only had the version of the learner’s parents with regards to the incidents that had taken place, the visit to the Memela home, and the alleged Facebook post and communication that was in question on the date of the visit.

Accused case

28. First witness- the accused, Vusumuzi Prince Skhakhane was the first witness who testified in support of his case, and he testified as follows: He began acting as the principal of Dumabezwe Secondary School in 2020 and was officially appointed the school’s principal in 2022. He arrived at the school at a time when it was dysfunctional and the matric pass rate was dismal. He was appointed to change this around and make improvements to the school. On 26 September 2022 two matric pupils informed him of a trending Facebook post concerning him and the name of the school. Asavela Miya and Nomagugu Duma approached him and told him about a negative post about him being sexually involved with learners, that had allegedly been posted by BM. He asked them to find her on the school grounds so that she could answer this accusation.
29. Miya had been the one to ‘screengrab’ the post from Facebook and had also sent them to Memela’s brother. The pupils looked for her in the school, and it was discovered that Memela had not attended school on that day, in fact she allegedly did not attend school between the dates of 26 September 2022 and 30th September 2022. On the following day, the 27th September 2022, he allegedly called the circuit manager whom he did not get through to due to load shedding interrupting his phone service, hence, he then informed the SGB committee members, Mr Phoswa, Mr Khawula and, Mrs Ndlovu, of the issue and asked them to accompany him to the learner’s home to address the issue to the parents. He also went with a cleaner, Mrs Gumede, as well as one of the matric pupils who had informed him of the Facebook post, Miss Miya.
30. He arrived at the Memela household and spoke to BM’s parents, who accepted that their child was in wrong and apologized on her behalf. He stated that her mother, Irene, requested that the child no longer attend Dumabezwe due to her incorrect behaviour and that he discouraged this, informing her that he is not suspending the child and that he does not have the authority to do so. He says he stated that the child must return to and remain in school. He asked the learner’s parents why she had not gone to school and they informed him that she was avoiding him, the principal due to what he had done to her, by calling her into his office, fiddling with her zip, touching her breasts and acting inappropriately toward her in a manner she did not like. They informed him that she had reported the incident to Mr Bhengu, whom he allegedly called on the phone on loudspeaker while at the Memela household.
31. He states that he telephoned Mr Bhengu in front of the Memela family and that he denied that he had ever been told about such incidents by BM. He states that BM’s mother asked her to apologize, which BM did later in their conversation together, in front of her parents and the accompanying parties. During cross-examination, he stated that it was never the case that there would be no one at school at the same time as the first incident involving BM because he would be overseeing the matric extra classes after school, especially during their eating time between 14h15 until 16h00 when he would be in Mr Morani’s classroom while the cleaner cleans his office and that he only leaves the school at 17h00.
32. He further stated that the second incident would have been impossible as he was admitted to the hospital during this time, from 5th September 2022 until 8th September 2022. He stated that on the 13th October 2022, BM’s father came to the school and attacked him with a stick, saying that he had been informed by other educators from the school to not allow Mr Skhakhane to play around with his daughter. He pleaded with him to speak with him at the office instead of hurting him. Hereafter, he went to the local SAPS and reported this incident on the very same day, he alleges that when he arrived at the police station, he saw the brother of the learner who then informed him that teachers from the school visit their home ceaselessly and are influencing BM’s parents in all their actions and accusations against him. He was in the presence of a NATU representative when this information was made known to him.
33. Given this new information and the alleged violent conduct by Mr Memela, Mr Skhakhane opened a defamation case against BM and further noted a record of assault against Mr Memela. He alleges that the community mob that attended the school on 14 October 2022 did not comprise parents, as a meeting was held thereafter, in 2023, where the parents denied having been part of the mob, and that it was a crowd of drunk young men. He stated that these allegations were not coming from the learner. This started after he had seen the time book filled in with “suspended” as early as December 2022 when he only received his letter of suspension in February 2023. Further, this matter was referred to the social worker by a former educator of the school who no longer works there, which he found suspicious. He states that he reported this to Mr Mpemba about this and that Mpemba simply laughed at him, this is after he had held a meeting with educators without informing Skhakhane as the school principal, in his absence, and did not even supply him with the meeting agenda or minutes, when it is alleged that the meeting was about him. Further, he stated that it could not have been him messaging BM on Facebook since she said she does not have a phone. He argues that he would not be able to get a hold of her in the circumstances.
34. Second witness – The accused second witness was Mlungisi Khawula who testified that he is employed at Blessed Luwanda as a security guard and he is the SGB member. They were called by the principal on an emergency basis. The principal told them that certain learners had informed him that there was a face book accusing him of sleeping with learners. Subsequently they had a meeting, and the principal asked them to accompany him to the learner’s family, and they met the family as alluded by the accused above.
35. Third witness- The accused third witness was Asavela Gloria Miya testified they saw the leaner’s post on face book written “imama ilicambalala nothishanhloko; jubalala uye kaMatric waseDumabezwe. (loosely translated as: a women sleeping with the principal; go to Dumabezwe matric). They then took the post so that they would show the principal (the accused). The accused asked them to call the learner, but the learner was not at school. In one of the days the accused asked her to accompany him to the leaner’s home. She was with the other members of the SGB. They met with the leaner’s both parents and the brother and one of the SGB members narrated the reason for coming to the learner’s home, in particular that it was related to her facebook post. The learner’s brother confirmed that the face book account from the comment was posted was indeed the learner’s facebook account. The allegations that the accused had touched the learner also came up in the meeting and it was said the leaner had informed a certain Mr Bhengu about it. Mr Bhengu was telephoned same time and put on speaker. He denied any knowledge of this incident.
36. Fourth witness- The fourth witness was Mbusi Pias Ngubane who testified that he was employed as a media relations officer for eight years. He is working for the National Teachers Union. He utilizes social media (facebook and tiktok) a lot. He stated that face book accounts become active once you are logged in. If you are not friends with Facebook users, you would not be able to see other people if you were on line. During cross examination, he admitted that he did not have qualifications in technology; he was just a social media user and not a specialist.

CLOSING ARGUMENTS

37. Both parties submitted their closing arguments. However, I would not repeat their submissions herein, but I have considered their arguments in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

38. In these proceedings, I am required to decide whether the accused is guilty of the offence that was levelled against him as stated in paragraph 6 above. If it is so, I must determine an appropriate sanction in the circumstances.
39. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he must satisfy the court that he is entitled to it. Therefore, the employer bears the onus to prove that the accused is guilty of the offence.

Whether the accused is guilty of the offences levelled against him

40. The employer’s case was that the accused committed two counts of sexual assault against BM, the learner. The leaner testified that the first incident occurred when she was called by the accused in his offices after school. After he had closed the door of his office, the accused asked her whether she had a cellphone, and she responded that she did not have a phone. The accused then told her that he could buy her a phone, and he proceeded to touch the zip of her skirt and her breasts. He also told her that he loves her.
41. The second incident happened on 07 September 2022 when the accused offered the learner a lift after school. He asked the learner to sit in the front seat of his motor vehicle. Whilst the accused was driving he brushed her thighs with his left hand between the changing of gears. He also asked the learner if she had a child to which she replied no. The accused then told her that if she had a child and they were to be in the relationship, he would have taken care of her child and he would have bought a phone for her.
42. The accused on the other hand denied these allegations and stated that they never happened and were just fabrication. With regard to the second incident, he was admitted in hospital from the 05th to the 08th of September 2022. Therefore, there were disputes of fact between the learner’s version and the accused version.
43. Our Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni NO & Others (2011) 32 ILJ 723 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
44. With regard to the second incident, the learner deposed to the sworn statement in annexure F under oath detailing the incident. In her sworn statement she was very adamant that the incident happened on the 07 September 2022. She even stated that she remembered the date of the incident very well because they were writing a three-hour IsiZulu paper in the afternoon on that date. This was her evidence even during the arbitration proceedings, her evidence was also given under oath. The accused on the other hand produced proof in the form of hospital records showing that he was in hospital from the 5th to the 8th of September 2022. He also produced the letter from Dr E J Solomon confirming same. On 04 October 2024, the accused had called Dr Solomon to give evidence and confirm that he was in hospital on the 07 September 2022. However, before the doctor could give his evidence in this regard, the employer confirmed that they went to the hospital and they had verified that the accused was indeed in the hospital on 07th September 2022. Since this issue was now common cause between the parties, the doctor was released.
45. In my view, if the accused was in hospital on the 7th of September 2022, that would mean that the learner is not telling the truth about this incident. In fact, the learner had fabricated; and her evidence is unreliable and cannot be trusted. I therefore find that the accused did not commit any sexual harassment against the learner in relation to the second incident.
46. With regard to the first incident, the following witnesses testified in support of the leaner’s version viz: Zodwa Iren Memela, the leaner’s mother and Kenneth Xulu, the circuit manager. Neither were these witnesses present at the principal’s office at the time in which the incident is alleged to have happened. Therefore, their evidence is hearsay evidence because all what they said was heard from the leaner. This leaves us with the evidence of Amanda Khumalo. Khumalo was not present at the principal’s office, but she was informed by the learner of what had happened shortly of the alleged incident. This witness also was told by the leaner of what had happened. I have already found that the learner had fabricated the second incident, and her evidence cannot be trusted. If the leaner was capable of fabricating the second incident, I see no reason why she would not fabricate about the first incident and relate that to Amanda, her friend.
47. The accused on the other hand, denied this incident and stated that it was highly impossible that he would have done such thing because there were matric leaners at school whom he was overseeing for extra classes; he was busy with them. This was confirmed by Amanda, the leaner’s friend, who said the matric leaners were already in class. The evidence of other witnesses of the accused was also hearsay and could not assist in making the determination viz: Mlungisi Khwela, Asavela Miya and Mbusi Ngubane.
48. In light of the unreliability of the leaner’s evidence, I am of the view that the accused version is more probable than the learner’s version. I, therefore, find the accused not guilty of the charges levelled against him.

AWARD

49. The accused, Vusimuzi Prince Sikhakhane, is hereby found not guilty of charges of sexual assault against the learner of his school, BM.
50. The employer is hereby ordered to uplift the accused suspension with immediate effect.
51. There is no order as to costs.

Scelo V Mkhize – Panelist