Panellist: Themba Manganyi
Case No.: ELRC1339-25/26GP
Dates of Hearing: 26 and 27 May 2026 and 30 July 2026
Date of Closing Arguments: 06 and 11 August 2026
Date of Award: 26 August 2026

In the Inquiry by Arbitrator proceedings between

HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

MR SIPHIWE THOMAS DLAMINI EMPLOYEE

Details of hearing and representation

1. The arbitration proceedings in this matter were conducted in terms of section 188A of the Labour Relations Act66 of 1995, as amended, (“the LRA”) on 26 and 27 May 2026 and concluded on 30 July 2026 at Sebokeng College under the auspices of the Education Labour Relations Council (“the Council”).
2. Ms Keitumetse Mamosadi (“Ms Mamosadi”), the Labour Relations Officer, represented the Employer, Head of Department: Gauteng Department of Education and Mr Paulus Mokoena (“Mr Mokoena”), a SADTU Official, represented the Employee, Mr Siphiwe Thomas Dlamini (“Mr Dlamini”). Ms Edna Shibisi (“Ms Shibisi”) assisted with the intermediary services and Messrs Marvin Seale and Musa Myeza assisted with interpretation in these proceedings.
3. The parties submitted bundles of documents into the record and the contents thereof were not in dispute. The Employer’s bundle was marked as Bundle D and the Employee’s bundle was marked as Bundle E. At the end of the proceedings, parties requested to submit their heads of arguments in writing on or before 06 August 2026. The Employer’s heads of arguments were duly received. However, the Employee’s heads of arguments were received on 07 August 2026 with a condonation application and I received same on 11 August 2026. The reason for the late submission is plausible. Thus, the Employee’s heads of arguments were duly considered in the writing of this award. The proceedings were recorded and the recordings thereof were retained by the Council.
4. Please note that the names of the learners will not be disclosed in this award to protect their identity.

Issue/s to be decided

5. I am required to determine if the allegations leveled against Mr Dlamini has merit or not. If I find that the allegations have merit, I will have to determine the appropriate sanction.

Rights and the procedure

6. The nature of these proceedings were explained to the parties and I also ascertained that Mr Dlamini was afforded his rights to ensure that the process was procedurally fair.

Allegation/s

7. The Employer preferred the following allegations against Mr Dlamini:

Allegation 1

It is alleged that on or around 21 October 2025, or anytime incidental thereto, while on duty at Sivuse Primary School, you committed an act of sexual assault on a Grade 7 learner, Learner MD, in that you kissed her and squeezed her private part.

Considering the above you are thus charged in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Alternative to Allegation 1

It is alleged that on or around 21 October 2025, or anytime incidental thereto, while on duty at Sivuse Primary School, you committed an act of sexual harassment on a Grade 7 learner, Learner MD, in that you kissed her and touched her inappropriately.

Considering the above, you are thus charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Pleading

8. Mr Dlamini pleaded not guilty to allegation 1 as well to the alternative to allegation 1.

Survey of evidence and arguments

Employer’s case

9. Learner MD testified under oath with an aid of an Intermediary and she stated that she was a thirteen (13) year old learner at Sivuse Primary School. She stated that on 21 October 2025 after she left her school bag in her class, she went to Mr Dlamini’s office. She found Mr Dlamini alone and after she entered, Mr Dlamini told her to close the door. Mr Dlamini asked her to open the cardboard and to take out the lower box filled with books. When she was busy searching the box, Ms Busisiwe Maria Makola (“Ms Makola”) came in and went out shortly. Then other assistant educators and two (2) boy learners came in, but they also left. When the boys left, Mr Dlamini told them to close the door behind them. When they were left alone, Mr Dlamini requested her to kiss him, but she refused. Mr Dlamini forcefully pulled her face without her permission and kissed her. She stated that Mr Dlamini put his tongue in her mouth. She could not stop him because she ran out of strength.
10. After a while, the boys that left earlier came back to give Mr Dlamini his water bottle and left. Again, closing the door behind them. Then, Mr Dlamini requested to touch her private part, but she refused. However, Mr Dlamini touched her private part and squeezed her private part and it hurt. She stated that Mr Dlamini gave her R10, 00 and said she must not tell anyone. She then ran out and went to class. She told her friend, Learner BC, and during lunch break, she went with Learner BC to tell Ms Makola. Then, she went with Ms Makola to report the incident to Ms Mofokeng. She stated that she did not go to Mr Dlamini to greet him. She submitted that the incident traumatized her.
11. Under cross-examination, she stated that she requested a book from Ms Makola two times and requested Mr Dlamini for a book more than five times. She stated that Mr Dlamini gave her two (2) exercise books on a Monday before the incident and gave her one (1) exercise book on the day of the incident. She disputed Mr Dlamini’s version that he gave her only one (1) exercise book. She disputed the version that on the day of the incident she had been crying since morning until lunch time and stated that she cried from morning when she learnt about the passing of her uncle. She stated that she told Mesdames Gumbi, Makola and Mofokeng about the incident. However, she was not comfortable to tell Ms Gumbi. She further told three (3) other learners about the incident.
12. She confirmed that she used to discuss other issues with Ms Makola. However, she denied that she discussed sexual harassment issues under general with Ms Makola. She disputed the version that she did not go to Mr Dlamini’s office for the book, but to greet him. She reiterated that Mr Dlamini offered her R10, 00 for her silence, but she did not take the money. She confirmed that Mr Dlamini told the two (2) boy learners to close the door.
13. Learner BC testified under oath with an aid of an intermediary and she confirmed that she authored the statement on page 21 of Bundle D. She testified that she was requested to write the statement about what Learner MD told her. She restated the contents of her statement. She confirmed that Learner MD told her about her family bereavement on the day of the incident. She stated that she went with Learner MD to Ms Makola during lunch break to report the incident. Before they could tell Ms Makola about the incident, Ms Makola sent them to buy a cold drink for her. Upon their return, Learner MD narrated the incident to Ms Makola. She testified that Learner MD was not a kind of a person who could just fabricate lies. She disputed the insinuation that Ms Makola fabricated these allegations. She stated that she would not be comfortable if Mr Dlamini were to continue teaching her.
14. Under cross-examination, she stated that she could not recall when did she write her statement, but it was somewhere in October 2025 a week after the incident and that she wrote the statement on the behest of Ms Mofokeng. She stated that Learner MD left her school bag with her (Learner BC) in the morning when she went to Mr Dlamini’s office. She restated that they went to Ms Makola during lunch break. She stated that they often discuss school work with Ms Makola and that they never discussed sexual harassment issues.
15. Ms Makola testified under oath and stated that she was a Departmental Head for intermediate and senior phase at Sivuse Primary School since 2014. She confirmed that the statements on page 6 and 6A of Bundle D were her statements. She stated that she wrote the statement on page 6 of Bundle D to report Learner MD’s incident and she wrote page 6A after the District official requested her to detail the incident. She stated that in the morning of 21 October 2025 she went to Mr Dlamini’s office to sign the register. She found Mr Dlamini and Learner MD in the office. She greeted them, signed the register and left. She testified that Learner MD with other three (3) learners came to her during lunch break to report the incident involving Mr Dlamini and Learner MD. She stated that Learner MD reported to her that Mr Dlamini mishandled her. She then went to report the incident to Ms Mofokeng. Ms Mofokeng made her to complete Form 22 and to write the report. She stated that Learner MD told her that Mr Dlamini kissed and touched her private part. She testified that Learner MD told her that she went to Mr Dlamini to request for an exercise book. She stated that she would not know why would the learner lie about Mr Dlamini because there was never a complaint against him when he taught them. She stated that she has a very healthy relationship with Mr Dlamini and that it was surprising that there were allegations that she instigated the learners to fabricate lies about Mr Dlamini.
16. Under cross-examination, she could not comment about the issue of the R10, 00 as she was not told about it. She did not dispute that there were about ten (10) other educators who signed the register at 07h30. However, she restated that she found only Mr Dlamini and Learner MD in Mr Dlamini’s office when she signed the register at 07h30. She disputed that the alleged incident occurred during lunch. She confirmed that after Learner MD reported the incident to her, she took Learner MD to Ms Mofokeng to report the incident. She could not dispute the version that Learner MD did not go to Mr Dlamini to request for an exercise book and she stated that when she was in Mr Dlamini’s office, she saw Learner MD and Mr Dlamini going through a pile of books. She stated that Learner MD was not crying when she came to her, but she was distraught with red eyes to show that she was crying earlier. She disputed the version that she coached Learner MD to fabricate these allegations.
17. Mr Kutoane Ephraim Mohlamme (“Mr Mohlamme”) testified under oath and stated that he was the Principal at Sivuse Primary School for three (3) years. He confirmed that the statement on page 5 of Bundle D was his. He stated that Mesdames Makola and Mofokeng came to his office to report an incident about Learner MD. Learner MD stated that Mr Dlamini hugged, kissed and touched her improperly. Learner MD even stated that Mr Dlamini tried to bribe her. He told Mesdames Mofokeng and Makola to reduce the incident into writing and he then reported the incident to the District Office for investigation. He refuted the insinuation that learners were coached to fabricate these allegations and stated that he had nothing to benefit from it. He stated that if the allegation were found to be true and Mr Dlamini was allowed to come back to school, it would endanger the lives of the learners. Unless if the Department can subject Mr Dlamini to a serious process of rehabilitation.
18. Under cross-examination, he stated that he wrote what he wrote on his statement as reported by Ms Makola. Therefore, it was shocking to him that she stated that she did not come to his office to report the incident.

Employee’s case

19. Mr Dlamini testified under oath and stated that he started teaching at Sivuse Primary School as a Departmental Head in 2018 and that he was also a member of the SMT and a SADTU Site Steward. He disputed the allegations that were levelled against him and stated that he met Learner MD during lunch time on the day of the alleged incident. He stated that he was busy eating in his office when he heard a knock at the door and when he invited the person in, he realised that it was Learner MD. He knew Learner MD because he taught her previously. Learner MD said she came to greet him. She extended / opened her arms for a hug. He moved from the table to hug Learner MD. After the hug, Learner MD left. He disputed that Learner MD came to him in the morning. He stated that he did not know what was the motive for the fabrication and stated that the learners’ testimony was contradictory; the allegation was reported contrary to the policy and that Ms Makola apologized and retracted some of her testimony.
20. He disputed that Learner MD came to him to request for an exercise book and stated that there was a LTSM Coordinator who was responsible for the issuance of stationery. He disputed that he tried to bribe Learner MD with R10, 00. He stated that he had a pleasant relationship with Ms Makola and the Principal. However, what Ms Makola testified about did not sit well with him and stated that it was not true that when she came to sign at 07h30, she found him with Learner MD.
21. Under cross examination, he stated that he did not know why would Learner MD make such allegations against him and not against other male educators. He suggested that there could be a fabrication. He submitted that Learner MD could have been used by some individuals to further their own ulterior motives by fabricating these allegations. However, he did not have an idea who that individual/s was / were who wanted to destroy his career. He stated that he had a cordial relationship with other educators. He reiterated that Learner MD came to his office to greet him and she offered him a hug. He stated that the hugging of learners happens from time to time and at no specific place – publicly or at secluded places. He stated that he did not pay particular attention when hugging learners and agreed that he should have been aware of the expected conduct of educators. On hugging Learner MD, he stated that he unawarely committed a mistake. He confirmed that he was alone with Learner MD in his office and that the door was closed. He confirmed that Learner MD was distraught when she was testifying and stated that it would be expected for a person to behave in that manner if they were coached.

Analysis of evidence and argument

22. This is an award in terms of section 138(7) of the LRA. Therefore, what follows hereunder are my brief reasons. However, it must not be misconstrued that I have overlooked some of the evidence. All the evidence and the closing arguments have been considered.
23. Allegation 1 is an alleged misconduct in terms of section 17(1)(b) of the EEA and the alternative to allegation 1 is in terms of section 18(1)(q) of the EEA. It cannot be denied that these allegations are very serious in nature and if the educator is found guilty, there are dire consequences to his livelihood. Hence, I took pains to explain the proceedings to Mr Dlamini to ensure that he understood what he was called upon to respond to.
24. Section 17(1)(b) of the EEA prescribes that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee.
25. Section 18(1)(q) of the EEA stipulates that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner. Clause 3.6 of SACE Code of Professional Ethics prescribes that an educator must refrain from improper physical contact with learners. Clause 3.8 stipulates that an educator must refrain from courting learners from any school.
26. In testing the veracity of these allegations, the applicable test is that of ‘on a balance of probabilities’. In the matter of The National Employers’ General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D- 441A the court held as follows:
    “It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in criminal cases, but nevertheless where the onus rests on the Plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the Defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the Plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the Plaintiff, then the Court will accept his version as being probably true. If, however the probabilities are evenly balanced in the sense that they do not favour the Plaintiff’s case any more than they do the Defendant’s, the Plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the Defendant’s version is false.”
27. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Other (427/01) [2002] ZASCA 98 (6 September 2002) the Court enunciated three factors that a commissioner must grapple with when confronted by two conflicting versions. That is, the credibility of witnesses, the reliability of witnesses and the probability of the respective versions.
28. In this case, in my view, there are no material contradictions between the versions of the two (2) parties. It is common cause that Mr Dlamini was with Learner MD on 21 October 2025 in his office being only the two (2) of them at some point. It is common cause that the office door was closed. It was Mr Dlamini’s testimony that Learner MD extended a hug to him and he reciprocated by hugging her back. Mr Dlamini conceded during cross examination that he unawarely made a mistake by hugging Learner MD. His conduct was clearly in contravention of clause 3.6 of SACE Code of Professional Ethics.
29. Even if I were to believe Mr Dlamini’s version that Learner MD came to his office during lunch hour, only to greet him, which I do not believe, it does not take away the fact that his conduct was disgraceful. Mr Dlamini displayed an uncaring demeanor during his evidence in chief and during cross examination. He was evasive to direct questions during cross examination.
30. Mr Dlamini’s defense was mainly bare denial and he insinuated that the learners could have been coached by an adult to fabricate these allegations against him. However, he could not substantiate his insinuations. Instead, he submitted that he had a very cordial working relationship with other educators, including Ms Makola and the Principal. It is therefore my considered view that Mr Dlamini sought to shift the blame of his misdemeanor to a non-existent individual.
31. An educator does not have any business to be hugging a learner behind closed doors. Mr Dlamini did not dispute that he was aware of the conduct that was expected of him as an educator. Therefore, he cannot claim ignorance when confronted with such allegations. In assessing the Employer’s witnesses, I could not detect any mischief towards Mr Dlamini from the witnesses. The evidence of Learner MD was consistent in her evidence in chief and during cross examination safe for peripheral issues. Learner BC corroborated Learner MD’s testimony mainly on the core issues. Their evidence was that Mr Dlamini forcefully kissed Learner MD and touched and squeezed her private part. This is the version that Learner MD narrated to Mesdames Makola and Mofokeng and the Principal. Mr Dlamini disputed that he forcefully kissed and touched and squeezed Learner MD. He, as already stated, conceded that he hugged Learner MD. However, his concession is also not genuine as it would seem that he did not want to take accountability and suggested that Learner MD was the one who initiated the hug.
32. When all the evidence is considered, regardless of the time of the incident, Mr Dlamini found himself in a situation where the opportunity to harass a learner presented itself. Instead of acting like a model educator, he took advantage of the vulnerable learner. It is therefore my conclusion that Mr Dlamini misconducted himself as alleged. He pleaded not guilty to allegation 1 and to its alternative. However, unawarely he acceded that he hugged Learner MD in an enclosed office. I do not find any fabrication in the testimony of Learner MD’s testimony that Mr Dlamini forcefully kissed and touched / squeezed her private part. I thus find Mr Dlamini guilty of contravening section 17(1)(b) of the EEA.

Award

I find

33. that the Employer succeeded in discharging its burden of proof on a balance of probabilities that the Employee misconducted himself as alleged.
34. Mr Siphiwe Thomas Dlamini guilty of the main charge of contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
35. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of sexual assault of a learner, which I keep in mind considering the nature of Mr Dlamini’s misconduct. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Employee was employed in, and the years of service of the Employee, I do find no room for a lessor sanction and find that the sanction of dismissal is fair and appropriate in the circumstances of this matter.
36. I furthermore find that Mr Siphiwe Thomas Dlamini is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Siphiwe Thomas Dlamini is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
37. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

Arbitrator: Themba Manganyi