Panelist: Goitseone Lesele
Case No.: ELRC335-25/26GP
Date of Award: 26 June 2026

In the ARBITRATION between:

SADTU obo Peter Popela
(Union / Applicant)

and

Gauteng Department of Higher Education and Training
(Central Johannesburg TVET College)
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This matter was arbitrated at the Central Johannesburg TVET College on 27 and 28 May 2026 and concluded on 28 May 2026. The subject matter of the arbitration – the Applicant having referred an unfair dismissal dispute to the ELRC in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (the LRA).
2. The Applicant, Mr Peter Popela, was present and represented by his South African Democratic Teachers Union (SADTU) union official Mr Thando Hlatshwayo. The Respondent, the Gauteng Department of Higher Education and Training, was represented by Mr Thokozani Nkambule.
3. The Respondent and Applicant both submitted into evidence a bundle of documents, to which both parties agreed to the contents being what it purports to be. During the arbitration an ELRC appointed language interpreter assisted the parties during the arbitration.
4. A digital recording was made of the arbitration proceedings, and after the hearing had been concluded the parties in terms of their agreement submitted written closing arguments by 04 June 2026.

BACKGROUND

5. The Applicant was employed in the service of the Respondent from 01 March 2008.
6. Around 11 December 2023 the Respondent subjected the Applicant to a disciplinary hearing on the following charge:
   “It is alleged that on 29 August 2023 in your office at Langlaagte Campus, you sexually harassed a student named Gomolemo Manamela in that you kissed, touched her breasts and made her hold your private part without her permission.”
7. Subsequent to this disciplinary hearing the Applicant was found guilty of the charge and the sanction of dismissal was imposed. Following the Applicant’s appeal, on 05 June 2025 the sanction of dismissal was upheld.
8. At the time of the Applicant’s dismissal he served as a Campus Manager at the Respondent’s Central Johannesburg TVET College Langlaagte Campus, earning R720 642.00 per annum.
9. The Respondent did not rely on any written warnings in its decision to dismiss the Applicant.

ISSUE TO BE DECIDED

10. I must decide whether the dismissal of the Applicant was unfair. The Applicant challenges only the substantive fairness of his dismissal in that he believed the chairperson at his disciplinary hearing was biased, he felt the sanction of dismissal was excessively harsh in the circumstances, and he disputed that he is guilty of the charge of sexually harassing a student levelled against him. There is no challenge to the procedural fairness of the Applicant’s dismissal.
11. If the dismissal of the Applicant is found to be substantively unfair, then I must award the appropriate relief as provided for in section 193 of the LRA. In relief the Applicant wishes for retrospective reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s Evidence

12. Ms Gomolemo Manamela testified under oath that on 24 August 2023, she was smoking weed outside the campus with her friends Keletso and Ofentse. The Campus Manager came to them with a security guard. The campus manager asked them to go with him to his office then asked them for their student cards. Keletso and Ofentse told him that they did not have theirs and hers was at the SRC office, Mr. Popela left with Keletso and she stayed with Ofentse and the security guard outside. Further that when they returned they found her crying because he promised to call their parents. She told him that her mom would kick her out if she found out. He forgave them after asking the security if he should forgive them or not and the security said that he should forgive them.
13. On 28 August 2023 when they were writing exams, she went to the SRC with Andile. She met with Popela. She went inside the office whilst Popela was waiting outside with Andile. When she got back they walked, and Andile was busy with his phone and then Popela asked her about her phone and she told him that her sim card was not working.
14. On 29 August 2023, they were sitting outside the campus smoking weed with her male friends. Popela came with a school car and came out from the back seat. Gomolemo testified that they were about 8 or 9, when Popela came out of the car he found her holding the weed and he said that he caught her right handed and that he will call her mother whether she cried or not. He asked her to get inside the car and left everyone else behind, the security asked what was wrong and he lied and said that the student was bleeding. When they entered the office he told some two ladies that he wanted to call her parents. She further submitted that they used the back door to enter his office, and he moved towards her as she kept moving back until she was stopped by the door and he said that he wanted to call her mother.
15. Popela then asked her to kiss him, she was looking down and he lifted her chin and started kissing her, he touched her breasts and took out his private part and made her touch it. He asked her to take her phone out, she did and unlocked it for him, he then inserted his numbers in her phone and told her not to use Popela because he is Peter when saving his numbers. She further submitted that he said to her that next time he will bring money and condoms, she then used the same door to exit and went to look for her school bag. She met with her friends and started crying. She told Keletso what the Campus Manager did to her. The police stopped with a private car and they asked what was wrong. They advised her to open a case. They both left with the police, and she then called her female friend Amogelang Mamabolo and narrated the story to her and her response was that she was not surprised because it was not the first time Popela did that.
16. During cross-examination the witness Ms Manamela testified that she knew the campus Manager because she started school at Langlaagte in 2023. Further that he liked to communicate with students even though he says things that are not appropriate. She submitted that she was crying because she was scared that Popela would call her mother and she did not want her to smoke weed. It was put to Manamcela that she lied about her numbers, and she indeed confirmed that she lied about her cellcnumbers. She confirmed that she had her phone with her but lied about the sim card not working because she did not want to give Popela her cellnumbers.
17. The witness testified that she went to the office because Popela found her smoking weed outside the school campus, further that she was not always outside but they are not allowed in the school during lunch time and that Popela caught them twice smoking weed. She testified that they are not allowed to smoke inside the school premises and that he caught them twice, further that she was high on 29 August 2023 because she had smoked. She submitted that she spends time with boys because girls have drama.
18. It was put to her that she made an impaired judgment as Popela did not touch her and she made up the story and Popela did not touch her. She submitted that she is not making anything up as weed is not like other substances, further that she does not remember the exact clothes that he wore on 29 August 2023 but he is always wearing casual at school. The witness submitted that she was not bleeding and Popela was lying to the security, and that there were two ladies on the other side of the office and was not sure if they left or not as she used the back door (partitioned door). Further that there are two doors which are the main door that was open and the partitioned door that was not. She stated that Popela took out his private part which she saw and touched because it was not busy and she did not scream or shout.
19. She testified that the weed was taken away from her and was thrown away by Popela in his office, further that she saw two ladies in the office, Ms Magashule and maybe the other one was Ms Mavimbela. She submitted that Popela never got the chance to even sit down in his office and he also did not ask for her mother’s numbers, he saved his numbers on her phone.
20. Manamela testified that she did not write the statement from the police station but narrated the story to the officer that was helping her, further that some of the things written on the statement are not true. She confirmed that Popela did not touch her private part and she never said that he did. Further that the statement from the police was incorrectly written.
21. Under re-examination Ms. Manamela testified that she was with a group of friends smoking weed and Popela took her alone to his office, and it was not her first time going to his office as the first time he took her with her friends, and the second time he took her alone. She reiterated that the statement from the police is incorrect and Popela did not touch her private part.
22. Ms Ashika Shirley Ramela testified under oath that she is a Supply Chain Officer at the campus since 2007, and knew the Applicant as she worked with him. She submitted that sometime in August 2023 she received a call from the Applicant asking her to get contact details of Gomolemo’s mother on the system. He then asked her to call the mother and inform her that her child has opened a sexual harassment case against him and she must come to the campus. She called the mother and the mother refused to come to the campus.
23. During cross-examination she testified that she did not know whether Gomolemo’s mother came to fetch her or not. Further that she did not witness anything that transpired on 29 August 2023.
24. During re-examination she testified that the evidence she led is true.
25. Mr Themba Leonard Vilakazi testified under oath that he is the Acting Campus Manager, and he knew the Applicant because he was his campus manager at Ellis Park CJC and Langlaagte. He submitted that he was working at Langlaagte on 29 August 2023, and that Popela told him about the incident on 30 August 2023 that there was a student who opened a police case for him alleging sexual harassment. He further submitted that Popela’s windows had papers so a person passing could not see anything and they were removed on 30 August 2026. Popela removed the papers whilst they were having a conversation in his office when he said that his office was visible and people passing by can see inside.
26. During cross-examination he testified that he is not sure about the date of the incident and knew nothing about the incident until Popela told him on 30 August 2026. Further that he did not witness the papers being stuck on the windows but witnessed Popela removing them on 30 August 2023.

Applicant’s Evidence

27. The Applicant testified under oath that, he was a Campus Manager at CJC Langlaagte from 2022. He submitted that he pleaded not guilty to the allegations levelled against him, further that he met Gomolemo twice. On both occasions she was found smoking weed with other students. On 29 August 2023 he found her smoking and he took the weed from her and drove back into the campus. They went to his office, sat and he asked her for her mother’s numbers and she refused to give him her mother’s numbers, then he gave her his numbers to give to his mother to call him regarding her smoking addiction.
28. During cross-examination the Applicant was asked about his office, and he indicated that there are no three offices and its only one office further that Vilakazi lied in his testimony. The Applicant testified that on 24 August 2023 he took the students and Maduna (security guard) to his office to protect himself. It was put to him that he took the female learner alone with the intention to sexually harass her on 29 August 2023. He was further asked why he took Gomolemo alone when he failed to discipline learners that had admitted to have been smoking on 24 August 2023. His response was that he gave them verbal warnings on 24 August 2023. He submitted further that he did not know whether it was fair or not to take Gomolemo alone but he found her with weed on her hand and not other learners. It was put to him that he did not discipline the learner because of his intention to sexually harass her.
29. During re-examination he testified that he found Gomolemo twice with boys smoking weed, further that on 29 August 2023 she was high and she broke the rules of the campus as students are not allowed to enter the premises intoxicated. He further submitted that his office was not private.
30. Mr Melusi Pauluos Maduna testified under oath that he was a Security Guard at CJC Langlaagte, and was on duty on 24 August 2023. Further that on the said day students were sitting outside the school premises smoking, and when he and Popela approached the students hid the weed. They went to Popela’s office to be disciplined, further that he only takes learners when he finds them with illegal substances.
31. During re-examination he testified that he was not at work on 29 August 2023 and did not know what transpired.
32. Ms Monyaduoe Magashule testified under oath that she is a Lecturer at Langlaagte since 2018. She witnessed Gomolemo and Popela walk into the office together but stayed for less than 15 minutes in the office. She testified that the office is partitioned and from where she was she could not see the other side. She further submitted that there is no back door but there is a partitioned door in Popela’s office, further that there are no papers on the windows and did not know if there were any.
33. During cross examination she testified that Popela’s office has two doors, but she couldn’t see the other side from where she was. She confirmed that both Popela and Gomolemo passed her going to Popela’s office, and that she did not know what transpired in the office after they passed.
34. During re-examination she testified that she did not remember Popela’s office windows being covered.

ANALYSIS OF EVIDENCE AND ARGUMENT

35. It is trite that an arbitration is a hearing de novo. The Applicant’s dismissal is not in dispute and the onus is therefore in terms of Section 192 of the LRA on the Respondent to prove that the dismissal of the Applicant was fair. Section 188 of the LRA further states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.
36. The Applicant challenged the substantive fairness of his dismissal. He claimed that he was not guilty of the charge for which he was dismissed for as he did not commit the misconduct and the sanction was not appropriate because he did not sexually harass a student.
37. Dealing with the dispute to the substantive fairness of the Applicant’s dismissal, it is clear from the evidence that the versions of the parties are materially different. It is therefore incumbent on me to decide which version must be preferred. The matter will therefore essentially turn on this finding with relation to the finding of guilty.
38. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others 2003 SA 11 (SCA) the Court held that, where a commissioner is faced with two conflicting versions before him the commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favor the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more.
39. In my view, the witnesses of the Respondent were more persuasive and their demeanour more compelling than that of the Applicant, and the Applicant’s witness Mr Maduna’s evidence primarily related to taking in students and disciplining them. In his testimony he testified that it was ok for the Applicant to have taken Gomolemo alone to his office to discipline her when she was with a group of students. Whereas, on 24 August 2023 Gomolemo was taken to the office with her peers to be disciplined in his presence, because according to him Gomolemo was found with weed on her hand, but on 24 August 2023 no weed was found. He contradicted himself and it made his testimony less credible.
40. The Applicant explained that on 24 August 2023 he gave the students verbal warnings – a version never put to the Respondent’s witness Gomolemo Manamela at all to be tested. This version was clearly a new and fresh approach taken by the Applicant.
41. During the Applicant’s testimony he testified that he gave Gomolemo her numbers because she refused to give him her mother’s. But on the following day he called Ms Ramela to access the system to get Gomolemo’s mother’s number on the system. This was evidence that was never rebutted, the question is because there is a system with student details why did Popela not utilise the system from the onset when she refused to give him numbers of her mother.
42. The Applicant’s explanation when asked why he only took Gomolemo to his office and leaving her peers is that he found weed on her hands, and that he did not know that it was fair or not. For a Campus Manager to selectively want to discipline students does not add up when in less than a week he took Gomolemo and her peers and allegedly gave them verbal warnings. Why worry about students giving you their parents contact details when there is a system with such information? Another question is why did he not request anyone to join them in his office like he previously did on 24 August 2023 to protect himself?
43. The Applicant’s version, during his testimony, did not make logical sense to me. What I noticed specifically in terms of the credibility of the Applicant’s testimony was that the Applicant did not account to why he wanted to discipline Gomolemo alone on 29 August 2023 and why he gave her his numbers. During his evidence in chief he spoke about Gomolemo being high from the weed she had smoked, which gave him enough reason to call the parents at that instant.
44. I must agree with the Respondent’s representative that the Applicant’s intentions were not solely to discipline Gomolemo, because he was inconsistent in his disciplinary measures towards students.
45. The Applicant in this matter clearly harassed Ms Gomolemo Manamela, whereas this is specifically prohibited in the SACE code of ethics.
46. The SACE Code of Ethics specifically prohibits this in chapter “Conduct: The Educator and the Learner” at 3.8 “An educator: 3.8 “refrains from courting learners from any school”.
47. Evidence was lead, and not challenged, that the Applicant as a Campus Manager particularly has considerable influence over students in the College where he has discretionary powers. Ms Mkhize testified – although this was not corroborated, it was also not disputed – that it was not Popela’s first time sexually harassing a student. The Applicant’s own witness Mr Maduna testified that he accompanied Popela and three students to his office on 24 August 2023. The Applicant on 29 August 2023 with the powers vested upon him he selectively took Gomolemo to his office alone without anyone accompanying them, after lying to the security guard that Gomolemo was bleeding.
48. The Applicant was unable to convince me with his testimony, or in how the Respondent witnesses were cross-examined, that he did not sexually harass Gomolemo in his office. He did not satisfy me by properly explaining his intentions at the time as having been anything other than making an advance on the lady – ‘courting’ – as the SACE Code describes it.
49. Therefore, I can only conclude that it is more probable that the Applicant conducted himself inappropriately to the student. The version of Ms Gomolemo Manamela was also much more probable.
50. I am therefore confident that the arbitration left no stone unturned with establishing the facts of the events that transpired, for me to make an informed decision. The evidence of the Respondent’s witnesses is much more probably the true version of events that transpired. Therefore, I agree with the Respondent’s verdict that the Applicant is guilty of the allegation levelled against him.
51. Moving to the appropriateness of the sanction of dismissal which the Respondent imposed, in terms of Sidumo and another v Rustenburg Platinum Mines Ltd and others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC), although I am as commissioner duty-bound in terms of the LRA to determining whether the dismissal was fair, I am not given the power to consider afresh what I would do. Rather, I must simply decide whether what the Respondent did was fair – this while considering all of the relevant factors and circumstances. Relevant factors that impact fairness are:
    a) the general vulnerability of Employees to unfair decision making;
    b) the importance of security of employment;
    c) the importance of the rule that was breached;
    d) the reasons for establishing the rule including its reasonableness;
    e) the harm caused by the Employee’s conduct;
    f) the impact that it had on the trust relationship;
    g) the effect of setting a precedent;
    h) the reason why the Employer imposed the sanction of dismissal;
    i) the basis of the Employee’s challenge to the dismissal;
    j) whether additional training and instruction may result in the Employee not repeating the misconduct;
    k) the effect of dismissal on the Employee;
    l) the Employee’s service record.
52. In considering the above, and without having to deal with each of the above factors respectively, I can only find that the sanction of dismissal was appropriate under the circumstances.
    AWARD
53. The dismissal of the Applicant, Mr Peter Popela, by the Respondent, the Gauteng Department of Higher Education and Training, was substantively fair.
54. The Applicant’s claim of an unfair dismissal is hereby dismissed.

Commissioner Goitseone Lesele
ELRC Arbitrator