IN THE LABOUR RELATIONS COUNCIL

ARBITRATION AWARD
IN THE SEC 188A INQUIRY BY ARBITRATOR

Arbitrator: Retief Olivier
Case No.: ELRC 523-24/25 WC
Date of Award: 25 March 2026

In the INQUIRY BY ARBITRATOR between:

Western Cape Education Department
(Employer)

and

Tonya Martin
(Employee)

Employer’s representative: Ms Vanessa Mortlock – WCED

Employee’s representative: Mr Jacques Adams – SADTU

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This is an inquiry by arbitrator convened in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (the LRA). The employee, Ms Tonya Martin was charged with misconduct related to alleged sexual offences of a learner, learner A of the Emil Weder Secondary school in Genadendal. Mr Jacques Adams, SADTU official, represented the employee. Ms Vanessa Mortlock, labour relations official, represented the employer, the Western Education Department. In this ruling I shall refer to Ms Martin as “the employee” and to the Western Education Department as “the employer”. Ms Johnson was the appointed intermediary, as the learners involved were minors during the time of the alleged offences. They were however adults when they testified in the inquiry. An interpreter was also always present. The proceedings were mostly conducted in Afrikaans.
2. The matter was heard on 23 October 2024, 5 – 7 February 2025, 19 March 2025,15 April 2025, 30 September 2025, 29 October 2025 and 30 October 2025, 29 January 2026 and 30 January 2026. There was one occasions when the matter postponed or ended early due to the absence of the complaint learner A. Parties agreed to submit written closing arguments by not later than 13 February 2026. Extension was granted for submission of the award. The proceedings were recorded digitally.
3. It was noted that prior to the inquiry there was an investigation conducted by the WCED into the allegations about learner A and learner B in 2024. This led the expulsion of both learner A and learner B. The allegations related amongst others to making allegations of a relationship with the educator, the employee, on social media and blackmailing her with exposure on social media by extorting money from her. Following learner A’s expulsion from the school she laid a complaint with the WCED following an interview with social workers. Ms Mortlock noted that she investigated the allegations and complaint. The employee was subsequently suspended and notified of the referral of a Sec 188A inquiry to the ELRC in September 2024.

THE CHARGES AGAINST THE EMPLOYEE

4. The employee was charged with two offences relating to sexual misconduct of learner A:
   3.1 Charge 1: It is alleged that you are guilty of misconduct in terms of Section 17(1)(c) of the Employment of Educators Act, no 76 of 1998, in that during the second and or third term of 2023, you had a relationship with learner A*, a learner associated to Emil Weder Secondary School

3.2 Charge 2: It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner A*, a learner associated to Emil Weder Secondary School by sexting her and remarking the following:
“Ek soek meer as dit wat tussen ons aangaan en/of”
“Wat dink jy moet gebeur en/of”

        “Alles vat tyd en dit is goed so is jy bereid om ons “n kans te gee”

5. When these charges were put to the employee, she pleaded not guilty to the charges. She denied the charges, stating charge 1 were fabrications from the learners and that other educators in the school had previously also been the victim of such false allegations by learner A. These issues of which she was now being charged were previously investigated and led to the expulsion of the learners, and criminal charges have been laid, and both pleaded guilty in the criminal court. Regarding charge 2 these messages were taken from a false Facebook profile created by one of the learners and no evidence thereof can be submitted, as these are all fabrications and based on hearsay evidence.

SUMMARY OF EVIDENCE AND ARGUMENT

6. This ruling does not contain a complete summary of the evidence and argument presented during the proceedings, although I have considered the evidence as was recorded and arguments submitted. Key aspects of the evidence presented is noted. Bundles of documents were also submitted as a combined bundle from the parties. Documentary evidence referred too and presented regarding WhatsApp Messages and Facebook Profiles are copies and had not been validated.

EMPLOYER EVIDENCE

7. The first witness Ms Nicolette Van Graan, social worker, testified that following learner A’s expulsion from school, the learner approached her indicating that she was upset because the employee was still at the school, whereas the two of them had a relationship and met twice and kissed, she had come out with the truth, but no one believed her. Learner A told her about the incident where they were kissing in the car at the hostel and that another learner C had witnessed this. Ms Van Graan mentioned the way the learner was talking to her, she could see that she was telling the truth. The learner repeated she was upset, she has been expelled and the teacher was still teaching at the school. She stated following this discussion with learner A she informed Mr Achilles about what the learner had told her, including that she was upset that she had been expelled and that the learner indicated her expulsion was unfair. In the letter she also noted that learner A told her friends about the relationship and that there were screenshots about the relationship that was forwarded via WhatsApp. Learner A also denied that she was involved in the extortion of money from the employee. She stated that she could not remember whether learner A showed any of the WhatsApp messages. She reiterated that there was no reason not to believe what she had been told, and found it to be authentic, including with learner A acknowledging the previous offences that she was engaged in. In terms of protocol, she had to report this to the WCED.
8. During cross examination she reiterated that she believed the learners and because such allegations were made, it had to be reported. She believed that there was a relationship and that the learn A and the employee Ms Martin had kissed. She further acknowledged during questioning that she had not seen the WhatsApp messages that learner A had her phone, as learner A had told her the phone had been damaged.
9. Ms Annestine Joseph, social worker in circuit 3 testified that she provided counselling services at the school, and that learner A was known to her. Following the expulsion of learner A and the email sent to Mr Achilles by Ms Van Graan, she accompanied Ms Van Graan and visited learner A in Genadendal. At this meeting learner A told them that she was upset that she had been expelled and the employee was still teaching, and she also told them that the employee had made eyes to her in the class. She also referred to the WhatsApp messages that she stated confirmed there was a relationship between them, as the WhatsApp messages contained conversations between the two of them. During cross examination she stated that she had found learner A sincere and believable.
10. Learner A testified next, assisted by the intermediary Ms Johnson. She stated that the alleged relationship developed in the second term of 2023 when she was in grade 11 for the second year, although she could not give a precise date. She stated that the employee taught her in grade 10 and 11. She referred to the WhatsApp messages in the bundle, as per pages 93, noted as Sebastian Phillips post, which was not dated, with comment stating “die dinge by emil isieh regieh marhn” – noted as referring to Emil Weder High School. She stated the WhatsApp messages started as a dare from her friends, and learner C told her to send a message to the employee. The post started “as ek in juffie se klas is kan ek nie my oe van juffie afhal nie” she stated she sent this from her home and that there was there a response from the employee “hoekom het jhy nie vroeer gese nie”. She then answered “want ek het nie die guts nie en is bale unrpfessional”. The employee then responded further, “maar jy kon nog altyd openlik met my gewees het”, “so wat dink jy as leerder wat moet nou gebeur tussen ons twee”. She responded “Ek wieti but johh ‘n vibe sal nxa wiec niemadt hoef te wieti”. Regarding the WhatsApp messages she stated that the emplyee’s profile picture was on the message. She then referred to the further WhatsApp messages on page 91 and 92 in the bundle, starting with the employee saying to her “ek soek meer as dit wat tussen ons aangaan”,
11. She stated following these WhatsApp messages there was another message, as per page 91, in a different format, where the employee states “kan ons praat” en she states “ons praat al” and again the employee responding “jy weet hoe ek bedoel”. She stated that after these messages they met at the hostel behind the garage at the school, and when they met there was a vibe and they french kissed. The meeting happened after a message from the employee to meet. She also testified that at that time learner C was with her when she received the message. When she met the employee, learner C was on the netball court, but she had seen them but did not see them kissing in the car.
12. She testified of further incident in the third term where she met with the employee at the river in the third quarter, again after she has received a message from the employee that they should meet at the river. The employee arrived in her own car, and they sat in the car and had a conversation and then they kissed again. She stated on this occasion another learner D had seen them and was present. She further testified about the expulsion from the school, acknowledging that she did not go to the disciplinary hearing but that her mother had been notified in a letter. Mr Achilles had investigated the matter and questioned her, but she could not remember everything that he asked her about. Regarding the blackmail and extortion threats she stated that the employee had been blackmailed about their relationship, but that it was learner B and another two learners E and F, trying to extort money from her. The screenshots referenced were received by learner B, having been forwarded to him, and was downloaded by learner C from his phone, who then forwarded it further.
13. Regarding the relationship between herself and the employee she also referred to what happened in the classroom, the employee looking at her and calling her “my bestie”. Regarding the disciplinary hearing whereafter she was expelled, she responded to the fact that she had previously been found guilty of unacceptable conduct against an educator Ms Williams, making suggestive movements; making sexual remarks at another teacher Ms Isaacs; also sexual comments about a further teacher Ms Villet, which was put on video and distributed on social media; as well as false allegations about a relationship with Mr Hofmeister. She denied some of these allegations, stating that is not how it happened. She further acknowledged that criminal charges had been laid against her and Learner B regarding a charge of blackmail and extortion but stated that it was only learner B that blackmailed the employee. Referring to a document on page 86 submitted as mitigation from her where she indicated she apologizes for these incidents and says she has remorse for her actions, she denied that she was aware of this document, even though her signature appears on it.
14. Regarding her expulsion she stated that she never went back to school and wrote her examination for the year in the Moravian church. She was very sad and disappointed that she had been drawn into theses extortion and blackmailing incidents. She confirmed she did not attend the disciplinary hearing. She then explained about meeting Ms Van Graan after she had been expelled and telling her about the relationship and that she was very upset about what had happened.
15. The cross-examination stood over for a period of time because the learner A did not appear at the hearing the next day when the cross-examination would have commenced. To save time and not have more unnecessary delays, it was agreed that other employer witnesses would continue to testify first, with cross-examination of learner A only starting when the inquiry continued, which was on 15 April 2025. In the cross-examination the learner was questioned about the disciplinary hearing resulting in her expulsion, she acknowledged she did not attend the disciplinary hearing, stating because she did not want to be at the school anymore. She was asked to explain the dare from learner C that she testified about that led to the WhatsApp messages being sent. She responded that it was in fact another learner that spurred her on to send WhatsApp messages to the employee. She explained that one afternoon after school she and her friends were together and she was then dared by them to send such WhatsApp messages to the employee. She also made prank calls to other people. She acknowledged that when she was initially questioned, she had named learner C as one of the learners who had dared her. She acknowledged that it she asked learner C if she should send the messages and she said yes.
16. Regarding the WhatsApp messages she referred to in her testimony regarding messages to the teacher in the bundle where she says she could not keep her eyes of the teacher, she stated that she had read this message to learner C, but that she did not have the phone anymore, because it was confiscated by the police when they were charged with the criminal case. It was in fact her mom’s phone that she used that it was handed in to the police. She acknowledged that some of the messages in the same page had profile pictures, but others not. She did not know how it appeared on Facebook as she had only sent it to learner C. Although she did not have the phone anymore, there were screenshots and learner C can testify to the screenshots that was sent. She confirmed the screenshots on page 93 were taken from Facebook posts, and that the posts do not contain any profile pictures. She was questioned about WhatsApp messages from the employee to herself in the bundle from pages 98, the first dated messages on 23 October 2023 on page 98, and then page 101, dated as 8 November 2023, messages that are not disputed. She acknowledged there was no mention or indication of any relationship between the two of them. Questioned from where and from which phone these WhatsApp messages was sent, she it was from her mother’s phone, and she deleted the messages on that phone. She had a new phone that had been cleaned up, that is the phone she handed into the police, her mother’s phone had been lost a long time ago already.
17. Questioned about the alleged relationship between herself and the employee and referring to some of the Facebook posts and WhatsApp messages, she referred to the meeting with the employee were learner C was present, she confirmed that she did not have any of those messages in its original format anymore, but stated that learner C would have it on screenshots. She acknowledged that she cannot present any original messages that was allegedly sent between herself and the employee.
18. When cross examination continued 30th September 2025, the applicant was questioned about the previous offences involving false allegations against teachers that was put in evidence in chief, she did not want to respond to those instances. The expulsion finding was put to her, and she acknowledged she did not attend the hearing, but conceded that she was expelled, based on having being found guilty of the charges. There was also reference to previous incidents of similar nature, allegations regarding Ms Williams, Ms Isaacs, Miss Vilet and Ms Hoffmeier in the disciplinary hearing findings, which she at first disputed, but conceded when put to her. It was also put to her that in this finding she was found guilty of bringing the name of the school in disrepute, disrespecting teachers, blackmailing the employee, threatening her with exposure and infringing her rights, posting messages under false identities on social media, and unacceptable conduct and verbal mistreatment on social media of the employee. She responded denying that she was disrespectful and said she had apologized for these incidents. She then further acknowledged that she did not have any direct evidence of a relationship with the employee. She then stated that all of this was just a sick game “alles is ‘n siek speletjie”.
19. The employer representative intervened, indicating that the learner is not in a fit state to continue and that that the criminal case she is facing is also having a major impact on her. After standing down it was noted that and agreed that the inquiry be adjourned. Proceeding with the cross-examination on 29 October 2025, following the postponement of the matter to the 30th of September 2025, the employer representative Ms Mortlock wanted to present a statement from Ms Annestine Josephs, a social worker, which the employer representative submitted was appointed as a psychosocial support, and that she wanted to submit such a victim statement to explain the learners conduct previously when she conceded that she had no direct evidence of a relationship between her and the employee, and that it was all just a sick game.
20. I noted that Ms Joseph was in fact the witness for the employer and it appears she had been sitting with the learner while she was testifying, which would be highly irregular, as Ms Joseph had already testified on behalf of the employer. She cannot be engaging on behalf of other witnesses for the employer, particularly so when the learner was being cross questioned. I also confirmed with the ELRC that the only person appointed by the ELRC was Ms Johnson, as the intermediary. Any such statement would therefore be irregular, and I ruled that such a statement would not be admissible and the learner A’s testimony will stand. Mr Adams, the employees’ representative also raised serious objections.
21. Continuing then with cross questioning regarding the specific WhatsApp messages that was referred to in the bundles, she acknowledged that she does not have any direct evidence as she did also not have any of the original WhatsApp messages to confirm or verify these documents. She further acknowledged that it is very easy to post false messages and create false identities. Questioned about the criminal charges she was facing, she acknowledges that she was charged with learner B, but denied that she was involved in the blackmail and extortion, stating she knows nothing about it. It was put to her that there is documentation indicating that they had both pleaded guilty in the criminal case, which she also denied. The document in the bundle page 97 is from attorney Shelmaine Cuttings, from Legal Aid South Africa, dated 13 September 2024, noting that she was acting on behalf of the two learners, and it was put before her it was stated that both had pleaded guilty and extended their apologies to the complainant, who would be the employee. She acknowledged that Ms Cuttings was her attorney, but stated she is not named in the letter and denied that that Ms Cuttings is speaking on her behalf and stated what should she be apologizing for. (It is noted that attorney Cuttings declined testifying to the letter, indicating that it would breach client confidentiality.)
22. She was further questioned regarding the profile pictures that have been put on his WhatsApp and Facebook messages, and she acknowledge that they were different pictures with different profiles put that the pictures on the WhatsApp messages that was submitted is not a profile picture of the employee. She stated that she could not explain what learner B did in these WhatsApp’s, because she was not involved in the extortion. A question about the timing of this WhatsApp she said the relationship started in the third term of 2023 and when it was her that she first testified it was during the second term, she responded that she cannot remember.
23. Ms Anthea Adonis, teacher and principal at Emil Weder School, testified that she had become aware of these incidents in November 2023 when an SGB member sent the screenshots taken from Facebook and put it on the school staff WhatsApp group. The employee contacted her and told her she was being blackmailed by this person. She informed the SGB and Mr Achilles was given a mandate to investigate the matter. He interviewed the learner and it led to a disciplinary hearing before the SGB. She confirmed that the learner was at her at school and that there were many complaints against her and she had been disciplined in the past. Following the disciplinary hearing she was expelled from school following findings of being guilty of all charges that she found to be sanctions to be fair. Regarding the employee she indicated that she is a dedicated educator, always well prepared, had good results and there were no complaints against her.
24. During cross examination she responded that in the WhatsApp messages forwarded to her, she could not determine who the sender was. She explained after she received these messages it had to be investigated to determine whether there was a relationship regarding the blackmail attempt. She further responded that the police informed her that the two learners from the school were involved.
25. Mr Deon Achilles that he was a labour relations official for the Overberg District, based in Caledon. He stated that his involvement began in the final quarter of 2023 when the principal informed him of the allegations and the messages that been sent. He was also asked to investigate the issue of blackmail and extortion. He also stated he was familiar with the WhatsApp messages as contained in the bundle. He stated that when he investigated the matter, he had interviews with the learners and with the employee, who denied any of the allegations. Learner A stated there was a relationship with the employee and that learner B was involved in the blackmail. When he questioned her about the allegations relating to the meetings that was held between her and the employee, and he asked who was present and could witness to it, she stopped the discussion and did not respond. His finding after the interviews and investigation was that any the possibility of a relationship between the learner and the employee was very unlikely, and there was a much greater possibility that there was no such relationship. He further stated that he did not find any grounds to charge the employee regarding these allegations of a relationship.
26. He further stated that after the learner had been expelled, Ms Van Graan engaged with her and the two investigations was happening concurrently. He noted the email from Ms Van Graan to him, indicating that she was requesting a formal departmental investigation, and that both the alleged relationship and the blackmailing should be investigated. Ms Mortlock conducted the investigation for the WCED, but he was also involved.
27. During cross-examination he confirmed that the investigation regarding the alleged relationship and the blackmail and extortion happened concurrently, and the WhatsApp messages that was provided referred both to the alleged relationship and the blackmailing attempts. He stated he was not involved in the interviews that Ms Mortlock conducted during the investigation. Regarding the specific WhatsApp messages that formed the basis for the investigation he stated that he found that there were issues regarding these WhatsApp’s and there was something not correct regarding the profile pictures, with some missing profile pictures, and some with pictures in the same message. He stated that he was not convinced that these WhatsApp messages were authentic, as there were no original documents. He also questioned the Facebook posts. He reiterated that he had found there is no evidence to charge the employee.
28. Learner B testified that he was involved in this matter about the relationship between learner A and the employee and acknowledged that he was involved in the extortion and blackmailing her. Regarding the relationship he stated that he received the screenshot from another learner, but he knew that it was about the employee, because her profile picture appeared. It appears on her Facebook profile. He also testified that he was aware of WhatsApp messages on Philips Sebastian’s Post and refers to those messages as confirmation of the relationship between the employee and learner A. He further stated that he did not know who Sebastian Phillips was, but that it was taken from the Facebook account of the employee.
29. During cross examination he stated that he was not a real friend of learner A but that they speak with each other and that they were both charged in the criminal case. He confirmed that both he and learner A was involved in the attempt to extort money from the employee. He stated that no evidence was presented in the criminal case to show a relationship between the employee and learner A, but he maintained there was a relationship. He denied that there was no proof of the relationship, stating that the chats are the proof. He added that he had never observed the employee and the learner kissing or spending time together and relied on what others told him. Regarding the WhatsApp’s under Sebastian Phillips post he acknowledged that it is probably a false profile. He also stated and acknowledged that one cannot see on that WhatsApp messages it is a conversation between her and Learner A. He further acknowledged that it is possible to create false WhatsApp messages and Facebook posts. He also stated that Sebastian Phillips may not exist.
30. It was also put to him that learner A had testified that she had been dared by learner C and that it all started as a joke, but that he used these screenshots to blackmail the employee, and he responded that that is ridiculous. He also confirmed that outside of the screenshots he never saw any evidence of a relationship between the employee and learner A.
31. Learner C testified that she was in the employee’s class in grade 11 and confirmed her involvement in the matter, stating that she had spoken Ms Mortlock and Mr Achilles and Ms Adonis about the case. She also stated that Mr Adams had engaged with her prior to the arbitration hearing, but she did not know who he was at the time that he contacted her. Regarding the relationship between learner A and her she said learner A got her telephone number in class when she wrote it on the on the board, and she saw the messages between the employee and learner A on her phone.
32. Referring to page 93, she stated that she is not familiar with the document, but she knows about the chats, learner A had shown her the chats on her phone and the employee’s profile picture was there. She then stated that learner A told her about the relationship with her, including the day that they met at the hostel near the school. She stated she saw her walking to the hostel, but had not seen her meeting with the employee, as she was on her way home when she saw her walking to the hostel. Learner A also told her about the time that they cuddled (gevry”) by the trees, but at that time she was not there, and she had not seen it. She also stated that she believed what learner A was telling her because the employee had called her “my bestie” in the class.
33. In cross examination she was asked to explain why Mr Adams had called her, stating he had asked her whether she was willing to testify about what happened at the netball court, and she responded that she was not going to be pulled into the case. Regarding the screenshots under Sebastian Phillips posts, she stated that those posts were from learner B himself when it was put to that he stated he did not know who it was. She stated that he is the one who stated that will open the fake account and post the screenshots on there. She confirmed that she had told Mr Mortlock that the posts under Sebastian Phillips was created by learner B, they did it to blackmail the employee and extort money from her, but she herself was not involved in any of that.
34. She was asked whether she had seen these chats on learner A’s phone, and it was put to her that learner A testified that she told her she must send the messages to the employee. She stated learner A is lying. She also stated that she was lying when she stated that she had created the messages and sent it to her, saying she has no knowledge of that. It was also put to her that regarding the incident at the hostel learner A stated that she was there and saw her with the employee. She stated she was on the netball court and was not there when they met, she is lying. Regarding the incident that the river she stated that she was not there. Regarding the allegation that the employee gave learner A a lovebite, she said she saw the lovebite when she told her about this at school. She stated that she still believed there were some relationship between her and the employee, as also confirmed in the chats.
35. Key aspects of the closing arguments on which the employer focused on as confirmation of the relationship, was reliance in the copies of the WhatsApp messages and Facebook post and screenshots in the bundle. It was further also submitted that other learners that confirmed the evidence of learner A that there was a relationship, particularly with learner C stating she had seen these messages on her phone, and she also referred to the fact that the employee acted strangely in the class towards her and called her “My Bestie.” Regarding the testimony of learner A where she stated that everything was just a sick game and she made it all up, she stated that she was in a very emotional state at that time, as also indicated by the social worker Ms Josephs, and that is why she did not want to continue with her evidence on that day.
36. Regarding the evidence from the employee, it was submitted it was full of contradictions, and not truthful, and the employee did not bring her evidence to the hearing, for instance to present the WhatsApp messages of the days relating to messages on their own phone. She was stated the employee could have called other witnesses to corroborate her versions, but nobody else was called. Her only defense was that the employers’ witnesses were lying and then denied all the allegations. She also referred to the legal frameworks under which the evidence lacking corroborating evidence by the employee should be considered, as well as considering the implications in respect of the duty of care, with reference also to sexual offences regarded as criminal offences, and specifically in relation to learners that may be involved.
37. It was submitted the seriousness of the offence of such and relationship between the employee and the learner, WCED cannot possibly accept, especially considering the duty in terms of the Constitution to consider the interest of children as paramount. The employer requests that the employee be found guilty on the charges against her and an appropriate sanction be imposed.
38. Significantly however it is noted the employer did not refer in any manner to the authenticity and credibility of the WhatsApp messages and face book posts in argument, nor did they call any expert witnesses to come and verify the authenticity thereof. No legal arguments were presented as to how these documents should be considered, although the employer was strongly advised that it is an important consideration in terms of determining the validity and authenticity of the documentary evidence presented in the WhatsApp messages and Facebook postings.

EMPLOYEE EVIDENCE

39. The employee Ms Martin pleaded not guilty to both charges against her, and in evidence in chief denied any allegation of a relationship with learner A. key aspects of her testimony was that in 2023 she taught business science for grades 10 to 12 and she had been teaching at school since 2019. Before 2023 there had never been any complaints against her in any way. She was aware of the complaints and allegations from learner A, and mentioned that she was aware of the previous allegations made by learner A about other teachers, Ms Isaacs, Ms Villet and Ms Willemse, as well as fraudulent comments and videos of a allegations of a sexual nature against these teachers and false allegations of sexual relationships with Ms Hoffmeister, as noted in the statements and affidavits in the bundle from these teachers. She further stated that it was known in the school that learner was a problem child and often disciplined.
40. She stated it was common cause that learner A and learner B tried to blackmail her by extorting money from her by posting false allegations of a relationship on Facebook. She stated they were trying to extort R 4 000-00 for her, the first of these messages she received on 28th of October 2023, where they stated she must pay money, otherwise they would post WhatsApp messages of such an alleged relationship. Screenshot contained in the bundle on page 91 was sent to her after the message that they will going to expose her. She did initially assume this to be a joke, but when she received more messages, it was apparent this was attempt to extort money from her.
41. On the 18th of November 2023 the principal Ms Adonis posted the Facebook message in the name of Sebastian Phillips (p 93) on the staff WhatsApp group, asking if anyone had information about this, they should contact her. She then informed Ms Adonis that she had been blackmailed and threatened with exposure regarding these messages, and she was advised to report the matter to the police and on Monday, 20 November 2023, detectives from the SAPS took a statement from herself, as per pages 35-36). She stated that at that time she did not know who the learners involved were, and she also handed a phone to the police for investigation. The detectives also visited the learner A, and learner A did not deny that she is involved. She then also referred to the testimony of learner C who testified that it was learner B who developed this false profile for Sebastian Philips that was posted. Both learner A and learner B was arrested by the SAPS and thereafter the criminally charged.
42. She also referred to the evidence of Mr Achilles and the subsequent disciplinary hearings, after which both these learners were expelled having being found guilty of the charges. It was found that these allegations and profiles that were created were false and that they disrespected the school and herself. She specifically also noted that learner A did not attend the disciplinary hearing, but Mr Achilles had interviewed her. Mr Achilles submitted after his investigation that he had not found any proof of a relationship between Learner A and herself. Therefore, when she was questioned and charged and issued the disciplinary notice in July 2024, she was very surprised and disappointed in Mr Achilles, who had previously found there were no truth to these allegations of a relationship between herself and learner A, as per charge 1. She stated she was not guilty of any of these charges, and about charge 2 relating to the sexting and posting of messages of a sexual nature, stated that screenshots were fabrications. She referred and noted on page 28 of the bundle, she identified on her own Facebook profile, noting it was different to those posts, her name on her own Facebook profile included the nickname Honya, and although screen pictures were added, it was not her profile. The number that appears on those posts is also not hers. She said that those messages were fabricated and manipulated and stated that the content and the language used was not similar to the WhatsApp messages that she included from page 100-105 in the bundle. It was also noted in the original Facebook and WhatsApp messages there are no profile pictures.
43. Regarding those messages and postings, she provided her phone to the SAPS when she laid the charges, but they did not take it in for investigation and she also noted that the WCED never requested her phone for a forensic investigation. She stated if they had done that, this hearing would not have happened. She stated it is common knowledge that it is very easy to create false profiles and send false messages on WhatsApp and Facebook. No forensic evidence was taken nor presented regarding these messages. She then testified about the tremendous impact these false allegations have her on career, her family and reputation, all because the WCED accepted these allegations as truthful, without any real proof or any forensic evidence. She would have expected from the WCED that when such serious allegations are made that it would be properly investigated and the authenticity of those messages be tested. She denied that she had a relationship with a learner A or met at the school or at the river or anywhere else and that they had any sexual relations with her and kisses and “vryery” in her car.
44. During cross examination, she again denied that there was any relationship with learner A when put to her that learner A had informed Ms Van Graan and others of such, stating that she had lied, as there were no such meetings and no relationship. She confirmed that when she saw the WhatsApp messages sent to Ms Adonis, she told her that it could be related to her, because she had been blackmailed and monies extorted from her to stop such messages appearing on social media. She further denied that the profile on page 91 is her profile, although there is screen picture. Regarding the evidence of Mr Achilles, she testified that he changed his story because prior to being handed the chargesheet, he had stated that there was no evidence to confirm a relationship between the herself and learner A, and he now changed his mind as he was now charging her on behalf of the WCED, so he changed his story.
45. Regarding the evidence of learner C that she had called learner A her “Bestie” in class, she acknowledged she said so, but she had also called other learners in her class “my Bestie” but it did not signify a relationship. She also stated that although learner C was told by learner A that there was a relationship and she believed her, she also testified that learner C never saw them in a relationship or meeting together. She emphatically denied that they met and kissed, and there is no evidence thereof. It was further put to her that the WhatsApp messages from page 98 -105 on her phone was similar those presented as evidence of their relationship, and she stated there is a clear difference in the language and there are no screen pictures or profile pictures on the WhatsApp messages.
46. In closing the applicant representative Mr Adams submitted that the burden to prove these serious allegations and sanction of dismissal in respect of the allegation’s rests with the employer. He further submitted where charges of a criminal nature therefore made an even higher burden of proof is required. In the first instance he submitted that as per NUMSA obo Nganezi V Dunlop Mixing and Technical services (Pty) Ltd that compromised witness’s testimony should be viewed with circumspection. The employers evidence relies primarily on evidence of learners that have been found guilty in internal disciplinary hearings of various serious offences, and have also been charged with criminal offences. He further submits that evidence that is not corroborated and when inaccuracies and contradictions come to light during cross examination, it must be given less weight and questions regarding the credibility and validity of allegations arises.
47. He further submits that the digital evidence submitted in the format of WhatsApp messages and Facebook posts is not authentic and has not been verified in any way. Electronic data must be accepted only once the originality, the integrity and the credibility is proven, referring to the Electronic Communications and Transactions Act 25 of 2002 (ECTA), noting the case of ESCOM Holdings SOC Ltd versus Ravichandran Reddy where the labour Court determined that digital and electronic data cannot be accepted as reliable without determining its evidentiary value. In that instance a telematics report was submitted and accepted by the arbitrator as reliable without determining the evidently value. The court determined presenting electronic data presented as evidence in a report with a proper verification and authentication cannot be accepted. The employee representative submitted this is even more so in the context of modern technology with AI generated deep fake and synthetic voice recordings, and without proper authentication cannot be accepted as evidence.
48. The employer representative submitted the employer had not submitted any forensic or technical verification, even when it was acknowledged by their own witnesses that false and fake profiles had been created. The employer did not provide any evidence regarding the originality of the data, the integrity of the data, nor proving that no manipulation had happened and there is a proper chain of custody in respect of the data messages submitted. It was submitted that this is fatal to the employer case as there is no evidence to authenticate their key documentary evidence submitted. There is no confirmation of the originality and when these messages were sent and created, there is no confirmation regarding who the senders were, and the employer witnesses in various instances acknowledged that the original messages as alleged is not available and has not been submitted as evidence, both in the initial disciplinary actions against the learners, but also in this inquiry. Employer witnesses further acknowledged that false profiles had been created. In fact, learner C confirmed that it was learner B who created the false profile under the name of Sebastian Phillips, directly contradicting his evidence, as he stated he does not know who Sebastian Phillips, though acknowledged he may not exist.
49. Further to this it was submitted that it must be considered that the allegations against the employee arose out of an act of vengeance, with complainant witness learner A testifying she was aggrieved that she had been expelled, whilst the employee continued teaching and nothing happened to her. He then also referred to the numerous contradictions in the evidence of the employer witnesses, for instance learner A denying that she had been found guilty of trying to blackmail (“afpersing”) and extort money from the employee, whilst the disciplinary record clearly confirms this. Regarding learner A’s conduct and disciplinary record at the school, it should be considered that she had been found guilty of various similar offences against other teachers, Ms Isaacs, Ms Villet and Ms Willemse, relating to fraudulent comments and videos, noting allegations of a sexual nature against these teachers, and false allegations of sexual relationships with Ms Hoffmeister. These incidents demonstrate a definite pattern of false and disrespectful and malicious allegations against teachers in the school by learner A. Critical is the acknowledgement from learner A during cross-examination that all these allegations was a sick game, ‘n siek speletjie”. This acknowledgement discredits any evidence that she presented, confirming there is no validity to the allegations of which the employee was charged.
50. He also refers to the numerous contradictions in learner A’s testimony during cross-examination, noting the circumstances of the alleged incident when she and the employee allegedly kissed in the car as to where it happened and who was present. Contradictions regarding the WhatsApp messages of when it was sent and how it was sent and who instructed or requested her to send the messages, in this instance noting that first she was dared by learner C and that learner C then forwarded the messages, contradictions regarding which phones were used, stating that she had deleted the messages on her phone and then stating it was her mom’s phone, but also stating that the phone has been handed in to SAPS and therefore she could not provide the original messages, but earlier having testified it was her mom’s phone has been lost a earlier.
51. He also referred to some of the contradictions in learner B and learner C evidence, noting the fact that learner C stated that learner B created the Sebastian Phillips profile, which learner B denied that had any knowledge of who created, even to the point stating that perhaps that person never existed. Contradictions regarding the incident where it was alleged that learner C was present and saw the employee, but learner C stated it was not so, as she already left.
52. Without repeating all the examples the applicant representative noted, it is submitted that employer witnesses did not submit credible evidence considering the contradictions and acknowledgements, and that the employer has not proven under the balance of probability that the applicant was guilty of the charges and that she should be found not guilty. It was requested that in respect of such a finding that the employee be the compensated for the emotional stress and reputation damage that she suffered as a result of these unfounded false allegations against her. He also submitted that the WCED be required to issue a public declaration confirming her innocence and apology. Further that a cost order be issued against the WCED in this instance.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

53. It is for the Employer to prove the guilt of the employee on the charges on a balance of probabilities. If she is found to be guilty, an appropriate sanction must be imposed. The employer also referred to these charges in relation to criminal law, noting and submitting that these offences relate to the sexual assault of a learner. In terms of Section 17(b) of the Employment of Educators Act 76 of 1998, there are very specific considerations for an arbitrator. Where an educator is guilty of misconduct in terms of section 17, the sanction of dismissal is mandatory and an arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances. Should the charges relate to the offences in respect of Section 18 (1) (q) of the Act, it has to be determined whether the particular misconduct warrants dismissal if guilty thereof.
54. The employer’s key argument was the evidence related to the WhatsApp messages between learner and the employee, and the confirmation in these WhatsApp messages of a relationship, as contained in the bundle, amongst others on pages 91 and 92, and page 93, under the posting of Sebastian’s post, referring to the conversation: “as ek in juffie se klas is kan ek nie my oe van juffie afhal nie”, the response from the employee, “hoekom het jhy nie vroeer gese nie”. Learner A answering “want ek het nie die guts nie en is baie unprofessional”. The employee responding “maar jy kon nog altyd openlik met my gewees het”, “so wat dink jy as leerder wat moet nou gebeur tussen ons twee”. Learner A then responding “Ek wieti but johh ‘n vibe sal nxa wiec niemadt hoef te wieti”. It was also submitted that the learner a testified to these messages stating that they kissed in her vehicle on two occasions, once learner C had seen them together, and the other occasion when learner D was present. The employer also submitted that there was confirmation that the employee had called learner A “My Bestie, confirming a relationship.
55. The employer also submitted that Ms Van Graan and Ms Josephs, in attending and providing care to learner A’s complaint, testified that they had believed her when she told them of this alleged relationship, hence the matter being reported to the WCED for investigation. It was also submitted further that the evidence from learner C and learner B corroborate what was alleged and stated in the WhatsApp messages. Regarding the evidence from the employee, she said the employee was lying consistently, and further that she did not provide rebuttal evidence, referring to the fact that they intended to call learner D to testify about the one incident at the river where they kissed, but failed to do so. She stated that once prima facie evidence is presented, the onus of discharge moves to the accused person, and the accused person must present evidence that nullifies those of the victims.
56. The employee Ms Martin argued that she was not guilty of the charges, noting very specifically the employer’s reliance on copies of WhatsApp messages and Face Book posts, as noted in the bundle. It was submitted the employer had not submitted any forensic or technical verification, even when it was acknowledged by their own witnesses that false and fake profiles had been created. The employer did not provide any evidence regarding the originality of the data or the integrity of the data, and did not prove that no manipulation had happened, nor was there is a proper chain of custody in respect of the data messages submitted. This was fatal to the employer’s case. It was further submitted that any finding should be made based on certain key premises, one being the probability of the different versions and alleged contradictions in the learner’s evidence relating to instances, such as to where the incidents occurred, how the incidents were witnessed and the credibility of witnesses.
57. In Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC it was held that the employer’s onus is discharged if “the employer can show by credible evidence that its version is the more probable and acceptable version and it’s witnesses were credible”.
58. Concerning the parties’ versions and arguments, I have noted that in the proceedings the employer was informed of the requirement to provide evidence confirming the authenticity of both the WhatsApp messages and the Facebook posts. The employer failed to do this, and neither did the employer address the issue, again as advised, in any way in their arguments, simply ignoring the fact that the WhatsApp messages and the Facebook postings had been disputed by the employee and the employees’ representative. The employee’s representative argued the authenticity thereof has not been verified in any way. Electronic data must be accepted only once the originality, the integrity and the credibility is proven, referring to the Electronic Communications and Transactions Act 25 of 2002 (ECTA).
59. Considering the messages on face value as presented in the bundle, it is obvious that the messages on page 91 and 92 are in fact superimposed on another message, already creating a question regarding its originality and authenticity and whether there was a manipulation of messages. Similarly, even on the acknowledgement of the employers’ witnesses, the messages on page 93 and 94 on Sebastian Phillips post, is a fake post. It was acknowledged by the employers witnesses, both learner A and learner C there are no profile pictures of the employee, and the employee disputed the WhatsApp messages on pages 91 and 92, even though there were profile pictures of her, she testified that profile was not correct, referring to the fact that profile does not include a nickname Honya, as per her profile on page 28.
60. As noted by the employee representative, referring to Act 25 of 2002 ECTA, data messages must be authenticated if disputed. This would be also in reference to WhatsApp messages and Facebook posts. The Act describes and states in section 1 of the Act “‘data” means electronic representations of information in any form, “data message” means data generated, sent, received or stored by electronic means and includes – (a) voice, where the voice is used in an message or transaction,’ and (b) a stored record.’
61. The Act further notes such messages which fall under the definition of a data message, is in itself not inadmissible, if so agreed between the parties. (my emphasis). It is however noted that these data messages were disputed by the employee from the outset. In Section 14 the Act states (1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if- (a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and (b) that information is capable of being displayed or produced to the person to whom it is to be presented. (2) For the purposes of subsection, I (a), the integrity must be assessed- (a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display: (b) in the light of the purpose for which the information was generated; and (c) having regard to all other relevant circumstances.
62. The treatment of data contained in data messages is governed by section 15 of the Act, which provides as follows:
63. (1) In any legal proceedings. the rules of evidence must not be applied so as to deny the admissibility of a data message. in evidence- (a) on the mere grounds that it is constituted by a data message; or (b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form. (2) Information in the form of a data message must be given due evidential weight. (3) In assessing the evidential weight of a data message, regard must be had to- (a) the reliability of the manner in which the data message was generated, stored or communicated, (b) the reliability of the manner in which the integrity of the data message was maintained(c) the manner in which its originator was identified; and (d) any other relevant factor.
64. The applicant referred to the matter in ESCOM Holdings SOC Ltd v Ravichandran Reddy, Labour Court Case D 368/2021, where the Labour Court determined that digital and electronic data cannot be accepted as reliable without determining its evidentiary value. The Court noted in terms of section 15(1) of the Act in that instance the data message as contained in the telematics report was admissible subject, however, to the proof thereof. The court pointed out that this section simply provides that a data message should not be regarded as inadmissible evidence in certain circumstances. In terms of section 15(1) of ECTA, the data message as contained in the telematics report was admissible subject, however, to proof thereof. A party wishing to rely on a data message in legal proceedings cannot simply hand in the data message as evidence. More is needed. In the absence of agreement between the parties to the effect that the data message is admissible as evidence, evidence must be led to prove the reliability and veracity of the message. Without such a witness having testified there was no basis upon which the second respondent could have accepted that the data contained in the data message had any evidentiary value, let alone found that the data contained therein was the most reliable evidence.
65. Similarly in SITA SOC Ltd v CCMA & others (DA 27/22) (2024) ZALAC 19 – the Labour Appeal Court held that forensic investigator who had based his evidence entirely on interpretation of the relevant documentation and ex post facto reconstructions of the events amounted to hearsay, because the documentation relied upon where neither original’s, nor have they been properly authenticated.
66. In this instance the employer made no attempt to provide any evidence as to the originality, the reliability, the integrity and authenticity of these WhatsApp messages and Facebook posts. In the instance these data messages have no evidentiary value, as per the rulings above, and cannot be accepted as admissible evidence.
67. Regarding the burden of onus, it is employers burden to prove the charges. In IDWU obo Linda and others v Super Group and others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); the Court held that: “The onus rests on the Employer, so if there is doubt as to which version to prefer, the Employees’ Version must be preferred.” (Par 24).
68. In Stellenbosch Farmers Winery Group Ltd and another v Martell et Cie and others 2003 SA 11 (SCA), the Supreme Court of Appeal 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 favour 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 Commissioner should therefore resort to credibility where the probabilities fail to point which version embraces the truth more.
69. The judgement, referred to in Solidarity obo Van Zyl v KPMG services BTI Limited and others (2014) 35 ILJ 1655, noted that this judgement above emphasized the relationship of credibility of the witnesses, their reliability and the probability, however it must be born in mind that the ultimate decision which a court or a commissioner (as the case may be) must determine is whether on the issue in question, the party which has the burden to prove, has discharged it.
70. The employer’s submission was that the versions of the employer witnesses were truthful and believable, referring for instance to evidence from Ms Van Graan and Ms Josephs, that they believed learner A that there was a relationship between her and the employee. However, as was noted another witness for the employer, Mr Achilles, had a different interpretation, indicating that his finding after the interviews and investigation was that any the possibility of a relationship between the learner and the employee was very unlikely, and there was a much greater possibility that there was no such relationship. He further stated that he did not find any grounds to charge the employee regarding these allegations of a relationship. It was also submitted that learner C corroborated learner A’s evidence, for instance that she saw the messages on learner A’s phone, that she was present when learner A met the employee at the hostel, and they were kissing, is not convincing, and was disputed by the employee. Learner A did not submit her phone as evidence but indicated and claimed the messages were on learner C’s phone, learner C neither provided the messages nor presented her phone.
71. As the key witness for the employer, learner A’s testimony that learner C was present when she met the employee at the hostel, was denied by learner C. Learners C testified that she had seen learner A approaching the hostel, which was close to the netball grounds where she was, but she testified she had not seen the employee and neither did she see them kissing in the vehicle, as she had already left then. Learner C also stated in cross examination that learner A had lied in some of her testimony, such as stating learner A was lying when she stated that she had sent the messages to learner A, saying she has no knowledge of that.
72. Regarding the evidence of learner A, I find that she submitted contradictory evidence, for instance she presented at least three different versions as to what phone she used, and which phone was handed into the police when she was charged criminally. At one point she noted it was her phone, then she stated it was her mother’s phone and another point she referred to a new phone. She also testified at some point that she deleted the messages on her own phone. Ms van Graan testified that learner A did not present her the phone with the messages, telling her she could not as the phone was damaged. There was contradictory evidence as to how the alleged messages were sent and from whose phone it was sent, specifically regarding the fact that she testified this was sent as a dare to the employee, and at no point could she submit any original messages. During cross-examination she acknowledged that she did not have any proof to submit regarding the originality of these alleged messages, and when further questioned she conceded that it was all just a sick game “net ‘n siek speletjie”.
73. I have noted that the employer then intervened and subsequently tried to submit a victim statement from Ms Joseph, who had been sitting in during the evidence in chief and the cross examination of the learner A, whilst she had earlier testified on behalf of the employer. I found this to be highly irregular as the only person appointed by the ELRC as an intermediary was Ms Johnson. The employer argues that this evidence should not be considered as relevant, as learner A was emotional and suffering trauma, having also been charged criminally. However, at no point during cross examination prior to that point, did the learner indicate any discomfort, nor did the intermediary Ms Johnson note anything specifically in this regard. It was only when learner A conceded that it was all a sick game, that the employer intervened and indicated the learner could not testify further, as she was too emotional. There is no reason for me not to accept the evidence relating to her testimony that it was all a sick game. Considering the employers’ key witness’, learner A’s contradictions, her concessions, the failure to submit any original evidence, her disciplinary record and having been guilty of serious offences and expelled, the fact that she has also been found guilty of previous incidents of similar nature, allegations regarding Ms Williams, Ms Isaacs, Ms Vilet and Ms Hoffmeier, that she at first disputed, but then conceded, expelled because she was involved in extortion and blackmail of employee, which she denied, even though learner B had confirmed in his testimony that both of them were involved, and that she was in fact criminally charged on the basis of prima facie evidence of such offences, I find that she is not a credible witness. The employee also argued her testimony was based on vengeance, noting that she had stated that she was aggrieved that she had been expelled, but the employee was still teaching.
74. I have already indicated that the employer has failed to discharge the onus in the key aspects of their evidence in relation to the WhatsApp messages and Facebook posts, failing to provide any evidence as to the originality, the reliability, the integrity and authenticity of these WhatsApp messages and Facebook posts, and in the instance has no evidentiary value. I further find that considering the evidence submitted by the employer witnesses on a whole, not probable, and not credible, and as per IDWU obo Linda and others v Super Group and others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); Court held that: The onus rests on the Employer, so if there is doubt as to which version to prefer, the Employees’ Version must be preferred.
75. The employer submitted further that it was the employee’s responsibility to rebut and provide corroborating evidence by the employee, and her alleged failure to do so must be considered. The employer argued, based on prima facie evidence, that the burden of onus now lies with the employee, implying she must in fact prove her innocence, stating the accused person must present evidence that nullifies that of the victims, and only on that basis a decision of guilt not guilty be right at in the absence of any evidence on the side of the applicant should be presumed that the accuse is guilty of the charges. The employee had presented evidence and rebutted the evidence of the employer and responded to the employer witnesses and the allegations. However, in this instance the employer has failed to discharge the onus, and it does not pass over to the employee. Although acknowledging that this is a inquiry conducted by an arbitrator, and not an arbitration hearing per se, In SAPO Ltd v Kriek and others (P 190/12) [2016] ZALCPE 12 it was held that reversing the onus amounts to a reviewable irregularity by an arbitrator.
76. Having considered all the evidence as noted above, I find as in Marapula & others v Consteen (Pty) Ltd (1999) 8 BLLR 829 LAC above, where it was held that the employer’s onus is discharged if “the employer can show by credible evidence that its version is the more probable and acceptable version and it’s witnesses were credible”, that employer has not discharged that onus. I find that the employer’s evidence is not credible and probable, and I thus find on a balance of probability that the employer has not proven the charges against the employee Ms Martin.

RULING

76. The employee Ms Tonya Martin is not guilty of the charges as stated.
77. Therefore, I rule that the suspension of Ms Martin be uplifted with immediate effect.
78. I further rule that Ms Martin return to the school upon delivery of this award, Emil Weder High School, in the position that she held prior to her suspension, and that the school accommodates and accept her back into the position without any prejudice and in acknowledgement that she was not found guilty of any charges brought against her.

ELRC SENIOR COMMISSIONER: Retief Olivier