THE HEAD OF DEPARTMENT
NORTHERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

and

MR LUYOLO MDZE EMPLOYEE

Case No: ELRC662-25/26NC
Dates: 15 October 2025
Venue: Francis Baard District Office of the Department of Education, Kimberley

DEFAULT AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award in the disciplinary matter (Inquiry-By-Arbitrator) between the Head of Department: Northern Cape Department of Education (hereinafter ‘the employer’), and Mr Luyolo Mdze, ‘the employee’.
2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) was scheduled for 15 October 2025 at the Francis Baard District Offices of the employer in Kimberley. Only the employer and its witnesses attended the Inquiry. The employer was represented by Mr Otsile Pisane, its Acting Deputy Chief Education Specialist. Mr Desmond Serape, a Full-Time Shopsteward of the trade union SADTU, represented the employee.
3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council), following section 188A of the Labour Relations Act (the LRA), read with Clause 32 of the Council’s Dispute Resolution Procedure and the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in accordance with Section 138(7) of the LRA.
4. The proceedings were digitally recorded, and Mr Brian Banga was the Interpreter. Ms Thiti Mokgwamme was the Intermediary. The employer submitted into evidence email communication between the employee and itself, which showed that the employee was well-informed on time of the Inquiry, and was well aware of the details of the hearing. The evidence showed that the employee resigned from the employer and submitted that the employer lacked jurisdiction to discipline him.
5. The employer did not accept the employee’s resignation.
6. In the Labour Court (“LC”) case of Mzotsho v Standard Bank of South Africa Ltd, case no. J2436-18, judgement delivered on 24 July 2018, the LC dealt with an instance where an employee resigned immediately upon given a notice to attend a disciplinary hearing. The LC concluded that the contractual power to discipline remained with the employer.
7. In the LC case of Mthimkhulu v Standard Bank of South Africa [2020] ZALCJHB 201, the LC agreed with the judgement in the Mzotsho case above and found that an employee may still be dismissed by an employer if the employee resigns with immediate effect. The LC referred to the principles of the law of contract, which states that an employee who is obliged by contract to serve a notice period, repudiates a contract when the notice period is not served. The employer then has the right to reject the repudiation and hold the employee to his notice period.
8. This issue was finally settled in December 2020 in the Labour Appeal Court (“LAC”) matter of Standard Bank of South Africa Ltd v Nombulelo Chiloane, case no. JA85/18, where the LAC held that resignation with immediate effect does not terminate the employment relationship in cases where the contract of employment has a notice period.
9. Therefore, in following the legal principles set out in the above precedents, I find that the employer had the right not to accept the employee’s immediate resignation and repudiation of his employment contract and the notice period contained therein. I find that the employer had the right to continue with the Inquiry by Arbitrator against the employee. The employee’s resignation with immediate effect did not terminate the employment relationship in the absence of acceptance thereof by the employer.
10. In terms of subsection 138(5)(b)(i) of the LRA, read together with Rules 30(4) and (5) of the Rules, and sections 11 and 12 of the Electronic Communications Transactions Act 25 of 2002, I am as a result satisfied, that the employee was notified correctly, and was in wilful default of the Inquiry. The arbitration was held in default of the employee.

ISSUE TO BE DECIDED

11. I am called upon to decide whether the employee misconducted himself, per the allegations levelled against him. If I find that he did commit the misconduct(s), I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

12. It is common cause that the employer has employed the employee as an Educator who was based at Emang Mmogo Comprehensive School in Galeshewe, Kimberley. Following alleged acts of sexual misconduct on 22 May 2025, the employee was suspended, and the employee requested this Inquiry with the Council.
13. The allegations levelled against the employee are as follows:

Count 1
On or about22 May 2025, at or near Kimberley you committed misconduct in terms of Section 17 (1) (c) of the Employment of Educators Act, 1998 in that you inter alia committed an act of having a sexual relationship with a learner (TRL) at the school you are teaching at, whilst you knew or ought to have known that you are not allowed to do so. [sic]

Count 2
On or about 22 May 2025, at or near Kimberley you committed misconduct in terms of Section 18 (1) (q) of the Employment of Educators Act, 1998 in that you inter alia while on duty conducted yourself in an improper, disgraceful and unacceptable manner by having a sexual relationship with a learner (TRL) at the school you are teaching at, whilst you knew or ought to have known that you are not allowed to do so.

14. As stated above, the employee did not attend the proceedings. I tendered a plea of not guilty on behalf of the absent employee. Evidence was provided by the employer that the employee was adequately served with a notice to appear at the Inquiry and provided sufficient time to prepare for the case. I was informed that the employee’s rights were explained to him when the charge sheet was served on him.
15. For this award, the learner’s name shall be kept confidential. The female learner who was allegedly in a sexual relationship was 19 years of age and in Grade 12 at the time of the alleged incident. It appears that the alleged incidents took place at the employee’s private residence.

SURVEY OF EVIDENCE AND ARGUMENT

16. This section summarises the parties’ evidence and arguments. It is not intended to be exhaustive, but I have considered all the submissions in arriving at my conclusions.

Documentary Evidence

17. The parties handed in the following evidence:
    Employer: A bundle of documents consisting of statements, notices, email communications, etc., and video footage.
    Employee: None

Employer’s Case

18. Mr Samuel Myo, the Principal, testified as the first witness for the employer. He testified with reference to his statement on how the allegations were brought to his attention on 20 May 2025 by four Grade 12 girls. Mr Myo stated that he followed the reporting lines and that the four girls were protected as whistleblowers, due to the fact that they were facing threats from even female teachers as well.
19. Mrs Myo testified that it was reported by the four girls that the employee had a love relationship with TRL, and that it has been going on for a while. He stated that the four girls did not want the employee and his colleague, who was doing the same thing with another learner, to lose their jobs, but that the employee should only stop the behaviour. Mr Myo stated that the employee was also a member of the School’s Management Team (SMT), and that he chose not to investigate the matter, but to leave it in the hands of the employer for further steps.
20. Ms TRL, the affected learner, denied having had a sexual relationship with the employee, but only a boyfriend/girlfriend relationship. She admitted to having dated the employee for a period of around three weeks, and that she ended it with the employee following allegations from the employee that she (TRL), was disclosing to everyone about their affair. TRL denied having had sex with the employee and accused her fellow classmate, EM, of having had a relationship with the employee, and that they once saw the employee giving EM his bank card.
21. TRL went on to blame her relationship with the employee on peer pressure and stated that the employee approached her to start the relationship, which she then consented to. She referred to whatsapp communications between herself and the employee, and admitted that although their conversations were sexual in nature, she never had intercourse with the employee. TRL stated that no one knew about their relationship until the whistleblowers found out.
22. Ms EM, also a Grade 12 learner and 19 years of age, testified as the third witness for the employer. She testified on how the employee and a colleague had relationships with some of the girls, and how the employee and colleague were smoking hookah pipes with the girls at nightclubs. Ms EM stated that she saw the employee and TRL kissing at the after-party of their matric dance, and how the employee and colleague took TRL and another girl to a hotel and spent the night with them.
23. Ms EM denied having ever taken the employee’s bank card, but stated that the employee only gave her a R 20.00 note to buy snacks. She stated that TRL once tried to make her jealous by recording the employee lying naked on a bed with a love bite on the employee’s neck. Ms EM stated that TRL tried to prove to her that she (TRL) was sleeping with the employee.

Employee’s Case

24. As stated above, the employee wilfully did not attend the proceedings.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. I shall now proceed to determine the charges levelled against the employee, in light of the evidence led by the employer:

Count 1
On or about 22 May 2025, at or near Kimberley you committed misconduct in terms of Section 17 (1) (c) of the Employment of Educators Act, 1998 in that you inter alia committed an act of having a sexual relationship with a learner (TRL) at the school you are teaching at, whilst you knew or ought to have known that you are not allowed to do so. [sic]

26. Although TRL is denying any sexual penetrations having taken place between herself and the employee, the evidence of the employer speaks otherwise. Ms EM appears as a credible eyewitness who once saw the two making love. Uncontested evidence was led by TRL herself that she had a love affair with the employee without sex. However, TRL’s whatsapp communication with the employee shows that their relationship was sexual in nature, due to the sexual innuendos used by them.
27. Then there is the video footage taken by TRL where the employee is seen having passed out, naked, with a huge love bite on his neck. I have no reason to doubt the truthfulness and credibility of Ms EM’s testimony, in that I find it probable that the employee had a sexual relationship with Ms TRL. On a balance of probabilities, I am persuaded that a sexual relationship between the employee and Ms TRL existed, and that the applicant is found guilty of having committed this misconduct.

Count 2
On or about 22 May 2025, at or near Kimberley you committed misconduct in terms of Section 18 (1) (q) of the Employment of Educators Act, 1998 in that you inter alia while on duty conducted yourself in an improper, disgraceful and unacceptable manner by having a sexual relationship with a learner (TRL) at the school you are teaching at, whilst you knew or ought to have known that you are not allowed to do so.

28. Based on the evidence and admission of Ms TRL that she had an improper love relationship with the employee, coupled with the whatsapp communications which proves the existence of the relationship, and the video footage taken by Ms TRL, it is my finding that the employee is guilty of this charge too.

VERDICT

29. Count 1: Section 17(1)(c) of the EEA provides the following:
    Serious misconduct
30. (1) An educator must be dismissed if he or she is found guilty of –
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner, student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
31. With the evidence which was placed before me, I find the employee guilty of having contravened paragraph 17(1)(c) of the EEA, in relation to having had a sexual relationship with Ms TRL.
32. Count 2: The employee was charged under section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended (the EEA), which reads as follows:

Misconduct

18. (1) Misconduct refers to a breakdown in the employment relationship, and an educator
    commits misconduct if he or she –
    (q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
19. The employee is also found guilty on this charge.

SANCTION

33. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the Employment of Educators Act (the EEA), provides for the dealing with incapacity, misconduct and appeals, and provides the following:

Substitution of section 17 of Act 76 of 1998

10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
    following section:
    “Serious misconduct
11. (1) An educator must be dismissed if he or she is found guilty of—
    (a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    (b) committing an act of sexual assault on a learner. student or other employee;
    (c) having a sexual relationship with a learner of the school where he or she is employed;
    (d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
    other employee;
    (e) illegal possession of an intoxicating, illegal or stupefying substance; or
    (f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
    (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
    and procedures 35 provided for in Schedule 2.” [my emphasis added]
12. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having had a sexual relationship with a learner in accordance with section 10 of the ELAA. A dismissal, therefore, automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law after being found guilty of having sexually assaulted a learner of the school where he was employed.
13. Based on the provisions of the law (the ELAA), the sanction of dismissal is mandatory and must be handed down to the employee. No further mitigating or aggravating circumstances can overrule this provision of the ELAA. The employee, in my view, abused his authority as a teacher and betrayed the trust placed in him while standing in loco parentis towards the learner.
14. Having found the employee guilty of the main charge, which is based on paragraph 17(1)(c) of the EEA and section 10 of the ELAA, which provides for a mandatory sanction of dismissal, upon a guilty finding, it is my conclusion that by operation of law, the employee must be dismissed.

CHILD PROTECTION REGISTER

37. The employer addressed me on whether the employee’s name must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act 38 of 2005 (hereinafter ‘the CA’) is of relevance to the instance of Ms TRL.
38. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

39. Having found the employee guilty of having had a sexual relationship with Ms TRL, I hereby do find him unsuitable to work with children. Based on these findings, I will instruct that the employee’s name be reported to the Director-General of the Department of Social Development for listing in Part B of the Child Protection Register.
40. In the premise, I make the following award:

AWARD

41. Mr Luyolo Mdze is found guilty on the charge of ‘having had a sexual relationship with a learner’ levelled against him by the Head of Department: Northern Cape Department of Education.
42. The mandatory sanction of dismissal is imposed with immediate effect on the employee.
43. The General Secretary of the Education Labour Relations Council is directed to serve this award on the South African Council of Educators.
44. The General Secretary of the Education Labour Relations Council must also, in terms of section 122(1) of the CA, notify the Director General of the Department of Social Development in writing of the findings of this forum, made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Luyolo Mdze 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.

This is done and dated on 26 November 2025, at Kimberley.

David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator