188A: INQUIRY BY ARBITRATOR
Panellist/s: Seretse Masete
Case No.: ELRC476-25/26MP
Date of Award: 25 /02/2026

In the Inquiry by an arbitrator between:

Education Department of Mpumalang

(Employer)

And

Buthelezi Jacques Mthokozisi

(Employee)

Employer’s representative: Wilord Gaza :

Employee’s representative: Lungelo Nkosi, an Attorney

Particulars of the proceedings and representation

1. The matter was held on 29 and 30 January 2026 at the employer’s premises in Ermelo.
2. It was an Inquiry by Arbitrator conducted in terms of s188A of the Labour Relations Ac 66 of 1995 as amended.
3. The Education Department of Mpumalanga (employer) was represented by Wilord Gaza, while the employee, Buthelezi Jacques Mthokozisi , was represented by Lungelo Nkosi, an Attorney.
4. The employee confirmed to have received the allegations well in time and understood them.
5. The proceedings were conducted in English and interpreted into Isiswati and isizulu by Thembile Ntshela, and digitally voice recorded.
6. The names of the learners will not be disclosed in the award, but their numbering as appear on the allegations will be used.
7. The employer was at liberty to start with any learner not necessarily in the sequence as indicated on the numbering.
8. The employer called in 6 witnesses including the learners, and submitted no bundle of documents, and the employee testified as a sole witness and submitted no bundle of documents as well.

Issues to be decided

9. To determine whether or not the employee breached section 17 and section 18 of the Employment of Educators Act 76 of 1998 as amended (EE Act) in that he sexually harassed learners at Siyathuthuka primary school.
10. The ground rules and procedure for the process were laid down and explained to the parties respectively.

Preliminary issues

11. None.

Opening statement by the employer /Reading of the charges.
The employer representative, Wilord Gaza, presented his opening statement as follows;

12. The case was about sexual harassment which was a serious matter, six witnesses will be called to corroborate the employer’s version and the prayers of the employer was that the employee should be dismissed. The employee party chose not to present any opening statement. The charges were read into the record and the employee was given an opportunity to plead.

Pleading

13. The employee pleaded not guilty.
    Evidence by the employer.

1st witness, learner 1.3 , testified as follows;

14. She promised to tell the truth only. Last year (2025) she was in grade six and was 11 years old. She knew the employee as he was teaching her English and social science. The employee once called her in grade 4 and told her to bring a textbook. He touched her butt and she felt afraid. She once received R10 from the employee. The employee never indicated why he gave her the money. She did not recall the date, but she knew it was in 2025. There were other people during the incident. She did not report the matter instantly because she was afraid. The money was given to her after the incident. She was asked why she did not ask what was the money for. Her response was that she did and ended up taking the money.
15. She confirmed that she was confused and afraid. She did not expect a teacher to do that to her.

2nd witness, learner, 1.4. testified as follows;

16. She promised to tell the truth and proceeded that last year (2025) she was 12 years old and was in grade 6. She witnessed the employee touching learner1.6 and moving his hand down her hips while they were in grade 4. He, one day, called learner 1.9 to the grade 4 class and learner 1.9 came back crying because the employee tried to unveil her tunic (school uniform). One day when she was collecting files in her class, the employee touched her butt and that made her very angry.
17. She could not know whether other children saw what the employee was doing or not. She was so afraid and then started to realise that learner 1.9 was telling the truth. It was learner 1.9 who came crying from the class where the employee was. Learner 1.9 told her that the teacher (employee) wanted to touch her butt and he slowly pulled up her dress. Other kids came in and learner 1.9 went out and cried while she was next to her. She covered herself and leaned on the desk. She (learner 1.4) confirmed that the employee touched her butt and she was angry.

3rd witness, learner 1.2 testified as follows;

18. She promised to tell the truth and went on to testify that last year 2025, she was 12 years old and was in grade 6. She testified that the employee touched her butt twice. He further put his hand inside her tunic (school uniform) and touched her nipples. Other learners in the class did no see the incident.
19. She was heartbroken and told some of her friends like learners 1.3 and1.6, and others.

4th witness, learner 1.1 testified as follows;

20. She promised to tell the truth and went on to testify that, last year she was 11 years old and was doing grade 6. She knew the employee as he was teaching her social science. It was on a Wednesday when the employee brushed her butt. She felt that she was not important and special. Learners 1.3 and 1.9 also told her that the teacher (employee) touched them inappropriately. Nobody saw the incident. She was afraid to report the matter because she was scared that the employee might victimise her and make her to fail.

5th witness, learner 1.9, testified as follows;

21. She promised to tell the truth and testified that, last year she was 13 years old and was in grade 7. She knew the employee as he once taught her in 2024. The employee one day removed a learner who was seated next to her and sat next to her (1.9)and then touched her inappropriately. She asked to go to the toilet and she never came back and the employee was annoyed of her not having returned. The employee once gave learner 1.3 R10-00 after hearing that it was her birthday. She told learner 1.3 not to use the money. The employee one day lifted up her dress and she was very angry.
22. She did not tell her male friend who accompanied her to the class about the incident because it was a boy and he could have just laughed at her. She did not have any choice because she felt ashamed and thought nobody would believe her.

6th witness, Makamo Prudence, testified under oath as follows;

23. She was a member of the SMT and one of her duties was to ensure that learning and teaching took place smoothly. She knew the employee but she was not sure when did he join the school. Teachers were not allowed to give learners money at the school. One of the Fridays when she was doing awareness, she told the learners that they should not allow anybody to touch their private parts. A group of girls then came to her the same day during break time and reported that the employee was touching them inappropriately. She then called the other educators including the admin staff to come and listen to the learners as well. The girls then told them that the employee was touching them inappropriately. Sexual harassment included touching somebody’s parts without their consent. She reported the matter to Mr Tshabalala and a SADTU member. On the following Monday, they then told the principal because he was not present on that day. Learner 1.3 indicated that the employee gave them R10-00 which she gave to the principal. She would not know as to why the employee was giving money to the children. What was needed at the school, was to assist the child in terms of buying them what they needed most, like sanitary towels. Inappropriate touching of learners was not allowed.
24. The awareness she conducted, was because it was a child protection week and it was one of their programmes at the school. She was trained as she attended workshops which dealt with wellness of children. She did not remember the date of such an awareness, but it was recorded in her report. Learners could report to her or to any educator should they feel violated. There was no need to involve a social worker because they were not interviewing the learners but listening to their story, and they were acting in loco parentis. They further did not want to induce secondary trauma to the learners.
25. She would not know whether the learners were friends to one another or not . Parents were called after the principal was informed. Evidence by the employee party.

The employee, Buthelezi Jacques Mthokozisi testified under oath as follows;

26. He had no good relationship with learners 1.7, 1.8 and 1.9 as they used to argue with him. He reported the matter to Ndlovu and Makamo but they did nothing because the learners continued. (he never put this to Makamo). The chairperson of SADTU advised him to resign because the allegations were serious and he refused. He has never harassed anyone in his life. (he never put this to the learners).He was denied to put his version during the meeting with the SGB. (he never put this to Makamo). The matter was not investigated and no social worker was called to come and interview the learners. (he did not challenge Makamo when she said investigation could have subjected the learners to secondary trauma). He admitted that inappropriate touch of learners amounted to sexual harassment. He would not believe a learner who would tell him that she was sexually harassed by a teacher. He was part of the statistics of people who induced victims to a secondary trauma because he would only believe when the alleged perpetrator was found guilty. He did not know why the learners chose him out of six male teachers. He was inducted on the code of conduct and knew that sexual harassment was not allowed at the school. He denied that he touched the learners because he knew that there was no adult who could pick it up, but the allegations stressed him because he did not commit any misconduct. He denied to have had the tendency of calling learners from the other grades to come to his grade four class. It was allowed to make a learner to write on the board because that could improve their knowledge. He did not see anything wrong in giving a learner money because they also used to give him some snacks during his birthdays, he also once bought shoes for one destitute learner and the principal knew about it. He denied that the learners did not comprehend what was happening, citing that they knew what was happening since some of them reported the incident to their grandmothers and some to their friends. He did not know that he could call any child to come and testify on his behalf. When put to him that but that was written on his charge sheet, he responded that he was barred from talking to them. He however did not comment when he was told that his attorney was not barred from talking to the learners. He denied that he was not a credible witness and that he was not telling the truth. He did not see anything wrong on what happened because he was innocent. All SADTU members called and reprimanded him citing that he was disrespectful.
    Analysis of the evidence
27. Common cause issue. (a). the employee was an educator employed at Siyathuthuka primary school. (b). He was teaching social science and English in grade 4 grade 6. (c). He was reporting to Ms Makamu. (d) 9 learners reported the alleged inappropriate touching by him (employee). (d) He was called in a meeting by the school management team to be asked about the allegations by the learners and he denied. (e). He would call learners from grade 6 to come and write corrections for him or even to carry files or boxes for him. (f). He gave one learner R10-00. (g). The ages of the learners ranged from 11 to 13.
28. The employee was charged with the allegations of sexual harassment of learners in terms of item 5 of the disciplinary code and procedure and s17(1)(c)(as per the charge sheet) of the employment of Educators Act 76 of 1998 as amended ( EE Act), see the attached charge sheet. The employee pleaded not guilty to the allegations. He was represented by an attorney, see paragraph 1 above.
29. The EE Act does not contain a specific standalone definition of the term sexual harassment, but clarifies it as a form of misconduct for instance in s17and s18. It also relies on other legal frameworks for the definition. Section17(1) (b) talks about committing an act of sexual assault on a learner, and s17(1)(c) talks about an educator having a sexual relationship with a learner of the school where he or she is employed. The employee was charged in terms of s17(1)(c). Section 18(1) defines misconduct as a breakdown in the employment relationship and an educator commits misconduct if 18(1)(a)he or she (fails to comply with or contravenes this Act…………….relating to education and the employment relationship. S18(1)(q) while on duty conducts himself or herself in an improper disgraceful or unacceptable manner. Although the employer charged the employee with s17(1)(c), they also mentioned sexual harassment in the same allegation. That section [17(1)(c)] deals with a misconduct where an educator has a sexual relationship with a learner at that school. The section that actually deals with sexual harassment (improper, disgraceful and unacceptable manner) is s18(1)(q) of the same EE Act. As a commissioner, I had to determine the nature of the dispute by allowing the parties to present their evidence. In the presentation of their evidence, both parties were leading evidence on inappropriate conduct of touching learners by an educator. The issue in dispute was that the employee touched and brushed the learners’ butts, hips and nipples as well as unveiling one of the learner’s dress. He was further alleged to have given one learner R10-00 as well as improperly looking at the learners’ thighs. The dispute before me was therefore improper, disgraceful and unacceptable behaviour as contemplated in s 18(1)(q) of the EE Act. That type of conduct amounted to sexual harassment as per the definition taken from the code below.
30. The code of good practice on sexual harassment defines sexual harassment as unwanted conduct of a sexual nature which may include unwelcome physical contact, verbal or non-verbal conduct. Five learners testified against the employee alleging that he acted inappropriately to them. The alleged inappropriate conduct by the employee ranged from touching their butts, brushing their butts, putting his hand inside their school uniform, touching their breasts and unveiling their dresses as well as inappropriate look at their thighs. In some instances, the conduct was allegedly repetitive for instance against learner 1.2 and learner 1.9. This does not mean that such conduct should be repeated in order to qualify to be a sexual misconduct. I am not going to deal with the learners one by one because the employee never disputed the versions of all the learners. There was no instance during each learner’s testimony where the employee denied what each learner testified on, except to ask them as to why did not they report on the spot and whether there was any person or a learner who saw the incident as well as when did the incident take place. The issue of delay which concerned the employee, was addressed in a matter between Mashele vs South African reserve Bank and Others (JA128/24[2025] ZALC 51; [2026] BLLR 57 (LAC); (2026) 47 ILJ 168 (LAC) (21 October 2025) where the complainant complained about persistent comments of a sexual nature by the appellant. The appellant in that matter argued that the complainant has delayed reporting the allegations of harassment. The court agreed with the arbitrator’s acceptance of the complainant’s reason that she was afraid that she might not be believed and that the experience would be emotionally draining. It was the testimony of all the five learners in the current matter that they did not report instantly because they were afraid. For instance, learner 1.3 testified that she was afraid and confused as she did not expect a teacher to do that to a minor child. Learner 1.1 said she was shocked hence she did not tell the other learners. She could not report on the spot because she was afraid that the employee might beat her and make her to fail. For the learners not to remember the dates, my take on the balance of probabilities is that forgetting the dates would not necessarily remove the substance, more so because the employee did not even deny the allegations by the learners during their testimony. The learners cannot be expected to remember everything; I mean even an adult cannot be so expected. The concern by the employee, especially in his closing arguments that, it could not be, that the incident happened in the classroom without being seen by the other learners, was not used to deny the allegations by the employee during the learners’ testimony. In anyway, all the incidents happened in the grade 4 classes, grade 4 learners are still young with undeveloped cognitive capability. It would be unfair on the balance of probabilities to expect them to comprehend what was happening between the employee and the grade 6 learners he used to call, no one of the learners testified that she screamed, maybe, that could have caught the attention of the young ones. Remember the learners would be called under the guise of coming to assist the employee like by carrying boxes and or writing corrections on the board. Therefore, for the other learners who were in the class not to have been aware of what was happening between the employee and the learners who were touched inappropriately, cannot necessarily justify that the incident did not occur. The incident was not a physical assault and or a rape which could have attracted the attention of the other learners, it was brushing and touching. I mean, the employee knew that what he was doing was not acceptable, as an adult, he would do it in such a way that it did not attract the attention of the young ones. The employee himself did not deny the allegations by all the learners during their testimony in chief. He only started denying the allegations after the learners had left.
31. Regardless of the absence of the investigation report, which the employee accepted that it was not peremptory, the learners were very consistent in relating their ordeal, they stood their grounds even after the employee representative tried to make them repeat what they said before. All the learners were therefore reliable and credible. It was further held in Machi v Chep SA (Pty)Ltd (DA22/2023)[2026]ZALAC3, that an overly formalistic approach to disciplinary hearings is in appropriate. What is important is the employee’s knowledge of the substance of the allegations and not their legal label. On the issue of statements, it is not a requirement that every time witnesses should write and submit statements during disciplinary hearing as the employee suggested. Both parties have an opportunity of cross questioning the witnesses with or without written statements.
32. The absence of the other four learners cannot necessarily nullify the evidence of the those who testified. The learners who were testifying, did so with regard to what happened to them not to those who were absent. It was the obligation of the employee anyway, to call any other learner or learners or even educators, to come and corroborate his innocence. The argument that he was barred from speaking to the learners does not hold water because his attorney could have made arrangements for him. His attorney was not barred from talking to the learners, of course in consultation with their teachers and or parents. The employee in his closing arguments, argued of inconsistency by learner 1.2 who testified that he lifted her school uniform(tunic) and touched her nipples. I do not know where does the inconsistency comes from, because the employee never tested the credibility of that learner when she testified that he put his hand inside her tunic and touched her nipples. He further did not test the credibility of learner 1.9 who testified that he lifted (unveiled) her school dress and she ended up lying to him in order to be away from him. His question was why did she lie, but that was not the denial of his conduct. He never denied the allegations nor has he put it to them that he would come and deny those allegations during his testimony in chief. He did not deny having called the grade six learners to the grade 4 class. He further did not even testify that he got permission from their educators and or from the principal to remove those learners from their class. Anyway, immaterial inconsistency, like not remembering everything by the learners in the current case, has got nothing to do with the material substance, see CS an Another vs Swanepoel and Others [2022] 7 BLLR660 (WCC). If he wanted to empower the learners by making them write on the board as he alleged, why did he choose learners from garde 6 and not from the same grade 4 he was teaching then.
33. The employee in his closing arguments, suggested that there was a strained relationship between himself and the learners and that Makamo (DH) might have influenced the learners because she told them during an awareness campaign to report any unwanted conduct of the educators to them. He further indicated that everyone from SADTU, his union, reprimanded him and also advised him to resign. He concluded that the allegations against him therefore emerged within a specific political and work place context marked by tension, influence and prior conflict. While that was not substantiated how they link with inappropriate touching of learners, he however made a turn and indicated that, he did not mean that there was a conspiracy against him. There was therefore no substance in claiming that the learners’ version was neither credible nor reliable. Makamo’s testimony was never challenged and nothing substantive was said with regard to her testimony even in the employee’s closing arguments. It is my believe on the balance of probabilities that the employee indeed touched the learners inappropriately. Such touching of the learners’ private parts, created a hostile learning environment for the learners and his conduct towards them was improper, disgraceful, and unacceptable as contemplated in s18(1)(q) of the EE Act, see Diholo v Gauteng department of education and Others (JR1775/19[2023] ZALCJHB 117 (2 May 2023) The employee failed to live up to the principle of “loco parentis” which he kept bringing up during his testimony in chief. The Constitution of the Republic of South Africa, s28(2) provides that, a child’s best interests are of paramount importance in every matter concerning the child. This was emphasised in the matter between the Governing Body of the Juma Musjid primary school v Essay NO and Others(2021) where a private property owner evicted the school on their property(land), which cited that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interest of children.

Findings

34. In the light of all the above, I make a finding that, although the employee was charged in terms of s17(1)(c) of the EE Act (having sexual relationship with a learner at the school where one is employed), he contravened the provisions of the EE Act resulting in a breakdown of the employment relationship, see s18(1) thereof, in that his conduct was improper disgraceful and unacceptable, see s18(1)(q). This is a dismissible type of misconduct, see Diholo. Diholo, Juma Musjid, Swanepoel (see below) cases, and many more fulfil the provisions of s28(2) of the Constitution. I am satisfied that the version of the employer was more probable than that one of the employee. The employee breached a valid rule which he was aware of in terms s18(1) [18(1)(q)] of the EE Act. I therefore find the employee guilty of the allegations levelled against him. Sanction.
35. I have considered the employee’s mitigating factors inter alia that he had two female children aged 5 and 4, that dismissal would cause him financial hardship and mental stress and that his criminal case on the same matter was still pending and he was still innocent until proven guilty. I want to start by indicating that the issue of innocent until proven guilty by the court of law, does not necessarily affect the disciplinary hearing proceedings. Those processes could run parallel.
36. I also considered the employer’s aggravating circumstances and I found that the employee’s mitigating factors, are on the balance of probabilities outweighed by the aggravating factors against him. This is so because of the following; the issue of protecting the interest of the child is intrenched in the Constitution as seen above. That protection is not only directed to the learners at Siyathuthuka primary school, but to all the learners ( including his two female children), across the whole country. It is my view on the balance of probabilities that the employee did not show any remorse throughout the hearing process. It was his own version that he was one of those people who induces secondary trauma to the victims. He would not believe a learner who would come to him and report that an educator touched her inappropriately. He would only believe it after the perpetrator would have been found guilty in the court of law. He further did not have a sense of appreciation to the learners as children and him as a parent (loco parentis). He testified that it was not his believe that top learners should be appreciated and he testified that he did say so loudly for those top learners he was introduced to, to hear his stance. He was inducted on the code of conduct and he knew that touching learners inappropriately amounted to sexual harassment (his own testimony). When he was told that learners could not comprehend, he denied that and went on to say the learners knew what was happening, that was the reason why some of them told their parents and some told their friends. To me, on the balance of probabilities, the employee displayed sense of arrogance in his defence.
37. The employee therefore breached the rule which he was aware of or expected to have been aware of. The rule was valid as it was meant to protect the interest of the learners, including his children, as intrenched in the Constitution. That rule is consistent with the Constitution, the views and outcomes of the courts mentioned above as well as the provisions of the EE Act. The sanction of dismissal would therefore be commensurate with the offence committed by the employee. The employee must therefore be effectively and immediately dismissed from the employment on receipt of this outcome.
38. I further make a conclusion that the employee is unsuitable to work with children in terms of s120(1)(c) of the Children’s Act 38 of 2005.
39. This findings must also be referred to the South African Council for Educators (SACE) to determine whether or not the employee has breached its code of ethics.
40. Should the employee not be satisfied with this outcome he may choose to file a review application in the Labour court.
41. There is no order as to costs.

Seretse Masete

Date 25/02/2026
ELRC Panellist