IN THE ELRC ARBITRATION
BETWEEN:

SHAKAAR GUNGAPURSAD “the Respondent”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Applicant”

ARBITRATION AWARD

Case Number: ELRC3-25/26KZN

Last date of arbitration: 21 July 2025

Date of submission of closing arguments: 25 July 2025

Date of award: 27 July 2025

NTOMBIZONKE MBILI
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion
0046
Gauteng
RSA

Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za

Physical Address
ELRC Building
261 West Avenue
0046
RSA

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award, in the disciplinary proceedings (Inquiry-by-Arbitrator), which commenced on 23 June 2025, proceeded and was finalized on 21 July 2025. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 25 July 2025.
2. The arbitration was initially held at the Department of Education office, in Stanger, which is situated in the Northen part of the Province of KwaZulu-Natal, this being a venue provided by the Department. Both parties later agreed to proceed with the matter online.
3. At the beginning of the hearing, the Respondent, Mr Gungapursad was informed of his right to be represented, but he reaffirmed his decision to represent himself and the hearing proceeded as such.
4. The Applicant, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Ms. Nomfundo Ngonyama, employed by the Department as the Deputy Manager: Human Resource Management.
5. The proceedings were digitally and manually recorded. Ms. N Ndlovu provided the services of an interpreter and Ms. B.S Khanyile was the intermediary.

ISSUES TO BE DECIDED

6. I am required to determine whether the Respondent is guilty of the charge levelled against him and if so, to determine the appropriate sanction.

BACKGROUND

7. The Respondent is employed as an Educator at Asheville Combined School and is charged with the following count of misconduct:

Charge1
“In that on or during the period 2024, at or near by Asheville Combined School you allegedly told learner A that she must close her legs because she smells like fish. In so doing you contravened section 17 (1) (b) of the Employment of Educators Act No 76 of 1998 as amended”.
Charge 2
“In that on or during the period 2024, at or near by Asheville Combined School you allegedly told learner A that you want to have seven rounds of sex with her. In so doing you contravened section 17 (1) (b) of the Employment of Educators Act No 76 of 1998 as amended”.
Charge 3
‘In that on or during the period 2024 at or near by Asheville Combined School, you allegedly uttered inappropriate remarks to the learners saying they are busy masturbating. In so doing you contravened Section 17 (1)(b) of the Employment of Educators Act Of 1998 as amended”.

Charge 4
“In that on or during the period 2024 at or near by Asheville Combined School. You allegedly touched learner B’s bum. In so doing you contravened Section 17 (1)(b) of the Employment of Educators Act No 76 of 1998 as amended.

8. The Respondent pleaded not guilty to all the charges and denied all the allegations against him.
9. The Applicant called three learners as witnesses and the learners shall be referred to as Learner A, B and C, the learners are under the age of 18 years and their personal information shall not be published in line with the requirements of the law.

SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case

10. The respondent led the evidence of three learners namely, learner A, B, and C. They gave their evidence virtually and was assisted by an intermediary. Ms. Hlengiwe Patience Mkhize, the Principal of the school, was also called as a witness.

1ST WITNESS

11. Learner A testified that she attended Asheville Combined School and in 2024 she was 15 years old and doing grade 9. She stated that the respondent joined the school mid-term and taught her mathematics.
12. She said the respondent is a teacher who enjoys working with students and making learning fun but sometimes uses improper language. She recounted an instance when the respondent publicly told her to close her legs because she smelled, causing her to feel embarrassed, although she tried to brush it off by joining in the laughter with the other students.
13. She was told by the respondent that she appeared to have three children from different fathers and that he desired to engage in seven rounds of sex with her. This comment shocked her, and the boys in the class laughed. [We decided to pause the hearing as the learner was upset and crying]. Despite this, we proceeded with her testimony, where she expressed her desire for the respondent to come back to the school because she believes he is a good teacher.
14. During cross examination she stated that the respondent uttered “uyanuka” which means “you are smelling”.
15. She refuted the claim that the respondent used the example of three children during a math class, clarifying that he directed the comment towards her.
16. She denied that Mr Ramhani, an Educator at the school, influenced her to make accusations against the respondent due to their rivalry.

2ND WITNESS

17. Learner B testified as the second witness. She stated that in 2024 she attended Asheville Combined School and was in grade 9 and in the same class as learner A.
18. She characterized the respondent as an ineffective teacher who used inappropriate language with students and engaged them in off-topic discussions.
19. She claimed that the respondent would normally ask the girls in the class to lift their skirts before sitting on their chairs, he then would place his hand on the seat and direct them to sit on it.
20. She confirmed that the respondent told learner A to close her legs because she smelled liked fish and that he further said he desired to have seven rounds of sex with her.
21. She said that they informed their class teacher, Ms. Mabutho about the incidents, and their teacher mentioned that learners in other classes were also reporting similar issues.
22. She stated that the respondent had touched her buttocks and lifted her skirt, which brought back memories of her past sexual assault. She wondered if the respondent was aware of the incident and exploited her.
23. Additionally, she mentioned that the respondent had also touched her friend inappropriately, causing her friend to leave the school for good.
24. She further explained that she informed her parents about the situation, prompting them to confront the school, only to find out that the respondent was already suspended.
25. She refuted the claim that the respondent did not say that learner A was smelling of fish and instead commented on a fish smell in the kitchen, explaining that the cooking schedule only includes fish on Fridays. On the particular Monday in question, they were cooking fermented maas.
26. The respondent suggested that she reacted strongly to his touch on her back due to the past sexual assault. However, she denied this and clarified that he actually touched her buttocks. She also mentioned an uncomfortable incident where he advised her not to hold her skirt down while going up stairs, so that he could look underneath.
    3rd WITNESS
27. Learner C stated that in 2024 she was 14 years old and doing grade 8. The respondent taught her mathematics.
28. She reported that the respondent had asked her to retrieve chalk from under a desk. As she bent down to pick it up, he peeped under her skirt. When she confronted him, he scolded her and demanded respect. Later, he asked her to clean the board, and because she is short, she had to stand on her toes, giving him another opportunity to look under her skirt. She told her mother about the incident, who then reported it to the school.
29. One morning, some boys in her class arrived late, and the respondent asked if they were late due to “ukushaya indlwabu” which translates to “masturbating”. This was the first time she heard that word, and her classmates explained its meaning to her.
30. During cross-examination, she denied that the respondent spoke to the boys outside the classroom, stating that the discussion occurred inside the class
31. Additionally, she contested the claim that the boys initiated the discussion around the word “masturbating,” asserting that it was the respondent who repeated it.

4th WITNESS

32. Ms Hlengiwe Patience Mkhize stated that she was appointed as the principal of the school end of April 2025. She was previously part of the School Management team.
33. She stated that the respondent was employed at the school as a displaced Educator. The respondent had been transferred to various schools like Stanger High, ML Sultan, Manor Secondary School because of inappropriate behavior and complaints from parents. The parents went on strike, demanding for the school to address the concerns regarding the respondent.

The Respondent’s case

34. The respondent testified and stated that he held the position of an Educator at ML Sultan from 2003 and in 2024 he was declared excess because his subject was phased off. He said that in 2024 he was not issued with a duty load due to the issue that he had with management. Management had a strong sitting with SADTU and he was transferred to Stanger Manor Secondary to teach mathematics. At Stanger Manor he was told that he was not required because another mathematics teacher had already been sourced. He stayed at home and was later placed at Asheville Combined School in the third term and taught the grade 8 and 9’s mathematics.
35. He did not work in the fourth term because his wife passed on. When his colleagues visited him at his home to pay their condolences, they told him that there were sexual assault allegations against him.
36. He stated that three days before his wife passed on the three learners that testified in this hearing were involved in a fight. He requested for a meeting with their parents and the parents did not attend.
37. He submitted that all the learners under cross examination confirmed that they wanted him back at the school.
38. He said he was willing to do anything for his learners, even mentioning that he once bought chicken feet, grilled them, and sold them to raise funds for the learners.
39. He denied looking underneath learner C’s skirt, explaining that he simply tillted his head to pick the chalk up. He admitted to telling the boys not to “shaya indlwabu” meaning “don’t masturbate” and not to arrive late because that was the common phrase used amongst themselves.
40. He confirmed that he told learner A to close her legs and said that the fish smell came from the kitchen and did not say that she smelled of fish.
41. He stated that the corridors at the school are narrow, and he touched learner B’s back and told her to move and not block the corridor. He said that could have triggered her due to the past assault.
42. He denied saying to learner A that he desired to have seven rounds of sex with her
43. Furthermore, he mentioned his lack of trust in SADTU representatives, opting to represent himself due to opposition from higher-ranking individuals. He emphasized his innocence, portraying himself as a compassionate individual caught in a fabricated scheme.

ANALYSIS OF EVIDENCE AND ARGUMENT

44. In disputes such as the present where an employee is charged for misconduct. The onus is on that employer (the applicant) to establish that the respondent committed the act(s) of misconduct set out in the charge and that dismissal is an appropriate sanction for such an infraction.
45. The allegations are that the respondent had sexually assaulted learners in breach of section 17(1)(b) of the EEA. In this regard evidence must demonstrate on a balance of probabilities that the respondent is guilty of the misconduct for which he has been charged. Once found guilty it follows from the scheme of the legislative provision that dismissal must follow.
46. Evidence must accordingly be placed before me to demonstrate on a preponderance of probabilities that misconduct has been committed and that dismissal is an appropriate sanction for the misconduct.
47. The respondent is charged for contravention of section 17(1)(b) of the Employment of Educators Act as outlined above. The section states the following:
    “An educator must be dismissed if he or she is found guilty of-
    (a)…
    (b) committing an act of sexual assault on a learner, student or other employee.”
48. The allegations, if proven, amount to serious breaches of professional ethics and the Employment of Educators Act, which safeguards learners’ dignity and schools’ learning environment. The vulnerability and age of alleged victims heighten the seriousness and require strict accountability.
49. The evidence strongly suggests a pattern of misconduct, including sexualized comments about learners, physical touching violating personal boundaries. and the use of derogatory and inappropriate language publicly humiliating learners.
50. The Respondent’s explanations often seeks to minimise or deflect responsibility. This is apparent from the evidence related to the touching of a learner’s back instead of buttocks, this demonstrates that the respondent is hellbent on not taking accountability for his conduct. The respondent went as far as using learner B’s previous sexual experience to seek to justify her response to his conduct. It does not make sense in fact or in law, why the respondent would link a touch on the learner’s back and a touch to the buttocks to be linked to a previous sexual assault. The only reasonable inference to be drawn from the respondent’s acceptance of the effect of his conduct on the learner is that he touched her inappropriately.
51. The learners provided detailed, consistent accounts of the alleged misconduct, including the words used by the respondent in class, these accounts are not seriously disputed by the respondent. He instead accords a different interpretation that must be accorded to his conduct.
52. The respondent simply gave evidence that confirmed the incidents. I do not understand the justification that the respondent wants me to accord to his blatant disregard of the learners’ rights to privacy. His confident acceptance of using foul language with the learners, touching and peeping under the skirts of learners are all indicators of the demeanour the respondent presents. This in my view is conduct unbecoming of an educator. His conduct went beyond the boundaries expected of educators.
53. Additionally the Respondent’s history of transfer due to previous complaints and parental strikes supports the likelihood of misconduct.
54. In the case of McGregor v Public Health and Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1643 (CC) the Constitutional Court held as follows:
    “…sexual harassment is the most heinous misconduct that plagues a workplace. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and are inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms and non-sexism. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth striking at the root of that person’s being.”
55. The context from which the circumstances of this case arose are a typical demonstration of the respondent’s abuse of power and authority. The self-worth and the dignity of the victims were shattered. They will clearly suffer the effect of their experience for some time into the future without proper psycho-social assistance.
56. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) the following was held:
    “In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
57. I am not satisfied that the respondent laid any foundation in demonstrating that dismissal was not an appropriate sanction for the proven misconduct. In this regard I find that the dismissal is the only appropriate and fitting sanction for the misconduct that he is found guilty on.
58. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:
    “Substitution of section 17 of Act 76 of 1998 The Employment of Educators Act,1998, is hereby amended by the substitution for section 17 of the following section:

Serious misconduct

17. (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 as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.”

59. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted the Girl Child in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. The employee is simply dismissed by operation of the law, after being found guilty of having sexually assaulted the children at the school where he was employed.
60. It follows, based on the provisions of the law (the ELAA), a dismissal is mandatory and the only appropriate sanction which must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the children.
61. Having found the employee guilty of the count, which is based on paragraph 17(1)(b) of the EEA, which provides for a mandatory sanction of dismissal, upon a guilty finding, by operation of law, the employee must be dismissed.
62. The employer, in its closing arguments, 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 the children. Section 1 of the CA provides the following:

“1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years”

63. Section 1 of the Sexual Offences Act also defines a child as follows:

“1. Definitions and interpretation of Act

(1) In this Act, unless the context indicated otherwise-
‘child’ means a person under the age of 18 years and ‘children’ has a corresponding meaning”

64. Section 122(1) of the CA provides the following:

“122

(1) Finding to be reported to the Director-General. 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.”

65. It follows that the finding which I have made necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.
66. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

AWARD

I accordingly make the following award:-

1. The Respondent is guilty of committing misconduct as set out in the charge sheet;
2. The Respondent is sanctioned to summary dismissal;
3. Mr Shakaar Gungapursad is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005;
4. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: 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 the Mr Shakaar Gungapursad 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;
5. The General Secretary of the Education Labour Relations Council is directed to serve a copy of this was to the South African Council of Educators (SACE).

NTOMBIZONKE MBILI
Arbitrator 27 JULY 2025
ELRC3-25/26KZN