Panellist: Themba Manganyi
ase No.: ELRC21-24/25GP
Dates of Hearing: 01 & 02 August 2024, 10 & 11 September 2024,
14 October 2024, 01 November 2024 and 25 March 2025
Date of Arguments: 02 April 2025
Date of Award: 20 May 2025

In the Inquiry by Arbitrator Hearing between

HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

LINDOKUHLE SIWELA EMPLOYEE

Employer’s representative: Ms Maropeng Morena

Employee’s representative: Mr Solane Mlambo and Mr Smanga Nhlengethwa

Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, emanating from the section 188A of the LRA proceedings held on 01 & 02 August 2024, 10 & 11 September 2024, 14 October 2024, 01 November 2024 and 25 March 2025 at the Gauteng Department of Education Head Office in Marshalltown, Johannesburg under the auspices of the Education Labour Relations Council (“the Council”).
2. Ms Maropeng Morena (“Ms Morena”), the Labour Relations Officer, represented the Employer, Head of Department: Gauteng Department of Education. Messrs Solane Mlambo (“Mr Mlambo”) and Smanga Nhlengethwa (“Nhlengethwa”), SADTU Officials, represented the Employee, Mr Lindokuhle Siwela (“Mr Siwela”) in these proceedings. Ms Eona Shibisi and Mr Marvin Seale, the Intermediary and the Interpreter respectively, from the Council, assisted with their respective services in these proceedings.
3. Parties submitted bundles of documents into the record and the contents thereof were not in dispute. the Employer’s bundle was marked as Bundle ER and the Employee’s bundle was marked as Bundle EE. Parties also called witnesses and they were subjected to cross-examination. At the end of the proceedings, parties requested to submit their heads of arguments in writing on or before 01 April 2025 and they duly complied. The proceedings were recorded and the recordings thereof were retained by the Council.
4. In this award, the names of the minor witnesses (learners) are concealed to protect their identity.

Preliminary issues

5. Mr Mlambo represented the Employee only on the first three sittings of these proceedings. He recused himself due to other work commitments. Mr Nhlengethwa continued to represent the Employee from 10 September 2024 until the matter was finalized. The matter did not proceed on 10 September 2024 because Mr Nhlengethwa wanted to familiarize himself with the matter.
6. The matter could not proceed on 02 August 2024 and 14 October 2024 because Mr Siwela was booked off sick. The matter could also not proceed on 01 November 2024 because the learners were busy with examinations.
7. Five (5) consent forms for minor witnesses that the Employee wanted to utilize in his defence were sent out. However, only two (2) were returned and only one (1) consented to testify, but did not testify.
8. Learner AN and Learner SX did not testify on behalf of the Employer in these proceedings because they have since left the school.

Issue to be determined

9. I am enjoined in these proceedings to determine whether Mr Siwela misconducted himself as alleged by the Employer. In the event that I find Mr Siwela guilty of the allegations preferred against him, I will be required to determine the appropriate sanction.

Rights and the procedure

10. All the rights commensurate with a fair process and the nature of the process were explained to the parties.

Charges

11. The Employer preferred the following charges against Mr Siwela:

You are hereby notified to attend a disciplinary hearing in terms of item 5 of the Disciplinary Code and Procedures.

ALLEGATION 1:
It is alleged that during the year 2023, at or near Kensington High School, you sexually assaulted Learner SK, a grade 8D girl learner, by touching her breasts and told her to leave boys and date you.

In view of the above action, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 2:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed Learner SK, a grade 8D girl learner, by asking her if she is a virgin or has slept with someone else.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 3:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed Learner SK, a grade 8D girl learner, by refusing to let her go to the toilet and said to her she is not on her periods and she must show you if she is on her periods.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 4:
It is alleged that during the year 2023, at or near Kensington High School, you sexually assaulted Learner SK, a grade 8D girl learner, by touching her breasts and told her you want to be her boyfriend.

In view of the above action, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
Allegation 5:
It is alleged that during the year 2023, at or near Kensington High School, intimidated Learner SK, a grade 8D girl learner, by threatening to do horrible things to her if she reports you for sexually assaulting and harassing her.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(u) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 6:
It is alleged that during the year 2023, at or near Kensington High School, you sexually assaulted Learner AN, a grade 8D girl learner, by touching her breast and told her you want to be her boyfriend.

In view of the above action, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 8:
It is alleged that during the year 2023, at or near Kensington High School, you intimidated Learner AN, a grade 8D girl learner, by saying you are going to make her life a living hell if she tells other teachers about you sexually assaulting her. You further said you will make her fail.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(u) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 9:
It is alleged that during the year 2023, at or near Kensington High School, you sexually assaulted Learner NM, a grade 8D girl learner, by touching her breasts.

In view of the above action, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 10:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you said Learner SX, a grade 8D girl learner, is a slut and she is wasting her life with boys.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 11:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you told Learner ZY, a grade 8D girl learner, that she qualifies to be your girlfriend and you will spoil her.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 12:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you held Learner AM, a grade 8D girl learner, and told her how beautiful she is.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 13:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed Learner AM, a grade 8D girl learner, by asking her to come and visit you alone just for one day and further told her that she is not a virgin.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 14:
It is alleged that during the year 2023, at or near Kensington High School, you sexually assaulted Learner AM, a grade 8D girl learner, by smacking her bums.

In view of the above action, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.

Allegation 15:
It is alleged that during the year 2023, at or near Kensington High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed Learner AM, a grade 8D girl learner, by asking her about her boyfriend and that boys are sleeping with her.

In view of the above action, you are thus charged with misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended.

Pleadings

12. Mr Siwela pleaded not guilty to all the charges.

Survey of evidence and arguments

13. What follows hereunder, is a summary of the witnesses’ testimony and not a verbatim account of the proceedings. I am only stating the evidence that I consider to be relevant to the issues that I am required to determine. As I have already indicated, the proceedings were digitally recorded. Thus, I do not see the need to regurgitate all the submissions in this award.

The Employer’s case

14. Learner ZY testified under oath and stated that Mr Siwela was her Natural Science Educator from term 2 in 2023. She stated that Mr Siwela was a very good teacher. However, he started talking about sex more often in class. She stated that Mr Siwela gave them a periodic table project and when he was supposed to allocate them marks, he would ask them how many marks did they deserve. He would allocate them marks based on their body shape. When she was asked how many marks did she deserve, she said 15 out of 20, but he said she deserved 18 out of 20 because she was beautiful.
15. She testified that Mr Siwela told her that she should stop dating young boys and that he would take her to Sandton. She stated that another learner, Learner ES, told Mr Siwela that she will report him for the things that he said. Mr Siwela said she must not report him because he was playing. Another learner, Learner SK, requested Mr Siwela to go outside, Mr Siwela touched her breast. She, Learner ZY, raised her hand and asked Mr Siwela why was he touching Learner SK’s breast. Mr Siwela told Learner AM that she was no longer a virgin and that Learner AM must come to visit him as he qualified to be her boyfriend. When Learner AM said she would report him, he said that he would make her life miserable and that he would make her fail. She testified that Mr Siwela said boy learners are not allowed to go to the toilet and that girl learners are only allowed to go to the toilet when they were menstruating. She stated that Mr Siwela once found Learner AM and other girl learners dancing in class. He made them to take off their blazers and hit them on their bums with a feather duster. She testified that Learner AM was dating a matriculant at school. Mr Siwela asked Learner AM if she was sleeping with the matriculant.
16. Under cross-examination, she disputed the version that Mr Siwela taught them about sexual reproduction. She disputed that she was disruptive in class. She disputed that Mr Siwela taught them during term 4. It was put to her that the altercation that she had with Mr Siwela it was not because of the text book, but it was because of her performance. She stated that her performance was good in term 2, but dropped in term 3 after they reported him. She reiterated that Mr Siwela awarded them marks for the project based on how their bodies looked. She disputed that Mr Siwela asked them how many marks they deserved because he wanted them to self-assess, because Mr Siwela remarked about how their bodies looked. She disputed the version that they were a disruptive group in the class. She conceded that Learner SX was not attending school every day because she stayed far from school and she further conceded that Learner SX was disruptive in class. She stated that she had a good relationship with Mr Siwela before he insulted her about her father who had passed on.
17. Learner AM testified under oath and stated that Mr Siwela taught her Natural Science in 2023 in grade 8. She testified that Mr Siwela came to her desk and told her that she was beautiful and she should stop behaving like a boy. Mr Siwela said that she must date him and that he would take good care of her and that she should stop sleeping with young boys. She testified that whilst they were busy with a project in class, she and Learner K did not understand the project. So they called Mr Siwela to come and explain to them. Mr Siwela approached them from behind and put his hands around their necks and he held their breasts. When Learner K asked him what he was doing, he said that he would make them to fail. She stated that on another day whilst she was waiting for her sister, Mr Siwela said to her that she must come visit him in his class and that Mr Siwela said that she was not a virgin. He testified that Mr Siwela once said to her and other girls that he could tell that they have boyfriends and that they were sleeping with these boyfriends. They should date older guys like him. She stated that Mr Siwela once asked Learner SK why she wanted to go to the toilet and when Learner SK told him that she cannot tell him because it involved women. Mr Siwela said that Learner SK was lying and he touched her breast and laughed. She testified that Mr Siwela allocated marks to them for the project based on their body shapes.
18. Under cross-examination, she stated that Mr Siwela touched her breast when she requested to go to the toilet and he again touched her and Learner K in class. She testified that they did not report the incident immediately because Mr Siwela threatened them. She stated that she told her sister that Mr Siwela touched her breasts. She testified that she reported the incident because what Mr Siwela was doing was not correct and that Mr Siwela could do it to other learners. She stated that Mr Siwela would advise them about boys and that being involved in sexual activities was a good thing.
19. Learner NM testified under oath and stated that Mr Siwela touched her right hand side breast when she was in class. She stated that Mr Siwela asked Learner X if she had a boyfriend and that she should date him as she had big thighs. She testified that Mr Siwela touched Learner AN and Learner K’s breasts. She testified that Mr Siwela allocated them marks for the project based on their body shape and that she was allocated 11 marks because Mr Siwela said she looked like her father.
20. Under cross-examination, she could not recall the date and time when Mr Siwela touched her breast. She reiterated that when she requested Mr Siwela to go to the toilet he touched her breast and Learners ZY, K and ES witnessed the incident. She stated that some of the learners that reported Mr Siwela were her friends and others were just her classmates. She refuted the version that she was fabricating these allegations and stated that they cannot just hate a person who was teaching them and that she only had issues with Mr Siwela when he said her body looked like her father’s. She further stated that she cannot leave her home to plan for Mr Siwela as she did not know him personally.
21. Mr Tlou Moloto (“Mr Moloto”) testified under oath and stated that he was the Principal at Kensington High School. He explained what the period register was and how disruptive learners are dealt with. He could not state that the learners that testified in these proceedings whether they were disciplined or not because he did not seat in all the disciplinary hearings.
22. He was not cross-examined.
23. Learner SK testified under oath and stated that Mr Siwela taught her Natural Science in 2023 and that she was the Representative Council of Learners (“the RCL”). She testified that Mr Siwela put his hand around her neck and touched her breast, but she did not notice that he was touching her breast. However, Learner ZY noticed that Mr Siwela was touching her (Learner SK) breast and she (Learner ZY) asked him why was he touching her breast. Then, Mr Siwela told Learner ZY that she must not concern herself with other people’s business. She testified that Mr Siwela told her that she should not get herself involved with boys. With regard to allegation 2, she testified that Mr Siwela came to her desk and started a conversation about boys and he asked her if she was involved with boys and if she has slept with boys. Regarding allegation 3, she testified that Mr Siwela was in his back office when she went to ask him to go to the toilet because she had a situation. Mr Siwela refused and said that she must undress so that he could see for himself, but she refused to undress and she ended up going back to her desk. She stated that Mr Siwela threatened her that if she reported him for sexual harassment, he would make sure that she did not write matric.
24. Under cross-examination, she could not recall the exact date and time of the incident on allegation 1, but she could only remember that it was during the third period. She restated that she did not report Mr Siwela because he threatened her that she would not progress to grade 9. She stated that she came forward to testify against Mr Siwela because she did not want him to repeat what he did to her with other learners. She stated that she was in good terms with Mr Siwela, but after the matter was reported, he stopped talking to her. She reiterated that Mr Siwela touched her breast and she disputed that she has concocted these allegations against Mr Siwela. She stated that she was still new at the school and that she did not know Mr Siwela. So, she would not have a reason to get him dismissed.

The Employee’s case

25. Mr Siwela testified under oath and stated that he had nothing to say about allegation 1 as he was not sure whether it happened in full view of the class or somewhere else. He stated that he could have touched her (Learner SK), but not on her breast because he always touched learners when he was checking their school uniform. He testified that he did not discuss issues of boys with learners. He stated that he did not know when could he have said what is alleged in allegation 2, because he only discussed such things during the Natural Science lesson where they would be discussing reproduction. He denied that he uttered the words in allegation 2 to Learner SK. On allegation 4, he stated that he did not know about touching learners’ breasts, but he conceded that he touched learners when he interacted with them. He denied that he could have threatened Learner SK, because he was not aware that he sexually harassed her. He conceded that allegation 12 could be true because he used to compliment learners who wore full uniform. On allegation 13, he stated that he did not have time to entertain such. On allegation 14, he stated that he would not deny that he could have touched her bums when moving in between the rows, but denied that he smacked her. On allegation 11, he stated that he did not interact with his learners in that fashion and on allegation 9, he said that he did not touch her breasts, but stated that he might have touched her when he interacted with her.
26. Under cross-examination, he stated that it was difficult to deal with grade 6 learners because they came from different schools with different backgrounds and that he was aware that he touched them. When it was put to him that he did not challenge Learner ZY’s version that when he was teaching them he would say ‘duck and not dick’, he stated that the version was not true. About Learner SK’s allegation that he touched her breast, he stated that he had a problem about her being elected as the RCL, because she was not exemplary to her classmates as she was always late and that she sat at the back of the class. He denied that he asked Learner SK about her being on her periods. He denied that he threatened the learners as he was not aware that he conducted himself inappropriately and further stated that after these allegations were reported he never interacted with the learners. He reiterated that he would tell a learner that she looked good and that she was beautiful when the learner was wearing a full school uniform and further stated that he did not see anything beautiful about a learner except when she was in a full school uniform and doing their school work. He conceded that he could have touched Learner AM when he was moving between the rows checking their school work. He disputed that he would allocate marks to learners based on what they thought they deserved or based on their body shapes as alleged because there was a marking guideline.

Closing arguments

27. As already indicated, parties submitted their written closing arguments. They are a matter of record and as such, I will reflect on them where necessary.

Analysis of evidence and arguments

28. From the commencement of these proceedings, Mr Siwela was sensitized about the manner in which these proceedings are going to unfold. It was clearly explained to him that he was duty bound to assist his representative when the Employer’s witnesses are cross-examined. It was clear in my mind that he understood the task that he was faced with when challenging the Employer’s versions. Before the cross-examination of each Employer’s witness, he was afforded time to consult with his representative and even during cross-examination. Therefore, what he stated during his evidence in chief, that he thought that the witnesses would be recalled after he testified, cannot be correct as he knew from the onset what was expected of him.
29. In the Labour Appeal Court judgement of Woolworths (Pty) Ltd v CCMA & Others , the Court held that:-
    “In an unfair dismissal case relating to misconduct, the ‘evidentiary burden’ starts with the employer but once the employer provides prima facie proof of the misconduct as alleged, the ‘evidentiary burden’ shifts to the employee to prove his own defence. If the employee then fails to put up a defence or fails to prove his defence, the employer’s prima facie proof of misconduct becomes conclusive proof and the employer has then discharged the ‘overall onus’ that always rested with it.”
30. It is trite that the test in employment dispute is on ‘a balance of probability’ and not on ‘beyond reasonable doubt’. It is my considered view that the Employer has succeeded in discharging its burden of proof in this case. Essentially, I was only confronted with only one probable version from the Employer and a bare denial from Mr Siwela. In his closing arguments, Mr Siwela argued that the learners’ allegations, when subjected to critical scrutiny, were fraught with contradictions, hearsay and improbabilities. I hold a very different view to this argument. All the learners that testified in these proceedings gave a first-hand account of what they knew and they were consistent even during cross-examination. Strikingly, there was no version that was put to them during cross-examination.
31. During the cross-examination of all the learners, Mr Siwela suggested that the learners were disruptive in class and that they fabricated these allegations. He further insinuated that there was a degree of coordination and coaching in the learners’ testimony. In his examination in chief and during his cross-examination, he conceded that he touched the learners when he was interacting with them during teaching and learning. This version was not put to any of the learners. Mr Moloto’s evidence was not challenged through cross-examination. It was Mr Moloto’s evidence that when a learner was disruptive, there was a period control register that recorded such behaviour and due processes would be followed to discipline such a learner. No evidence was presented to substantiate that these learners were subjected to a disciplinary process. It therefore follows that these learner witnesses were not disruptive as suggested by Mr Siwela because he did not take any action against them. I find Mr Siwela’s version improbable in this regard.
32. It was held in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others judgment that:

The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witnesses attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.

33. Mr Siwela argued that the absence of Learner SX and AN in these proceedings raised serious concerns about the sustainability of these allegations. The Employer did not lead any evidence concerning the allegations related to these two (2) learners. It therefore follows that I cannot make any finding based on allegation 7, 8 and 10. Consequently, the absence of Learner SX and AN in these proceedings are immaterial to the unchallenged evidence lead by the Employer’s witnesses in these proceedings.
34. The evidence that the learners lead was corroborative, consistent and not rehearsed contrary to Mr Siwela’s arguments. In trying to proof his innocence, Mr Siwela suggested that Learner NM (one of the witnesses) was an imposter. However, he failed to present any evidence in these proceedings to prove who the actual Learner NM was. It is therefore my conclusion that the learner who testified as Learner NM was indeed the correct learner.
35. The conduct of Mr Siwela, as an Educator, is very concerning and disturbing considering the trust that is placed in him by the society. These learners were in their first year in high school and the reception that they got from Mr Siwela is very appalling to say the least. Having considered the Employer’s evidence in its totality and the bare denial of Mr Siwela, I can only conclude that the allegations that were levelled against Mr Siwela have merit.

Award

I find

36. Mr Lindokuhle Siwela guilty as charged in relation to the evidence that was adduced in these proceedings.
37. Mr Lindokuhle Siwela as an unsuitable candidate for corrective discipline as he never showed any remorse for his actions. It is common cause that Mr Siwela was entrusted with the care of children and that it was expected of him to act with the utmost good faith in his conduct towards learners as society must be able to trust him as an educator unconditionally with children.
38. that he contravened the prescripts of section 17 of the EEA contravention. Therefore, dismissal is the mandatory sanction under the circumstances.
39. that Mr Lindokuhle Siwela is unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Lindokuhle Siwela 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.
40. That the Educator, Mr Lindokuhle Siwela, is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.

Arbitrator: Themba Manganyi