27 November 2025 -ELRC651-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:
DEPARTMENT 0F BASIC EDUCATION – KWAZULU-NATAL PROVINCE the Applicant
and
SIMPHIWE SIMELANE the Respondent

ARBITRATION AWARD

Case Number: ELRC651-22/23KZN
Last date of arbitration: 30 May 2025

Date of award: 27 November 2025

Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion

DETAILS OF THE HEARING

The matter was enrolled before me for an inquiry by arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (the Act). The arbitration was held at the offices of the Department of Education at Trulo House, Durban. The arbitration was held on various dates being 20th and 21st July 2023, 24 January 2024, 05 February 2024, 28 May 2024, 10 September 2024, 07 October 2024, 05 December 2024, 12 and 13 February 2025, 31 March 2025, 25 April 2025, 28 May 2025, and 30 May 2025.
The Applicant, the Department of Basic Education, was represented by Ms Monica Mthethwa who is employed by the Applicant as a labour relations practitioner. The Respondent, Mr Simelane, appeared in person and he was initially represented by Mr T Mthembu an attorney from Ash Naidoo Attorneys and thereafter by Mr R Makhanya, a fellow employee.
The proceedings were held in English and were interpreted by various interpreters. Similarly, various intermediaries were used in the proceedings. The proceedings were also mechanically recorded.

BACKGROUND

The Applicant is the Department of Education KwaZulu Natal Province, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger street, Pietermaritzburg, KwaZulu Natal. I shall herein after refer to the Applicant as the “employer.”
The Respondent is Simphiwe Simelane, who is employed by the employer at Hunt Road Secondary School as an Educator and whom I shall herein after refer to as the “accused.”
The employer charged the accused with the following counts of misconduct arising from the alleged contravention of the Employment of Educators Act 76 of 1998 (the Educators Act):

• The first charge was that on or about 11 March 2022 the accused whist on duty at Hunt Road Secondary School committed an act of sexual assault on a group 4.9 learner in that on numerous occasions he called her to the “workroom” where he hugged and French kissed her in the forehead, thereby committing an offense in terms of section 17 (1) (b) of the Act. Alternatively, in that on or about 11 March 2022 whist on duty at Hunt Road Secondary School the accused conducted himself in an improper, disgraceful or unacceptable manner towards a group 4,9 learner at the school, in that on numerous occasions he called her to the “workroom” where he hugged her and French kissed her on the forehead and complemented her saying “she was beautiful and she has nice hair:, thereby committing an offense in terms of section 18 (1) (q) of the Act.

The Second charge was that he allegedly conducted himself in an improper, disgraceful, or unacceptable manner, thereby committing an offense in terms of section 18 (1) (q) of the Act in that:

• On or about 15 May 2022 he allegedly sent text messages to AM grade 10.11 learner telling her how sexy she looked, asked for her pictures, called her to his class where she caressed her hand and asked for her to tightly hugged him.

• On or about the 2nd school term 2022 he texted Nosipho Ntombela grade 10.11 inappropriate messages and love emojis (heart emojis) thus making her uncomfortable.

The accused pleaded not guilty to all the charges that were levelled against him, hence this arbitration award.

ISSUE TO BE DECIDED

In these proceedings, I am required to decide whether the accused is guilty of the charges levelled against him as mentioned in paragraphs 6 and 7 above.

SURVEY OF EVIDENCE AND ARGUMENTS

Employer’s case

First witness – The employer’s witness was learner number 2 whom I shall herein after referred to her as ALM and she testified as follows: On 15 May 2022, the school had a sport day. The accused called her and asked for her cellular phone number, which she gave to him as her math’s teacher. Later, the accused in boxed her and she responded. Then accused then told her that she was sexy and she asked for her pictures. On that day she was wearing civil clothes and not uniform. She refused to send him her pictures. The following day during break she sent a learner to call her. She went to him in the class. ALM was standing and the accused was seated. The accused then rubbed her hands, and he asked her to hug him with a tight hug. She refused because she felt it was not the right thing to do. She referred the council to page 13 bundle “A”. She stated that this was a whatsapp conversation with the accused and the profile picture appearing therein was for the accused. In this conversation, the accused asked what she was going to do the following day and she responded that she was doing nothing. The accused asked whether they could meet for lunch and drinks. ALM told him to take the whole class for lunch, and the accused said it would be expensive. ALM then asked the accused what it was that he wanted. The accused said do not worry we will talk another time. Thereafter, the accused asked to video call her just to see her face. The learner said he cannot video call her. She reported the incident to her friends Londiwe, Nosipho and Nolwazi. She also reported to Ms Dimba.
Under cross examination, she admitted that in her statement that she wrote that she was really scared because she did not know what would happen next and she wrote it in tears. However, she admitted that after this incident she had a whatsapp conversation with the accused in bundle C on 16 November 2022 after the accused had been suspended. She said it was because the accused was only her math’s teacher. She admitted that the sports day was on a Sunday. They did not normally have a sport day on a Sunday; it only happened once in that year
. Second witness- The second witness was learner number 3, whom I shall herein after refer to as NN. NN testified that the accused had numbers for learners. One day the accused in boxed her sending her school work privately and NN saved his number. As a result, she was able to see his status. NN posted a random picture for her. The accused commented inappropriately and also sent her inappropriate emojis (“laughing and heart emojis). NN took a screen short of the comment and sent it to her friend AM. But she lost the screen short because she did not save it. After showing her friend the comment, she blocked the accused and kept distance. During cross examination, she stated that she reported it to her friends because she did not know whether the teachers would do anything about the teacher.
Third witness- The Third witness for the employer was Hlengiwe Zandile Dimba. She testified that she is employed by the employer as an educator. The learners ALM and NN were in her class from grade 10. During or around April 2022 after registration, when other learners were leaving, the two learners left behind and asked to speak to her. They told her that from 2021 there was something that was happening which they did not like. They did not like the manner in which accused was talking to them and touching them when they were shaking hands. But prior to this on Friday, it was a sport day, and she was wearing a short. The accused commented that she was looking sexy. She referred to the screen shorts in page 13 of Bundle ”A”. She reported this to the school management. He said the number would reflect if it had been saved.
During cross examination she denied that she was not in good terms with the accused because of the post of an HOD which she did not get. She admitted that there was a post, but the accused was not amongst the applicants because he was not there during interviews. She also admitted that the screen shorts in page 13 did not show the accused cellphone number. She also stated that she reported the matter to the principal but had not discussed the matter with the parents.
Fourth witness- The fourth witness was learner number 1 whom I shall herein after refer to as TM. In 2022, she was doing grade 09 at Hunt Road. The accused was her class and math’s teacher. She stated that the first incident happened in January 2022 after 14:00 at the accused class called prefab 8. The other learners had already left. The accused called her and said they must do their goodbye properly. He then hugged her and kissed her in the forehead. She did not report this because he spoke to a friend who told her that it was something normal with the accused because he was a loving person. In the beginning of February 2022, the accused sent a learner to call her because she had gotten the highest mark for math’s. The other teachers had already gone, and she was left with the accused. While they were talking about another issue relating to her family, the accused pulled her closer to him, he hugged and forcefully kissed her on her lips. He did not report this incident because she was still in shock. She also did not report the matter at home on that day; she only told them on a Sunday in that week. This incident happened early in February 2022.
During cross examination she confirmed that in 2021 she was home schooling because he was bullied at primary school. She was not sexually harassed on 11 March 2022, but the 11th of March 2022 was the date she reported the matter to Gumbi. She admitted that the date in the charge sheet was wrong. She did not report the matter to the principal, but to Ms Gumbi. She reported it to Gumbi because she saw her crying as it was the day of the incident and she asked what was wrong. It was put to her that the accused was not at school on the 11 March 20 March 2022. She disputed that she was fabricating the allegations against the accused because the accused had caught her kissing with a boy. Although he caught her with the boy at the gate, they were not kissing. She told Ms Dimba about this matter one month later.
Fifth witness- The fifth witness was Ms Minenhle Gumbi. She testified that she is working as an educator at Hunt Road. Her duties included: assisting educators, giving out books and physical education. It happened that while she was in TM’s classroom during the first period, she noticed that TM was not in the classroom. Late during the period, TM came in the classroom, but she noticed that she seemed to be not right. She then asked TM if she was fine and she said she was not happy and she started crying. She left the classroom and her friends requested to go with her. When they came back, TM stood outside the classroom. She then went to her to ask what was troubling her. TM told her that she was not fine because the accused made her feel uncomfortable. TM told her that it was not the first time it happened. But the day TM told her about the incident was not the day the incident happened. She then reported the matter to the management team Mr Roberts and Mr Masuku. Subsequently, the school principal called her and asked if there was anything that she wanted to tell him. She then told the principal all what TM had told her. TM had told her the date in which the incident happened, but when she told the principal she had forgotten the date. After she reported the matter to the principal, the police came to school and asked her to make a statement and her statement appeared on page 5 of exhibit “H”. During cross examination, she admitted that she did not mention reporting the matter to Roberts and Masuku in her police statement.
Sixth witness- The employer’s sixth witness was the school principal, Phumelele Brian Mkhize. Mkhize confirmed that the report in page 1 of bundle “A” was the report he made to the circuit manager about the incident. An educator, Mr Masuku had reported to him about a sexual assault incident relating to the accused. He then summoned Gumbi who came to his office and narrated the incident. But he did not interview the leaner, instead he made the report to the circuit manager. However, after the incident, he met with the leaner’s parents. He wrote the date of the incident as the 11th of March 2022 because Gumbi kept on saying it was Friday. He then assumed that it was Friday, 11 March 2022. He confirmed that the accused was not at work on 11 March 2022 because of the meeting he attended. During cross examination, he admitted that in his report he wrote that the incident happened on 11 March 2022 and it was reported to Gumbi on 15 March 2022. He stated that the incident happened on the 4th of February 2022, but he did not do any preliminary investigations.
Seventh witness- The employer’s seventh witness was Shavani Naidoo who testified that from 2020 their school did not have a social worker. As a result, the school formed a team to look after learners, and he was selected to be in the team. She confirmed that she completed the incident report form in page 7 of bundle “A”. She interviewed the leaner TM and completed the form based on the information she received from the leaner. The leaner had told her two things. Firstly, that the accused hugged and kissed her on the forehead. This happened in January 2022, although the leaner did not give her a specific date. Secondly, that on the 04 February 2022, the accused held her very close and kissed her on the lips. She then assured that leaner would keep this information confidential, and she submitted the report to the department of education.
Eight witness – The eighth witness was Judesha Govender who testified that she is the head of department for commerce. The accused was not teaching the life orientation in grade 10 during 2022. Mr Reddy and K Conco were teaching life orientation in 2022.

Employee’s case

First witness – the accused first witness was Patricia Mfeka who is employed by the South African Police Service as a Sargeant. She had 14 years’ experience as the police office and three years as a Sargeant. She confirmed that she took the statement. She explained that the procedure for taking a sworn statement for a minor child must be taken in the presence of the parents. The child would narrate the incident in the presence of parents. The police office would take down the details. When the writing of the statement is finished child, the police would read back the statement to both of them, and they would confirm if there was anything missing. If there is nothing missing, the child will sign as well as the mother. She confirmed that this was what happened when she commissioned the TM’s statement in exhibit H. She denied that TM’s mother was not present. Had she not been present, she would not have commissioned the minor’s statement. During cross examination she stated that the statement was taken in English. But she agreed that there was no interpreter.
Second witness- The accused second witness was Kipi Gagayi testified that he was currently unemployed, but he used to work at Hunt Road Secondary School. He was employed as a grounds man and a cleaner. He was cleaning classrooms. He stated that there is a difference between the classroom, staffroom, and workroom. Workroom is where the teachers work and there are computers in that room. Staffroom is where the teachers eat, classroom were teaching, and learning takes place. He referred the council to page 11 of the Applicant’s bundle, and he stated that this was his affidavit confirming that the accused had lost his cellphone in 2022. They looked for it but did not find it. He only found it the following day under the table.
Third witness- The accused was the third witness to testify in support of his case, and he testified that all what was stated in the charge sheet was not true and never happened. The charges were fabricated. With regard to the leaner TM, he stated that she was a well behaving learner when he came to the school, but in March 2022 he started to misbehave. As a result, whilst he was leaving the school on another day, he saw TM kissing a boy. But TM did not see him because he was not driving his car, but the wife’s car. As a result, he wrote letters in pages 4 and 5 of “A” to TM’s parent. But the learners did not attend. This was the reason TM fabricated against him. He denied the kissing and the hugging incidents. On the 11 March 2022, he was not at school because of the union’s meeting.
He denied charge two in its entirety and stated that he never called ALM and asked for her number. He denied having sent the whatsapp messages in page 13 of “B’”. he stated that he had lost his cellphone twice. And sometimes it happens that people get hacked. He also denied having sent inappropriate messages to the learner NN.
He stated that there was animosity between him and the school principal. That was the reason he believed that these charges were fabricated against him. That is why there were lot of contradictions in the evidence of the Respondent’s witnesses.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

In these proceedings, I am required to decide whether the accused is guilty of the offences that were levelled against him in terms of paragraph 6 and 7 above as amended. If it is found in favour of the employer, I must determine an appropriate sanction in the circumstances.
The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. Therefore, the employer bears onus to prove that the accused is guilty of the offence.

Whether the accused is guilty of the offences

The Employer’s witnesses, TM, testified as how the events which led to the charges in the first charge came about. Also, the learners ALM and NN testified how the events which led to charge two came about. The Respondent denied these charges and contended that they had been fabricated because TM was misbehaving and he had caught her kissing a boy. The other learners were TM’s friends. They also fabricated about the charges. Also, there was animosity between him and the principal. This then raised the dispute of facts between the employer’s version and the accused’s version.
Our Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability, and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngeleni NO & Others (2011) 32 ILJ 723 (LC), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.
In the present case there were material internal inconsistencies in the evidence of the employer which makes the employer’s version unreliable. Firstly, about the kissing incident, TM testified that the accused sent a learner to her class to call. When he arrived where the accused was and while they were talking, the accused pulled her closer and kissed her after closing the door. But according to Gumbi TM had told him that she went to the staff room to fetch the class register and the accused was alone. The accused then sent the other child out of the class and forcefully kissed her. Secondly, according to TM, the incident happened after 14:00 h00 after all the teachers had gone. But according to Gumbi TM was not in the class during the first break. When she eventually came to the class, she noticed that she was not right. She asked her what the problem was. TM told her that she was not happy and she started crying. She then left the class with her friends. When she came back, she told her that the accused made her to feel uncomfortable. In my opinion it is highly improbable that the first period would have been after 14:00. Thirdly, TM initially stated that the incident happened on the 11 March 2022. During cross examination when it was put to her that the accused will testify that he was not at the school on this day, she changed the date to the 4th of February 2022. However, on the 11 May 2022, TM made a statement to police, and she said the incident happened on the 11 March 2022. If the date of the kissing incident is the 04 February 2022, it would mean that the TM did not tell the truth under oath. These contradictions in my view are material and make TM’s version on both incidents highly improbable. As a result, I find the accused not guilty on charge one.
I now turn to charge two. The accused denied these allegations. In my view, there was no evidence to suggest that the whatsapp messages which the learners ALM alleged to have been from the accused were indeed from the accused. There was also no evidence to support the allegation of the learner NN. NN even admitted that she no longer had the messages about which she was talking. In the circumstances, I find the accused not guilty of charge two.

AWARD