28 August 2025 – ELRC1236-24/25KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT LADYSMITH
CASE NO.: ELRC 1236-24/25KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

NGWENYA R S RESPONDENT

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 24 AUGUST 2025

Applicant’s representative : MS M. MTETWA

Respondent’s representative : MS Z. KHANYILE

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, Uthukela District Office, 149 Murchison Street, Ladysmith. These proceedings were digitally recorded.
[2] Ms M. Mtetwa, a Labour Relations Officer, represented the applicant (employer) and Ms Z. Khanyile from NATU represented Mr R.S. Ngwenya, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 17 April 2025, 6 June 2025, 17 and 18 July 2025. The hearing commenced on 17 April 2025 and the applicant led the testimony of two of their witnesses. On 6 June 2025, an inspection in loco was held at Bangani Secondary School. Thereafter, the parties agreed that this matter be adjourned to 17 and 18 July 2025, being the school holidays, especially due to the applicant’s main witness, a Grade 12 learner, would be unavailable thereafter to testify due to preparations for her matric examinations.
[4] Subsequently, Ms Khanyile applied to the Council requesting for this matter which was scheduled for 17 and 18 July 2025 to be postponed as she wanted to attend her Union’s annual Wellness Sports Day, which application was opposed by the applicant; and declined by the Council.
[5] On 17 July 2025, at the scheduled time of 09h00, there was no appearance by the respondent/employee or his representative. The commissioner contacted the ELRC and they provided proof that proper service was effected on the respondent/employee party on 10 June 2025.
[6] The matter stood down for the applicant’s witnesses to arrive. At 10h45. Mr Ngwenya arrived at the venue and upon enquiry by the commissioner as to his late arrival, he indicated that he got lost. Mr Ngwenya thereafter produced his representative’s (Ms Z. Khanyile) medical certificate indicating that she was off sick from 16 to 18 July 2025. The commissioner granted him an indulgence to contact his representative, Union or attorney to enquire about his representation in this matter.
[7] The matter thereafter commenced and upon enquiry by the commissioner regarding his representative’s medical certificate and his representation in this matter, Mr Ngwenya averred that his representative, Ms Khanyile had explained to him that she was at the doctor/hospital and it was important for him to hand her sick note to the commissioner. Hence, he was granted a further opportunity by the commissioner to call his representative or Union to enquire about his representation. Thereafter, Mr Ngwenya indicated that Ms Khanyile had dropped his call. Subsequently, Mr Ngwenya received messages from Ms Khanyile and he handed his cellphone to Ms Mtetwa to read those WhatsApp messages.
[8] These WhatsApp messages from Ms Khanyile were read into record; which messages were advising Mr Ngwenya on how to delay these proceedings. The commissioner enquired from Mr Ngwenya if he had also gone to the doctor to acquire a sick note whereafter he indicated that he indeed had gone to the doctor and he was not supposed to be at the hearing as he was unwell.
[9] The commissioner took into consideration that Mr Ngwenya was on suspension from September 2024, the unlikelihood that the Learner (the main witness) and other witnesses would come again to testify, Mr Ngwenya at no time indicated that he was unwell or had gone to the doctor until after receiving the WhatsApp message from Ms Khanyile; and importantly the delaying tactics displayed by the respondent/employee and the prejudice that would be suffered by the applicant/employer.
[10] The commissioner informed Mr Ngwenya that she was not postponing the matter and that the matter would proceed. She further indicated to Mr Ngwenya that she would guide him in the arbitration process. While the matter stood down for the applicant’s witness to be called to testify, Mr Ngwenya walked out of the hearing.
[11] The hearing thereafter proceeded. The matter was concluded on 28 July 2025 when the employer submitted their written closing arguments which was duly taken into consideration.
[12] In keeping with the ELRC Policy, the names of minor witnesses (learners) will not be disclosed to protect their identities.
[13] The employer handed in two bundles of documents which were marked as bundle “A” and “B” and utilized as common bundles.
[14] The applicant applied to amend the charge sheet which was unopposed.
[15] The nature of the process and all rights was explained to the parties.
ISSUES TO BE DECIDED
[16] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[17] Mr Ngwenya is employed as an educator at Bangani Secondary School.
[18] A learner made allegations against Mr Ngwenya and the employer subsequently charged him with misconduct.
CHARGES
[19] The employer preferred the following charges against Mr Ngwenya who is employed as an educator at Bangani Secondary School [‘the School’];
CHARGE 1
On or about March 2024 at or near the ‘School’ you allegedly committed an act of sexual assault on Learner A, a learner at the ‘School’. In that you rubbed an apple in her private part when you two met in the passage leading to the staff room and you grabbed her breast and touched her thighs when she was in your vehicle. You thus committed an offence in terms of Section 17(1)(b) of the Act.
ALTERNATIVELY
On or about March 2024 at or near the ‘School’ while on duty conducted yourself in an improper, disgraceful or unacceptable manner towards Learner A, a learner at the ‘School. In that you rubbed an Apple at her private part when you two met in the passage leading to the staff room and you also grabbed her breast and touched her thighs when she was in your vehicle. You thus committed an offence in terms of Section 18(1)(q) and 18(1)(f) of the Act.
PLEADINGS
[20] Mr Ngwenya pleaded not guilty to all the charges.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE EMPLOYER’S CASE
The employer called four witnesses to testify.
MATHEWS VUSIMUZI HLATSHWAYO
[21] He is the SGB chairperson at Bangani Secondary school.
[22] Mr Ngwenya came to his home and told him and his wife that he heard that he had allegedly sexually assaulted a learner; and that this was going to land him in trouble. Mr Ngwenya pleaded with him to accompany him to the learner’s house so that he could speak with the learner’s mother and apologise. Mr Ngwenya told them that he had given the learners a lift as they had been attending extra classes and the learner in question was sitting in the front seat; and it was alleged that he was touching the learner everywhere. Mr Ngwenya mentioned three learners and Learner A’s name and said that she was one of the learners that he was teaching. He informed Mr Ngwenya that he did not have a problem to go since he had approached him as the SGB chairperson. As his wife was present and listening, Mr Ngwenya suggested that they go with his wife.
[23] Mr Ngwenya thereafter requested to leave his car in his yard; and travel with his car. He suggested that on the way, they also pick up Mr Miya, the SGB Treasurer. They then picked him up and proceeded to the learner’s home.
[24] When they arrived at the learner’s home, they parked outside. His wife, Mr Miya and him suggested to Mr Ngwenya that he sit in the car while they go inside because they did not know how Mr Ngwenya was going to be received.
[25] They met Ms Nomazwazi, Learner A’s mother and informed her that they were there with Mr Ngwenya who would like to have a word with her with regards to the allegations.
[26] She told them that they did well by leaving him outside the yard because if he had entered her yard, she was going to take a panga and make him run around the yard. They requested her to go to Mr Ngwenya and hear his reason for being there.
[27] Ms Nomazwazi went and stood outside the car waiting for Mr Ngwenya to speak, however he did not speak; he just cried. Ms Nomazwazi waved her hand around and went back but while she was entering the gate, Mr Ngwenya called her and said; “Sili just wait, let’s talk”. Sili you are leaving. Why are you leaving, let’s talk? I didn’t know that the child was yours.” The learner’s mother just waved her hand and said that she was not dealing with this anymore and went inside her house. They then left.
[28] Before Mr Ngwenya approached him about this matter, the SGB was aware of this issue. While he and the Treasurer were going to attend the Financial Committee meeting, the principal informed them that there was a very serious matter and that the Learner’s mother had come with her two brothers. They then went to the principal’s office.
[29] The principal said that he recorded most of the things that were said but he also requested two educators who were part of the SGB to come and be witnesses. He told them that the Learner’s mother and her brothers were very angry; if they had seen Mr Ngwenya, they would have done something to him. The principal told them that Ms Nomazwazi and her brothers had come to report that Learner A was being sexually assaulted by Mr Ngwenya; and that it was not the first time the learner had reported to them; but this was the first time that they were reporting the matter. The first time it happened; the learner reported it to her mother and then her mother said that they were going to talk to Mr Ngwenya about it. This was the second time that the learner had reported and the learner’s mother got upset thus she requested her brothers to accompany her to go and see the principal. The learner’s mother said that she wanted to report this matter to the circuit manager however she just wanted to start by reporting the matter to the principal first whereafter, the principal said that he would escalate the matter to the circuit manager.
[30] The principal mentioned that the matter had been reported to the circuit manager and that the matter had been referred to the SAPS as Learner A’s mother had said that because they were not receiving any response from the circuit manager, they were going to report the matter to the SAPS.
Under cross-examination he testified that:
[31] When Mr. Ngwenya came to his home, the principal had already informed them of the allegations. Mr Ngwenya told him that it was alleged that he had harassed a learner and requested him to accompany him to the learner’s home to speak to the parents of the learner to apologise because he was unaware of the allegations that had been levelled against him.
[32] When it was put to him that Mr Ngwenya was sent by the principal to the SGB chairperson to find more about these allegations and it was him who had suggested that they all go to the learner’s homestead to talk to the child’s mother, he averred that he was not the one in trouble thus he would not have suggested that they should go to the learner’s home. It was Mr Ngwenya who came to his home, crying and saying that he was even willing to give out whatever amount of money because this was going to ruin him.
[33] He was not aware how the issue of money ended up but Mr Ngwenya told him that he was willing to pay out whatever amount of money for this matter to go away.
[34] It was put to him that Mr Ngwenya had already been arrested by the SAPS at the time when the former councillor, a Mr Zulu had requested that Mr Ngwenya pay R15 000 and a cow, he averred that he did not know anything about the involvement of Mr Zulu. The last time he heard about the money was when Mr Ngwenya had said that he is able to pay out any amount of money that they ask for.
[35] On the way back Mr Ngwenya, asked him to phone Learner A’s uncle to request him to withdraw the matter with the SAPS because if he was going to leave it open until the next day, he was going to be arrested.
[36] It was put to him that Mr Ngwenya never in their meeting, spoke or raised or offered to pay any amount of money to the child or the child’s family. He averred that Mr Ngwenya can deny it but his wife was a witness; she was there when Mr Ngwenya came to their home and when they went to the learner’s home and she had heard everything.
[37] The principal had informed him and Mr Miya of the allegations against Mr Ngwenya thus Mr Ngwenya was going to apologise for the allegations that had been levelled against him because he was aware that he had been charged which is why he decided to go and apologize.
[38] Mr Ngwenya knew that he was charged judging by the way he was crying. If Mr Ngwenya knew nothing about the allegations and was not charged, why then would he be crying in front of the learner’s mother and why did he ask him to phone the learner’s uncle to withdraw the matter; it was because Mr Ngwenya knew that if he leaves the matter open until the next day, he was going to be arrested.
[39] He reiterated that the learners were going home, two learners were seated in the back seat and Learner A was harassed in the front seat of Mr Ngwenya’s car. The principal told them that Learner A’s mother had informed him that it was not the first time that Mr Ngwenya had sexually assaulted the learner.
[40] It was put to him that Mr Ngwenya will testify that the allegations were orchestrated by the principal, he averred that that was not true and that the principal will have to answer for himself.
SIDWELL MIYA
[41] At the time of the incident, he was a member of the SGB and he was part of the finance committee.
[42] The principal informed them that Ms Nomazwazi and her brothers were very angry and they had said that Mr Ngwenya was touching the learner. The principal even showed them the record of what was spoken in the office.
[43] Mr Hlatshwayo had called and told him that Mr Ngwenya was at his house and Mr Ngwenya was requesting them to accompany him to Ms Nomazwazi’s house to seek an apology.
[44] After they picked him up, Mr Hlatshwayo mentioned again that Mr Ngwenya had requested them to accompany him to go and see Ms Nomazwazi. Mr Ngwenya then told him; “Mr. Miya, I am sorry for everything that has happened.” At Ms Nomazwazi’s house, Mr Hlatshwayo suggested that they go inside without Mr Ngwenya so that they can hear whether Ms Nomazwazi was going to see Mr Ngwenya.
[45] Mr Hlatshwayo told Ms Nomazwazi that they were with Mr Ngwenya and that he would love to talk to her. Then Ms Nomazwazi said that they did well by leaving him in the car because if they had brought him, she was going to use her panga on him.
[46] They asked her to come to the car. She went but refused to enter the car. Mr Ngwenya was crying inside the car and then Ms Nomazwazi asked if this was the reason why they called her there and then while she was leaving, Mr Ngwenya told her that he came there to apologize and he did not know that Learner A was her child. Ms Nomazwazi then left and went back into her home and thereafter, they left.
Under cross-examination he testified that:
[47] He received a call from Mr Hlatshwayo who told him that Mr Ngwenya was requesting them to accompany him to Ms Nomazwazi’s house. At the time of the phone call, he already knew about the allegations as they had already been informed at school.
[48] When Mr Hlatshwayo called him, he did not say that Mr Ngwenya had said that he had been sent by the principal; Mr Hlatshwayo told him that he was with Mr Ngwenya and Mr Ngwenya was asking if they could accompany him to Ms Nomazwazi’s house.
[49] Mr Ngwenya had told him that he was apologising for everything that had happened.
[50] When it was put to him that all what had been said by Mr Hlatshwayo and him was not true, he stated that he was speaking the truth.
[51] He averred that it was a lie when it was put to him that these allegations were orchestrated by the principal and the SGB members.
SILINDILE NOMAZWAZI
[52] She is the mother of Learner A. She knew Mr Ngwenya as he was once her teacher and he had been teaching her daughter.
[53] The first incident occurred in school. Her daughter had told her that she had not competed some work thus she and another learner were writing a test. Her daughter came home from school and told her that Mr Ngwenya had touched her on her private part with an apple. She had asked that learner’s parents to come forward and be a witness but they had refused.
[54] The second time her daughter came back crying. Her daughter told her that they were attending classes after school and Mr Ngwenya had waited for them. He told them that he was giving them a lift and he told her to sit in the front seat. She went and sat in the front seat while her friends went to the back seat. On the way towards her house, he started touching her daughter’s private part and then he also gave her money to go and buy a cool drink for themselves. Her daughter jumped off and bought the cool drink but she did not drink it. Her daughter told her that she did not want the cool drink and she was not okay with it.
[55] She was so angry; she was not going to control herself if she was going to see Mr Ngwenya. A few days later, she called her brothers and one of her uncles and they went to the school to speak to the principal. She stated that she would not lie but they were going to fight.
[56] As parents, they wanted the Circuit Manager to come to the school and they wanted Mr Ngwenya to either get a transfer or he move out because at the end of the day her daughter was not comfortable anymore. The principal said that she would record every single thing that she was saying and she will let Mr Ngwenya know. However, the Circuit Manager and Mr Ngwenya never came. After a week, she went to SAPS to report the case.
[57] She sent her brother to take her daughter to go to the police station and report this case because she was so furious to the extent that if she saw Mr Ngwenya, she could kill him on the spot.
[58] Two days before the police were going to pick up Mr Ngwenya, Mr and Mrs Hlatshwayo and Mr Miya came to her house while Mr Ngwenya sat in the car.
[59] They told her that Mr Ngwenya had asked them to come to her to ask if they could sit down and sort these things, as parents and as people. She told them that there was nothing to sort out because she had waited for them before she even went to open the case at the police station. They then asked her to come to the car and tell Mr Ngwenya that there was nothing that she could do. She went to the car and did not even open the door and neither did she say anything to Mr Ngwenya. She just stood there; she was crying, angry and furious. Mr Ngwenya was also crying and he said; “Silindile, I’m sorry, I didn’t know she was your daughter.” She just walked away and went inside her house.
[60] The police came to school and she heard from the people that he had been picked up. She followed the case because her daughter was not doing okay at school anymore. Some of the teachers did not even mark her schoolwork anymore because of this thing.
[61] She spoke to the social workers and they took her daughter to a place of safety in Ladysmith. Weekly they were sending them the schoolwork but some of the teachers did not send the schoolwork. Mr Ngwenya went to jail and came out on bail. When her daughter came back from the place of safety, Mr Ngwenya carried on teaching her daughter like it was nothing. She went again to the principal and asked her what was going on because her daughter said she was not coping anymore and that she rather quit school because he was still there teaching her; and the memories always came back to her.
LEARNER A
[62] She is currently in Grade 12 at Bangani Secondary School. Mr Ngwenya was her teacher in 2024.
[63] In March 2024, she had not done her assignment for English. She requested to write the assignment again and the teacher allowed her and said that she would be writing it with Learner B because she was also absent. The teacher told them to go and take the desks and place them opposite the reception area.
[64] It was after school at around 14h38 when they started writing. No one else was in the reception area as it was after school. She was wearing her school pants as well as her school jersey. Learner B sat on her right. Mr Ngwenya came from the staff room, holding a box and eating an apple and stood in front of them. He asked them what they were writing and they told him that they were writing English. He then told them that the next day they were going to be attending agriculture after school and they were going to leave at 17h00. They carried on writing. He then said; ‘can he deep’ and she and Learner B were just surprised as to what he meant. While they were still in shock and surprised by what he had said, he then took his apple and rubbed it on her private part. Learner B asked him; “Sir, what are you doing?”. After that, he just laughed and left.
[65] On the following day, when they were about to leave the classroom, Mr Ngwenya came to her and asked her if she would like him to give her a lift. She laughed and just faced down. Even in the class, they all laughed as it was just taken as a joke. At 17h00 it was time for them to leave. She and two other learners were walking on the road on their way home. Mr Ngwenya’s car approached them and he parked his car and called her and she went closer to the car. He asked if they would not have a problem if he were to give them a lift. She accepted the lift because she wanted to get home sooner because her mum would shout. When she was opening the back door, he told her that she must come and sit at the front; then her friends entered at the back. He drove off and he dropped one learner by the bus stop next to where she stays. After the car started moving, he started touching her on her right-hand shoulder all the way to her arm and then her right thigh.
[66] She reacted by moving away from him and moving her thighs to face towards the window in the hope that he would stop doing what he was doing but he carried on touching her thighs. After some time, he stopped. They arrived at the bus stop and there was someone that Mr Ngwenya knew and he gave that person a lift. Inside the car, he was busy talking with that person. He drove until they got to a tuck shop. Mr Ngwenya gave her a R50 note and asked her to go and buy some cool drink and some cakes that she was going to eat while thinking of him. She took the money and went and bought the cool drink and a Toppers biscuit.
[67] She went back with the cool drink and the Toppers biscuit and placed it right next to him to serve. He then took out a glass and gave it to her and said that she must pour the cool drink. She poured the drink and gave it to her friends who were sitting at the back. He drove off and they got to where he was supposed to drop them off at the second tuck shop. Before they jumped off, he gave her the cool drink as well as the biscuits. After she and her friend jumped off the car, they spoke about this and decided that she needed to tell her mum about everything that had taken place.
[68] She reported both incidents to her mother and her mother went to the school.
[69] She did not feel comfortable because Mr Ngwenya was someone that she had trusted. She wanted justice because even in school, the learners are always talking about her.
ANALYSIS OF EVIDENCE AND ARGUMENT
[70] Where there is an allegation of misconduct, the employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[71] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[72] Section 18(1)(f) of the EEA stipulates that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre.
[73] Section 18(1)(q) of the EEA stipulates that misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.
[74] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[75] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[76] On 17 April 2025, Mr Ngwenya was present at the hearing when the employer’s witnesses, Mr Hlatshwayo and Mr Miya testified; and he completed his cross-examination of these two witnesses. On 6 June 2025, he attended the inspection in loco at Bangani Secondary School.
[77] On 17 July 2025, Mr Ngwenya chose not to participate in the hearing and left the venue despite the commissioner informing him that she would guide him in the process. The employer on 17 July 2025, led the testimony of Ms Nomazwazi and Learner A and thereafter closed their case.
[78] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[79] Mr Hlatshwayo testified that Mr Ngwenya approached and pleaded with him to accompany him to Ms Nomazwazi’s residence to speak to Learner A’s mother and apologise.
[80] Mr Hlatshwayo, Mr Miya and Ms Nomazwazi corroborated each other’s testimony in respect of the principal recording the allegations by Ms Nomazwazi, what transpired at Ms Nomazwazi’s house and Mr Ngwenya crying and stating that he did not know that Learner A was Ms Nomazwazi’s child. Both Mr Miya and Ms Nomazwazi testified that Mr Ngwenya had apologised to Ms Nomazwazi.
[81] Mr Hlatshwayo testified that Mr Ngwenya had told him that he had given three learners a lift and that Learner A was sitting in the front seat, and it was alleged that he was touching the said learner everywhere. This version ties up with Learner A’s testimony that Mr Ngwenya had given them a lift, she was seated in the front passenger seat while two of her friends were seated in the back seat.
[82] Mr Hlatshwayo testified that Mr Ngwenya had told him that he was willing to pay any amount of money to make this matter go away and that Mr Ngwenya had requested him to call Learner A’s uncle to withdraw the criminal charges against him.
[83] Mr Ngwenya initially attempted to discredit the principal by alleging that these allegations were orchestrated by the principal. Subsequently, during Mr Miya’s testimony, Mr Ngwenya then extended his version to include that in addition to the principal, the SGB members were orchestrating these allegations against him. Mr Ngwenya was clutching at straws trying to shift the blame onto others. Mr Ngwenya failed to put forward any possible motive that the principal or SGB members would have had to conspire and fabricate false allegations against him.
[84] Ms Nomazwazi testified that her daughter had informed her about the two incidents of sexual assault by Mr Ngwenya and of her anger and furiousness at what Mr Ngwenya had done to her daughter. She also testified about her daughter not coping and doing well at school.
[85] Learner A testified about the allegations pertaining to charges. She gave a clear account of what transpired. She testified about the two incidents involving the sexual assault by Mr Ngwenya. In the first incident, Mr Ngwenya made an inappropriate comment and while shocked and surprised at his comment, he took his apple and rubbed it on her private part. In the second incident he approached her to give her and her friends a lift home; and he asked her to sit in the front passenger seat and then touched her inappropriately and thereafter gave her money to purchase a cool drink and cakes and told her that she must eat it while thinking of him. Learner A testified that she felt uncomfortable around Mr Ngwenya, was shocked at his behaviour and she wanted justice.
[86] As habitual, in cases of sexual incidents, there are no additional corroborating witnesses. Learner A gave a clear account of the incidents and what had transpired.
[87] I have considered the relevant cautionary rules relating to child witnesses and single witnesses which requires that the evidence accepted should be substantially satisfactory in respect of material aspects.
[88] It is trite law that in a disciplinary hearing both the employer and employee parties will be afforded an opportunity to cross-examine the other parties’ witnesses and during that cross-examination a party needs to challenge any evidence that they disagree with and put their version to the witness on the stand.
[89] Where the employer on a balance of probabilities has provided evidence to implicate the employee and a constant denial by the employee without providing a version to rebut or answer to the evidence of the employer does not offer the employee a defence and does not prove anything.
[90] Once the employer has on prima facie basis adduced evidence to implicate the employee then the employee has the onus to provide a defence and not provide mere statements of a possible defence without providing proof to substantiate his defence.
[91] Learner A described each incident pertaining to Mr Ngwenya’s sexual assault, improper and unacceptable behaviour; when it occurred, where it occurred, how it occurred and what had happened. Learner A after each incident reported the sexual assault by Mr Ngwenya to her mother.
[92] There was no evidence of a vendetta against Mr Ngwenya or that any of the witnesses had lied or fabricated evidence against him. I accordingly find no probable motive for Learner A or any of the employer’s witnesses to have lied at the arbitration hearing. Importantly, Mr Ngwenya did not provide any probable evidence that would support his notion that both Mr Hlatshwayo and Mr Miya were indeed lying and that the allegations against him were false. All of the respondent’s witnesses came across as credible witnesses.
[93] Sexual assault involving a learner is addressed under Section 17(1)(b) of the EEA. According to legal definitions, assault refers to an unlawful and intentional act that either impairs another person’s bodily integrity or creates a reasonable belief that such harm is about to occur. Therefore, sexual assault is a form of assault that occurs in a sexual context, where the victim’s sexual integrity is either violated or threatened.
[94] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[95] In Mudau v MEIBC & Others [2013] 13 ILJ 663 [ LC] the court held that the task of an arbitrator in terms of section 188A is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged with and if so whether there exists a basis in fairness to terminate the employment relationship.
[96] Having regard for the totality of the evidence, I find the version of the employer more plausible, logical and the more probable version.
[97] Section 28 [2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[98] One of the objects of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra provides that; “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.”
[99] Educators have a duty to care for and protect learners while they are at school as a consequence of their in loco parentis status. Section 32 of the Children’s Act 38 of 2005, as amended provides that a person acting in parentis in loco, such as an educator must, whilst the child is in that person’s care.
(a) safeguard the child’s health, well-being and development; and
(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards.
[100] As in loco parentis, the community and society at large expects an educator to conduct himself/herself in a trustworthy manner. Mr Ngwenya had a legal and moral obligation to safeguard and protect Learner A and not breach the trust placed in him as in loco parentis.
[101] Accordingly, Mr Ngwenya’s conduct and actions violate the established standards that prohibit misconduct toward learners. Educators have an obligation to ensure a safe, respectful, and supportive learning environment, free from abuse and infringements on personal dignity.
[102] The testimony by the employer’s witnesses are compelling for me to find on a balance of probabilities that Mr Ngwenya is guilty as charged and the misconduct for which Mr Ngwenya has been found guilty is exceptionally serious.
[103] In terms of Section 17 of the EEA, it is mandatory that an educator convicted under this section must be dismissed. There is no discretion to impose a lesser sanction than dismissal. Dismissal is a statutory sanction.
AWARD
[104] The employee, Mr R. Ngwenya, is found guilty of contravention of section 17(1)(b) and section 18(1)(f) and 18(1)(q) of the Employment of Educators Act.
[105] The employee, Mr R. Ngwenga is dismissed with immediate effect.
[106] The employer, the KZN Department of Education must inform the employee, Mr R. Ngwenya of his dismissal immediately on receipt of this Award.
[107] Mr R. Ngwenya is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[108] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr R. Ngwenya name as contemplated in section 120 in Part B of the register.
[109] The ELRC must also send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr R. Ngwenya’s SACE certificate.