IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON

Case No: ELRC1330-25/26GP

In the matter between

GAUTENG DEPARTMENT OF EDUCATION Applicant – Employer

and

PIETER EKSTEEN Respondent – Employee

ARBITRATOR: Adv. S Fourie
HEARD: 1 – 2 September 2026.
FINALISED: (Closing statements 9 September 2026)
DELIVERED: 23 September 2026

INQUIRY BY ARBITRATOR – ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The Inquiry by Arbitrator, was heard at the Gauteng Department of Education in Sedibeng East on 1 and 2 September 2026. The Employee, Mr. Pieter Eksteen (“Eksteen”), was present and represented by Mr. Lourens Odendaal from SAOU. The Employer was represented by Mrs. Charlotte Osler (“Osler”), its GDE practitioner also the Initiator. The witnesses’ identities are known to the parties. Ms. Gina Wentzel served as intermediary and Mr. Musa Myeza served as the interpreter. The proceedings were conducted in English and Setswana. I kept handwritten notes and were also digitally recorded.
2. It was indicated to the parties at the commencement of the Inquiry, that at the conclusion of the process, inclusive of their closing arguments, they must address the Commissioner on whether the educator is fit or unfit to work with children in terms of section 120 of the Children’s Act 38 of 2005.

POINTS IN LIMINE

3. None.

THE ISSUES TO BE DETERMINED

4. This is an arbitration award in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”) read with section 3.2.1 of Collective Agreement 3 of 2018. This award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Mr. Eksteen pleaded not guilty to the allegations listed hereunder. I am required to determine whether the employee is guilty of the charges levelled against him and if so, to determine the appropriate sanction.

BACKGROUND TO THE DISPUTE

5. The Employee, Mr. P Eksteen is employed by the Department of Education of Gauteng at Voorwaarts Primary School as a PL2 educator. The charges against the Employee reads:
   • Allegation 1 – It is alleged that during the period March to November 2025, while on duty, you committed an act of sexual assault on Learner A, a Grade 7 Learner at Voorwaarts Primary School by touching her breast, slapping her bums, touching her thighs and moved your hands toward her private parts. In view of your actions, you are thus charged with misconduct in of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998 as amended.
   • Allegation 2 – It is alleged that during the period March to November 2025, while on duty, you conducted yourself in an improper, disgraceful and unacceptable manner towards Learner B, a Grade 7 Learner at Voorwaarts Primary School by slapping her on her back and pulling her bra strap. In view of your actions, you are thus charged with misconduct in of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998 as amended.

SUMMARY OF THE EVIDENCE

6. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes required by the context read with Section 188A (9) of the LRA. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 12 pages). The Employee submitted no bundle of documents.

The Employer’s case

7. Monica Anker (“Änker”), testified under oath. She is the Deputy Principal at the School but acted as Principal when the previous Principal retired. On 28 October 2025 Learner A wrote a letter to her which was given to her register teacher, Ms van Dyk. Referring to Anker’s letter to Osler and the Circuit Manager (R10 – R12). The letter from the Learner was about Eksteen’s actions. She called Learner A on 29 October 2025 to inform her about the letter in which Learner A also had a recording with her. Van Dyk was present in the meeting when she saw the Learner.
8. Due to the allegations, she called for direction and was guided by Osler that she could call Eksteen to inform him about the allegations on 29 October 2025. Osler also came to the school at around 13:00 who gave her guidance on how to deal with the matter. Before she could have a meeting with Eksteen, that night the SGB chairperson, Johan van Rooyen phoned her around 08:00pm asking her about the stories is true again against Eksteen. She has no idea how the SGB chairperson came to know about the allegations. Van Rooyen made her ware that it was not the first time and that the previous Principal was also aware of issues concerning Eksteen
9. She stated that after Learner A, there were other incidents reported and Osler told her to stand back. The other Learners were Learner B and another Learner. She had a meeting with Eksteen who was very angry about the allegations who stood up and walked out. In the discussion with Eksteen, he himself referred to another Grade 5 Learner, Learner C. She then decided to call the mother of Learner C who told her she was in the same situation with Eksteen who also taught her when she was at School, however Anker did not know which year it was.
10. Anker stated that the Hall and Ostman’s class which Eksteen occupied had no cameras installed. She stated that when the previous Principal Steenkamp retired, his wife also finished and it was when Ostman took Steenkamp’s class and Eksteen occupied Otsman’s class.
11. During cross examination, she stated that Eksteen must have moved to Ostman’s class when Steenkamp retired around the end of July 2025. She would say Eksteen occupied the Hall in the first half of the year and Ostman’s class during the second half.
12. She was not aware of previous incidents which the SGB Chairperson mentioned in respect to the previous Principal. She agreed that Eksteen was not at school being on leave when the allegations came to her attention.
13. Anker agreed that Learner A and B was in trouble and had to respond in writing, she stated that a group of eight girls were always fighting and she requested van Dyk to mentor the group who was the Head of Discipline. Anker then requested the girls to respond in writing to what they learned hence they wrote a letter. The letter received from Learner A was that she was unsafe at school and uncomfortable in Eksteen’s class. Anker denied the notion that Learner A acted out of anger for being in trouble because of fighting. Anker responded that Learner A wrote in the letter incidents not all on the same day. She wrote that Eksteen pulled her bra strap and moved his hand towards her breast. She also wrote that he smacked her on her bum in class and that she felt very uncomfortable by the way he looked at her in class. Anker agreed that all this occurred whilst Eksteen was teaching in class.
14. Learner A (age 15), testified under a solemn affirmation. At the time, she was in Grade 7 being in Grade 8 now. Anker was the principal at the time to whom she wrote a letter in 2025. She wrote about how Eksteen touched her and the way he looked at her. The one incident was when he marked her book whilst in front of the class in the school Hall and smacked her on her bum and kept on looking at her. She stated that other learners would not be able to see because it happened behind his desk which is high. She could not recall the date, but it was during the beginning of the year during the first three months. She did not tell anyone until the end of the fourth term.
15. The reason is that at the end of the fourth term, whilst in class (Ostman’s class), Eksteen took her bra strap from under her shirt when he placed his hand on her shoulder moving his hand slowly to her breast and then he pressed her breast. Learner A demonstrated she was seated at her table when Eksteen came and placed his hand on her shoulder and moved down to her breast and squeezed it. This she stated happened in Ostman’s class.
16. To the question whether she told Eksteen that she did not like the touching, she responded that she did so the time when he placed his hand on her thigh, she shoved his hand away when he moved it upwards. She stated that he almost reached her private parts when she shoved his hand away. She stated that it happened in class at his table when she took her book to him to show her work. She was not the only one who would go to his table when they have work they struggle with. She stated that she did not tell anyone at the time because she was scared, he would do something to her. She also did not tell her parents because her farther would have created problems at the school.
17. To the question whether it took courage to write the letter to Anker, she responded that when he touched her breasts, she immediately went to tell Anker because she realised it was not a joke. Anker told her to write a letter of what happened. When she wrote it, Anker also told her that she would speak to the Department to able to handle it on her own. She also told Learner B being her friend. She stated that after she reported it to Anker, things were better but just for a while but did not stop and then went on as it was at the beginning of the year.
18. During cross-examination, she responded that the Hall is huge with around 31 learners seated close to each other half meter apart. She stated that it is easy for one person to move in between the rows. Eksteen’s table is in front of the Hall with all the table around his desk with her table the second one from his desk to the right.
19. In respect of Ostman’s class, she stated there is around five rows, and she was seated in the second last row on the right side. Eksteen’s table was the closest to the window against the wall and in line with her table. She would stand on the right of Eksteen when at his table.
20. The school shirt she wore has a collar and short sleeves. In explaining how a bra strap can be drawn of from the shirt, she explained that the bra strap is two fingers from her collar bone and when he put his hand at her neck he gets hold of the bra strap under her shirt. She agreed that the touching of her breast occurred on another occasion. To the notion that it would draw attention if Eksteen placed his hand under her shirt in front of other learners, she responded that it did draw attention, but they were busy with work from the white board.
21. To Eksteen’s version that he sits at the table and used a projector, Learner A agreed but most of the time he wrote on the white board, but when they were in the Hall, he used the projector not having a white board. She stated that when they were in the Hall, Eksteen did not walk around, and they had to go to his table. She stated that the only incident that happened in the Hall was when Eksteen hit her on her bum with his right hand when she was behind his table.
22. In the classroom, the learners were not close to each other having more space that in the Hall to move around in between. Eksteen moved around and used the white board more than he used the projector.
23. She stated that Learner B is her best friend and they spent a lot of time together. She told Learner B what happened in the second quarter of the year who responded that she also experienced things from Eksteen. At the time they were in the same class. She did see things happening with Learner B but not all. She saw, when they moved the class from the Hall to the classroom, that Eksteen was also busy with Learner B’s bra strap. She stated that Learner B wore a sports dress with a four-finger strap when Eksteen pulled her bra strap and left it slipping. She did not state this in her letter to Anker.
24. Referring to her leg being touched, Learner A responded that it was in Ostman’s class behind Eksteen’s table whilst she was standing. Learner A demonstrated showing how Eksteen touched the back of her left leg moving upwards towards her private area using his right hand. She stated that it happened two to three times in situations where she missed a test and had to write during a break or when she fetches something.
25. She could recall being in trouble with a group of girls and then had to write a letter. She agreed that she was not good in mathematics. She also agreed that Eksteen moved her and Learner B to the back of the class. She responded that after the move he did not her for around a month but later continued to look at her and to touch her again. To the question whether Eksteen touched her in November again, she responded that it was when Eksteen touched and pressed her breast which was after the letter to Anker.
26. Learner B (age 14), testified under a solemn affirmation after it was established, he could distinguish between right and wrong. Referring to the second charge, Learner B stated that it was in the first quarter of the year in the Hall when Eksteen asked questions moving to her back. She wore a sports dress (netball). Eksteen pulled her bra strap up and released it again. She laid backwards and whispered to Learner A, who told her it happened to her as well. She told her mother who made it of to be a joke, but it happened more than once.
27. Another incident was in Ostman’s class where she sat in the front. The class has no cameras. Eksteen walked around her and grabbed her on the hips. It was when they talked to Anker. She stated that the bra strap incident happened in the first term. She has seen Eksteen pulling other learners bra straps as well naming another two learners. After Eksteen pulled her bra strap she looked at him and he laughed at her leaving her very uncomfortable.
28. Learner B could not recall being part of the incident involving other daughters. She stated that Anker told them to write down all that happened and what Eksteen did.
29. During cross examination, she stated that the Hall is huge with the table in front of the stage with the desks close to each other with enough space for one person to move in between. She was seated in front of Eksteen’s table with Learner A two tables from her. To the notion how she could have told Learner A about it, she responded that she rode on her chair to whisper it to Learner A which she did three times before Learner A realised what she was saying.
30. To the notion what Learner B could in the Hall in relation to what happened to Learner A, she responded that she saw when Eksteen hit Learner A on her ass because it happened in front of her on the stoep in front of the office where they do the announcements. At the time there was no other adults because it was class time.
31. In relation to Ostman’s class, Learner A responded she only had class with Eksteen in the Hall and not in another classroom. Learner B stated that Eksteen was touching other learners mentioning another Learner’s name (Learner D) who told her, but she did not see it. Another Learner (Learner E) who was in her class, she saw the touching like her when he played with her bra strap. To Eksteen’s version that he was seated behind his desk using the projector, she stated that Eksteen would go and sit at the desk in the Hall and used the projector after he walked around in the class explaining.
32. In respect of Eksteen to have grabbed her by the hips, she stated that she was seated when it happened showing how she sat with Eksteen coming at her back with her looking up to him then he grabbed her hips with both hands from the back pushing into her desk. She stated that Learner A saw it. To the notion that it is only her and Learner A being best friends who saw what happened, Learner B responded that she does not know whether the popular girls saw it.
33. Cherize Henning (‘’Henning’’) testified under oath. She is the mother of Learner C. Her daughter attended the school from Grade R to Grade 6 at the time of the incident in 11 and in Grade 5. She sated that her daughter wanted to explain to her something whether it was right or wrong but told her not to get mad. She then told her daughter to show her what happened. Her daughter wanted her to be seated, and her daughter would be the teacher standing behind her. Her daughter then touched her shoulder and moved her hand inside her blouse touching her small bone (collar bone). She asked her daughter why the small bone to which she responded that it is small and can be touched. She then told her that it is not right and not allowed for someone to touch her body and that she must tell her immediately if it happens again.
34. Then she started crying saying there was another incident which was very embarrassing to her. She told her that they had a period in the Hall. She stood up to go and through a paper away walking to the front of the class towards the dustbin. Eksteen then pulled her arm over his lap in a playful manner hit her with a ruler on her bum saying it is what happens when you stand up in class time. She cried and walked back and think the class laughed about it. Around a month there after her mathematics marks dropped and she had to obtain the help of a tutor. She also got permission to shift her to another class.
35. She stated she knows Eksteen personally because she was also a student of him at Dr Verwoerd which is now Midvaal. She referred to an incident involving Eksteen. She stated that at that time, they wore skirts with no pants underneath comparing it to the current pants which is like a shirt. She stated that the tables and the chairs was high not the normal hight. When seated one must close your legs. She stated that Eksteen would drop his pen more than once and look underneath the tables. When he comes back up, he would say to them it is not the way to sit and must open their legs. So as a group, they decided to buy ski-pants to wear underneath their skirts. When Eksteen saw that they were wearing ski-pants underneath, he would tell them to go to the bathroom to remove the ski-pants because it was not school wear. Henning told her parents about it who said they would act if there was something worse happening. When she heard her daughter attended class of Eksteen she told her husband that they needed to be vigilant about it.
36. During cross examination, she stated that there were emotions that came back but she was not aware about the other girls. She stated that her daughter is very short and an outspoken person and would hug everyone but became scared. This, her daughter told her in 2025 in the last term. To the notion that they bought gifts for Eksteen at the beginning of the year, Henning agreed that they would buy gifts for all teachers her daughter attends class with.
37. To the notion that she never reported it what her daughter told her, she responded that they prayed about it trusting the Holy Spirit and anointed their daughter to be protected. A day thereafter, a teacher called them enquiring about any incident that may have occurred involving Eksteen. All took place in the same week when her daughter told her and when the teacher called her.

The Employee’s case –

38. Petrus Cornelius Eksteen (Eksteen), testified under oath. He has been a teacher for 32 years and has never been accused of misconduct. He agreed that he was an educator at Verwoerd Primary School from 1995 – 1999. He does not know Henning and could not recognize her. He cannot recall anything about what she has testified about being 30 years back.
39. In relation to the Hall where he taught, he stated that the Hall is big. He is totally deaf in the left ear and children talking soft, so he tried to compact the class by pushing the tables close to each other to be able to hear them better and because of the sound in the Hall being a huge area. His table is in front of the Hall close to the stage. In the Hall, he used his desk where he would be seated from where he used the projector with the visualizer. It had a short cord which required him to be close to the back of the stage to be able to use it. In respect of the white board, he stated that he used was in the Hall since Covid for around five years. When Steenkamp retired his wife resigned and he moved to Ostman’s class, in which class he used the whiteboard for a small period but mainly used the projector after he had a shoulder operation.
40. He stated that in the Hall, Learners would usually come to his table’s right side having no place at the left side being a drawer and him seated on the right side of the table. It was impossible for Learners A and B to have come behind his table because he was seated there with no place behind the table. There were five rows and four tables in each row close to each other because of his hearing problem with around 37 learners. Learner A was seated to his right side to the middle and Learner B right in front of him against his table.
41. To the Learner’s version that Eksteen walked between the rows, he responded that he tried not to because of the suitcases between the tables and during November the previous year, he had a knee replacement which made him to be careful not to fall hence he avoided to move between the rows where the suitcases were. Sometimes he would move on the outside of the rows being safe. He stated that it would be possible to bump into learners when moving.
42. To the Learner A’s version that he pulled her bra strap, Eksteen responded that it would be difficult with her wearing a long sleeve shirt to get hold of the bra strap and he denied having done it. He also denied having slapped Learner A’s bum. He also denied having moved his hand up to her private parts and that he was seated behind his desk and not standing.
43. In relation to Learner B’s version that Eksteen moved around in the Hall between the desks and flipped her bra strap, Eksteen responded that it was difficult where she was seated to get close to her because her desk was in front of his desk in the middle of the class where he would not walk. He also denied having come from behind and grabbed her by her hips being difficult to walk there and because of his knee replacement he would not move where the suitcases were not to fall over them.
44. He moved from the Hall to Ostman’s class around June. It was very small with four rows having five tables in a row with his table on the left side across door against the wall. He agreed having used the white board for a short while like a month then he switched back to the projector and the visualiser because of a shoulder operation he had earlier. He operated the projector from his table from where he normally would not move around.
45. Eksteen stated that on 28 October 2025, he was not at school because he attended the birth of his grandchild born from his daughter. Anker called him and was told that he was in trouble but met later because he was not at school on 28 October 2025. He would not do what he is accused of, to anyone’s daughter. Both Learner A and B had low marks for mathematics with Learner A – 40% and Learner B – 33%.
46. Referring to the letter of 28 October 2025, Eksteen stated that he never saw it but was told that he was in trouble. The principal called him on 29 or 30 October 2025 although he cannot recall not being at school. He was dumbstruck, very angry and could not believe it and was instructed to leave the school immediately.
47. The only interaction he had with Learner A and B was in the class one period a day. He denies Learner B’s version that she saw him grab Learner A’s bum. He was also never close to the office with them being 50-60 meter from the Hall and Ostman’s class at the far end of the school. Between periods he waits in his class for the next class. Eksteen denied Learner B’s version that she wore a netball dress because they wear school clothes to school. He stated that he does not know Learner A and B other than attending his class. After the allegations were made, he placed them at the back of the class and ignored them. He denied their version that the touching continued after some time.
48. Referring to the Audi-letter, he received it from Osler. He knows Henning’s daughter (Learner C) who was in Grade 5 being the one bringing sweets. He agreed that he mentioned her name when Anker told him about the allegations because she was a loving girl always around him. He noticed however that she suddenly changed a week or so before with no reason known to him.
49. During cross-examination, Eksteen stated that he could not recall Henning saying that normally one would recall learners who performed in sport and possibly the naughty ones but not everyone.
50. He explained the desk he had with the drawers on the left side with him seated on the right side. When learners came to his desk with their books, they would stand next to the table on the right side. He would show out mistakes and speak to them. He agreed that it would be possible to stand up when they are next to him and possible to touch them although he had no reason to do so.
51. Eksteen did not know what the reason could be for Learner A and B to accuse him to play with their bra straps. To the notion that Henning’s version is peculiar in that Learner C, who was uncertain whether it was wrong, told her mother (Henning) that Eksteen played with her collar bone having his hand underneath. Eksteen responded that when he teaches, he would walk between the rows and sometimes he would stop at a learner and place his hand on the learners’ shoulder squeezing the collar bone to get a reaction and to break the tension in the class. He stated that most of the time learners react by laughing drawing their concentration again. In relation to Learner C, he stated that he touched her collar bone but outside her shirt.
52. To the notion that Learner A and B’s version then not to be far-fetched that Eksteen could have played with their bra straps flipping it, to which Eksteen responded that he will never pull a bra strap when he touches a learner because he only draw the learners’ attention when he teaches.
53. Eksteen could not recall that he draws Learner C, over his lap and playfully hit her with a ruler on her bum responding that his chair would not allow it because of the side rests it had. (Osler responded to the objection that Eksteen was not charged in respect of Learner C that Learner C is the same age and during the same time.)
54. To the notion that Eksteen violated Learner A and B’s right to education when he moved them to the back, he responded that Anker told him to move them to the back not to have contact with them.
55. To his version that Learner B never wore a sports dress, he responded that at times when they had sport, the learners would wear sports clothes when they must dress after the second break.
56. Eksteen has no idea what the reason would be for the learners to accuse him and fabricate stories against him. He also denies Henning’s evidence. To Anker’s version of the SGB chairperson about other prior incidents, Eksteen responded that it was two to three years ago when he was accused of a Grade 7 girl he allegedly pinched on the back which was reported to the SGB chairperson and the previous principal spoke to the parents who decided it was not serious and did not took it further. Eksteen agreed that parents cannot decide on the seriousness of teachers’ actions and would create chaos.
57. Eksteen agreed to be a playful teacher making jokes. To the notion that he fondles with learners, he responded to be on the shoulders and heads. To the notion that his teaching ways make learners uncomfortable, Eksteen responded to say, “not really.”

SUBMISSIONS IN ARGUMENT

58. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances). The submissions were received and carefully considered It will however not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself.

ANALYSIS OF EVIDENCE AND ARGUMENT

59. Written arguments inclusive of aggravating and mitigating evidence were submitted. I do not intend to summarise it here in detail. For a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. The onus is on the Employer to prove the allegations levelled against the Employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness whether the employee is guilty of the two allegations levelled against him. The charges read: • Allegation 1 – It is alleged that during the period March to November 2025, while on duty, you committed an act of sexual assault on Learner A, a Grade 7 Learner at Voorwaarts Primary School by touching her breast, slapping her bums, touching her thighs and moved your hands toward her private parts. In view of your actions, you are thus charged with misconduct in of Section 17 (1) (b) of the Employment of Educators Act,76 of 1998 as amended. • Allegation 2 – It is alleged that during the period March to November 2025, while on duty, you conducted yourself in an improper, disgraceful and unacceptable manner towards Learner B, a Grade 7 Learner at Voorwaarts Primary School by slapping her on her back and pulling her bra strap. In view of your actions, you are thus charged with misconduct in of Section 18 (1) (q) of the Employment of Educators Act,76 of 1998 as amended.
60. It is common cause that the allegations concern Learners A and B, who was approximately 14–15 years old at the time and good friends with each other. It is common cause that there is no allegation in respect of Learner C levelled against Eksteen. It is common cause that Eksteen taught Learners A, B and C. He utilized the Hall and there after Ostman’s classroom. It is also common cause that the letter or letters written from the respective learners were not submitted into evidence.
61. Eksteen pleaded not guilty to both allegations.

Substantive Fairness – whether the alleged incidents took place –

62. I am guided by the 2025 Code of Good Practice on Dismissal issued in terms of the Labour Relations Act 66 of 1995, as amended (“the Code”). The relevant enquiry is whether the Employee contravened a rule regulating conduct in, or of relevance to, the workplace. In this matter, the alleged misconduct is classified under sections 17(1)(b) and 18(1)(q) of the Employment of Educators Act 76 of 1998, as amended (“the EEA”).
63. Eksteen pleaded not guilty to the allegations levelled against him. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the Applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities – see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not, – see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
64. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail ” (at 14I – 15E par 5 per Nienaber JA)
65. The charges against Eksteen involve some form of sexual misconduct in relation to Learners A and B being the age of 14 at the time during 2025. The Constitutional Court in Bothma v Els and Others 2010 (2) SA 622 (CC) par 47, has recognized that: sexual molestation of children generally takes place behind closed doors and is committed by a person in a position of authority over the child and that it is difficult to obtain eye-witness corroboration. This case has a different factual basis which allegedly did not take place behind closed doors but in the respective places of teaching being the Hall and the classroom. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence – see Woji v Santam Insurance Co Limited (A) at 1028B – D. I have indeed approached the Learners’ evidence with caution.
66. The credibility and reliability of the witnesses have bearing. The proper enquiry concerns credibility, reliability and probabilities. Credibility concerns whether the witness is truthful. Reliability concerns the accuracy of the recollection and the witness’ ability to observe and recall, and probabilities concern which version is more likely when the evidence is considered. Learner A is a direct witness, detailed in important respects as she described the physical location, the position of Eksteen’s desk, the alleged movement from the shoulder towards the breast and the circumstances in which she allegedly pushed his hand away from her thigh. Learner B was also a direct witness to the conduct and gave evidence concerning the alleged bra strap occurrence which lined up with Learner A’s account although it was not contained in charge one in respect of Learner A.
67. The main contradictions are not necessarily between their evidence about their own experiences, but between their accounts where they referred to the same events or surrounding circumstances. I am cautioned about slapping of the buttock’s allegation to the extent that the place the alleged incident occurred Learner A and B submitted different locations: at Eksteen’s desk in the hall, on the one hand, and outside near the office, on the other. I am cautioned by the differences between the Learner’s evidence and whether it affects the probabilities.
68. It is important that both Learners A and B did not report the purported accusations out of their own doing but arose from another different incident involving fighting in which these allegations came to the fore. Anker’s evidence was important in respect of reporting and a contextual witness especially in respect of Learner A and following up on Learner C, but she did not personally observe the alleged touching. Henning’s hearsay evidence that Learner C was distressed that her marks declined and that she was moved from Eksteen’s class supports her disclosure as a mother and the probative value of Learner C’s account, but it does not independently prove what occurred.
69. Eksteen gave a detailed denial and offered a concrete alternative explanation based on the layout of the Hall and the classroom, the position of his desk, his hearing impairment, his knee replacement, his shoulder problem, his practice of using the projector, the positioning of the learners and the presence of suitcases between the desks. Eksteen failed to substantiate his impairment defenses, not able to move between the rows however, he contradicted himself in his response or concession in respect of Learner C, when he stated that he moves around touching learners’ shoulders and squeezing their collar bones to draw their attention. His evidence that learners could stand beside his desk and not behind the desk, and his admission that he touched learners by rubbing the collar bone to obtain their attention, contained concessions which he initially did not disclose and denied which is relevant to the employer’s case. This inconsistency affects the weight of his explanation concerning physical impossibility.

The Letter –

70. The Employer’s evidence is that Learner A wrote a letter to the acting Principal, Anker, on 28 October 2025 and given to Mrs van Dyk who gave it to Anker who brought its contents to the attention of the relevant departmental officials. According to Anker’s evidence, the letter stated that Learner A felt unsafe at school and uncomfortable in Eksteen’s class with the way Eksteen looked at her and had been subjected to him pulling her bra strap. She also experienced him moving his hand towards her breast and had been smacked on her buttocks in class. Anker denied the notion that Learner A acted out of anger for being in trouble because of fighting. Hereafter, evidence directs that on 29 October 2025, Anker, in the presence of van Dyk, had a discussion with Learner A about the allegations raised in the letter. The letter is relevant because it constitutes an earlier written complaint. Even though the letter was not part of the Employer’s bundle of documents, the existence of the letter was not disputed by Eksteen therefore Anker’s evidence is the only version of what was written in letter other than Learner A’s evidence. Eksteen did not rebut the existence of such letter.

The discussion between Anker and Eksteen –

71. After Learner A’s written complaint came to the school’s attention, Anker discussed the allegations with Eksteen. Anker testified that Learner A’s letter was received on 28 October 2025 and she sought guidance from the relevant departmental officials, including Osler who also attended the school and advised Anker on how to proceed. Anker thereafter met with Eksteen concerning the allegations and stated that Eksteen became angry during the discussion, stood up and left the meeting. Eksteen agreed that he was dumbstruck and got very angry.
72. In their discussion, when Anker had identified all the learners involved naming Learner A, B and another learner (not Learner C), Eksteen asked whether Learner C was one of the complainants which Eksteen agreed that he asked about Learner C. It is noteworthy that when Anker informed Eksteen about the letter, it was indicated that he was in trouble. Whether Eksteen perceived it to be so or words spoken by Anker is irrelevant, but Eksteen had time to think about what he was informed about thinking to be in trouble. During their meeting some days later most likely on 30 October 2025, mindful to be in trouble, Eksteen had Learner C in mind. Anker decided to follow up and contacted Henning, the mother of Learner C, because Eksteen had mentioned Learner C during their discussion.
73. Eksteen’s reaction is relevant to the assessment of his conduct and knowledge of the learners. In my view, his anger, abrupt departure and his unsolicited reference to Learner C, was inconsistent with the conduct of an educator who had no idea why the allegations had been made. He explained that he mentioned Learner C because she was a loving learner who had often been around him and had suddenly changed shortly before the allegations became known. The discussion should, however, be assessed cautiously. An angry or shocked reaction is capable of more than one interpretation.

Henning’s evidence in relation to Learner C –

74. Henning testified that her daughter, Learner C approached her and asked her not to become angry because she was unsure whether what had happened, was right or wrong. Learner C then demonstrated the conduct by asking Henning to sit down while she stood behind her. Placing her hand on Henning’s shoulder and moving her hand underneath Henning’s blouse. Touching the area around Henning’s collar bone or “small bone” the way Leaner C told Henning. According to Henning, Learner C explained that Eksteen had engaged in similar conduct as she had demonstrated to Henning and had referred to the area as “these small little bones we can touch”.
75. Eksteen admitted that he touched Learner C’s collar bone but outside her shirt. He also stated that he sometimes touched learners on or near the collar bone to obtain their attention or make them laugh. He maintained, however, that any contact with Learner C occurred outside her shirt and was not improper. Eksteen agreed that he mentioned her name when Anker told him about the allegations because she was a loving girl always around him. He noticed however that she suddenly changed a week or so before with no reason known to him. In my view, for Eksteen to have named Learner C in the discussion with Anker who had did not had Leaner C on her complaint list, an inference can be drawn that there was more than merely noticing a change in her behaviour.
76. Eksteen contradicted himself when he responded in relation to Learner C, that when he teaches, he would walk between the rows contradicting himself during his evidence in main that he avoided walking between the rows not to fall after he had a knee replacement. Also, that the rows were close to each other with the schoolbags in between the rows which would cause him to fall over them. This contradiction was in respect of the Hall which refers to charge one in respect of Learner A’s alleged offence.
77. During Eksteen’s evidence in main, he denied any wrongdoing but during cross examination in respect of Learner C, he responded that sometimes he would stop at a learner and place his hand on learners’ shoulder squeezing the collar bone to get a reaction and to break the tension in the class. This, Eksteen conceded in respect of Learner C but that he did not do so underneath her shirt. Eksteen demonstrated with his middle finger how he would squeeze or rub the collar bone by moving his finger back and forth. He contradicted himself to the extent that in his evidence in main, he shied away from touching any learners and specifically Learners A and B but conceded to have touched Learner C in this way.
78. It is common cause that Learner C was not presented as a witness with Henning testifying on behalf of her daughter. Eksteen’s concession in relation to Learner C, that he touched her collar bone but outside her shirt, is important in evaluating the allegations. A further account where Henning referred to Eksteen to have pulled Learner C by her arm over his lap in a playful manner and hitting her with a ruler on her bum saying it is what happens when you stand up in class time. She cried and walked back and think the class laughed about it.

The hearsay evidence of Hatting –

79. Hearsay evidence is not automatically admissible merely because it is relevant, but its admission and weight depend on factors derived for the Law of Evidence Amendment Act 45 of 1988. Henning’s account of what Learner C told her is hearsay and its probative value depends substantially on Learner C’s credibility. When exercising this discretion, the Act directs the arbitrator to consider the nature of the proceedings, the purpose for which it is tendered, its probative value, the reason Learner C did not testify and the prejudice to the opposing party being Eksteen.
80. Section 3(4) of the Law of Evidence Amendment Act 45 of 1988, defines hearsay evidence as: “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”. The probative value of evidence is the extent to which it can illuminate any of the relevant issues in dispute. Some hearsay evidence, through being linked to other proven items of evidence, may acquire significant probative value.
81. The purpose for which the evidence is tendered is because the Employer relies on the evidence mainly to support Anker’s account when Eksteen mentioned Learner C in their discussion and to provide context for the later complaints. It is not appropriate to use Henning’s evidence as direct proof that Eksteen committed the specific acts charged against Learner A. Nor should it be used to reason simply that, because Eksteen allegedly behaved improperly towards Learner C, he must have committed the conduct he is accused of. It must be born in mind that Eksteen mentioned Learner C’s name out of his own accord and saw nothing wrong with touching Learner C the way he testified and as such be prejudiced.
82. In my view, such evidence should be admitted in the interests of justice. The evidence has potential probative value because Learner C made the disclosure to her mother and described an emotional reaction of what she has experienced not sue whether it was right or wrong. Henning said that Learner C’s academic performance declined and that she was later moved from Eksteen’s class, which was not disputed by Eksteen who himself, has experienced Learner C to act differently describing her as a “loving child”. As such, Eksteen had no negativity onto Learner C or submitted a notion that Henning’s account was fabricated because of historical events. Even Hennings own alleged experience with Eksteen when she was a learner of Eksteen some 30 years ago, in my view, was a retaliation but a mother testifying of what her daughter conveyed to her. Eksteen’s admission that he sometimes touched learners near the collar bone to obtain their attention and Eksteen mentioned Learner C when confronted with the allegations by Anker raised, triggered Eksteen’s alertness not necessarily in respect of him touching Learner C having the view it was not wrong, but rather to something else, most likely that he have pulled Learner C by her arm over his lap in a playful manner hitting her with a ruler on her bum saying it is what happens when you stand up in class time.
83. During cross-examination, Anker nor Henning was questioned about the reason Learner C was not present to testify however, to the notion that Henning never reported what her daughter told her, Henning responded that they prayed about it trusting the Holy Spirit and anointed their daughter to be protected, which most likely would be the reason Learner C was not physically called to testify as well. Notwithstanding Henning to be the mother to Learner C, Eksteen had no negative submissions in respect of Learner C but described her as a “loving child” always around him. In the interests of justice, the evidence of Learner C is admitted being considered with limited weight” because Learner C’s evidence could not be tested by cross-examination.

The Collar bone touching –

84. Eksteen admitted that he sometimes placed his hand on a learner’s shoulder and touched or squeezed the area near the collar bone to obtain the learners attention or to make the learners laugh. This was his response to during cross examination in respect of Learner C. He stated that he did so outside the learner’s clothing and outside of Learner C’s clothing. Henning’s version of what Learner C demonstrated when Henning was seated while she stood behind her which is typical of a classroom makeup whilst teaching. Then she (Lerner C) placed her hand on her mother’s (Henning’s) shoulder and moving her hand underneath Henning’s blouse, touching the area around Henning’s collar bone or “small bone”. Learner C’s version corroborates with Eksteen’s response with the difference he denied having done so underneath the clothing. According to Henning, Learner C explained that Eksteen had engaged in similar conduct and had referred to the area as “these small little bones we can touch”.
85. Eksteen’s admission is relevant because it establishes physical contact with learners which formed part of Eksteen’s teaching conduct which is unacceptable conduct. Eksteen regarded such contact as playful and did not perceive such physical contact with learners as inappropriate. Eksteen denied any physical contact with Learners A and B or any learner and denied walking between the rows in which he materially contradicted himself in respect of Learner C. From a probability perspective, the collar-bone evidence makes physical contact with learners more probable than a complete denial of any touching. It does not necessarily make the specific sexual touching alleged by Learner A, B probable unless the surrounding evidence supports a probability that the admitted conduct, can be extended beyond what Eksteen described.

Bra-Strap Contact –

86. The charge in respect of Learner B contains the pulling of her bra strap. The charge in respect of Learner A does not include the bra strap allegation, however Anker stated that Learner A wrote that Eksteen pulled her bra strap and moved his hand towards her breast. Focussing on the bra-strap accusations, Learner A demonstrated she was seated at her table when Eksteen came and placed his hand on her shoulder and moved down to her breast and squeezed it. Learner A agreed that the breast incident occurred on another occasion. During cross examination, Learner A in explaining how a bra strap can be drawn of from the shirt, she explained that the bra strap is two fingers from her collar bone and when Eksteen put his hand at her neck, he gets hold of the bra strap under her shirt. Common sense directs that a bra strap runs over the shoulder which means over the collar bone therefore a bra strap can be easily accessible when placing a hand over the shoulder next to a person’s neck.
87. Learner A corroborated Learner B when she saw Eksteen was busy with Learner B’s bra strap who wore a sports dress with a four-finger strap when Eksteen pulled her bra strap and left it slipping. Learner B stated that she wore a sports dress (netball) when Eksteen pulled her bra strap up and released it again. Learner B laid backwards on her chair and whispered to Learner A, who told her it happened to her as well. Initially, Eksteen denied that learners wore sports clothes during school time but during cross examination, he conceded that they do when they have sports after school and dress during the last break. Eksteen’s initial denial that sportswear is not worn during school hours and later change his initial version, he casted doubt over his evidence.
88. Learner A explained that the bra strap was located a short distance below the collar bone and that Eksteen could reach it by placing his hand near her neck and moving it underneath the shirt. Learner B similarly described Eksteen pulling and releasing her bra strap while she wore a sports or netball dress.
89. The bra strap is described to be close to a female learner’s shoulder and collar area. Bra staps is commonly situated over the should reaching over the collar bone close to the neck. If Eksteen stood immediately beside or behind a learner who would be seated, and places his hand over the learner’s shoulder, theoretically his hand would also be over the bra strap being underneath the shirt in reach of the strap. Playing with the collar bone the way Eksteen has demonstrated, it would be probable, and easy for a finger to reach underneath the shirt touching the bra strap. The way Eksteen showed how he squeezed or rubbed the collar bone, it is highly likely to have got hold of the bra strap and playing with it whilst rubbing. Should the middle finger or any finger, as demonstrated by Eksteen, reach under the bra strap, the finger can easily lift it up pull it outward and release it. The alleged conduct would not necessarily require prolonged contact.
90. The question is whether it was probable for Eksteen to touch or pull a bra strap, which it was. Considering the learners’ evidence, the classroom and Hall arrangements, Eksteen’s admitted practice of touching learners near the shoulder after his initial denial and the absence of any convincing motive to fabricate evidence by Learners A and B, whether it is more probable than not that he did so. In respect of the bra strap account, considering Learner A and B’s evidence and the version of Henning in respect of Learner C, it is the most probable version. There is no similarity between the learners’ accounts that should be assessed with caution because they were close friends for it to have been fabricated.
91. In my view, Eksteen manipulated his playful way he had with learners. His notion to touch learners’ shoulders and rubbing the collar bone, Eksteen developed a touching habit which he discreetly used in an improper, disgraceful and unacceptable manner towards Learner A, B and C. Over time, Eksteen successfully manipulated his ways onto learners. He accepted that he was a playful teacher who made jokes and engaged in physical contact with learners, although according to Eksteen, he limited this to touching their shoulders and heads. When asked whether his teaching methods made learners uncomfortable, he answered, “not really”. This evidence is relevant because it establishes that physical interaction with learners formed part of his teaching style.

Learner A –

92. The bra strap allegation is not listed in the charge in respect of Leaner A, however she testified about it and discussed above. Allegation 1 accuses Eksteen sexually assaulted Learner A by touching her breast, slapping her buttocks, touching her thighs and moving his hands towards her private parts. Evidence directs that the alleged occurrences happened over a period and not a once off.

Slapping the buttocks –

93. Learner A’s evidence describes a specific incident in the school Hall where Eksteen allegedly slapped her buttocks while marking her book. During cross examination, Learner A stated that the only incident that happened in the Hall was when Eksteen hit her on her bump with his right hand when she was behind his table. Eksteen’s version is that in the Hall, Learners would usually come to his table’s right side having no place at the left side being a drawer with him seated on the right side of the table. For Eksteen, it was impossible for Learners A and B to have come behind his table because he was seated there with no place behind the table.
94. It can be accepted as common cause that Eksteen at the time being in the Hall, he used the projector from his desk with learners going to his desk in respect of schoolwork. The issue is not whether Learner A could have been somewhere near Eksteen’s desk, but whether she could have occupied the position she described and whether Eksteen could have struck her buttocks in those circumstances. On Eksteen’s version, that Learner A could not have been behind his desk does not mean she was not next to his desk being on his right-hand side, the side Learner A stated Eksteen used to slap her bums using his right hand. Eksteen did not deny that Learner A came to his desk and on his account, she could only have been on his right-hand side. Learner A’s account is inherently probable because standing close to the desk, she could have been exposed to brief physical contact from Eksteen who most likely in his playful manner did so whilst discussion the schoolwork.

Touching Learner A’s breast –

95. Learner A’s version is that whilst in Ostman’s class, Eksteen took her bra strap from under her shirt when he placed his hand on her shoulder moving his hand slowly to her breast and then he pressed her breast. Learner A demonstrated she was seated at her table when Eksteen came and placed his hand on her shoulder and moved down to her breast and squeezed it. During cross- examination, she agreed that the touching of her breast occurred on another occasion. Eksteen denied the accusation that he touched Learner A breast. Whether the touching according to Learner A took place on another occasion, Learner A coupled it with the touching of her shoulder then moving downwards to her breast.
96. I must determine whether this reflects a genuine reference to separate incidents or an uncertainty concerning the sequence of events bearing in mind the evidence of a 15-year-old learner. Learner A’s account should be assessed with caution within the evidence submitted being the written complaint to Anker, Learner A’s demonstration, Eksteen’s admitted practice of touching learners and rubbing learners on the heads and collar bone, his denial of breast touching, and the probabilities arising from the classroom environment.
97. The alleged breast touching, in my view should be assessed together with the evidence concerning the collar-bone contact. Eksteen admitted that he sometimes placed his hand on a learner’s shoulder and touched or squeezed the collar-bone area to obtain attention or make learners laugh. The conduct submitted by both Learners A and B, being on different occasions and times, lessen the risk of their evidence to be fabricated. Eksteen claimed that this occurred outside the clothing which is unlikely as discussed above in relation to the bra strap. Eksteen’s admission is relevant because it provides support for the physical starting point of Learner A’s account that Eksteen had a practice of initiating contact around the shoulder or collar-bone area. The admission and the playing with the collar bone, does establish the probability that he continued his hand movement to Learner A’s breast area as demonstrated. The likelihood that Eksteen placed his hand beneath the clothing has been established (above) which is totally unacceptable conduct and does not exclude the probability for Eksteen’s hand movement towards Learner A’s breast. The squeezing-rubbing movement Eksteen described on the collar bone can easily be a squeezing of a breast when moved a bit downwards to the breast area like Learner A’s demonstration.

Touching Learner A’s thighs and moved your hands toward her private parts –

98. Learner A was not asked or directed to the thigh allegation bit to the question whether she told Eksteen that she did not like the touching, she responded that she did so the time when he placed his hand on her thigh, she shoved his hand away when he moved it upwards. She stated that he almost reached her private parts when she shoved his hand away. She stated that it happened in class at his table when she took her book to him to show her work. During cross examination, Learner A responded that it was in Ostman’s class behind Eksteen’s table whilst she was standing. Learner A demonstrated showing how Eksteen touched the back of her left leg moving upwards towards her private area using his right hand. Eksteen merely denied having moved his hand up to her private parts and that he was seated behind his desk and not standing.
99. On the evidence described, the allegation is more probable than not, particularly as to the touching of Learner A’s thigh and the movement of Eksteen’s hand upwards towards her private parts. Learner A identified the precise area touched at the back of her left thigh. She demonstrated the upward movement of Eksteen’s right hand and explained that she pushed his hand away when it moved towards her private area. She gave a reason for being near him when she had taken her book to his desk to show him her work. She also placed the incident in Ostman’s classroom, behind or near Eksteen’s desk. Eksteen’s evidence was primarily a denial. He stated that he was seated behind his desk and denied moving his hand towards her private parts. However, he accepted that learners could stand beside his desk and that physical contact with a learner in that position was possible.
100. Learner A’s evidence concerning the thigh-touching and upward movement towards her private parts should be assessed together with Eksteen’s admitted practice of making physical contact with learners. Eksteen admitted that he was a playful teacher who made jokes and sometimes touched learners on their shoulders, heads or collar-bone area to attract their attention or make them laugh. He also accepted that learners stood beside his desk when bringing books or seeking assistance. These admissions establish that he used physical contact as part of his teaching style and he was comfortable initiating physical contact with learners. On the evidence presented, it is probable, on a balance of probabilities, that Eksteen touched Learner A’s thigh and moved his hand upwards towards her private parts.
101. Having regard to Learner A’s detailed evidence, her demonstration of the movement, her explanation that she pushed the Eksteen’s hand away, and Eksteen’s admission that learners stood beside his desk and that he initiated physical contact with learners, I find that her version is more probable than the Employee’s denial.

Slapping Learner B on the back –

102. No evidence was submitted by the Employer in this instance. The charge concerning Learner B alleges that Eksteen slapped her on the back and pulled her bra strap however, Learner B’s testimony, as recorded, primarily described Eksteen pulling her bra strap upwards and releasing it and later grabbing her by the hips in Ostman’s former classroom. She did not clearly testify that Eksteen slapped her on the back. The employer’s evidence also appears to have focused largely on the bra-strap conduct and the alleged grabbing of her hips.

In conclusion –

103. Applying the principles in Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie and NUM v Rustenburg Platinum Mine, I have assessed the credibility of the witnesses, the reliability of their evidence and the inherent probabilities of each version. The Employer proved its case on a balance of probabilities that Eksteen failed to refrain from improper physical contact with Learner A and B. It therefore flows that the Eksteen’s case is less probable. In S v Mokoena 2014 (2) SACR 316 (SCA), the Supreme Court of Appeal emphasized the importance of corroboration in sexual offence cases. The Court held that the evidence of a single witness can be sufficient to prove guilt, but corroboration on material points strengthens the case. This case is relevant because the Employer’s case relies on the corroboration between Learners A, B and the hearsay evidence in respect of Learner C on the central issue of rubbing the collar bone which is unacceptable conduct and flipping or pulling the bra strap underneath the shirt. I find Eksteen guilty of both the allegations levelled against him and that he contravened offences in terms of Section 17(1)(b) and Section 18 (1) (q) of the Employment of Educators Act 76 of 1998.
104. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). I am satisfied that Employer proved on a balance of probabilities that Eksteen has irreparably destroyed the relationship of trust with the finding of guilty to both the allegations.
105. In relation to the allegations against Eksteen, I find, on a balance of probabilities, that he committed the conduct alleged. The conduct constitutes sexual assault and amounts to misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, read with section 3.9 of the South African Council for Educators Act 31 of 2000.
106. Having held that Eksteen misused his position as teacher, on a balance of probabilities has made himself guilty of the allegations levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:

“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.

107. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also consider the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction. Having held that Eksteen is guilty of sexual harassment as defined in section 17(1)(b) of the Employment of Educators Act, in relation to charge 1, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 1 stand. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to touch and slap 14 or 15-year-old Learner’s buttocks and thigh’s and pulling bra straps, is improper and disgraceful which constitutes serious misconduct. Fondling or manipulating a learner’s bra strap fall under section 17(1)(b) where the evidence establishes that it was intentional physical contact and sexual in nature or directed at an intimate area or clothing which is the neck area on the shoulder and violates a learner’s bodily integrity. It sufficiently constitutes sexual assault rather than merely improper physical contact.
108. Adults are expected to help protecting all children from sexual abuse in any form. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa now over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amount to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
109. After having committed the acts of misconduct, the refusal by Eksteen to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25: “Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”
110. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner cannot be trusted, especially when they are in denial.
111. I am satisfied that Employer has succeeded in proving on a balance of probability that Eksteen has irreparably destroyed the relationship of trust and made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.

AWARD

111. In the premises, I find summarily dismissal of Eksteen from the employment of the Gauteng Department of Education with immediate effect.
112. Mr. P Eksteen is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005. 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 Mr. P Eksteen 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.
113. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. P Eksteen has sexually harassed the Learners A and B by touching and rubbing their collar bones underneath their shirts fondling with their bra straps, slapping Learner A’s buttocks and touching her thighs and moved his hand toward her private parts.

Adv. S Fourie
ELRC Arbitrator
Gauteng