Commissioner: Jacques Buitendag
Case No.: ELRC716-25/26WC
Date of Award: 28 September 2026

In the INQUIRY between:

MR. ABDUL MUEED CASSIEM
(Employee)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Employer)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), commenced on 12 May 2026 under the auspices of the Education Labour Relations Council (ELRC). The evidence was concluded on 2 September 2026 and the parties were thereafter allowed to file written heads of argument.
2. Ms. S Kwazi of the South African Democratic Teachers Union (SADTU) represented the educator, Mr. Cassiem. The Department of Education – Western Cape (WCED) was represented by its Labour Relations Officer, Mr. T Seelamo. Ms. S Marks attended the proceedings on 1 September 2026 as an intermediary. The proceedings were digitally recorded.

BACKGROUND

3. On 25 September 2018 the parties to the ELRC entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.
4. Mr. Cassiem is a Post level 1 Educator at Paramount High School. The WCED received allegations of sexual misconduct against Mr. Cassiem. Mr. Cassiem was suspended with pay on 22 August 2025.
5. The WCED requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations.
6. The WCED preferred the following charge against Mr. Cassiem:
   “It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 in that on or about 5 August 2025 you committed an act of sexual assault on Learner A, a learner at Paramount High School by:
   (a) Grabbing her from behind her and/or
   (b) Touching her on her waist and/or
   (c) Touching her on her hips
7. The identity of the leaner was disclosed during the inquiry. Her identity is protected for the purposes of this award and she is referred to as Learner A.
8. Mr. Cassiem acknowledged that he understands the allegation levelled against him and he pleaded not guilty to the allegation.

THE ISSUE IN DISPUTE

9. I must determine whether Mr. Cassiem is guilty, on the balance of probabilities of the allegation levelled against him, and if so, I must determine the appropriate sanction.

SUMMARY OF EVIDENCE AND ARGUMENT

10. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s evidence and argument
11. The WCED called the following witnesses:

1. Leaner A;
2. Leaner B (her identity was disclosed during the Inquiry); and
3. Ms. B van Wyk, a Social Worker.

12. Leaner A is 14 years old. She testified that Mr. Cassiem taught Social Science in 2025. He has a habit to touch girls in his classroom. The girls said nothing when he touched them and she could see in the faces of the boys that they were scared to tell him not to touch the girls.
13. Learner A explained that she was seated in a single desk in the back corner of Mr. Cassiem’s class on 5 August 2025. She was busy writing he approached her desk. Mr. Cassiem first touched her hand, and she moved her hand away. Then he touched her shoulder and she removed his hand. Mr. Cassiem then sat next to her, on her right hand side. Mr. Cassiem put his left arm around her waist, and he was about to go down with his hand. Learner A testified that her friend, Learner B, was sitting in the desk opposite her and ask Mr. Cassiem what he was doing. Leaner A testified that she then ran out of the classroom and went to the bathroom where she cried.
14. Learner A testified that during the abovementioned interaction Mr. Cassiem whispered in her ear that he is going to make her look like the other girls that is pregnant.
15. Learner A testified that her mother, father and brother visited the school and confronted Mr. Cassiem.
16. Learner A also testified that if Mr. Cassiem phone ring in class and he will tell the class that her mother is sending him love messages. She maintained with this version under cross examination.
17. Leaner A confirmed that she wore a jacket on the day in question but denied that she also had a beanie on. She remained adamant under cross examination that Leaner B was seated opposite her and not two desks in front of her when the incident happened. Leaner A denied that she was upset because Mr. Tassiem confronted her about interacting with boys.
18. Learner B testified that she and Leaner A are friends. On the day of the incident she was seated in the same row as Leaner A and two desks in front her. Leaner B testified that when she turned around she saw Mr. Cassiem standing next to Leaner A and bending over her. He had his arm around her waist. Leaner A was crying. Learner B testified that Learner A looked uncomfortable, and she told Mr. Cassiem to leave Leaner A alone. Mr. Cassiem left and she asked Leaner A why she was crying. Leaner A said she is fine. When the bell rang Leaner A ran out of the classroom.
19. Under cross-examination Leaner B confirmed that Mr. Cassiem would “tap” leaners, not only girls, in a friendly manner. It did not make her uncomfortable. Leaner B confirmed that Mr. Cassiem did not sit next to Leaner A. Leaner B confirmed that she could not be sure where Mr. Cassiem touched Learner A when his left arm was around her. She saw him touching Leaner A’s shoulder.
20. Ms. B van Wyk is a Social Worker employed by the WCED. On 5 August 2025 she received a call from the Principal of the school. He informed her about the incident, and she advised him to report the matter to WCED’s labour relations department and to the Circuit Manager.
21. Ms. van Wyk testified that she met with Leaner A and her mother. Leaner A was nervous and emotionally distressed. Learner A told her that Mr. Cassiem sat next to her, touched her waist and that she felt his hands going downward. Leaner A told her that Mr. Cassiem on previous occasions held her hand and shoulder inappropriately. He would also make inappropriate remarks saying he is her daddy. Ms. van Wyk confirmed that she cannot testified about the truthfulness of Leaner A version.
22. Mr. Seelamo’s heads of argument is on record. I have considered it and do not find it necessary to repeat it. In short, Mr. Seelamo argued that Mr. Cassiem conduct of touching leaners is in itself inappropriate and concerning. Mr. Seelamo submitted that the evidence presented by the WCED proved that Mr. Cassiem sexually assaulted Leaner A. Mr. Seelamo argued that dismissal is the only appropriate sanction in this instance.

Mr. Cassiem’s evidence and argument
23. Mr. Cassiem testified and called Ms. Christene-Lee Swartz and Ms. Carol Swarts as witnesses.

24. Mr. Cassiem testified that on the day in question the Grade 8 B class lined up outside his classroom. He told Leaner A to remove her cap, but she refused and went into the classroom. During the lesson he heard Leaner A and some of her classmates discussing boys. He went to the group, told them to stop discussing boys and focus on their work. He returned to the front of the class. He was told that Leaner A was crying. He went to her. Leaner A had the hood of a rain jacket and a beanie over her head. He knelt down beside her and placed his hand on her head. He did not see her crying. The classroom door opened and Ms. Swartz entered the classroom with another learner. He went to attend to Ms. Swartz and the learner. It was about 5 minutes before the second break and the learners left the classroom.
25. Mr. Cassiem testified that he ran the tuck shop at the school and went to the Principal’s office to fetch the products. On his way back he encountered Leaners A and B. They told him that he is rude and that they don’t like him. He ignored them and continued to his classroom from where he ran the tuck shop.
26. Mr. Cassiem testified that at about 15h00 he was speaking to a colleague, Ms. Swarts, when he was attacked by Learner’s A’s father and brother. Ms. Swarts pulled him into the kitchen and close the door. Law Enforcement later came and escorted him to the Police station where he opened a case of assault.
27. He was later arrested by the SAPS and suspended by the WCED.
28. Under cross-examination Mr. Cassiem confirmed that he would touch leaners while he is giving lessons. He acknowledged that it is not allowed.
29. Mr. Cassiem explained that he told Leaner A to stay away from a boy in Grade 8C which was known bad influence at the school.
30. When asked why he placed his hand on Leaner A’s head Mr. Cassiem testified that it was to comfort her. Mr. Cassiem denied that he placed his hand on Leaner A’s waist or that his conduct towards Leaner A was inappropriate.
31. Ms. C Swartz is an educator at the school. She testified that on 5 August 2025 she entered Mr. Cassiem’s classroom with another leaner. Grade 8 B was in the classroom. Mr. Cassiem was the Grade Head, and she asked him for his assistance with the learner. Ms. Swartz testified that she was in Mr. Cassiem’s classroom for about 5 minutes, and all seemed fine in the class.
32. Ms. Swartz testified that she had on occasion touched learners to comfort or to console them. She testified that any touching of a leaner should be within professional boundaries.
33. Ms. C Swarts is a Food Hander at the school. She testified that on 5 August 2025 she and Mr. Cassiem was having a conversation when Leanner A’s mother came and grabbed Mr. Cassiem. She saw another person with a bat. She pulled Mr. Cassiem into the kitchen and closed the door to prevent Mr. Cassiem from being physically attacked.
34. The heads of arguments of Ms. Kwazi is on record. I have considered it and do not find it necessary to repeat it. Ms. Kwazi argued that the WCED has failed to proof the allegation levelled against Mr. Cassiem through sufficiently credible, reliable and probable evidence.

ANALYSIS OF EVIDENCE AND ARGUMENTS

35. The WCED bears the onus to proof on a balance of probability that Mr. Cassiem is guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 by committing an act of sexual assault on Learner A.
36. Assault is defined as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires on another person a belief that such impairment of his/her body is immediately to take place.
37. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. Assault by means of menacing threats of a sexual nature may occur without any touching.
38. The elements of sexual assault are a) conduct of a sexual nature; b) which results in the victim’s integrity being impaired (or inspired the believe that it will be impaired); c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent; d) intention to commit the misconduct – in other words accidental unintentional bodily contact is excluded from the definition.
39. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words or gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force will be relevant. The intent or purpose of the person committing the act, to the extent that it may appear from the evidence, may also be a factor in considering whether the conduct is of a sexual nature.
40. Given the wide meaning of sexual assault, it involves not only rape, sodomy, oral sex or other forms of sexual activity without the consent of the victim but also includes other forms of intentional conduct of a sexual /erotic nature such as kissing on the lips and touching or caressing buttocks or breasts or other parts “private” parts of a victim.
41. Misconduct of a sexual nature that does not constitute misconduct in terms of section 17 of the EEA would generally constitute misconduct in terms of section 18. Examples may include kissing a learner without consent, asking for hugs and kisses from a leaner; having a sexual relationship with a leaner of another school, grooming a learner, etcetera. Mr. Cassiem was, however, not charged on terms of section 18 and I must determine the allegation in terms of section 17(1)(b).
42. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.
43. In Sasol Mining (Pty) Ltd v Ngeleni NO and Others (2011) 32 ILJ 723 (LC) at 727C-F the LC held that the arbitrator must conduct an
    ‘. . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.’
44. Learner’s A’s experience of inappropriate conduct by Mr. Cassiem cannot be ignored nor trivialised. I accept Ms. van Wyk’s testimony that she observed Leaner A being nervous and emotionally distressed during their interaction.
45. Ms. Swartz testified that she was in Mr. Cassiem’s classroom for about 5 minutes on 5 August 2025 when the Grade 8 B class was there and all seemed fine in the class.
46. Ms. Swarts testified about the alleged assault on Mr. Cassiem by family members of Learner A.
47. The testimony of the abovementioned three witnesses do not assist me in determining if Mr. Cassiem is indeed guilty of an act of sexual assault.
48. This leaves the testimony of Leaners A, Learner B and Mr. Cassiem.
49. The imaginativeness and suggestibility of children, their memory, understanding of the importance of telling the truth, their capacity of observation, recollection and narrative ability, their age, mental ability, and development are just some of the factors that our Courts have held to be considered when scrutinising the testimony of a child. I have considered these factors. I must hasten to add that this does not mean that the evidence of children should be approached on the basis of assuming that all children make false allegations, have poor memories or is highly suggestible.
50. Learner A testified that her friend Learner B was sitting opposite her, on her right hand side, and witnessed the incident. She even made a drawing of where she sat and where Learner B sat. But Leaner B testified that that she was sitting in the same row as Learner A and that there were two desks between them. The testimony of Leaner B on this score confirms the version of Mr. Cassiem that was put to Leaner A under cross-examination which Leaner A was adamant was incorrect. Leaner A was also adamant that Mr. Cassiem sat next to her when he placed his arm around her waist and was about to move it downward. But Leaner B testified that Mr. Cassiem was standing next to Learner B and was bending over her and was not sitting next to her.
51. I accept that Leaner B witnessed a portion of the interaction between Leaner A and Mr. Cassiem. If Leaner’s B’s testimony is to be accepted and she was indeed sitting two desks in front of Leaner A, it was improbable for Leaner B to have witnessed Mr. Cassiem hand on Learner’s A waist and that his hand was about to go down as she had testified in her evidence in chief because her line of sight of Leaner’s A waist would have been obscured by the desks between them. Under cross examination Leaner B conceded that she could not be sure where Mr. Cassiem touched Learner A when his left arm was around her but that she saw him touching Leaner A’s shoulder area.
52. Overall, I find that the reliability of the evidence of Learner A and B as to what happened on 5 August 2025 must be treated with caution. It is unfortunate that I do not have the benefit of the testimony of the leaner sitting on Leaner A’s right hand side, if there was one, and the learners sitting in front of Learner A and between Leaner A and B.
53. Mr. Cassiem conceded that his practice of touching leaners during lessons is inappropriate.
54. With regard to the incident on 5 August 2026 his version is not a mere denial. He admitted that he went to Leaner A; that he knelt down at her desk; and that he touched her head. On his demonstration he touched Leaner A with his left hand. Mr. Cassiem however maintained that his conduct was not of a sexual nature and that had not placed his arm around Leaner A waist area. He also denies that he whispered to Leaner A.
55. Having considered all the evidence I am unable to accept with any conviction on a balance of probabilities the WCED’s version that Mr. Cassiem has grabbed Learner A from behind or that he has placed his arm around Learner’s A’s waist area and to safely reject Mr. Cassiem denial that this has occurred.
56. Although Mr. Cassiem has touched Leaner A’s head and or shoulder area without her consent this is not sufficient to prove that Mr. Cassiem’s conduct was of a sexual nature and that he has indeed made himself guilty of sexual assault in terms of section 17(1)(b) of EEA.
57. When a male educator touch a leaner without the learner’s consent, his or her conduct, depending on the circumstances, may be found to be improper, unacceptable and even disgraceful, and considered as misconduct in terms of section 18 of the EEA. But Mr. Cassiem was not charged in terms of section 18 of the EEA.

AWARD

1. I find Mr. Cassiem not guilty of committing an act of sexual assault on a leaner as defined in section17(1)(b) of the EEA.
2. The ELRC must send a copy of this award to the South African Council for Educators (SACE).

ELRC Commissioner: Jacques Buitendag