28 May 2026 – ELRC1002-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MBIZANA
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EASTERN CAPE APPLICANT
AND
NAPTOSA OBO NTEYI THANDIKHAYA RESPONDENT
CASE NO ELRC1002-25/26 EC
DATE/S OF HEARING 11 FEBRUARY 2026 – 12 MAY 2026
DATE AWARD SUBMITTED 27 MAY 2026
NAME OF PANELIST SIZIWE GCAYI

SUMMARY : Labour Relations Act No 66 of 1995 – section 188A – Inquiry by an arbitrator: Alleged misconduct of sexual nature against a learner by an educator.

ARBITRATION AWARD
Inquiry in terms of section 188A of the LRA of the LRA 66 of 1995

DETAILS OF THE HEARING AND REPRESENTATION

The inquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 (LRA) as amended read together with ELRC Resolution 3 of 2018. The matter was held on 11 February 2026 & 12 May 2026 at Winnie Madikizela Mandela Local Municipality boardroom at 09h00. Ms Zukiswa Nkomo an official represented the Applicant [department of Education Eastern Cape]. Ms Nwabisa Holby an official from NAPTOSA represented the employee – [ Thandikhaya Nteyi ]
The proceedings were electronically and manually recorded.
The proceedings were conducted in English and there was Xhosa interpreter. For purposes of this award the name of the learner will not be revealed. We will refer to her as ID. The parties were given up until 19 May 2026 to file their closing arguments. In penning down this award their closing arguments have been taken into consideration.
ISSUES TO BE DECIDED
I am required to determine following:
Whether the employee is guilty of the charges proffered against him by the employer. If I find him guilty on all or any of the charges, I should decide the appropriate sanction. Charges were read on record. The employee confirmed that he understood the charges levelled against him. He was questioned about his plea; he pleaded not guilty . A plea of not guilty was entered on his behalf.

BACKGROUND OF THE DISPUTE

The employee is employed as a Deputy Principal at Marina Senior Secondary School, Alfred Ndzo East District.
The employee is charged with the charges mentioned:
Charge 1
• It is alleged that you committed an act of misconduct in terms of section 17(1) (c) of the Employment of Educators Act 76 of 1998 [ as amended] which inter alia reads as follows “ having a sexual relationship with a learner of the school which he or she is employed”.
• In that on or about September 2025, you had a sexual advances towards a learner ID.
Charge 2
• It is alleged that you contravened Section 18 [1] [q] of the Employment of the Educators Act 76 of 1998 as amended which inter alia reads as follows “ whilst on duty conducts himself or herself in an improper, disgraceful unacceptable manner.”
• In that on or about the period of September 2025 you failed to show professionalism towards ID as she is a learner in your school.
SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case
The Employer led evidence of one witness. Learner ID testified as follows: She was a student at Marina High school. She was doing grade 12. The employee [ Mr Nteyi] was known to her. He taught her mathematics. In relation to the charges, she mentioned that in September 2025 she received a phone call from Mr Qalaba, enquiring about her last communication with Mr Nteyi. She checked her whatsup and saw images. She enquired who the sender was, and she received a response that it was Mr Nteyi. She does not know whether the number belonged to Mr Nteyi. Employee’s Case
Mr Thandikhaya Nteyi [ Nteyi] : He testified himself and called no other witness in support of his case. He testified as follows: He was employed as an educator at Maina High School since July 2021. He was teaching mathematics grade 11 and 12. In relation to whatsup groups he mentioned that the learners created a whatup group. It was meant to assist the learners on the subject. The parents were part of the whatsup group. It was his evidence that he was part of the whatsup group. He had constant communication with the learners. They also had extra classes. He mentioned that he never sent any whatsup messages to ID with images. All his communication with ID was on the whatsup group. On 31 December 2024 he received a private message from ID. He did not entertain it, he was busy with his family. He mentioned that he knew Mr Qabaka, they never spoke about pictures. They discussed learner performance. He was not aware of any advances made by Mr Qalaba to ID.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
In MUDAU v MEIBC & OTHERS [2013] 13 ILJ 663 [ LC] the Court held that “the arbitrators mandate in terms of section 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties”.
Section 17(1)(c) of Employment of Educators Act [EEA] of 76 of 1998 mandates the dismissal of an educator for having a sexual relationship with a learner at the school where they are employed.
In Stellenbosch Farmers Winery Group Ltd v Martell, the Court held that a tribunal must make findings with reference to (a) credibility of the various factual witnesses; (b) their reliability and ( c) the probabilities. In the matter before the Council, I am required to make credibility findings of the destructive versions by both parties.
In these proceedings the onus is on the Employer to prove the guilty of the Employee who is charged with misconduct. The standard of proof that is applied in civil proceedings is balance of probabilities. It is different from the one applied in the criminal justice system which is beyond reasonable doubt. Therefore, proof on a balance of probabilities is sufficient, the same was confirmed by the Court in Early Bird Farms Ltd v Mlambo [1997] 5 BLLR 541 (LAC) .
Section 23 of the Constitution Act 108 of 1996 provides that everyone has a right to fair labour practice. It also outlines the rights for employees and employers.
The Employer in trying to prove its case relied on the evidence of a single witness learner ID. Her evidence is on record, it will not be repeated, reference will be made where necessary.
The Complainant in the matter is a single witness. In dealing with the evidence of a single witness, Courts have pronounced that it be treated with caution. The evidence of a single witness must be clear and satisfactory in every material or alternatively there must be a corroboration. [ In R v Mokoena 1956 [3] SA 81 CA] , SAMWU obo Petersen v City of Cape Town & others [2009] 30 ILJ 1347 [LC] . In arbitration proceedings when faced with the evidence of a single witness, the arbitrator must be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.
As mentioned above the learner was the only witness for the employer. With the evidence she gave before the Council it was very difficult to follow it. It was of poor quality. There was no investigation conducted by the employer on this matter. If there was investigation conducted, I am certain the employee would not have been charged because there is no evidence implicating him to the charge of sexual misconduct.
There was no evidence before the Council from learner ID that there was a sexual relationship between her and the employee. There is no evidence presented before the Council that the employee conducted himself in an improper disgraceful unacceptable manner towards learner ID.
Learner ID was on the class whatsup group, she had the employee’s contact number. She was taught mathematics in grade 11 & 12 by the employee. She was asked by Ms Nkomo and Holby the number she received whatsup images did it belong to the employee.? Her response was that she was not sure. For the leaner to know there were images sent to her phone, it was through Mr Qabaka. She did not give details of the pictures except to say it was view once and one picture was shared with the social worker. What exactly was on the pictures we do not know. Whether it was the employee we do not know. She was vey vague in her responses. She kept on saying she could not remember everything. Unfortunately even the one she gave us was not clear at all. Many people were mentioned by her Ms Magaqa, Mr Majola, the social worker and her friend but none of these people were called to corroborate her version. It was very difficult to follow her version I will not be surprised if all these people experienced the same difficulties.
It was the evidence of ID that Mr Qalaba was flirting with her for a long period. In September 2025 Qalaba questioned her about the employee, she then checked her phone and saw nude pictures from the number she could not recognise. It is highly improbable that the employee sent learner ID nude pictures. He never made any advances towards her. In December 2024 during school holidays learner ID sent the employee messages on whatsup. He did not entertain her. This was the evidence of learner ID confirmed by the employee.
With the evidence before the Council, between the employee and Qalaba the person who can send learner ID nude pictures is Qalaba. According to learner ID they were flirting with Qalaba, in short Qalaba had all the reasons to send learner ID nude pictures. It is not clear how the employee was charged. What was the employee charged for? This matter was not investigated at all.
If our jurisprudence had developed enough in the tribunals, this was a classic case of absolution from the instance.
The employee was charged with two counts as stipulated in paragraph 6. In these proceedings the onus is on the employer to prove the guilt of the employee. For the reasons contained in this award I find that the employer has failed to prove the guilt of the employee on both charges as contained in the charge sheet on a balance of probabilities.
Mr Nteyi is therefore acquitted on all charges. In the circumstances I hereby make the following award:
AWARD
The Employer [ the Applicant, Head of department of Education Eastern Cape] has failed to prove the charges against Mr Nteyi [ the Respondent] on a balance of probabilities.
The Respondent – Mr Nteyi is acquitted on all charges.
Signature: