IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT EMPANGENI
CASE NO.: ELRC323-25/26KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT
AND
SIMELANE X RESPONDENT
INQUIRY BY ARBITRATOR
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 26 May 2026
Applicant’s representative : MR T.M. MCHUNU
Telephone :
Fax :
Email :
Respondent’s representative : ADV. N. NCUBE (Instructed by SL Ngcongo Attorneys)
Telephone :
Fax :
Email :
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, Maxwell and Handcock Street, Empangeni. These proceedings were digitally recorded.
[2] Mr T.M. Mchunu, a Labour Relations Officer, represented the applicant (employer) and Mr X. Simelane, the respondent (employee) was represented by Mr L. Hadebe from SADTU on the first sitting and subsequently by Adv. N. Ncube instructed by SL Ngcongo Attorneys. The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter commenced on 5 August 2025 and proceeded on 2 December 2025, 20 February 2025 and 23 March 2026. The parties agreed to submit their written mitigating and aggravating circumstances as well as their closing arguments on or before 3 April 2026 however both parties requested extensions which was granted to 14 April 2026 however the respondent’s submissions were only received on 15 April 2026.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in one bundle of documents which were marked as bundle “A” and was utilized as a common bundle.
[6] The nature of the process and all rights was explained to the parties.
[7] The commissioner before the inception of the matter and during the hearing explained to the parties about challenging the evidence and putting their versions to the witnesses whilst they were on the stand.
ISSUES TO BE DECIDED
[8] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[9] Mr Simelane is employed as an educator at Kwambonambi Secondary School.
[10] A learner made allegations against Mr Simelane and the employer subsequently charged him with misconduct.
CHARGE
The employer preferred the following charge against Mr Simelane: –
[11] You are hereby charged with misconduct as follows:
CHARGE 1
It is alleged that on about 24th of November 2024, at or near Kwambonambi Secondary School, you allegedly had sexually assaulted a learner by the name of Learner A (Grade 12). In doing so, you contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
PLEADINGS
[12] Mr Simelane pleaded not guilty to the charge.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE EMPLOYER’S CASE
The employer called three witnesses to testify on their behalf.
LEARNER A
[13] She was in Grade 11 when Mr Simelane arrived at the school during the first term of 2024. He became her English teacher and would frequently call on her to perform errands such as collecting items from the office or assisting with class-room related tasks. During breaks he would also enquire about how things were at school and whether she was being treated well at school.
[14] While he was assisting her with class corrections in his office, he asked her where she had “left her bums”. She was confused and asked him what he meant and he remarked that if she looked, she would see that there were no bums. This made her uncomfortable because she believed he was commenting on her body, although at the time she did not think he was up to something due to his age.
[15] When Mr Simelane gave them advice, he would frequently compliment the girls in class, telling them that they were beautiful, just like Learner A and Learner SK, and warned them to be good girls and to be careful of older men because older men liked young women of their age. He also referred to the female learners as “sthandwa sami” (“my love”) instead of using their names. On one occasion, Mr Simelane had lost his voice, and he would call her to relay instructions to the class.
[16] On another occasion, Mr Simelane asked her whether she was in the Grade 11 A1 English WhatsApp group; she confirmed and he then enquired how she was identified in that group whereafter she explained to him that the names appear alongside the phone numbers in the group.
[17] She was unsure whether it was before or after the third term exams, but while she and Learner SK were walking, Mr Simelane approached them, walked in between them, put his hands on their shoulders and spoke to them about attending a lobola function where he heard her clan’s name which had shocked him.
[18] When she enquired if he had gone to pay lobola, he laughed and said that he can still pay lobola again; and if he did, he will choose a wife younger than his current wife, while looking at her. This did not surprise her because he had previously remarked in class that if he were to marry again, he would choose someone younger than his daughter.
[19] As they were still walking, they enquired about the clan’s name and Mr Simelane informed them that the clan’s name was vulgar.
[20] On a subsequent occasion, when she was at his office, she inquired about the clan’s name and he explained the meaning of the clan phrase as “you who slept with your finger inside your vagina and woke up happy.” She responded that she was unaware of this meaning and then left his office.
[21] After she completed an English paper in term 4, Mr Simelane complimented her performance and when she requested to see that paper, he invited her to view the paper after break. During this conversation, he asked why they do not phone each other and later told her that she should write to him. She found this strange and although she said that she would write to him, she did not do so.
[22] She stated that after the final examinations, the learners returned to school to write a mathematics paper. On that day, Mr Simelane called her and Learner NS to his office to look for a memorandum needed for marking paper 2. While they were at his office, he asked her whether they were not seeing eye to eye and she asked him what would cause that and he replied because he hardly saw her anymore.
[23] After they informed him that they could not find the memorandum, they requested that he show them their marks for paper 2. They proceeded to the library where he showed them the marked examination papers before they proceeded to write the mathematics test.
[24] Later the same day, another learner called her to go and see Mr Simelane again. She found him sitting outside his office with Learner Z, a Grade 12 learner.
[25] He informed her that she had left her water bottle in his office and when she asked him whether she could retrieve it, he remarked; “how can you enter a man’s house without a man being there?” She waited while he finished speaking with Learner Z because she wanted to collect the bottle.
[26] She stated that during that conversation she mentioned that she had almost been raped the previous day while travelling home. Mr Simelane then asked her why she had not phoned him during or after the incident, which she found inappropriate because she believed she would naturally call her family members instead.
[27] He also asked about her sister’s age and then her own age.
[28] After Learner Z left, she accompanied Mr Simelane into his office. He instructed her to sit down and repeatedly questioned whether she was really fine and she replied that she was truly fine. She then explained that she was 19 years old and repeating Grade 11 because she had experienced health issues; and that she had faced some personal difficulties with the person with whom she had stayed while at her previous school. The conversation reverted to the attempted rape incident and Mr Simelane advised her to be careful travelling to and from school.
[29] She stated that Mr Simelane thereafter asked whether her issue was with being approached by older men or with men in general and she replied that she disliked being approached romantically by men of any age. Mr Simelane then questioned her sexuality by asking if she was interested in females because she did not like being approached by men and she replied that she was just uncomfortable being approached by men. He asked whether she had ever dated anyone, and she explained that she had tried but felt unable to love someone at that stage of her life.
[30] She stated that Mr Simelane asked whether, if he were not her teacher and deputy principal and they met outside school, she thought he would approach her romantically. She stated that she did not know how to respond and felt shocked by the question and became uncomfortable because she did not understand why the conversation had taken that direction.
Under cross-examination, she testified that:
[31] She first encountered Mr Simelane during the first term of 2024, although she could not recall the exact date. She explained that she began attending the school around 20 January 2024 and that he was introduced shortly thereafter. She was unable to explain precisely why her prior statement referred to him being introduced in mid-January, particularly when it was put to her that his tenure only commenced in February 2024.
[32] She stated that in her written statement she focused only on what happened to her personally and deliberately excluded incidents involving other learners, although she confirmed that another learner was also frequently sent by Mr Simelane to run errands.
[33] According to her evidence, Mr Simelane differed from other teachers because he shared personal stories and experiences about his university life and early teaching career, which she regarded as inappropriate for learners. She testified that he recounted an incident during a school excursion where an adult female learner allegedly pursued him sexually and that he “did what she wanted him to do.”
[34] When it was put to her that this matter had been addressed in class and assembly and he had merely been warning learners against inappropriate conduct occurring near the school sports grounds, she maintained that she was describing the manner in which he conducted himself and interacted with learners in class.
[35] She rejected the suggestion that his comments were simply part of his role as a class teacher or deputy principal giving advice, maintaining that he was instead telling learners stories about his own behaviour as an educator.
[36] She further testified that Mr Simelane would address female learners using terms such as “Umama” (“my wife”) and “sthandwa sami” (“my love”), which was inappropriate and made her uncomfortable. She stated that he did not use such terms when speaking to boys and that other teachers addressed learners by their names.
[37] Although it was put to her that he denied using those expressions and instead used neutral terms such as “sisi” or “ngane yami,” she maintained that the expressions were used openly in class and even became the subject of discussion amongst learners. She conceded, however, that she never voiced her discomfort to him.
[38] She confirmed that she had referred in her statement to a discussion about identifying her number in a WhatsApp group, but conceded that Mr Simelane never contacted her individually. She explained that after giving her corrections to distribute to classmates, he remarked that it would have been easier if he could communicate with her directly to send schoolwork. Despite this, she acknowledged that he never in fact contacted her privately.
[39] She testified that Mr Simelane made comments about her body disguised as jokes or teasing, which she described as “banter”. She stated that she never confronted him about those comments because she felt uncomfortable and questioned why he would have been looking at her body in the first place. When it was put to her that these incidents never occurred, she responded that one could not comment that one cannot say she had “flat bums” without looking at them.
[40] It was put to her that she on her own accord had come to Mr Simelane’s office insisting that he reveal the alleged vulgar clan name and he steadfastly refused to divulge the clan’s name. She stated that Mr Simelane had initially told her that he heard a shocking clan name. She asked him what it was because she had never heard her clan’s name described in that manner. She stated that he only disclosed the clan’s name when they were alone in his office and not when Learner SK was present, which was when he was comfortable enough to tell her. She denied that she visited his office voluntarily to socialise or pressured him into revealing the name, insisting instead that she had been called to his office by someone to perform errands, as this often occurred.
[41] She confirmed her statement that on 19 November 2024, Mr Simelane had called her and Learner NS to assist in searching for an English Paper 2 memorandum intended for marking purposes however, they were unable to locate the memorandum and they returned to class thereafter. When it was put to her that there would have been absolutely no need for such a search because the examination papers had already been marked and submitted for moderation, she maintained that she was unaware of moderation processes and merely followed his instructions. She also maintained that Grade 11 learners attended a mathematics test that day, despite it being put to her that official school records showed the examination had occurred on 18 November 2024. She distinguished between the formal examination and another mathematics assessment allegedly conducted on 19 November 2024, although she could not specify whether it was formal or informal.
[42] She constantly maintained that she went to Mr Simelane’s office that day. She averred that she went there twice: initially to search for the memorandum together with Learner NS and later to retrieve a water bottle she had forgotten there.
[43] She assumed that the English paper 2 memorandum was for Term 4 but conceded that Mr Simelane had not specified which memorandum.
[44] She stated that she was unaware that the charge against Mr Simelane involved sexual assault. She explained that she merely reported conduct that made her uncomfortable and did not know the legal characterisation of the allegations because she was “only a learner.”
THULANI GOODENOUGH MAJOZI
[45] He is the Principal of Kwambonambi Secondary School and Mr Simelane had been employed at the school in 2024 as the Deputy Principal. Although they were not particularly close, they maintained a good working relationship.
[46] On 7 January 2025, before the official reopening of schools, Learner A and her mother came to the school while Grade 12 learners and educators had already resumed academic activities. Learner A’s mother informed him that her daughter had not been treated properly at school and indicated that Learner A would explain the matter herself.
[47] Learner A reported that a person had been following her from the place where she was renting accommodation, which made her feel uncomfortable. Initially, she believed that Mr Simelane was merely showing concern for her safety when he advised her to be careful while walking. However, she stated that his conduct later became inappropriate, including comments about her body which negatively affected her self-esteem.
[48] Learner A had further informed him that Mr Simelane once asked her whether she thought that, if he were not her teacher, they could have had a relationship. She said she did not respond to the question and exited the WhatsApp conversation, after which Mr Simelane questioned why she had left the chat.
[49] Learner A also alleged that on another occasion Mr Simelane told her that she had “flat bums”, which made her uncomfortable. She further reported that Mr Simelane later enquired why she was no longer on WhatsApp and requested her phone number.
[50] Learner A informed him that she was struggling to sleep and experiencing nightmares as a result of the situation.
[51] Feeling that the matter exceeded his capacity to handle it alone, he advised Learner A’s mother to seek assistance from social workers. He thereafter contacted his immediate supervisor, who instructed that statements be obtained from all concerned parties.
[52] He wrote his own statement and waited for statements from Learner A and her mother before submitting them together. However, their statements were not immediately forthcoming. He later received a call from Learner A’s father enquiring about the matter, after which he again contacted his supervisor. Ultimately, Learner A and her mother submitted their written statements.
[53] He referred to Learner A’s written statement, in which she alleged that upon entering Mr Simelane’s office, he engaged her in a conversation that she regarded as inappropriate and unsettling. According to her account, Mr Simelane asked whether she had ever had feelings for someone but could not act on them, and further posed a hypothetical question about whether, if he were not her teacher or deputy principal, he might have pursued a romantic relationship with her. Learner A stated that Mr Simelane suggested there was a connection or bond between them.
[54] Learner A reported that Mr Simelane stated there was no familial relationship between them, implying that this made a personal relationship conceivable. Learner A alleged that Mr Simelane went on to compliment her, describing her as beautiful and unique and stated that professionalism and his position as an educator prevented him from pursuing a relationship with her. She further alleged that he had attempted to obtain her contact number from the class WhatsApp group and indicated that he would have messaged her had he found it because he had feelings for her.
[55] Learner A also reported suffering fear, anxiety, panic attacks, and discomfort regarding the way Mr Simelane looked at her and spoke to her, even after the matter had been raised. These concerns were formally reported to him in his capacity as principal.
[56] Based on the seriousness of the allegations, he recommended that a formal disciplinary inquiry be instituted in terms of the provisions of the Employment of Educators Act 76 of 1998.
Under cross-examination he testified that;
[57] He conceded that he was not in a position to testify about the actual incidents alleged to have occurred between Learner A and Mr Simelane, as his evidence was based solely on what Learner A had reported to him. He further acknowledged that the events were not presented in strict chronological order because the matter arose around 2025.
[58] He confirmed that in his statement that portion indicating that Mr Simelane had allegedly stated there was no familial relationship between himself and Learner A, thereby implying that a personal relationship was possible, reflected Learner A’s own words. He emphasized that he merely recorded what she told him.
[59] He did not know whether Learner A had obtained any psychological assistance after making the report.
[60] He acknowledged being familiar with the Grade 11 prescribed novel, ‘The Love Potion’. It was put to him that the novel contains passages describing a young woman’s physical appearance, including references to a “sweet, quiet face,” a “full bosom,” and being “a pretty picture,” and that Mr Simelane’s version was that Learner A had personalised these literary descriptions and interpreted them as remarks directed at her physique. He averred that his role was only to record and narrate Learner A’s account without speculating on her interpretation or state of mind.
[61] Before submitting Learner A’s written statement, he compared it with what she had initially told him to check for inconsistencies. However, he could not recall whether she had specifically mentioned the dates 18 or 19 November 2024. He further stated that if those dates were school days and examinations were taking place, he himself would have been present at school.
[62] When it was put to him that Mr Simelane’s version was that it was impossible for Learner A to be at school on 19 November 2024 because Grade 11 examinations had concluded on 18 November 2024, he stated that he could not clearly remember the dates. He was also unable to dispute the proposition that the final Grade 11 mathematics examination paper had been written on 18 November 2024.
[63] Regarding the alleged stalking incident, Learner A had informed him that she told Mr Simelane about being accosted near her residence. He could not remember the exact date on which the incident allegedly occurred, although he gained the impression from her narration that it had happened during the afternoon. When it was put to him that Mr Simelane would testify that Learner A had reported the stalking incident on 18 November 2024 and that the incident itself had occurred on 17 November 2024, he reiterated that he merely recorded what Learner A narrated to him.
[64] He stated that the moderation process for Grade 11 assessments generally occurred several times during the year, including after March, after the June examinations, around August, and after the trial examinations in September or October.
[65] When it was put to him that Learner A had alleged that she had gone to Mr Simelane’s office to fetch a memorandum and that, according to Mr Simelane, there would have been no need for this because all moderation processes had already been completed, he responded that Learner A had not mentioned anything to him about collecting a memorandum. He stated that when he later read her written statement, he noticed additional details but did not focus specifically on what had been added.
[66] He could not recall the exact date on which he introduced Mr Simelane to the learners. When it was put to him that Learner A had testified that Mr Simelane began his tenure around mid-January whereas he in fact started in February 2024, he explained that he had been on leave at the time but had nevertheless come to the school to introduce Mr Simelane to the learners.
NOKWETHEMBA ROSE DLUDLA
[67] She is employed by the KwaZulu-Natal Department of Education as a School Social Worker stationed in the King Cetshwayo District. She knew Mr Simelane in a professional capacity and had previously worked with him on matters involving learners. She described their working relationship as good.
[68] The Kwambonambi Circuit Manager had requested her to intervene in Learner A’s matter, following which she compiled a report dated 17 March 2025.
[69] Learner A informed her that she initially enjoyed a good relationship with Mr Simelane. He would ask her to run errands for him and she considered herself to be something of a “teacher’s pet.” However, over time, his conduct allegedly became inappropriate and made her feel uncomfortable.
[70] Learner A reported that Mr Simelane made vulgar comments connected to her clan surname, including remarks of a sexual nature; “you slept with your finger inside your private part and you woke up happy in the morning”. Learner A became emotional and cried while recounting these incidents, stating that she had never previously heard her clan’s name referred to in such a manner.
[71] Learner A also informed her of an occasion when she had left her water bottle in Mr Simelane’s office and requested his office keys to retrieve it. According to Learner A, Mr Simelane responded by asking how she could enter a man’s room when the man himself was absent.
[72] She further testified that Learner A alleged that Mr Simelane made comments about her body and asked inappropriate personal and sexualised questions. These allegedly included remarks asking where she had left her buttocks, whether being kissed would amount to dating, and who would change a baby’s diaper if he were to impregnate her. Learner A also reported that Mr Simelane referred to female learners as “my love” (“sthandwa sami”).
[73] Learner A had told her that as their interactions continued, Mr Simelane asked personal questions about romantic relationships and hypothetical situations. These included whether she was involved with anyone romantically, how she would respond if approached by a man outside school, how she would react if he himself approached her outside school, and whether she had ever had feelings for someone but felt unable to pursue them because of certain obstacles.
[74] She stated that in her professional opinion as a social worker, these interactions were warning signs that the situation could escalate. She expressed concern that the comments attributed to Mr Simelane were not appropriate for communication with a learner and emphasized that educators are required to maintain professional boundaries with learners regardless of the learner’s age. She further stated that, in her view, the conduct constituted sexual assault.
Under cross-examination she testified that:
[75] She had interviewed Learner A on 12 March 2025, although she indicated that she would be able to verify the exact date from her diary, school gate register, and school visit logbook.
[76] She confirmed that Learner A had informed her of an incident allegedly occurring on 19 November 2024 in which Mr Simelane had instructed her to look for a memorandum in his office. When it was put to her that Mr Simelane’s version was that Learner A could not have been at school on that date because Grade 11 examinations had concluded on 18 November 2024, she stated that she merely recorded what Learner A had told her and conceded that there was a possibility that the date may have been mistaken. She further maintained that learners often continued attending school after examinations until the official end of the term, although she acknowledged that she could not independently confirm whether Learner A was actually present at school on 19 November 2024.
[77] Her report recorded that Mr Simelane asked Learner A whether she was part of the English WhatsApp group, which she interpreted as an indication that he was interested in obtaining Learner A’s contact number. However, she accepted that this interpretation was based on her understanding of Learner A’s account.
[78] When it was put to her that Mr Simelane would testify that Learner A had attended and participated normally in a lesson conducted by him shortly before his suspension in 2025, she maintained that Learner A appeared distressed and uncomfortable during their counselling sessions. Learner A at times requested her presence at the school and was, on certain occasions, afraid to attend classes while Mr Simelane was present. She testified that she interviewed Learner A continuously and formed the view that Mr Simelane’s presence at school negatively affected her.
[79] She testified regarding an incident where Learner A was allegedly walking to school and Mr Simelane offered to transport her home to Mtubatuba, approximately 20 kilometres away. According to Learner A, she declined because she did not trust him due to the comments, he had allegedly made to her. She initially stated that Mr Simelane had telephoned Learner A with this offer, but later conceded that she could not clearly recall whether the offer was made telephonically or in person.
[80] When it was put to her that Learner A herself had testified that Mr Simelane had never contacted her by phone, she maintained that the incident had nonetheless been reported to her by Learner A. She further acknowledged that she was aware that Mr Simelane occasionally transported learners’ home after evening classes, although she distinguished this incident on the basis that the proposed trip involved taking Learner A to her home rather than nearby areas. She accepted that she had no direct evidence of the incident and relied entirely on Learner A’s account.
[81] Regarding the alleged derogatory comments involving Learner A’s clan name, she was uncertain of the date on which the incident occurred but stated that Learner A had told her it happened in Mr Simelane’s office. Learner A further informed her that she had been summoned to Mr Simelane’s office on multiple occasions and that the inappropriate comments occurred over different incidents.
[82] Referring to the allegation that Mr Simelane had asked Learner A, “If I were to impregnate you, who would change the baby’s diaper?”, which did not appear in Learner A’s written statement, she explained that Learner A may have omitted or forgotten certain details when drafting her written statement but maintained that the information in her report came directly from Learner A during interviews.
[83] When it was put to her that Mr Simelane never questioned Learner A about her age and that Learner A herself had disclosed that she had previously completed matric, she maintained that she had simply recorded what Learner A told her. She accepted that she was not in a position to dispute Mr Simelane’s version on this issue.
[84] She did not interview other learners who allegedly warned Learner A about Mr Simelane because parental consent would have been required. She accepted that any information attributed to those learners constituted hearsay evidence.
[85] Learner A informed her that discussions regarding lobola negotiations and her clan’s name occurred in Mr Simelane’s office and that Learner A was unfamiliar with the derogatory clan reference allegedly used by him. She disputed the proposition that Mr Simelane had merely explained the clan’s name, maintaining that Learner A had experienced the comments as inappropriate.
[86] She was referred to her report and Learner A’s statement dealing with events on 19 November 2024. According to her report, Learner A and another learner went to search for a memorandum in Mr Simelane’s office, after which Learner A later returned to collect a forgotten water bottle. Learner A’s own statement similarly referred to initially attending the office with another learner to search for a memorandum and later returning alone to retrieve the water bottle. It was pointed out that her statement suggested that Mr Simelane was present in the office with another learner, whereas Learner A’s statement indicated that Mr Simelane was not in the office at the relevant time. She denied that these were contradictory versions and explained that they referred to two separate incidents. She explained that the first incident involved Learner A and another learner searching for a memorandum while Mr Simelane was absent from the office. The second incident occurred later when Learner A returned alone to fetch her water bottle, at which stage Mr Simelane was present. She stated that she could not confirm the precise dates of these events.
[87] It was further put to her that another witness, FUNDISWA SIBIYA, would testify that the memorandum-search incident occurred earlier in the year during moderation periods and not on 19 November 2024, and that there would have been no reason for learners to search for a memorandum after all moderation processes had been completed. She stated that she was unable to comment on moderation procedures because she was not directly involved and could only repeat what Learner A had reported to her.
[88] When it was suggested that the wording in her evaluation section created the impression that she had personally observed conversations between Learner A and Mr Simelane, she clarified that her report was based solely on what Learner A had related to her during interviews. She ultimately conceded that she had no direct or independent knowledge of the alleged incidents and that her evidence was entirely derived from Learner A’s account.
THE EMPLOYEE’S CASE
The employee called two witnesses to testify on their behalf.
XOLANI SIMELANE
[89] He commenced employment with the Department of Education in January 2011 and was appointed as Deputy Principal at Kwambonambi Secondary School on 26 February 2024, disputing Learner A’s version that he started in January 2024. He stated that on his first day he was formally introduced to both staff and learners by the Circuit Manager and the Principal during a staff briefing and learner assembly.
[90] His first direct interaction with Learner A occurred during the March 2024 examination period. He had encountered Grade 11 A1 learners cleaning the administration veranda while other learners were preparing for an examination paper. Learner A questioned whether it was fair that they were cleaning while others prepared for examinations. He responded that he would enquire from the educator who instructed them to clean, whereupon Learner A allegedly rushed towards him and requested that he not intervene because she was new at the school and the principal had not wanted to register her, as she had enrolled to upgrade previously obtained matric results.
[91] In response to Learner A’s allegation that she had become his “teacher’s pet,” he denied that there had ever been a close or special relationship between them that would justify such a description.
[92] He explained that moderation processes ordinarily occurred in April after the March examinations, in July after the June examinations, and in late September or early October after the September examinations. He admitted that he had previously asked Learner A, FUNDISWA SIBIYA, and two other learners to assist him in searching for a misplaced English memorandum while he was preparing moderation files. However, he maintained that this occurred before 18 July 2024 and not on 19 November 2024 as alleged by Learner A. This memorandum had been misplaced among departmental circulars and examination papers in his office.
[93] He explained that he attended a lobola negotiation on 15 September 2024 where he heard a phrase associated with the clan surname from another attendee, which in his understanding referred generally to enjoyment of private parts and not the meaning attributed by Learner A. He denied ever repeating the phrase to Learner A, explaining any vulgar meaning to her, summoning her to his office to discuss clan names, or making any derogatory comments linked to her clan surname.
[94] He further denied meeting Learner A on 19 November 2024 or that she returned to his office to collect a water bottle on that date. He testified that on 18 November 2024 Learner A informed him, in the presence of other learners, that she had nearly been raped the previous day while using a secluded route near the school. He advised her to avoid isolated pathways and rather use the main road. According to him, Learner A replied that he should relax because she was writing her final examination paper that day and would thereafter return home.
[95] He testified that by 19 November 2024 all moderation and marking relating to English Paper 2 had already been completed and that the departmental head had moderated the paper on that date. Accordingly, he contended that there would have been no reason for learners to search for the memorandum on 19 November 2024.
[96] Regarding communication with learners, he testified that the Grade 11 and Grade 12 WhatsApp groups were created in September 2024 by Learner NS, who acted as administrator and added him to the groups. He maintained that the groups were strictly for academic purposes, including the sharing of study material and examples. He denied ever privately contacting Learner A telephonically or via WhatsApp.
[97] He denied ever offering to transport Learner A either to her rented accommodation or to her home. He explained that during examination periods educators supervised Grade 12 learners who studied at school until approximately 22h00. When driving home afterwards, he would sometimes transport both male and female learners who stayed nearby by allowing them to ride in the back of his Toyota bakkie for safety reasons. He acknowledged that on a few occasions, before Learner A informed him about the attempted rape incident, she rode in the back of the bakkie together with other Grade 12 learners. However, he denied making any special or individual transport arrangement for her or offering to transport her home alone after the alleged attempted rape incident.
[98] He denied ever referring to Learner A as having a “flat bum.” He explained that while teaching the prescribed short story, The Love Potion, he discussed literary descriptions of physical appearance generally, including references to slim and chubby people, big and small breasts, and big and small bums as examples of descriptive language. According to him, these comments were educational examples directed to the class generally and not to Learner A personally. He suggested that Learner A may have assumed he was referring to her because, while explaining the lesson, he may have been facing in her direction. He further stated that he strongly opposed body shaming and regularly warned learners against body shaming others. He testified that he had also introduced a Learner Support Agent system as a confidential reporting mechanism for learners uncomfortable in approaching educators directly.
[99] He denied specifically enquiring about Learner A’s age. He stated that he merely assumed she might have been older than some learners because she informed him in March 2024 that she had previously completed matric elsewhere before enrolling at Kwambonambi Secondary School.
[100] He first became aware of the allegations against him during January or February 2025, before formal disciplinary charges were served in June 2025. In January or early February 2025, the principal removed him from teaching Learner A’s class because allegations of sexual assault had been made against him. The principal informed him that Learner A allegedly experienced panic attacks whenever she saw him. However, he averred that during March 2025 holiday classes, Learner A voluntarily attended his combined Grade 12 lesson, participated actively, and engaged with him more than any other learner despite her allegations of fear and panic attacks.
[101] He further testified about tensions between himself and the principal. According to him, the principal convened a School Management Team meeting on 22 January 2025 without an agenda and made remarks that he did not know why people wanted his position, including a comment that Mr Simelane behaved as though he were the principal.
[102] He also referred to disagreements regarding the admission of a learner repeating matric and disputes arising from union-related matters involving SADTU leadership. He suggested that the allegations against him had been fabricated in the context of these conflicts.
[103] Throughout his evidence, he repeatedly denied sexually assaulting Learner A verbally or physically, denied ever touching her, denied proposing a romantic relationship, and denied making comments regarding pregnancy or nappies. He also complained that many of the allegations lacked precise dates and locations, which made them difficult to answer specifically. He further testified that throughout his teaching career he had never maintained a so-called “pet learner.”
Under cross-examination he testified that:
[104] He testified that although he first saw Learner A when he arrived at the school, his first personal interaction with her occurred in March 2024 during the examination period. He explained that while he was carrying question papers, he encountered learners cleaning a wet veranda, and he requested permission to pass. Learner A questioned why they were cleaning while other learners were preparing for examinations. When he indicated that he would enquire from the educator responsible, Learner A allegedly asked him not to pursue the matter because she feared she would “look bad” as a new learner who was allegedly not welcomed by the principal due to her returning to upgrade matric results. He stated that this incident remained memorable because it was his first personal interaction with her. He further explained that he had not put this version to Learner A during her testimony because she herself had not referred to the incident.
[105] He testified that, as an educator, he would generally ask learners to assist with ordinary classroom tasks such as fetching a duster or helping with corrections, and that learners would often volunteer themselves. He maintained that the only specific requests made to Learner A involved assisting with corrections together with the class representative and, on another occasion, assisting to look for a memorandum. He emphasized that these requests were school-related and educational in nature.
[106] He refuted having any special interest in Learner A’s admission to the school. He explained that while acting as principal during the principal’s absence, he had enquired generally about the school’s admission policy after another parent requested admission for a learner repeating matric. During those enquiries, administrative staff informed him that Learner A had already completed matric elsewhere and had enrolled in Grade 11 to upgrade her results. He maintained that his interest was administrative and not directed specifically at Learner A.
[107] Regarding the clan’s name issue, he testified that he attended lobola negotiations involving a family with the same surname as Learner A and, because he knew she resided in Mtubatuba, he asked whether she was related to that family. He admitted that the clan phrase sounded vulgar to him and that he remarked he did not know there was vulgarity associated with that clan name. However, he denied ever articulating the vulgar phrase to Learner A, explaining any vulgar meaning to her, or engaging in any later discussion where she questioned him about it. He maintained that Learner A had asked him about the issue immediately while she was with a friend, and he refused to explain it. He further denied ever uttering the vulgar phrases attributed to him by Learner A.
[108] He testified that his relationship with Learner A was no different from that with any other learner. When questioned why Learner A would openly discuss an attempted rape incident with him, he explained that learners generally trusted him and viewed him in a parental role. He referred to another unrelated incident where learners contacted him after a learner was struck by a train as an example of the trust learners placed in him.
[109] He denied ever referring to Learner A as “sthandwa sami” (“my love”). Regarding transport, he denied specifically offering to transport Learner A home. He explained that he occasionally transported groups of Grade 12 learners after evening study sessions and that Learner A had once joined a group riding in the back of his bakkie. He conceded that this version had not been put to Learner A because her allegation was that he specifically offered to take her home, which he denied.
[110] He testified that he partially understood sexual harassment as involving unwelcome or offensive comments or conduct relating to sexual matters. He accepted that comments about a person’s body could amount to body shaming or sexual harassment depending on the circumstances, and that asking a learner about sexual matters could constitute sexual harassment. Nevertheless, he denied ever commenting on Learner A’s buttocks or asking where she had “left her bums.”
[111] When it was put to him that Learner A alleged he had asked her age, whether she minded sharing it, and how she would feel about being approached by an older man, he denied ever having such conversations. He maintained that the only discussion they had concerned the attempted rape incident and reiterated that he never met Learner A on 19 November 2024, the date on which many of the alleged conversations were said to have occurred. He consistently denied all allegations of sexual misconduct and inappropriate utterances.
[112] He complained that many allegations lacked specific dates and locations, making them difficult to answer properly. When asked why Learner A would fabricate allegations against him, he stated that he could only speculate and referred to tensions between himself and the principal during January 2025, including accusations that he behaved “as if he was the principal.” He suggested that learners were sometimes used against teachers. However, he conceded that he had no evidence that the principal or anyone else had influenced Learner A and further conceded that he had not put this alleged motive to the principal during his testimony.
[113] He denied Learner A’s allegation that he asked her, “How can you enter a man’s home while the man is not there?”, maintaining that the incident never occurred and further denying that Learner A had ever left a water bottle in his office.
FUNDISWA LWANDILE SIBIYA
[114] Mr Simelane was her English teacher while she was in Grade 12 during 2024.
[115] Mr Simelane was approachable and someone with whom learners could speak to freely.
[116] She confirmed that Mr Simelane would occasionally ask learners to assist with ordinary classroom-related tasks and errands, including collecting exercise books after lessons and conveying messages or items to other educators.
[117] She testified about a specific incident during July 2024 when Mr Simelane requested learners to look for an English memorandum. Initially, the learners searched Mr Simelane’s office but were unable to find it. She then consulted another educator and, upon returning to Mr Simelane’s office, found the memorandum on his table. At the time, she was accompanied by Learner A, another learner, and Mr Simelane.
Under cross-examination she testified that:
[118] She was a Grade 12 learner during 2024 and knew Learner A because they lived near each other. Learner A had informed her that she had completed matric at another school the previous year.
[119] She stated that it was the first time she had seen Mr Simelane sending Learner A to perform errands for him. She confirmed that she could not give evidence as to the dates that Mr Simelane would send Learner A to do errands for him.
[120] She further testified that she was not among the learners whom Mr Simelane referred to as “sthandwa sami” (“my love”). She also stated that she never heard the phrase “flat bums” being mentioned during lessons relating to The Love Potion.
ANALYSIS OF EVIDENCE AND ARGUMENT
[121] Where there is an allegation of misconduct, the employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[122] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[123] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[124] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[125] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[126] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra provides that; “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.”
[127] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[128] The issue to be determined is whether the employer discharged the onus of proving, on a balance of probabilities, that Mr Simelane committed the misconduct as charged, namely sexual assault or conduct properly falling within the ambit of section 17(1)(b) of the EEA.
[129] In assessing the evidence, regard must be had to the credibility and reliability of the witnesses, the probabilities and improbabilities inherent in their respective versions, the existence of corroboration where available, and the materiality of any contradictions. As stated in Masilela v Leonard Dingler (Pty) Ltd, these considerations must be evaluated holistically and not in isolation.
[130] The employer’s case rested primarily on the evidence of Learner A. The evidence of Mr Majozi and Ms Dludla was largely hearsay in nature, consisting of reports made to them by Learner A after the alleged incidents. While such evidence is relevant in establishing that complaints were made, it cannot independently prove the truthfulness of the allegations themselves.
[131] Learner A testified regarding several interactions which she experienced as uncomfortable and inappropriate. These included alleged comments concerning her body, references to her clan’s name with sexual connotations, discussions relating to relationships and older men, the use of the phrase “my love”, and conversations which she interpreted as suggestive or romantic in nature.
[132] I accept that Learner A genuinely experienced discomfort arising from certain interactions with Mr Simelane. However, the issue before this inquiry is not whether she subjectively perceived the conduct as inappropriate, but whether the employer proved, on reliable and sufficiently probable evidence, that Mr Simelane committed the specific misconduct charged under section 17(1)(b).
[133] Significant difficulties arise in relation to the reliability and probabilities of portions of the employer’s case. Material inconsistencies emerged regarding the chronology of events, particularly concerning the alleged memorandum-search incident and related conversations said to have occurred on 19 November 2024. Mr Simelane disputed that such events could have occurred on that date because Grade 11 examinations had concluded on 18 November 2024 and the moderation process had already been completed.
[134] Importantly, the evidence of FUNDISWA SIBIYA materially supported Mr Simelane’s version that the memorandum-search incident occurred during July 2024 in the context of moderation processes earlier in the year. Mr Majozi was unable to dispute the examination chronology advanced by Mr Simelane. These contradictions are material because the employer relied upon the memorandum incident as the context within which several of the alleged inappropriate interactions occurred.
[135] Further inconsistencies emerged between Learner A’s written statement and the evidence later presented by Mr Majozi and Ms Dludla. Certain allegations referred to by those witnesses, including references to pregnancy, nappies, WhatsApp interactions and romantic insinuations, were either absent from Learner A’s statement or materially expanded upon during subsequent reporting. Both witnesses conceded that they possessed no independent knowledge of the incidents and merely recorded what Learner A reported to them.
[136] While hearsay evidence may in appropriate circumstances provide contextual support, caution must be exercised where material allegations appear to have evolved over time and where portions of the evidence relied upon are not independently corroborated.
[137] It is furthermore significant that no objective evidence was presented demonstrating private communication, romantic pursuit, or direct attempts by Mr Simelane to establish an improper relationship with Learner A. Learner A confirmed that Mr Simelane never privately contacted her telephonically or through WhatsApp outside of academic group communications.
[138] Although misconduct of a sexual nature may occur without documentary evidence or physical contact, the absence of objectively verifiable conduct remains relevant when assessing the overall probabilities and whether the employer has discharged the required onus.
[139] Certain aspects of the evidence were also dependent upon interpretation and context. The allegation relating to comments about “flat bums” arose during a literature lesson involving descriptive language in “The Love Potion”. While such comments may well reflect poor judgment or inappropriate classroom language if directed personally at a learner, the evidence does not establish with sufficient certainty that the remarks were specifically directed at Learner A in the manner alleged.
[140] The evidence nevertheless demonstrates that Mr Simelane at times adopted an informal and overly familiar manner in his interactions with learners. Such conduct reflects poor professional boundaries and is inconsistent with the standards expected of educators under the SACE Code of Professional Ethics.
[141] However, poor judgment, informality, or inappropriate familiarity do not automatically constitute sexual assault as contemplated in section 17(1)(b) of the EEA. The employer elected to formulate the charge specifically as sexual assault and was accordingly required to prove misconduct of a sufficiently serious sexual nature falling within that statutory category.
[142] As habitual, in cases of sexual incidents, there are no witnesses. I have approached the evidence with due caution, mindful of the fact that allegations of sexual misconduct often occur in private and may involve single witnesses. At the same time, the evidence must still be reliable and satisfactory in material respects before a finding of serious misconduct can be sustained.
[143] Importantly, no evidence was presented of physical sexual conduct, coercion, explicit sexual propositions, or objectively demonstrable attempts to cultivate a sexual relationship. While verbal conduct alone may in certain circumstances constitute serious sexual misconduct, the evidence in the present matter remains insufficiently reliable and probable to sustain such a finding.
[144] The alleged motive suggested by Mr Simelane involving tensions with the principal remains speculative and unsupported by evidence. I accordingly attach little weight to that aspect of his defence.
[145] I remain mindful that educators occupy positions of trust and authority and that learners are inherently vulnerable within the educational environment. Educators are expected to maintain strict professional boundaries at all times. Even seemingly casual comments may affect learners profoundly. Nevertheless, findings of serious misconduct carrying the consequences contemplated by section 17 of the EEA must rest upon clear, reliable, and sufficiently probable evidence.
[146] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[147] Having considered the evidence holistically, including the cumulative effect of the alleged interactions, the material contradictions regarding chronology, the evidentiary difficulties surrounding the memorandum incident, the absence of objective corroboration, and the hearsay nature of substantial portions of the employer’s case materially weaken the probabilities of the employer’s version.
[148] While Mr Simelane’s conduct may in certain respects have reflected poor professional judgment and excessive familiarity with learners, I am unable to conclude on a balance of probabilities that the employer proved conduct amounting to sexual assault or misconduct of the nature contemplated in section 17(1)(b) of the EEA.
[149] Accordingly, I find that the employer has failed to discharge the onus of proving the misconduct as charged, and Mr Simelane is therefore found not guilty.
AWARD
[150] The employee, Mr Xolani Simelane, is found not guilty of the charge preferred against him.
[151] There is no order as to costs.
ELRC Commissioner: P. Jairajh