IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EASTERN CAPE APPLICANT
AND
PSA OBO SIBUDA SIPHELELE RESPONDENT
CASE NO ELRC108-25/26 EC
DATE/S OF HEARING 07 JULY 2025 – 11 NOVEMBER 2025
DATE AWARD SUBMITTED 05 DECEMBER 2025
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

1. 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 07 July 2025, 26 August 2025, 10 & 11 November 2025 at Port St Johns and Mthatha department of education offices at 09h00. Mr Kwezi Dalasile an official represented the Applicant [department of Education Eastern Cape]. Mr Siyasanga Hashibi an official from PSA represented the employee – [ Siphelele Sibuda ]
2. The proceedings were electronically and manually recorded.
3. The proceedings were conducted in English and there was an isiXhosa interpreter. For purposes of this award the names of the learners will not be revealed. We will refer to them as AM.

ISSUES TO BE DECIDED

4. 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
5. The employee is employed as an educator at Mtweni Senior Secondary School, OR Tambo Coastal District.
6. 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 October 2024, you had a sexual relationship with AM, a learner in your school.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case

7. The Employer led evidence of four witnesses. Their evidence is summarised below. Mr Xola Fomomo [ Fomomo] testified as follows: He was in the employment of department of education. He was an educator at Mthweni Senior Secondary School, head of department – Science. The Employee was known to him. They were colleagues. In relation to the incident on charge 1. He mentioned that it was on 18 October 2024 at the school, they had a visit from the circuit manager Mr Erasmus. He was approached by the learner AM, in the morning she requested to go to town, he refused. They were busy with the analysis of results and the pledge for grade 12. In the afternoon AM approached him for the 2nd time and he granted her permission to go to town. On Saturday he was contacted by Ms Zozi [ Administrator] tracing the whereabouts of the learner AM and she also informed him that AM was not well. He contacted the learner and enquired about yesterday’s visit in town. She informed him that she visited a doctor and demanded evidence, he was presented with medication which was very old, and he refused to accept it. He also noticed that she was distracted by the cell phone. He confiscated the cell phone and gave it to the housemother. He conducted investigations amongst her friends MA and MZ. A meeting was also held, in attendance was the housemother, admin clerk, AM and he also attended. AM opened the cell phone with the assistance of admin clerk, there were chats between AM and the Employee. The conversations were between people in a love relationship. The phone number on the phone belonged to the Employee and the profile picture.
8. Bundle B pages 1-10 were read on record. Conversation from pages 9-13 were discussion about termination of pregnancy. It was his evidence that the school principal was informed of the conversation between AM and the employee. A meeting was convened between the employee and the officials of the school. The employee distanced himself from the allegations. A second meeting was held between the officials and the learner AM. During the meeting the learner demanded what was to be done to the educator, she also cried. Ms Zozi comforted her, Mr Dumekhaya [school principal] gave her a piece of paper to write the details of the educator. She wrote Sibuda S. There were later developments, the learner was found in the bathroom cutting herself with pills to drink. She was found by her peers. She was rushed to Silimela Hospital by the housemother and school principal. She was hospitalised for a period of five days. IsiXhosa paper she wrote in hospital.
9. Ms Zingisa Zozi [ Zozi] testified as follows: She was in the employment of the department of education stationed at Mthweni SSS, holding a position of administrative clerk. The employee was known to her. He was the educator at the school but his warm body was at Chaguba SSS. In relation to the incident of October 2024, she mentioned that they had a pledge at school. She left the school at 13h30, they also had student who on boarded at the school. In the evening, she contacted Ms Biyoli, she told her that she was also not at school but she was worried about AM she did not seem well during revision lessons. She then contacted Mr Fomomo and he confirmed the same and that the previous day she requested to visit the doctor. Mr Fomomo continued to do a follow up on the learner and questioned her friends. He was told by AM’s friend that AM terminated pregnancy. It was her evidence that she requested Mr Fomomo to escalate the matter with the school principal. On Monday she returned to school, a cell phone that was with the housemother was taken and AM opened it and there were chats between AM and the employee. She confirmed that the phone number and the profile picture was that of the employee. She and Mr Fomomo took the screen shorts of the conversations. The matter was referred to the school principal. A meeting was held, it was attended by herself, Fomomo, housemother and the learner AM. She was asked about the visit to the doctor, she first cried and later explained that she went to terminate the pregnancy. She was also questioned about the father of the child and the money, she first gave wrong name and also demanded to know what was to be done to the person who impregnated her. She later wrote on a paper the name of Mr Sibuda and requested that no action be taken against him. In the afternoon of the same day, she was found in the bathroom cutting her veins and with pills. She was rushed to hospital. She also mentioned that she visited her at the hospital with study material in preparation for exams.
10. Ms Bathabile Bhodi [ Bhodi] testified as follows: She was the member of the school governing body [SGB] and house mother. She started in 2024 for grade 12. It was her evidence that AM was known to her. She was a learner at the school, she looked after. In relation to the incident she mentioned that it was during exam period, she received information from other learners that she was not feeling well, she was vomiting. She was then questioned by Mr Fomomo and he demanded medication she received from the doctor. She produced wrong medication, cried. On Monday she was requested to open her cell phone. She opened it and there were chats between her and the employee. The conversations were between two people in a love relationship. She cried and mentioned that she had an abortion. she was impregnated by the taxi driver. She was told to produce the contact details of the taxi driver, and she did not have them. She also mentioned the incident of bathroom; AM was found cutting herself and with pills on her hand. They rushed her to hospital. It was her evidence that AM told her at the hospital that she was impregnated by the employee.
11. Mr Mazizi Ntobongwana [ Ntobongwana] testified as follows: The employee was known to him. He was the investigating officer of his case. They met at his homestead at Chaguba. He conducted the investigation together with Mr Khuphelo. Bundle A page 9 investigation report. He mentioned that in conducting the investigation he interviewed the following people: Mr Fomomo, Ms Zozi, Ms Bhodi, leaner AM, learner ZM [friend of AM], the mother of AM and the employee. It was his evidence that the employee did not deny the allegations against him. He even wrote a statement and confirmed that the families met. He apologised to AM and her family. The apology was accepted. Bundle A page 20 [statement by the employee] read on record. Bundle A page 19, statement of Nosiphiwo Mayo read on record. The interviews were conducted on 19 February 2025. He also mentioned that in preparation for the hearing, they tried to contact the leaner AM and she indicated that she had no interest in the matter. She refused to participate in the hearing. Statement of AM on bundle A page 16 & 17 was read on record. Employee’s Case
12. Mr Siphelele Sibuda : He closed his case without leading evidence. He was made aware that the Council only had evidence of the Employer and he confirmed that he was aware of such and was comfortable with his decision.
    ANALYSIS OF SUBMISSIONS AND ARGUMENTS
13. 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”.
14. 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.
15. 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.

16. 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) .
17. 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.
18. Section 35 [3] [h] of the Constitution provides that an accused person has the right to remain silent and not testify during trial proceedings as part of a right to fair trial.
19. In the present matter the employee exercised his right to remain silent. He did not give any evidence. The Council only has the version of the employer. As much as the employee enjoys a right to remain silent, his right is not absolute. It is subject to limitation by section 36 of the Constitution.
20. The employer presented a prima facie case against the employee; it was expected of the employee to provide a defence or explanation. The decision of not giving any evidence was miscalculated considering the volume of evidence against him. In Tshishonga v Minister of Justice and Constitutional Development and another (2007) 28 ILJ 196 (LC) it was held that the failure to call a witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However, an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the fact as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or may even damage his case.
21. I am inclined to believe that the decision by the employee not to testify, is that he was afraid of what could have been revealed from his testimony. The employee made a statement during the interview by Ntobongwana, on the statement he admitted the allegations against him. His representative also confirmed on record that there was a love relationship between the employee and AM. The evidence by the employer against the employee was overwhelming. It was calling the employee to answer but he elected not to testify. In BCFMI, KwaZulu – Natal v UKD Marketing CC and others (2013) 34 ILJ 96 (LAC) it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of the rule that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that the party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the Court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.
22. It is common cause in these proceedings that the Employer led evidence of four witnesses, the Employee did not give evidence. The evidence of the employer is on record it will not be repeated however reference will be made where relevant.
23. Both parties were given until 21st of November 2025 to file their closing arguments with the Council. Both parties complied and submitted to the Council on different dates 21 & 25 November 2025. I have taken their heads of argument into consideration in penning this award.
24. On behalf of the Employer, it was submitted by Mr Dalasile that Mr Sibuda is guilty of the charges as contained in the charge sheet and should be dismissed. He was unfit to work with learners. On behalf of the Mr Sibuda it was submitted by Mr Hashibi that he was not guilty of any charge.
25. In relation to the evidence placed before the Council I have no reasons to reject the evidence of the Employer. There is no other evidence before the Council. The evidence from the Employer implicated the employee. All the witnesses of the Employer placed the employee on scene including the WhatsApp conversations between the employee and learner AM. All this evidence was not challenged by the employee. Mr Hashibi on behalf of the employee confirmed that there was a love relationship between the employee and AM but there was no sexual relationship, unfortunately before the Council there is evidence that there was a sexual relationship between AM and the employee. Bundle B pages 9-13 was discussion about termination of pregnancy. It was between AM & the employee. Ms Bodi also mentioned that AM told her that she was impregnated by the employee. The money to terminate the pregnancy she received it from the employee. On the WhatsApp chats between the employee and AM, there was mention of R900-00. It was so unfortunate that the termination of pregnancy almost cost AM’s life. It was the evidence of Fomomo, Bodi and Zozi that AM was hospitalised for 5 days, she finished her exams in hospital. I reject the submission by the employee that the employer based its evidence on hearsay evidence. The love relationship between AM and the employee resulted to them engaging in sexual intercourse. AM was pregnant and they both agreed to terminate the pregnancy. [ Bundle B page 9-13] The case of the employer was well investigated and presented. The employee by not taking a stand also strengthened the employer’s case. The fact that AM did not participate in the proceedings did not make the employers case weak. For the reasons stated above, I am satisfied that the Employer managed to discharge the onus placed on it to prove the guilt of Sibuda on charge 1. Mr Siphele Sibuda is found guilty as charged.
    SANCTION
26. In arriving at an appropriate sanction, I have considered the submissions made by the Applicant, the aggravating factors and the mitigating factors presented by the employee despite being invited to do so. As indicated above it was argued for the Employer that sanction of dismissal was an appropriate sanction.
27. Section 188 of the LRA provides that (1) a dismissal that is not automatically unfair, is unfair if the employer fails to prove(a) that the reason for a dismissal is a fair reason [i] related to the employees conduct or capacity or [ii] based on the employer’s operational requirements and [b] that the dismissal was effected in accordance with a fair procedure.”
28. In the present matter Sibuda was charged for misconduct in terms of section 17 (1)(c ) of the EEA and has been found guilty on of the charges.
29. Section 17(1)(c) of Employment of Educators Act [EEA] of 76 of 1998 provides that “ an educator must be dismissed, if he or she is found guilty of having sexual relationship with a learner of a school where he or she is employed.”
30. In NEHAWU v UNIVERSITY OF CAPE TOWN 2003 the Court held “ the Arbitrator is expected to have regard to the interests of both parties in coming to a conclusion whether the conduct of the Employer to dismiss the Employee was fair or not”.
31. In MIYAMBO v CCMA & OTHERS [2010] 10 BLLR 1017 (LAC) the Court held “ in deciding on an appropriate sanction, a Commissioner must consider all relevant circumstances. However the role of trust relationship remains predominant.”
32. The question that needs to be answered is, which educator does not know the employment of educators Act? Sibuda reduced himself from being a parent to the learners at school. It seemed as if he could not differentiate between right and wrong, hence he saw it fit to be in a sexual relationship with a learner AM. Can he then be trusted with learners? How did he prove himself amongst learners? He was placed in a position of trust. The parents trusted him with their children. A school is a home away from home where there are Educators who are parents to the learners. The misconduct he committed goes beyond mere sexual exploitation of a learners, but it was a criminal conduct, and such characters have no place in the schooling environment. It is clear on the evidence of the witnesses that Sibuda cannot be trusted with learners. His conduct towards AM has left scars that cannot be mended.

33. The law is very clear on educators who have been found guilty of contravention of section 17(1) (c) of the EEA 76 OF 1998 [ as amended].
34. Section 28 [2] of the Constitution Act 108 of 1996 provides that in any decision that has to be taken involving children,” the interests of the children enjoy paramount importance.”
35. I am satisfied that I have weighed up the interests of both parties.
36. Section 120 [2] of the Children’s Act 38 of 2005 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.” In the current matter I make the finding on my own accord.
37. In the circumstances I hereby make the following award:
    AWARD
38. The Employee [ Siphelele Sibuda] is found guilty of contravention of section 17 (1)(c) of the EEA.
39. The Employee [ Siphelele Sibuda] is dismissed with immediate effect. The Employer [ Dept of Education- Eastern Cape] must inform Sibuda of his dismissal.
40. Mr Siphelele Sibuda 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 Act 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 Siphelele Sibuda is unsuitable to work with children, for the Director General to enter his name as contemplated in in section 120 in part B of the register.

Signature:
Commissioner: Siziwe Gcayi
Sector: Basic Education