IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No ELRC136-25/26WC

In the inquiry between

Western Cape Department of Education Employer

And

N. Mneno Employee
Date of Award: 20 January 2026
Arbitrator: A.Singh-Bhoopchand

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This Inquiry by Arbitrator was held on 13 August 2025, 14 October 205
   and 18 November 2025 in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of Collective Agreement 3 of 2018, at a school in Stellenbosch on the first day and virtually on the second and third days. Mr N Mneno (hereinafter referred to as the employee) was represented by Ms Aqueela Petersen, a representative of the trade union NAPTOSA. The employer was represented by Ms Athne Mpayayipheli, from the Labour Relations Directorate of the Respondent.
2. The learners, the complainants in this matter, were assisted by an intermediary. An interpreter was also present.
3. In keeping with ELRC Policy, the names of the learners are withheld. The complainants shall be referred to as Learners RS, CF and CP.
4. One bundle of documents was handed in as supporting evidence and shall be referred to where necessary.
5. The parties made closing submissions in writing, the last of which was received on 25 November 2025

THE ALLEGATIONS

CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act 76 of 19198 (hereinafter referred to as the Act), in that during January and/or February 2025, you conducted yourself in an improper, disgraceful or unacceptable manner by sexually harassing Grade 7 learners at Franschhoek Secondary School by stating the following:

• “I love you when you are quiet “, and/or
• You look so beautiful when you have stockings on,” and/or
• “I know you are jealous, but you know I want you,” and /or
• She is going to be my second wife because she is my girlfriend.”

CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Act, in that during January and/or February 2025, you conducted yourself in an improper, disgraceful or unacceptable manner by sexually harassing Grade 7 learners at Franschhoek Secondary School by:

• Asking them if their mothers are single as you want to be their stepfather, and/or
• Giving them permission to use your classroom to put on their sportswear but advising that you will not be excusing yourself and that you won’t look

ISSUE IN TO BE DETERMINED

6. I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.

PLEA
Not guilty

BACKGROUND

7. The Applicant was employed at the Franschhoek Secondary School on 1 January 2025. Following complaints from learners, he was transferred to another school.
8. The complainants are learners between the ages 13-14 years

EVIDENCE
Employer’s Evidence

9. Jacobus Haasbroek: He is the principal of the Franschhoek Seconday School, He became aware of the allegations when a a female educator forwarded a WhatsApp message to him from a parent. The message said that a male educator had made inappropriate comments. Following this, ten girls came forward and spoke to him. Five girls said that they had only heard about the allegations but that they had not experienced anything inappropriate. The other five girls said that they had experienced inappropriate behaviour from Mr Mneno. He then informed the girls’ parents and the Education Department. One of the girls’ parents said that her daughter had already reported the incident to her and that she had intended to lodge a complaint.
10. Learner RS: She is in Grade 10. Mr Mneno taught her Natural Science. One day in class during or about January, she was busy doing her work when Mr Mneno came close to her and whispered in her ear that he loves her. On another day-the following week he said, “you look very beautiful today”. She felt very uncomfortable and she did not want to be in his class. These were the only incidents that happened to her. However, she is aware that there were incidents with other girls. Her friend learner CF told her that when they asked him for permission to get dressed in his class, he said that they could but that he would remain in the class and not look. CP told her that Mneno told her that she is his girlfriend. She once overheard Mr Mneno use the word girlfriend in relation to CP.
11. She reported the incident to Ms van Heerden.
12. Learner CF: Mr Mneno taught her social science. One day during class Mr Mneno sent most of the class outside because they were making a noise. She and a small group of learners remained in the class. Mr Mneno was eating his lunch, and they were talking to him. They asked him if he has a wife. He said that he did not. He then asked her whether her mother was single and whether he could be her stepfather. It made her feel very uncomfortable.
13. She also testified about another incident which happened on a day when they have sports. The bathrooms were flooded on that day so she and a group of girls went to Mr Mneno and asked him if they could get dressed for sports in his class. He agreed and said that he would not look. They generally ask teachers if they can use the classroom to dress but those teachers always leave the room and give them privacy. They expected Mr Mneno to do the same. They felt very uncomfortable about what Mneno said.
14. Learner CP: She was in Mr Mneno’s social science class. One day in class he was talking about a girlfriend when he turned to her and said, “I know that you are jealous, but you know that I want you”. He then grabbed her from the back and grabbed her privates. She pulled away and said, “no sir”. It was wrong and inappropriate. She reported the incident to one of the teachers. She is glad that Mr Mneno is no longer at their school.
15. C. Gallant: She is a school social worker. Part of her role entails providing support to learners that have been abused. The Principal of Franschhoek Secondary contacted her and informed her that there were five learners at his school that had been affected by abuse. She then consulted with those learners together with their parents. She said that learner CF became teary eyed while she related what had happened. Her parents also cried. CF wrote in her statement to the principal, that Mr Mneno had pulled her closer to him, CF did not elaborate. During her follow up conversations with CF and her mother, her mother said that whenever reference is made to the incident, she became withdrawn.

Applicant’s Case

16. Ndodekhaya Mneno: He testified that he started working at Franschhoek Secondary in January 2025. He taught mathematics and EMS. On or about 26 February 2205, the principal called him to the office and informed him that a few learners had made allegations against him – he said that it was about something that he had said to the learners. He did not give further details but referred him to the Department’s representative.
17. He was shocked when he saw the charges against him. He has always been very cautious about what he says to learners. He has no knowledge about how these charges came about and why these learners are saying this about him. The charges make him angry as the learners are not telling the truth. He was new at the school, and he noticed that the learners did not like the fact that he did not speak Afrikaans. It is clear to him that the learners never wanted him at Franschhoek Secondary School.
18. He denies all the allegations against him. He would never allow learners to use his class to dress-not even his own grade 6 class is allowed. To his knowledge all learners dress for sports in the bathrooms and not in the classrooms.

ANALYSIS OF EVIDENCE AND ARGUMENT

The applicable legal principles
The employer bears the onus to prove the allegations on a balance of probabilities

19. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and the circumstances surrounding the conduct.
20. The charges are in terms of section 18(1)(q) of the Employment of Educators Act (as amended), which reads as follows:

Misconduct refers to a breakdown in the employment relationship, and an educator commits misconduct if he or she-
(q). while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner.

In this charge, the sanction of a dismissal is not mandatory, but the arbitrator maintains the discretion to impose an appropriate sanction after a consideration of mitigating and aggravating circumstances and the surrounding factors and circumstances.

Is the employee guilty of the allegations?

21. The test for whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus, is more probable than not. In determining the probabilities, evidence is assessed against human experience, logic, and common sense. Evidence must be evaluated holistically and not piecemeal.

“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. “

22. In dealing with conflicting versions the Supreme Court of Appeal has provided the following guidance :

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows: To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; (c) the probabilities. As to (a) , the courts finding on the credibility of a particular witness will depend on its impressions about the veracity of the witness, That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance , such as (i) the witnesses’s candour and demeanour in the witness box, (ii) his bias, latent and blatant,(iii) internal contradictions in his evidence,(iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. “

23. Children, in this case teenagers, do not act and react in the same manner as adults, and it is therefore naïve to evaluate their evidence in the same way as one would evaluate the evidence of adults. Courts have recognised that the evidence of children cannot be assessed in the same way as the evidence of adults, that it may be wrong to apply adult tests for credibility to the evidence of children; that a fair trial must not only take into account the rights of the accused but also the rights and capabilities of children , that a contradiction in a child’s testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult and that evidence if given by an adult may have had a deficiency so grave as to require rejection of it as incredible, may in the case of a child be explicable as due to the limitation of a child’s immaturity rather than lack of rationality. In this case I must also consider that teenagers are at an impressionable age.
24. In terms of the cautionary rule of evidence in relation to child witnesses, it does not mean that the evidence of children must be above any criticism. It requires only that the evidence accepted should be substantially satisfactory in relation to material issues or that it should be corroborated by other evidence. There is no rigid rule that corroboration must always be present before a child’s evidence is accepted. What is required of a presiding officer is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable.
25. Overall, the question is not whether a witness is wholly truthful in all she says, but whether the arbitrator is satisfied that the story which the witness tells is a true one in its essential features.
26. The learner’s evidence was clear and consistent and in the main they corroborated each other. The employee himself provided a context in which it is likely that he made the comment about wanting to be the learner’s stepfather when he conceded to asking the learner whether her mother was single. Learner CP’s evidence about being pulled closer and then being touched by the employee was the only aspect of the learners’ evidence that was not corroborated. This aspect was not included in the charges which suggests that it was not relayed to the investigator that interviewed the learners. The learner testified that she reported it to Ms van Heerden, an educator at the school as well as to the WCED representative. However, neither of them testified to confirm this.
27. This does not mean that the learners are not telling the truth in terms of the allegations in the charges. All the learners appeared emotional while testifying, consistent with their evidence that they were uncomfortable and affected by the words that had been spoken by the employee. Their testimony remained the same at its core both in evidence in chief and in cross examination. In the main they all told the same story. They were credible and understood the importance of telling the truth.
28. As for the employee, other than a bare denial there was no version save for a bald statement that the learners did not like him because he did not speak Afrikaans. Whilst a bare denial does not necessarily mean that they are not telling the truth, this must be weighed against the versions of the learners which I find to be the more likely version.

FINDINGS
Charge 1: guilty
Charge 2: guilty

SANCTION

29. In deciding on an appropriate sanction, I am required to consider both mitigating and aggravating factors as well as the surrounding circumstances.
30. Section 28(2) of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. I have accordingly considered the effect that this decision will have on the life of this child as well as the other children in that school and any other that the educator may be tasked to teach in his teaching career. Children have a right to be protected, more especially in the school environment where they are placed in the care of educators.
31. In terms of the common law, educators of our schools have a legal duty to take care of the children entrusted to them. Learners being vulnerable and since the teachers are the closest adults them during their school lives, teachers ordinarily have a positive duty to provide a safe educational environment to them, free from fear, abuse, intimidation, coercion or physical and/or emotional harm.
32. The conduct of the employee though not overtly sexual is nevertheless sexual misconduct because it made the learners feel uncomfortable. The words ‘I love you’ are not innocent words of affection because of the manner that the words were uttered -by whispering in the learner’s ear. There were repeated incidents and comments with sexual undertones -references to a learner being his girlfriend and wanting to remain in the class while the girls undressed. This is conduct that is unbecoming of an educator.
33. The employee is also in breach of the SACE Code of Ethics
34. The employee was unremorseful but even if he was remorseful, given the serious nature of the misconduct, he cannot be trusted to work with children. I invited the parties to make submissions in this regard. The employer submitted that he is unfit to work with children while the employee chose not to make any submissions in this regard.

SANCTION

AWARD

1. The employee, N. Mneno is found guilty of Charges 1 & 2
2. The employee, N. Mneno, is dismissed with immediate effect.
3. The employer, The Western Cape Department of Education must inform the employee, N. Mneno of his dismissal immediately upon receipt of this award.
4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled:
   • In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
   • To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr SACE Certificate.
5. Mr Mneno is found unsuitable to work with children in terms of section 122(4) of the Children’s Act 38 of 2005.
6. The General Secretary of the ELRC must in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General of Social Development inwriting of this finding made in terms of section 120(4) of the Children’s Act 38 0f 2005, that Mr Mneno is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120-part B of the register.

_
A. Singh-Bhoopchand
Arbitrator
Senior ELRC Panellist