30 January 2026 – ELRC179-25/26WC

Commissioner: Jacques Buitendag
Case No.: ELRC179-25/26WC
Date of Award: 04 December 2025

In the INQUIRY between:

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Employer)

and

MR. L L GOTYWA
(Employee)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), commenced on 23 June 2025 under the auspices of the Education Labour Relations Council (ELRC). On this day the inquiry was postponed in order for the educator, Mr. Gotywa to secure representation. The inquiry was then scheduled for 30 July 2025, 25 August 2025 and 12 November 2025. At the conclusion of the proceedings on 12 November 2025 it was agreed that the parties shall submit written closing arguments. I received the heads of arguments of the parties on 19 November 2025.
Mr. S Ntondo of the South African Democratic Teachers Union (SADTU) represented the educator. The Department of Education – Western Cape (WCED) was represented by its Labour Relations Officer, Ms. F Khasibe. Ms. S Marks was the intermediary, and Ms. Biko was the interpreter. The proceedings were digitally recorded.

BACKGROUND

On 25 September 2018 the parties to the ELRC entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.
Mr. Gotywa is a Post level 1 Educator at I D Mkize High School. He teaches grades 10-12 and he has 19 years of experience as an educator.
The WCED received allegations that Mr. Gotywa sexual harassed a leaner. On or about 15 May 2025 the WCED requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations.
The WCED preferred the following charge against Mr. Gotywa:
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Employment of Educators Act, no 76 of 1998 in that during the 1st quarter of 2025 whist on duty, you conducted yourself in an improper, disgraceful or unacceptable manner by sexually harassing a grade 11 learner as ID Mkize High School by:
(1) Closing her eyes with your hands and then touching her cheeks and/or
(2) Touching her shoulders; and/or
(3) Touching her on her waist; and/or
(4) Winking at her.”
The identity of the leaner was disclosed during the inquiry. Her identity is protected for the purposes of this award, and she is referred to Learner A.
Mr. Gotywa acknowledged that he understands the allegations levelled against him and he pleaded not guilty to the allegations.

THE ISSUE IN DISPUTE

I must determine whether Mr. Gotywa is guilty, on the balance of probabilities of the allegations levelled against him, and if so, I must determine the appropriate sanction. SUMMARY OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

The WCED’s evidence and argument

The WCED called the following witnesses:
1) Leaner A;
2) Department Head at the school Ms. Khewana;
3) Acting Principal of the school Mr. Fillies; and
4) Ms. Ruiters, a Social Worker.
Leaner A is 16 years old. She testified that there is a lot of learners at the school and that space is limited. She testified that Mr. Gotywa will never give way when she tries to pass him. He will always touch or grab her by the waist, and he will smile and then leave.
Leaner A testified that in February 2025 they were taking photos in a parking lot. Mr. Gotywa came and asked her if he could use her phone. He said, “oh you don’t have airtime” and he wink at her.
Learner A said testified that about two days after this incident they had class in the school hall. In the corridor Mr. Gotywa came from behind, closed her eyes with one hand, proceeded to caress her chin and moving his hand to her shoulder whilst grabbing her waist with the other hand. He then winked and walked away.
Learner A testified that this incident in front of one of her friends (hereinafter referred to as Learner B). She testified that after this incident she went with Leaner B a bathroom where she cried. She reported the incident to Ms. Khewana on the same day.
Learner A testified that Mr. Gotywa makes her feel uncomfortable and that he does not behave as an educator should behave.
Under cross-examination Leaner A said that she is nervous about the whole case and because she saw Mr. Gotywa.
Learner A confirmed that she was taught by Mr. Gotywa in Grade 9. She was not close to Mr. Gotywa but he was playful in class.
It was put to her that Leaner B is not willing to testify during the inquiry because she was coached by either Ms. Khasibe or by Ms. Khewana. Learner A confirmed that Learner B has attended the 1st sitting of the inquiry and she does not know why Leaner B is not testifying. She submitted that Ms. Khasibe told her not to ask Learner B why she will not be testifying.
About the alleged incident in the corridor Learner A testified that Mr. Gotywa touched her in front of the whole class. She does not know who saw the incident execpt for Learner B who was standing right in front of her when it happened. Leaner A draw a picture of the corridor where Mr. Gotywa allegedly touched her face and grabbed her hip, and she also illustrated Mr. Gotywa’s hand movements.
Learner A testified that she cannot recall what Leaner B told her in the bathroom, but Leaner B hugged her, and she (Learner A) cried.
Learner A testified that when she came out of the bathroom she encountered Mr. Fillies. Mr. Fillies asked her what was wrong? Learner A testified that she did not trust to tell Mr. Fillies about the incident. Mr. Fillies told her that if she does not trust him that she must go to someone she can trust. She then went to Ms. Khewana.
Leaner A was asked how Mr. Fillies then knows about the complaints. She replied that Ms. Khewana informed Mr. Fillies about it.
She testified that Mr. Gotywa allegedly winked and smiled at her on more than one occasion. She testified that when asked her in the parking lot to borrow her phone he winked at her in “a weird way” and smiled which made her uncomfortable. Leaner A said that Leaner B also witnessed this incident.
Learner A testified that prior to the parking lot incident Mr. Gotywa also grabbed her waist. She said that there were other leaners present when Mr. Gotywa grabbed be waist, but she thinks that they did not notice it. Leaner A was asked why she had not report it, to which she replied that she thought that she was overthinking it. She only reported it after Mr. Gotywa again grabbed her waist and touched her face.
When Leaner A was asked when the parking lot incident took place, she testified that it was in February or March but that she is not sure. She thinks it was in March. She also cannot recall the month in which corridor incident took place, but she thinks it was before the April school holidays.
It was put to Leaner A that none the incidents she has described happened. Leaner A maintained that her evidence is truthful.
Ms. Khewana testified that she is a Departmental Head at the school since 2003. She testified that in February 2025 Leaner A came shivering into her class, kneeled in front of her and said that she does not feel comfortable with how Mr. Gotywa is touching her. Leaner A then burst out in tears. Ms. Khewana testified she did not request any further details from Leaner A as she felt it was not her responsibility to do so. She informed Leaner A that she will report it and ordered her to go to her class. Whist Leaner A was leaving her classroom she asked her not to tell her mother about it.
Ms. Khewana testified that she then went immediately to Mr. Fillies to report to him what Leaner A has told her. Mr. Fillies then immediately made a call to the District Office. She could not recall to whom he has spoken to. Mr. Fillies informed that it was good that she reported it because she would have been an accomplice if she has not report it.
Ms. Khewana testified that Leaner A was quite talkative in her class but after the incident she withdrew and was no longer participating in the class. Her academic performance also dropped.
Under cross-examination it was put to Ms. Khewana that the allegations are fabricated. Ms. Khewana reiterated that Leaner A was traumatised when she came to her classroom.
Ms. Khewana was asked if she also took Leaner A to Mr. Fillies. She replied that she went alone to Mr. Fillies. She does not know what happened afterwards.
Ms. Khewana testified that she and Mr. Gotywa has a good relationship. She denied that she once shouted at Mr. Gotywa and called him a “moffie”. Ms. Khewana denied that is not divorced. Ms. Khewana denies that she has anything against Mr. Gotywa.
Mr. Fillies is the Acting Principal at the school. Mr. Fillies testified that he cannot recall the date but that he saw Leaner A, and she looked as if she had cried. He told her that if she wanted to talk about it that she could come to his office.
Mr. Fillies testified that Ms. Khewana came with Leaner A to his office the following day. Mr. Fillies testified that he immediately recognised the learner from the previous day. Ms Khewana informed him that the leaner is feeling uncomfortable with Mr. Gotwya. He explained to the Leaner A and Ms. Khewana that he needed more detail. Ms. Khewana then asked the leaner to elaborate. Leaner A said that is uncomfortable with how Mr. Gotywa is engaging with her and touching her. Mr. Fillies testified that he then informed them that he needed to contact the WCED Head Office.
Mr. Fillies testified that he first spoke to Ms. Knoetze from Head Office and later also informed Mr. Phelana of the District Office about what was reported to him. He testified that when he spoke to Ms. Knoetze about the incident, no one was in his office. Mr. Fillies confirmed that that he also reported the incident in writing on 27 February 2025 to the WCED.
When Ms. Khewana’s version of the sequence of events was put to him, Mr. Fillies testified that it was a time back and that he cannot recall the sequence of events. He cannot recall if Ms. Khewana came to him first alone and then later came to his office with Leaner A later or if both came to his office on the same time. He can also not recall if a social worker visited the school. Mr. Fillies recalls that he asked Learner A for the contact details of her parents.
He testified that the school depends on Mr. Gotywa. Mr. Gotywa goes the extra mile in curriculum delivery, and he effectively runs the security at the school.
Ms. C Rainers is a Social Worker and was employed with the WCED for 17 years. Ms. Rainers testified that after the WCED received Form 22 (Report form for child abuse and neglect) from the school she planned to meet with Leaner A. Ms. Rainers testified that she met with the learner and her mother at the school on 16 April 2025 where she first explained the relevant protocols and their rights to them. Leaner A was not emotional and appeared confident. Leaner A informed her that she felt uncomfortable and scared with Mr. Gotywa touching her shoulder and chin. Ms. Rainers testified that she met with Leaner A once more on 18 June 2025 to provide counselling and support.
Under cross-examination Ms. Rainers testified that the WCED received a letter from Mr. Fillies dated 27 February 2025 in which he reported the incident. Attached to this letter was Form 22 which was signed by Ms. Khewana.
The heads of arguments of Ms. Khusile is on record. I have considered it and do not find it necessary to repeat it here. Ms. Khusile argued that the WCED has proven the allegations against Mr. Gotywa and that dismissal is the appropriate sanction.

Mr. Gotywa’s evidence and argument

Mr. Gotywa testified that he is married and has four (4) children. He has been teaching at the school for the past 15 years and is also the secretary of the School Based Support Team (SBST). Mr. Gotywa testified that he is well aware of the seriousness and gravity of sexual assault and abuse of woman and children and that he knows what it expected of him as an educator.
Mr. Gotywa testified that knows Leaner A because he has taught her in grade 9. He described Leaner A as a sweet and humble child that is disciplined, brilliant and an A level student.
Mr. Gotywa testified that he does not harbour any romantic feelings for Leaner A and that he has no recollection of any of the incidents that Leaner A has described during her testimony.
Mr. Gotywa testified that adults are using Leaner A to fulfil their evil intentions. He avers that Ms. Khewana and Leaner A’s mothers are friends. Mr. Gotywa testified that he and Ms. Khewana were neighbours since 2019. Mr. Gotywa testified that Ms. Khewana and the previous principal of the school, Mr. Pathlana (who is now a Circuit Manager) had an extra marital affair and that Ms. Khewana at some stage suspected that he informed her husband of the affair. He testified that he was not the only educator suspected of leaking the affair to Ms. Khewana’s husband. There was also a Ms. Magwa. According to Mr. Gotywa Ms. Magwa was also targeted by Ms. Khewana and Mr. Pathlana. Ms. Magwa has resigned and is now teaching in Grabouw.
Mr Gotywa testified that Ms. Khewana and her husband parted ways about 5 years ago but that their divorce was only finalised two or three months ago. Ms. Khewana had since moved out of the house.
Mr. Gotywa believes that Ms. Khewana and Mr. Pathlana are trying to get back at him and that Ms. Khewana is using Leaner A to fulfil her goals.
Mr. Gotywa referred to a test message that he received from a parent in which the parent indicated that she received his number from the caretaker at the school. The parent raised concerns about an incident that her child informed her off which he must be aware of. The parent indicated that she has informed Mr. Phahlana about the incident and attached this message to her text message.
Under cross-examination Mr. Gotywa testified that Learner A was target, drilled and coached to make up the allegations against him.
Mr. S V Ndlele is the Acting Foreman at the school. He testified that parents came to school on the last day of the second term to collect reports. A parent asked him where she can find Mr. Gotywa. When he told her that she has just missed Mr. Gotywa, she asked for the number of Mr. Pathlana. He gave her the number. Mr. Ndlele testified that the parent told him that educators are using children to tell lies about Mr. Gotywa. Mr. Ndlele does not know the name of the parent.
The heads of arguments of Mr. Ntamo’s are on record. I have considered it. Mr. Ntamo argued that Leaner A was dishonest and that she was coached to lie. Mr. Ntamo argued that it is strange that Leaner A’s friend, who allegedly witnessed the incidents was not called as a witness and refused to testify. He prays for the inquiry to find Mr. Gotywa not guilty of the allegations.

ANALYSIS OF EVIDENCE AND ARGUMENTS

The WCED bears the onus to proof on a balance of probability that Mr. Gotywa has indeed conducted himself “in an improper, disgraceful or unacceptable manner by sexually harassing” Learner A.
In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that a the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.
The approach to be adopted by arbitrators when faced with two disputing versions was amplified in Sasol Mining (Pty) Ltd v Ngeleni NO and Others (2011) 32 ILJ 723 (LC) at 727C-F where it was held that the arbitrator must conduct an
‘. . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.’
Mr. Gotywa’s version is not much more than a mere denial of the allegations levelled against him. He believes that Learner A is being used by certain adults, with Ms. Khewana being at the centre of it, to fabricate the complaints against him. To support his version on this score Mr. Gotywa believes that him informing Ms. Khewana’s husband of her alleged affair may have something to do with the fabricated complaints. Ms. Khewana has denied this notion. Mr. Gotywa further relied on the testimony of Mr. Ndlele and the communication he received from a parent to support his version that the allegations are fabricated. I have no reason to question the credibility of Mr. Ndlele and his testimony that I accept that a parent informed him that educators are using children to tell lies about Mr. Gotywa. But neither this person, nor the author of the sms communication that Mr. Gotywa received (if it is a different person than the one who spoke to Mr. Ndlele) was called to testify. In the absence of testimony from this person(s) there is no context to the communication, and I cannot conclude that this “evidence” supports Mr. Gotywa’s contention that the allegations are fabricated and that Ms. Khewana is at the centre of it.
Turning to the allegations itself. I am acutely aware of the fact that a positive allegation is not necessarily more truthful that a mere denial of the allegation. The fact that Mr. Gotywa’s version is a denial does not make his version more or less probable than the WCED’s version. The onus remains on the WCED to prove its case on a balance of probability.
Leaner A is a single witness to the alleged incidents, and her evidence requires to be approached with caution. My observation of Leaner A is that she started her testimony confidently but that she became more nervous as she was required to provide specifics about the allegations under cross-examination.
When Leaner A commenced with her testimony she testified that Mr. Gotywa would always grab her around her waist, smile and then leave. This happened in the presence of other learners. Leaner A has not provided any details as to when, where and how these alleged grabbing incidents took place and who were the leaners that were present. Learner A only provided details about the corridor incident. In this regard Leaner A’s version is that Mr. Gotywa came from behind, grabbed her waist and stroked her face. The way she described it, it must have lasted for several seconds. This incident was according to Leaner A witnessed by Leaner B, who was standing in front of her, and it also happened in the presence of other leaners. It is inexplicable why the WCED has not called Leaner B (who was present at the 1st sitting on 23 June 2025) and who was specifically named as an eyewitness by Learner A during her testimony on 30 July 2025 to testify. It is also inexplicable why the WCED has not called any of the other learners who may have witnessed one or more of the alleged waist grabbing incidents or the corridor incident to corroborate the version of Leaner A. It is not as if the WCED had no time to further investigate and to call eyewitnesses after being provided with Leaner’s A’s version during her testimony on 30 Jule 2025 because the evidence was only finalised on 12 November 2025.
I find it difficult to believe that Mr. Gotywa with his 19 years of experience will have the audacity to always grab Leaner A from behind in the presence of other learners and with regard to the corridor incident went further to stroking her face directly in front of the leaner’s best friend and with other learners around, knowing that such conduct is grossly inappropriate, may be regarded as sexual harassment and may cause the end of his career as an educator. If he was indeed so audacious, why did the WCED then not call any other leaners to corroborate Leaner A testimony. Off course if the incidents did not happen as described by Learner A, it will be difficult to find corroborating witnesses.
When a male educator winked and smiled at a female leaner it may be considered as inappropriate and unacceptable conduct within a certain context. In this case no context, expect for the parking lot incident, was provided to Mr. Gotywa’s alleged smiling and winking at Leaner A. In as far as the parking lot incident is concerned, Leaner A testified that Mr. Gotywa asked her to used her phone and then winked and smiled at her in a weird way which left her uncomfortable. She has not elaborated what she meant by Mr. Gotywa winking and smiling at her in a “weird way.” Even if I accept Leaner A’s uncorroborated version on this score, I am not persuaded that the alleged parking lot incident, as was described by Leaner A, translates to sexual harassment.
The glaring discrepancies between the versions of Ms. Khewana and Mr. Fillies cannot be ignored. Ms. Khewana was quite clear in her testimony that she did not ask any details from Learner A. But Form 22 (which was disclosed to this inquiry by Ms. Rainers during her testimony on 12 November 2025) indicates that Ms. Khewana completed the form where the alleged incident of Mr. Gotywa’ touching the leaner on her shoulder and chin is detailed. Moreover, Ms. Khewana testified that she went alone to Mr. Fillies on the same day of the incident to report what has transpired in her class and that she then left it in Mr. Fillies’ hands. On the other hand, Mr. Fillies testified confidently that Ms. Khewana and Learner A came to him the day after the alleged incident and that he addressed them both. But when Ms. Khewana’s version was put to Mr. Fillies he suddenly could not remember the sequence of events. He could not even recall if a social worker visited the school.
Having considered all the evidence, I am unable to accept Leaner A’s version with any conviction and to safely reject Mr. Gotywa’s mere denial. I find that the WCED has not presented sufficient evidence to discharge the onus of proving the allegations levelled against Mr. Gotywa on a balance of probability.
The WCED has called for the dismissal of Mr. Gotywa. No evidence was placed before this inquiry of any previous complaints of sexual misconduct against Mr. Gotywa in his 19 years as an educator and on the available evidence I cannot destroy this educator’s career by dismissing him on suspicions of misconduct.