30 January 2026 -ELRC417-25/26EC

Case Number: ELRC417-25/26EC
Panelist: Thobela Obey Mqamelo
Date of Award: 17 December 2025

In the Arbitration between

Jacques Mashwan
(Applicant / Union)

And

Eastern Cape Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This unfair dismissal dispute was arbitrated in terms section 191(5)(a) of the Labour Relations Act 66 of 1995 (LRA) on 29 September 2025, 25 November 2025, and 26 November 2025 under the auspices of the Education Labour Relations Council in Graaf Reinet
The applicant, Jacque Mashwan (Mr Mashan) was present on all the days and was represented by Wouter Minnie (Mr Minnie) an Attorney from Wouter Minnie Attorneys.
The respondent, Eastern Cape Department of Education was present and represented by Euan Hector (Mr Hector) a Labour Relations Officer from the respondent.
Legal representation was granted on consideration of oral submissions made by Mr Minie in an application for condonation of the late filing of the application for legal representation opposing submissions; application for legal representation, and opposing submissions made by Mr Hector.
I have also assessed the trail of communication from the respondent and accept that the reasons for the late filing of the application for legal representation are plausible, and that from a prima facie point of view there are prospects of success in the application for legal representation.
Without dwelling on the submissions for condonation of the late filing of application; the application for legal representation and opposing submissions, I considered the comparative ability of the applicant to represent himself and the submissions the respondent representative Mr Euan Hector is seasoned and more experienced in the process of arbitration that the applicant, and that although Mr Hector not being a Legal Practitioner, he was at an advantageous position due to his experience in how arbitration proceedings are conducted, hence I had to balance the scale of representation on both parties.
Furthermore, should the respondent discharge the onus of proof the applicant bears the responsibility of the rebuttal, considering that the applicant is lay person in the field of a labour law and the nature of allegations labelled against the applicant, the matter would have been complex for him to proceed in the absence legal representation.
With Graaf Reinet being a small area where almost everyone knows each other and the matter being that of an Educator in a public school, the matter may reach the interest of the public. On consideration of the above-mentioned factors, I granted the application for condonation of the late filing of the application for legal representation, and the application for legal representation.
Parties conducted their Pre-Arbitration minutes and they are recorded.
Parties submitted their opening statements orally.
Both parties submitted their bundle of documents, and were marked (applicant’s bundle EE1, and the respondent’s bundle ER1).
Mr Garth Jacobs, Mr Jonny Meyer, Mr Devereux Bosch, Mr Kelvin Booysen, Ms Hedrin Lemont.
Evidence was tendered under Oath.
The proceedings were held in English and Afrikaans, and Mr Nicholas Hart was the interpreter on 29 September and Mr Mbulelo Ndabambi was the interpreter on 25 and 26 November 2025.
The proceedings are manually and digitally recorded
Both parties agreed to file their closing arguments in writing by no later than 03 December 2025, and both have complied. I have perused the both parties closing arguments.

COMMON CAUSE FACTORS

In terms of the Pre-Arbitration minutes, the following are common cause matters.

• The applicant commended employment at the respondent on 29 April 2019.
• At the time of the termination of his employment, he was employed as was a post level 1 Educator at Asherville Secondary School in Graaf Reinet, and he earned a salary amount of R32,505.25 per month.
• It is common cause that the applicant is dismissed by the respondent for following allegations of misconduct, and that the date of dismissal is 02 July 2025.

Charge 1

‘’It is alleged that you contravened section 18(r) of the Employment of Educators Act, 76 of 1998 in that, on the 11th December 2023 while you were on duty at Asherville Secondary School you threatened to assault another employee.

Charge 2

It is alleged that you contravened section 18(1)(t) of the Employment of Educators Act 76 of 1998 by displaying disrespect towards others in the workplace or demonstrating abusive or insolence behaviour, through your use of abusive and vulgar language towards your colleagues during a staff meeting at Asherville Secondary School in the Sarah Bartman Education District.

Charge 3

It is alleged that you are guilty of misconduct by contravening section 18(1)(a) of the Employment of Educators Act 76 of 1998 as amended when you the South African Council of Educators (SACE) Code of Professional Ethics and Behaviour, section 6.5 which inter alia reads “uses appropriate language and behaviour in his or her interactions with colleagues’’, though your use of vulgar language towards your colleagues at Asherville Secondary School on 11 December 2023.

Charge 4

It is alleged that you are guilty of contravening the section 18(f) of the Employment of Educators Act 76 of 1998 as amended through your actions towards and in the presence of your colleagues during a meeting while you were on duty on 11 December 2023’’.

• It is common cause that there was a meeting at the staff room at Asherville Secondary School on 11 December 2023.
• It is common cause that the applicant attended the meeting at the staff room on 11 December 2023.
• It is common cause that the applicant has a final written which was issued on 12 October 2023 and valid for 12 months as reflected on page 32 of the respondent’s bundle.
• It is common cause that the Final Written warning was still valid on 11 December the date of the alleged misconduct which led to the dismissal of the applicant.
• It is common cause that the applicant did not attend the disciplinary hearing.
• It is common cause that the applicant was charged with the following allegations –

MATTERS IN DISPUTES

In terms of the Pre-Arbitration minutes, the following are matters in dispute.
• Whether or not if it was fair for the respondent to proceed with the disciplinary hearing in the absence of the applicant.
• Whether or not if the applicant breached the rule.
• Whether or not of the rule is consistently applied by the respondent.
• Whether or not if the sanction was too harsh.

ISSUE TO BE DECIDED

I must determine whether or not if the dismissal of the applicant, Mr Jacques Mashwan, by the respondent, Eastern Cape Department of Education is fair.
The applicant seeks retrospective reinstatement.

SUMMARY OF EVIDENCE AND ARGUMENT

This is a brief summary and evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand.

RESPONDENT’S TESTIMONY
RESPONDENT’S 1st WITNESS
MR GARTH JACOBS

He testified that, he is employed as the Deputy Chief Education Specialist for the Sarah Baartman Education District, and the he was the Presiding officer at the disciplinary hearing of the applicant.
He testified that the disciplinary hearing of the applicant had been postponed on two previous occasions on account of the applicant’s absence although he had nothing in writing on those days from the applicant indicating any reasons for the absence. It was then scheduled for the third time on 27 May 2024. He was made aware on the day by one of the witnesses the Mr Mashwan will not be coming to the disciplinary hearing. The Initiator of the disciplinary hearing on the day made submissions with regards to the absence of the applicant in the scheduled hearing by the respondent.
He then contacted the Director of Labour Relations at the respondent Mr Sihle Mnguni to seek guidance on whether to proceed or not under the circumstances, as there was no medical certificate submitted by the applicant prior to the proceeding of the disciplinary hearing. According to Mr Jacobs five witnesses of the respondent (Mr Grootboom, Mr van Heerden, Mr Michael Hector, Mr Devereux Bosch, and Mr Kelvin Booysen) testified against the applicant on the days of the disciplinary hearing, and in the absence of the applicant. It is Mr Jacobs testimony that he cannot confirm whether the applicant was unfit to attend the disciplinary hearing.

RESPONDENT’S 2ndWITNESS
MR JONNY MEYER

Mr Meyer testified that, he is employed as an Educator at the respondent and renders his services at Asherville Secondary School (the school), and that on 11 December 2023 he was the Chairperson of the meeting that took place at the school staff room; the other teachers were also in attendance of this sports meeting on 11 December 2023 at Asherville Secondary School. Because the Chairperson of the Sport Committee at the school has resigned, he (Jonny Meyer) was appointed to be the Chairperson on that sport meeting. He opened the meeting, with a quote from the SACE Code of Ethics on ‘’how Educators must conduct themselves’’, and presented the agenda and the agenda was accepted. Mr Mashwan had a problem with the theme on the SACE Code of Ethics and said that this is a sports meeting and not a disciplinary hearing, he also did not accept the agenda and sked for the minutes of the previous hearing, and he informed him in that the previous minutes of the hearing will be dealt on the third (3rd) item of the agenda.
The school principal (Mr Grootboom), Ms Esme Ludick, and the Deputy Principal (Ms Hedrin Lemont) were present. Ms Esme Ludick intervened and the applicant must wait until the meeting be on the third item then the matter of the previous minutes will be deal under that item. According to Mr Meyer, the applicant (Mr Mashwan) became aggressive and started to speak hard in shouting in a loud voice and asked in ‘’hoekom die voken notules nie gelees raak nie’’ (why can’t the fucking minutes not be red). Ms Kayla Koeberg replied to the applicant and said ‘’moenie vir my skree nie’’ (do not shout at me). It is Mr Meyer testimony that other people in the meeting also spoke to the applicant about respect. Seeing the meeting is becoming uncontrollable as a result of the applicant uncontrolled disorderly behaviour, Mr Jeff Grootboom (the Principal) stood up and said he will have no choice but to leave the meeting, and after that he (Mr Meyer) stood up and informed the people that will also have to close the meeting. As soon as he stood up, the applicant also stood up and pointed a finger to Mr Michael Hector and said to him ‘’hoekom jy nie hierdie kwedin die regte procedure geleer nie’’ (why did you not teach this kwedini the correct procedure’’. He, Mr Meyer respondent and say he is closing the meeting, he and the Principal stood up to leave the meeting, and the applicant continued shouting using the abusive language and said ‘’Dis hoekom die ma se poese skool nooit sal reg kom nie’’. (that is why noting in this mother fucking school will come right). At this moment many of the people in the meeting were going out of the staff room. Mr Mashwan became aggressive and started to hit the table, and was swearing at people who were leaving the staff room.
Mr Meyer testified that this was the first time in his eighteen years of teaching he experience this type of behaviour from an Educator at Asherville Secondary School, and that the behaviour of the applicant on the day was good for the morale of the school.

RESPONDENT’S 3rd WITNESS
DEVEREUX BOSCH

He testified that he was present at the sports meeting on 11 December 2023, at the staff room at Asherville Secondary School, and that he sat next to Mr Michael Hector, and the applicant said to Mr Michael Hector ‘’why don’t you teach this kwedini the correct procedure’’, ‘’ek sal jou dood bliksem’’ (I will hit you to death.’’ According to the testimony of Mr Bosch, the applicant was in a standing and pointing a finger in a threatening position when he was uttering these words to Mr Michael Hector, and that it is so fortunate that there was a table between the two of them. It is Mr Bosch testimony that the applicant also made remarks to Ms Taslyn Wilson that she must ‘’shut up’’, and also to Ms Green that she is protecting her Son Mr Cay MacGreen (the Coach of the First Team Rugby at the School). According to Mr Bosch, the applicant said to Ms Green ‘’Hou jou bek’’ (keep your mouth shut), at that moment the Principal Mr Jeff Grootboom left the meeting, and Mr Jonny Meyer closed the meeting, and he (Mr Bosh) also decided leave the meeting as he did not want to be part of what was happening.
It is Mr Bosch testimony that at the time he was leaving, there was commotion inside as Mr Mashwan was hitting the table with his hand, screaming and shouting, it is Mr Bosch’s testimony that he did not concern himself with what Mr Mashwan was left saying when he was screaming, as he (Mr Bosch) was more focus on leaving the room.

RESPONDENT 4th WITNESS
KELVIN BOOYSEN

He testified that he is employed by the respondent as an Educator at Asherville Secondary School, and that he was present in the sports meeting that took place on 11 December 2023, and that he was sitting behind the chairperson (Mr Jonny Meyer), and opposite to Mr Mashwan.
The meeting was opened and there was an adoption of the agenda, and the agenda was accepted. Mr Mashwan raised his hand and asked if there will be any selection of the sports committee, and Mr Meyer answered him that there will only be the selection of the Treasure and the Chairperson. According to Mr Booysen, that is when Mr Mashwan became agitated and raised his hand again and was asked ‘’are there no election of coaches’’, and Mr Meyer answered him ‘’I had said only the Treasurer and the Chairperson, as per the agenda’’.
According to the testimony of Mr Booysen the applicant was agitated at the moment, and Mr Meyer was irritated then Ms Esme Luddick raised her hand and said ‘’can the meeting proceed in a respectful manner’’, and the Principal Mr Jeff Grootboot said if the meeting goes in this manner, he will have to leave the meeting. Mr Booysen then raised his hands and explained why he seconded the acceptance of the agenda, and Mr Mashwan answered in anger ‘’hoekom kan nie die voken notules van die verlede vergadering nie gelees raak nie?’’ (Why can’t the fuck minutes of the previous meeting be red). Ms Kayla Koeberg replied to Mr Mashwan ‘’don’t shout at me’’. Mr Mashwan kept on shouting, ‘’Waar is die voken notules, hoekom die voken notules kan nie gelees raak nie’’. (Where are these fucking minutes, why can these fucking minutes be red). Mr Meyer asked the applicant as to why is he taking the meeting to a different direction, and Mr Meyer stood uo and left the meeting. Mr Meyer started shouting, and said ‘’Dis hierdie kwedini hoekom die problem sal nooit op los word’’ (It because of this kwedini that we can resolve problems). Mr Mashwan continued with his abusive and vulgar language until Ms Ms Lemont grabbed him from behind to try and control him. When he was released by Ms Lemont, he continued and swearing and said ‘’Dis die rede hoekom niks gaan regkom by hierdie voken skool nie, is gevolg van hierdie kwedini.’’, why does everyone feel the need to protect Mr Green, and Ms Green asked ‘’where does my Son feature in this’’, and Mr Mashwan answered to Ms Green ‘’Hou jou bek’’ (Keep your mouth shut).
According to Mr Booysen at that moment many of the teachers were standing up and going out of the staff room, and Mr Michael Hector, Ms Wilson, Ms Koeberg and Mr Mashwan were still left inside and Mr Mashwan said to Mr Michael Hector, ‘’hoekom jy nie hierdie voken kwedini die regte procedure geleer nie’’, and Mr Michael Hector looked at the applicant; that is when Ms Wilson said to the applicant, ‘’jy kan nie so praat nie met die onderwyser wat jou geleer het’’ (you can’t speak like that to a teacher that taught you), Mr Mashwan continued to shout at Mr Michael Hector saying ‘’Ek sal jou dood bliksem, jy is maar moer toe’’ (I will hit you to death, your are already dying, Mr Hector stood up and replied to Mr Mashwan and said , ‘’nieder jou nie’’ (meaning: I won’t be killed by you), as Mr Michael Hector was leaving, Mr Booysen was left behind and Ms Lemont was still hold Mr Mashwan from behind, the applicant pointed a finger to at him (Mr Booysen) and said ‘’jy !, jou ma se poes oor al waar ek jou kry, ek doner jou’’ (wherever I meet you I will hit you), Mr Booysen testified that he replied to the applicant and said ‘’leave me alone’’.
It is Mr Booysen’s testimony that the behaviour of the applicant is not expected from any teacher.

APPLICANT’S EVIDENCE
APPLICANT’S 1ST WITNESS
JACQUES MASHWAN

He testified that, he was employed by the respondent as an Educator at Asherville Secondary School until the date of his dismissal. He was present at the meeting on 11 December 2023 at the staff room at Ashervile Secondary School.
He was served by the respondent with the notice attend, and that he did not attend the disciplinary hearing on 27 May 2024 which led to his dismissal because he was booked off sick for the period 16 May 2024 until 14 June 2024. He referred to page 31 of bundle EE1. He then became aware on 15 January 2025 that the scheduled hearing had proceeded in his absence, and the findings and sanction were signed on 14 October 2024. He then appealed the outcome on 22 January 2025 and the outcomes of the appeal is on page 36 -39 of the applicant’s bundle confirming the dismissal. The applicant is challenging the procedural fairness of the dismissal in that there was reason for his absence in the disciplinary hearing and the respondent was made aware of the applicant’s sickness and admission to hospital prior to the date of the scheduled disciplinary hearing which led to the dismissal of the applicant.
The meeting at the school was Chaired an opened by Mr Jonny Meyer, he opened it with a quote from the SACE Code of Ethics on how teachers must conduct themselves. He had a problem with the relevance quote being used at the sports meeting as it was not a disciplinary hearing. The agenda was adopted, and Mr Swemma raised and wanted to add something on the matters arising, and Mr Meyer respondent by saying the meeting is only for the election of the Chairperson and the Treasure.
According to the applicant, at that moment Mr Swemma insisted that he want to add some issues on the matters arising. That is when he, Mr Mashwan raised his hand and the Chairperson said he will not allow him to speak, the applicant went further and proposed that at least Mr Kayla Koeberg can read the minutes of the previous meeting seeing that they were never distributed prior this meeting. This proposal was dismissed by Mr Meyer, and Mr Meyer stood up and said he is going to leave the meeting. It is the applicant’s testimony that before Mr Meyer left the staff-room he uttered words that he will not listen to this kwedini, which was a statement of disrespect.
According to the applicant’s testimony, it is Mr Michael Hector who approached him and said ‘’jy kwedini, ek donner jou dood’’ (you kwedini, I will hit you to death) and he the applicant respondent by saying ‘’jy is maar moer-toe’’ (you are already dying). It is the applicant testimony that in the context of that exchange of words he meant that Mr Hector was of less weight compared him, and that he only stood up when Mr Hector was approaching him, and Ms Lemont said ‘’Jacques sit down’’.
It is further the applicant’s testimony that on the day there were verbal exchange of words between him and Mr Kelvin Booysen, and that Mr Booysen said to him ‘’Ek donner jou, jy dink ons almal moet na jou luister’’, and the applicant’s response was ‘’Ek donner jou ook’’. According to Mr Mashwan, when the Principal left the staff room, he went to fetch Mr Errol Jantjies the Chairperson of the School Governing Body (SGB) as they returned together. It is the testimony of Mr Mashwan that he never said, ‘’hoekom kan nie die vokken notules nie gelees raak nie’’, and that he only made proposal that Ms Kayla Koeberg read the minutes of the previous hearing.
It is Mr Mashwan’s testimony that he never said ‘’Dis hoekom niks in die ma se poese skool sal reg kom nie’’, but he said ‘’that is why things in this school are not OK because whenever we disagree, we up and we leave’’. It is the applicant’s testimony that he never shouted in the meeting, and that he has a big voice by nature, and that he never threatened Mr Hector, nor did he swear at Mr Hector. He never said to Ms Green she must shut up. It is the applicant testimony that he felt disrespected as he was called a kwedini by Mr Meyer, and Mr Michael Hector.
It is the applicant’s testimony that, Mr hector and Mr Meyer were never disciplined by the respondent.

APPLICANT’S 2nd WITNESS
MS HEDRIN LEMONT

She testified that she is the Deputy Principal at Asherville Secondary school and that she was present 11 December 2023 at the sports meeting at the Staff Room. It is the testimony of Ms Lemont that it was Mr Meyer who started to raise his voice to the applicant, and said to the applicant that, ‘’I won’t listen to you, I am the Chairperson it this meeting, he is not going to let this kwedin ask him questions anymore’’, and he threatened to stop the meeting.
According to Ms Lemonth; the applicant never shouted during the meeting.
Further to that, it was Mr Michael Hector who provoked the applicant by his words and Mr Hector further pointed a finger to the applicant and bended over the table towards the applicant, and said ‘’Ek moer jou dood’’, and the applicant replied and said ‘’vir my?, jy is kaal moer toe’’. It is Ms Lemont’s testimony that that at that moment she began to fear that Mr Mashwan would do something to Ms Michael Hector, but the applicant was still sitting and she Ms Lemont told the applicant to stay calm.
Ms Lemont further testified that the applicant did not threaten or swear at Mr Booysen, as it is Mr Booysen who said to the applicant ‘’jy dink jy is beeter as al die persoon, almal moet bang is vir jou, ek sal jou doner’’, and the applicant respondent ‘’Ek donner jou terug’’.
On the next morning the was meeting at the school with the School Management Team with regards to what had happened and the resolution was that Mr Meyer and Mr Mashwan must be disciplined, as it was Mr Meyer who started all this problem.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 192 of the LRA states:
(1) ‘’In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal;
(2) If the existence of the dismissal is established, the employer must prove the dismissal is fair’’.
The existence of the dismissal has been established in that the applicant was dismissed on 02 July 2025; therefore, the respondent bears the onus of prove that the dismissal is fair.
The applicant is challenging the procedural fairness of this dispute
With regards to the reasons for the absence of the applicant during the disciplinary hearing, from the evidence in front of me, it is proved by the applicant with reference to page 3.1 & 3.2 of bundle EE1 that he had filed doctor’s sick indicating him being sick for the period from 15 May 2024 until 14 June 2024.
It is proved that it was sent to the respondent via email to the respondent Labour Relations, Mr Euan Hector, Mr Jerome Ellie, Mr Chris Jafta. With regards to whether was the applicant unfit for duty or for disciplinary hearing, I have further assessed the medical certificate. Considering the nature of the prognosis indicated in the medical sick note, being the applicant’s reason for his absence, I am convinced that the applicant was unfit to attend the disciplinary hearing, and that had a prima facie reason not to attend the disciplinary hearing.
Under the circumstances, testimony that the applicant had a plausible reason for not attended, and that it is proved that he made contacted the respondent to inform of being off sick proves that the applicant was not given a fair chance to defend his case.
During cross examination it was put to Mr Jacobs ‘’why did he contact Mr Mnguni before proceedings with the disciplinary hearing?’’. It must be noted bias is an apprehension and the testimony of Mr Jacobs is that he was faced with a scenario where the applicant has absented himself in the disciplinary hearing on two occasions. On this day of arbitration which resulted in the dismissal of the applicant, he (Mr Jacobs) was given a go ahead by the Director of Labour Relations. There is nothing unordinary on a chairperson contacting his superior for assistance, but the decision must be fair. On the evidence of Mr Jacobs, he faced with the absence for no reason. Mr Jacobs testimony that there was no valid reason for him not to proceed with the matter on the day cannot be probable in the presence of the email communication from the hospital to the informing that the applicant will be admitted in hospital (Akeso Hospital) as from 16 May 2024 until 14 June 2024 which the period also includes the day (24 May 2024) of the disciplinary hearing. The issue of previous absence should not have been a matter of discussion with Mr Nguni; this led to the chairperson not to be fair in that he never assessed properly the reason for the absence on this third hearing which resulted in him proceeding unfairly with the hearing. This would not result in an apprehension of bias per se, but a procedural defect. It has been proved by the applicant that he filed his sick note via email on 22 may 2024 to the respondent and his email confirming of admission on to hospital on 16 May 2024 May 2024 until 14 June 2024 which is prior to the date of the disciplinary hearing (which led to his dismissal) with which the Chairperson should have taken into consideration. It has been proved by the applicant that his reason for the absence was not a delay tactic on to the disciplinary proceedings; and that under those circumstances the communication from hospital and sick note sent by the applicant to the respondent should have been sufficient for the respondent not to continue with the disciplinary hearing in the absence of the applicant. I am convinced that the applicant did not get a fair chance to put the side of his story.
I find the dismissal is procedurally unfair.
With the arbitration hearing being a hearing in de novo, parties led their evidence. The evidence of Mr Meyer, Mr Bosh, and Mr Booysen, it relatively the same it terms of the series of events. Although there are some differences in what actual words that were exchanged during the meeting, these differences are only on the choice of words, and not material contradictions to what probably could have happened on the day of the meeting at the staff room.
It must be accepted that date of this meeting is nearly two years ag from the date of this arbitration, and cannot expect witnesses to have a photostat memory of what actually happened on the day. Their recollections of events during the giving of their testimonies, is almost the same. They tell the series of events in the meeting in the same manner, sequence, they gave their testimony in confidence, they have demonstrated the knowledge of the events on the day.
In terms of evidence provided to me, although the meeting was open with a phrase that talks about the discipline, although Mr Mashwan was not impressed about that, it is clear from the testimonies of all witnesses that Mr Mashwan found the reading of the previous minutes to be the critical issue in that meeting. This is supported by the testimony of Mr Meyer which has been corroborated by the testimonies of Mr Bosh and Mr Booysen that the problem started with the minutes of the previous meeting. The evidence that this where the meeting started to be unruly, and the actual cause was Mr Mashwan is overwhelming that of Mr Mashwan.
I will not dwell on why were the minutes of the previous meeting so important for Mr Mashwan, as it is not the issue in front of me to determine.
During cross examination Mr Meyer was referred to his statement on page 15 ER1 in which it was put to him by Mr Minne (the applicant’s representative) that why did he not make mention of all the swearing by Mr Mashwan as at the time he was making the written statement as the matter was still fresh at the time.
I have assed the statement, starting from page 14-15 of bundle ER1, it gives detail of what transpired on the day of the meeting. It explains the vulgar language and the threats made by Mr Mashwan on the day, and there are no material contradictions between the testimony Mr Meyer and his written statement. This is contrary to the version put by Mr Minie to Mr Meyer. Under the circumstances, the testimony of Mr Meyer must stand as more, relevant and reliable than that of the applicant.
Mr Meyer emphasize that he heard the applicant swearing on the day 11 December 2023. This makes the testimony of Mr Meyer to be more reliable that that of the applicant. In fact; all the witnesses wrote their statements on the same month of December 2023 within days or a day after the meeting.
Mr Devereux Bosh; it is common cause that he was present in the meeting on the day. His testimony is relevant to this matter. His evidence is relatively the same as that of Mr Meyer. All the witnesses of the respondent were present during the meeting.
Each of the witness testified of their own observation, and what they individually witnessed during this meeting. These statements were written by them because they went on the next day to report the incident at the district office of the respondent in Graaf Reinet. They all describe in their statements the scenario on the day, which clearly demonstrate that Mr Mashwan was agitated by the fact that there were no minutes of the previous meeting. This Mr Mashwan himself did not dispute, except that his defence is a blatant rejection in the face of evidence as the respondent discharged the onus of proof.
All the three witnesses of the respondent, Mr Meyer, Mr Bosch, Mr Booysen testified to the extent of threats and vulgar language made by the applicant on the day. I have noted no element of bias on their evidence. Their testimonies do not contradict each other. I have no reasons not to believe their testimonies.
During her testimony Ms Hedrin Lemont could not give clear and detailed series of events as compared to that of witnesses of the respondent. She was more of thinking for an answered on every question posed to her even at a chief examination, this raise doubts in her testimony in that although the incident has approximately two years, she was present during the disciplinary hearing which makes the facts of the matter to her not to be as old. Her evidence could not detail all the events as compared to that of the witnesses of the respondent. All the three (3) witnesses of respondent identified her as the person who grabbed the applicant from behind, she disputed that. Weighing her evidence alone and that of the witnesses, here evidence cannot be relied on. I find her testimony not probable under the circumstances.
It is common cause that the applicant was on a final written warning. The final written warning was still valid on 11 December 2023. This should have been the learning curve for the applicant, in that the final written warning refers to the applicant’s use of unacceptable remarks made against the Principal of the School.
The effects of this final written warning put the applicant in the final terms that the nature of misconduct should not have been repeated. From the evidence in front of me, it is proved that the applicant did not learn anything from the final written warning issued to him, and that his statement that he is an indoda (a man) that must be respected because he went to the initiation school proves that he is a risk of repeating the offence. Cultural superiority does not have a place in workplace. Taking into consideration that the employees of the respondent are diverse cultures the applicant’s demand for respect without him giving it put the respondent at risk of him repeating the offence. The applicant did not show any remorse for his conduct.
It is evident that Mr Hector was the teacher of the applicant during this high school years, and further to that he mentored the applicant when he was employed by the respondent as an Educator at the School. Even if he was called a kwedini, (young boy) his reaction was not in proportion to his alleged provocation.
Mr Michael Hector is of senior age that the applicant, and it was known by everyone at the school at the time of this meeting that was suffering from a severe heart condition, he has since died from that heart condition. Parties did not agree that his statement be taken into consideration since he was not to testify. I did not look consider the statement he wrote about the incident although it was before his death. The applicant saw himself in an advantageous position to Mr Hector, hence he uttered ‘’jy is maar moer toe’’ (you are already dying). These words are threating on their own, especially to an ailing person.
The word uttered by Mr Mashwan during the meeting were so gruesome; they have no place at the school. As and Educator, he should have been at best be aware of his conduct and the impact it may have on other educators and learners. I find the applicant has committed the misconduct. If learners are exposed in this behaviour, it places them at risk of creating a violent society in the future. I therefore find the sanction of dismissal is an appropriate sanction.
In determining the appropriate amount of compensation for the procedural defect, it must be noted that the dismissal is found only to procedurally unfair. The actual reason which led to the dismissal of the applicant is found to be fair, and even in the procedural aspect, the gravity of the procedural defect is not so gross to an extent that it may amount blatant denial for the applicant’s right to be heard. There were two attempts by the respondent to give the applicant an opportunity to present his case. Under the circumstance, I find the amount of amount R97 515,75 (R32,505.25 x 3) equivalent to three months compensation is a just and equitable amount of compensation.
I find the dismissal is substantively fair.

AWARD

I find the dismissal of the applicant, Jacques Mashwan by the respondent, Eastern Cape Department of Education is procedurally unfair but substantively fair.
The respondent, Eastern Cape Department of Education is ordered to pay the applicant, Jacques Mashwan an amount R97 515,75 (R32,505.25 x 3) equivalent to three months compensations by no later than on 28 February 2026.

Signature: