Panellist: Themba Manganyi
Case No.: ELRC484-25/26GP
Dates of Hearing: 05 September 2025 & 27 – 29 October 2025
Date of Arguments: 05 November 2025
Date of Award: 04 December 2025

In the Inquiry by Arbitrator Hearing between

HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

SIFISO DON MKHWANAZI EMPLOYEE

Details of hearing and representation

1. The arbitration proceedings in this matter were conducted in terms of section 188A of the Labour Relations Act 66 of 1995 (“the LRA”). The Employer is the Head of Department: Gauteng Department of Education (“GDE”) and the Employee is Mr Sifiso Don Mkhwanazi (“Mr Mkhwanazi”). The proceedings were held on 06 September 2025 via MS Teams and on 27, 28 and 29 November 2025 at the GDE Head Office in Marshalltown, Johannesburg, at Michael Mkhwanazi Primary School in Tsakane, Ekurhuleni and at Gauteng East District Office in Springs, respectively.
2. Mr Mvandaba Zathu (“Mr Zathu”), the Labour Relations Officer, represented the Employer and Mr Thabo Monyatsi (“Mr Monyatsi”), a SADTU Official, represented the Employee. Mesdames Eona Shibisi and Instance Nghonyama, the Intermediary and the Interpreter respectively, assisted with their services in these proceedings.
3. Parties relied only on one bundle of documents and oral evidence to lead their respective cases. At the end of the proceedings, parties requested to submit their heads of argument in writing on or before 05 November 2025 and they duly complied. The closing arguments were considered in the writing of this award. The proceedings were digitally recorded, and the recordings thereof were retained by the Council.
4. In this award, the name of the minor witness (the learner) will not be disclosed to protect her identity.

Preliminary issue/s

5. On 05 September 2025, the matter was adjourned shortly after the minor witness started to testify as it was evident that she was not comfortable with the assigned Intermediary (Ms Wentzel) due to language barriers.
6. The Employee made an application for an inspection in loco at the school. The Employer did not oppose this application. Therefore, the application was granted and the inspection in loco was conducted on 28 November 2025 at the school.

Issue/s to be determined

7. I am enjoined in these proceedings to determine whether Mr Mkhwanazi misconducted himself as alleged by the Employer. In the event that Employer succeeds in discharging in burden of proof, I will be required to determine the appropriate sanction.

Rights and the procedure

8. The rights of the Employee and the nature of the process were explained and Mr Mkhwanazi confirmed that he was afforded all the rights commensurate with a fair process and that he understood the process as explained.

Charges

9. The Employer preferred the following allegations against Mr Mkhwanazi:

Allegation 1:
In is alleged that on or around 14 and 17 April 2025, or anytime, as an educator at Michael Mkhwanazi Primary School, you sexually assaulted a Grade 5 female learner by touching her thighs and bums at the school, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.

You are thus charged in terms of section 17(1)(b) of the E of EA .

Allegation 2:
It is alleged that on or around 14 and 17 April 2025, or anytime, as an educator at Michael Mkhwanazi Primary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you threatened a Grade 5 female learner by telling her she must tell anyone that you sexually assaulted her and that if she does, she will see what you will do to her, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.

You are thus charged in terms of section 18(1)(q) of the E of EA.

Pleadings

10. The charges were read into the record and Mr Mkhwanazi pleaded not guilty to both allegations.

Survey of evidence and arguments

11. All the witnesses testified under oath and the Intermediary, and the Interpreter were also sworn in.

The Employer’s case

12. Learner AS testified that she was eleven (11) years old and that she was a Grade 5 learner at Michael Mkhwanazi Primary School. She stated that she got acquainted to Mr Mkhwanazi in 2024 when her younger sister was still in his class. Even after her younger sister left Mr Mkhwanazi’s class, she continued going to his class in the mornings, during breaks and after school to greet him and to bid him farewell. She testified that sometime in April 2025 on a Monday she went to his class and when she was about to leave, he blocked her and touched her uncomfortably. She told him that he must not do her things that are beyond her age, and she told him that she would report him. She did not visit his class on Tuesday and Wednesday. On Thursday, Ms Mthembu sent her to Mr Mkhwanazi’s class to sign some documents. When she was about to leave, he grabbed her hand and touched her bums and thighs. She ran out of the classroom, and the door scratched her arm. She wanted to report the incident to her class teacher (Ms Duma), but she has already left for home and Ms Mthembu has also left for home. She stated that on Friday, she came across Ms Somi when she was going to the office to report the incident, but Ms Somi told her to go home and to come back after the school’s recess. She did not tell Ms Somi her reason for wanting to go to the office.
13. During the school’s recess, she could not report the incident to her grandmother because she was distracted by her siblings’ visit. She reported the incident to her grandmother a day before the schools reopened. She went with her grandmother to school to report the incident when the schools reopened. They first reported to Ms Duma and then Ms Duma took them to the Principal’s office. She stated that these incidents did not only affect her school performance, but they also affected her health. She used to get sick at school.
14. Under cross-examination, she confirmed that Mr Mkhwanazi touched her twice and that on the first incident, she was with her friend, but her friend waited for her outside the classroom. She did not tell her friend about the incident because she thought her friend would tell other learners. She stated that she did not report the incident to her grandmother because Mr Mkhwanazi threatened her that she would see what he would do to her if she reported the incidents. She confirmed that she went to school on Tuesday, but she greeted Mr Mkhwanazi from a distance when she was coming out of the playing field after break. She stated that she fell sick on Tuesday and her grandmother had to fetch her. She went to school on Wednesday, but she did not tell her class teacher because of Mr Mkhwanazi’s threats. She stated that she did not tell Ms Mthembu that she must not send her to Mr Mkhwanazi’s classroom because she was still scared because of the threats. When it was put to her that Ms Mthembu did not send her to Mr Mkhwanazi’s class, she was adamant that Ms Mthembu sent her and that she would remind Ms Mthembu that she (Ms Mthembu) said that after Mr Mkhwanazi has signed the documents, she must give them to the teacher assistant. She disputed the version that there were no teacher assistants during the period of the alleged incidents.
15. Mr Sello Masiteng (“Mr Masiteng”) testified that he was the Principal at Michael Mkhwanazi Primary School. He stated that he wrote the report to the District Office to report the incident when it was reported to him on 07 May 2025. He stated that Learner AS told him that Mr Mkhwanazi sexually assaulted her on 14 and 17 April 2025. He testified that he was aware that Learner AS did not come to school one Monday because she was sick and that he was aware of another occasion when her grandmother came to fetch her from school because she was sick. He confirmed that Leaner AS showed her the bruise on her arm, but he could not say when she was bruised.
16. Under cross-examination, he reiterated that the incident was reported at the school on 07 May 2025 and stated that he noted everything on his report that was narrated to him. He submitted that Learner AS was not at school on 05 May 2025. He confirmed that Learner AS had psycho-social support from the departmental psychologist. He affirmed that there were no assistant teachers or training teachers during the period in question.
17. The grandmother testified that Learner AS stays with her and her mother fetches Learner AS over the weekends and during the schools’ holidays. She stated that Learner AS reported to her when she returned from her mother on a Sunday before the school’s reopened on Monday that Mr Mkhwanazi touched her where she was not supposed to be touched as a child. She testified that Learner AS told her that Mr Mkhwanazi touched her on Monday and again on Thursday before the schools went on recess. She stated that Learner AS told her that Mr Mkhwanazi grabbed her hand and touched her on her bums, thighs, breasts and private parts. On the second instance, when she was escaping from Mr Mkhwanazi, she injured her arm with the door. She testified that Learner AS was constantly sick after these incidents to an extent that she would be called to fetch her from school. She stated that even her academic performance has dropped.
18. Under cross-examination, she stated that Learner AS reported the incidents to her the day when she returned from her mother’s place. She went to report the incident at the school the following day when the schools reopened. She reiterated that Learner AS told her that Mr Mkwanazi touched her on her breasts and private parts. She submitted that Learner AS could have been scared to disclose everything in these proceedings that Learner AS disclosed to her. She could not recall when the schools reopened, but she remained adamant that she went to the school the following day after Learner AS reported the incident to her.

The Employee’s case

19. Mr Mkhwanazi testified that he has been at the school since 01 April 2015 and that he taught Grade 1 to 3 (Foundation Phase). He stated that Learner AS used to drop her younger sister in his class in the morning and she would also come with her friends to his classroom during breaks to greet him in passing, but she did not normally come to his class. He stated that Learner AS came to his classroom in the afternoon of 14 April 2025 with a group of her friends. He stated that allegation 1 was devoid of the truth. He testified that when Learner AS came to his classroom, she stood by the door, and he remained seated on his chair. He only raised his head to greet her. He stated that there was nothing that he did not Learner AS.
20. He testified that it was his birthday on 17 April 2025 and that his wife called him to take him out for lunch. He knocked off at 14h15 and he left the school immediately after signing off. He refuted that he was given any document to sign on that day. He testified that the allegations levelled against him were untrue. He stated that he did not touch Learner AS and that he did not threaten her.
21. Under cross-examination, he stated that he saw Learner AS only twice in 2025 and that it was at the beginning of the year and when she came to greet him on 14 April 2025. He submitted that on 14 April 2025, Learner AS did not enter his class. She stood at the door. He stated that he could not call Learner AS’s friends to testify as he did not know their names, but he remembered only their faces. He averred that he did not teach Learner AS and she is the only one who knew the reason for fabricating these allegations against him. He refuted that Learner AS came to his classroom on 17 April 2025.
22. Ms Nomthandazo Mthembu (“Ms Mthembu”) testified that she was an Educator at Michael Mkhwanazi Primary School since 2017 and that she taught Grade 5. She stated that she knew Learner AS and that she taught her IsiZulu and Social Sciences. She testified that on 17 April 2025 she was at work, and she knocked off at 15h00. She disputed that she sent Learner AS to Mr Mkhwanazi for Mr Mkhwanazi to sign any documents. She refuted that she had a student teacher or a teacher assistant during the time of the alleged incident. She submitted that she cannot send a learner to another Educator and then leave for home and that she cannot leave an assistant teacher in her classroom.
23. Under cross-examination, she stated that Learner AS was a quiet and intelligent learner who always did her school work. He reiterated that she did not know anything about allegation 2 preferred against Mr Mkhwanazi.

Analysis of evidence and argument

24. Section 138(7) of the LRA prescribes that a commissioner must issue an arbitration award with brief reasons. Therefore, I will not rehearse the witnesses’ testimony verbatim in this award. However, it must not be construed that I did not consider all the submissions. I will only restate the salient points that I find to be relevant in the determination of this matter.
25. It is trite that the test that is applicable in employment law is that of “on a balance of probabilities” and not “beyond reasonable doubt”. It is trite that in proceedings where minors are involved, the arbitrator should endeavor to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify and facilitate the ascertainment of truth so that the best interests of the child are upheld and to promote maximum accommodation of child witnesses without prejudice to the rights of the accused educator. As already indicated herein-above, Learner AS testified though an aid of an Intermediary and utilizing the language that she was comfortable with. I ensured that Learner AS did not come into contact with Mr Mkhwanazi during these proceedings. I can safely conclude that I took reasonable care to ensure that Learner AS was protected as a minor witness.
26. The Labour Appeal Court in Motsamai v Everite Building Products highlighted that sexual harassment is the most heinous conduct that plagues the workplace, and that as it goes to the root of one’s being it must therefore be viewed from the victim’s point of view, how the victim perceived it and whether or not that perception is reasonable.
27. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (‘the Code’) gives specific guidance on how to handle sexual harassment cases. Item 5.3.2 of the Code prescribes the test for establishing whether there has been sexual harassment and the factors that are taken into account are the following:
    5.3.2.1. whether the harassment is on the prohibited grounds of sex and / or gender and / or sexual orientation;
    5.3.2.2. whether the sexual conduct was unwanted or unacceptable;
    5.3.2.3. the nature and extent of the sexual conduct; and
    5.3.2.4. the impact of the sexual conduct on the employee.
28. It cannot be disputed that the allegations that Mr Mkhwanazi is accused of are sexual in nature and no eleven (11) year old would welcome such conduct. Learner AS testified that she was not comfortable with Mr Mkhwanazi’s conduct to an extent that she was even afraid to go to school. Therefore, the conduct was unwanted and unacceptable. It cannot be acceptable by any means for an educator to touch a learner in a manner that is inappropriate. It is common cause that Learner AS reported the alleged incident first to her grandmother. Then her grandmother, mother and her aunt accompanied her to the school to report the incidents to her class teacher (Ms Duma) then to the Principal.
29. The alleged incidents, as reported by Learner AS, took place on 14 and 17 April 2025, Monday and Thursday, respectively. It was Learner AS’s testimony that after the second incident, she was at school the following day and she wanted to report the incidents at the office, but she was turned back by Ms Somi (an Educator). Learner AS’s version that she was at school on 18 April 2025 cannot be true. She could not have attended school on 18 April 2025 as this was Good Friday. The other untrue version was the grandmother’s version that the incident was reported at the school on Monday when the schools reopened for the second term. Evidence was adduced that schools reopened on Monday, 05 May 2025. However, as per the Principal, the incident was reported on Wednesday, 07 May 2025. This is evident on the Principal’s report to the District Office as well as in his diary.
30. A further contradiction was that Ms Mthembu sent Learner AS just before the school went out to Mr Mkhwanazi on 17 April 2025 for Mr Mkhwanazi to sign some document. Learner AS testified that Ms Mthembu told her that she was leaving for home and that Learner AS must give the document to an assistant teacher (Ms Cindi) after Mr Mkhwanazi has signed. Learner AS stated that when she came back from Mr Mkhwanazi’s classroom, she found Ms Mthembu had already gone home. This version is not correct. Firstly, there were no assistant teachers during the time of the alleged incident at the school. Secondly, Ms Mthembu left the school for home some twenty (20) minutes after Mr Mkhwanazi had already left for home.
31. I am cognizant of the fact that the cognitive skills of a minor witness are not fully developed to give accurate evidence of the time lapses between the date of the alleged abuse and when the child first complained of it. Equally, it may be difficult for a child to give accurate evidence of how long ago the alleged abuse occurred.
32. It was not in dispute that Learner AS used to accompany her younger sister to Mr Mkhwanazi’s classroom in 2024 in the mornings and fetch her after school. It was Learner AS’s version that she continued to go and greet Mr Mkhwanazi even after her younger sister was no longer in Mr Mkhwanazi’s class. Mr Mkhwanazi recounted that she only saw Learner AS twice in 2025. That is, at the beginning of the year and on 14 April 2025. It is therefore safe to conclude that Mr Mkhwanazi interacted with Learner AS on 14 April 2025. Learner AS stated that she was in the company of her friend when she went to bid Mr Mkhwanazi farewell and that she left her friend outside Mr Mkhwanazi’s classroom. When she entered the classroom, Mr Mkhwanazi was seated at his desk, and she closed the door behind her. Why would she close the door behind her and leave her friend outside if her intention was only to bid Mr Mkhwanazi farewell? Allegedly, there was a tussle between her and Mr Mkhwanazi inside the classroom. Expectedly, she would have been shaken when she came out of the classroom. Thus, her friend would have observed her changed behaviour. This friend was not called to testify in these proceedings to the detriment of the Employer’s case.
33. She did not tell her friend who was standing outside after she freed herself from Mr Mkhwanazi about the alleged incident, because she was afraid that her friend would tell other people and her reason for not telling her friend was that Mr Mkhwanazi threatened her. This is the same reason for not telling Ms Mthembu about the alleged first incident when Ms Mthembu sent her to Mr Mkhwanazi. I am mindful of the fact that sexual assault victims react differently to the trauma and at times some might even take decades to report such incidents. However, in this case, Learner AS allegedly wanted to report this alleged incident to her class teacher (Ms Duma) and to the office immediately after the alleged second incident. Why was she then no longer afraid of Mr Mkhwanazi’s threats? In my view, Mr Mkhwanazi did not threaten her because he had no reason to do that as he did not commit the alleged misconduct.
34. In terms of Learner AS’s version, Mr Mkhwanazi touched her thighs and bums on both occasions. This version is corroborated by the Principal in his oral evidence and also in his report. However, the grandmother’s version differs materially with the testimony of the two witnesses. According to the grandmother, Mr Mkhwanazi touched her breasts, thighs, bums and private part (vagina). I must mention that the grandmother was very evasive under cross-examination and when pressured, she stormed out of the witness box. In my view, the grandmother had already concluded that Learner AS was telling the absolute truth, and she wanted a guilty verdict by all means necessary.
35. At the end, I find that the Employer did not succeed to discharge its burden of proof.

Award

In the premise, I make the following award:

36. I find the Employee, Mr Sifiso Don Mkhwanazi, not guilty of the allegations levelled against him.
37. The Employer, the Head of Department: Gauteng Department of Education, is ordered to restore the Employee’s employment conditions that existed prior to these allegations.

Arbitrator: Themba Manganyi