30 January 2026 -ELRC539-25/26WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT GREYTOWN
CASE NO.: ELRC 593-24/25KZN
IN THE MATTER BETWEEN: –
KWAZULU-NATAL DEPARTMENT OF EDUCATION APPLICANT

AND

BUTHELEZI V S RESPONDENT

INQUIRY BY ARBITRATOR

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 19 JANUARY 2026

Applicant’s representative : MS N.S.Z NXUMALO
Telephone :
Fax :
Email :

Respondent’s representative : MR S.O MVELASE
Telephone :
Fax :
Email :

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for an Inquiry by Arbitrator which was referred to the Education Labour Relations Council (ELRC) in terms of the provisions of section 188A of the Labour Relations Act No. 66 of 1995, as amended, read together with the provisions of Collective Agreement 3 of 2018; and held at the offices of the KwaZulu-Natal Department of Education, 162 Voortrekker Street, Greytown. These proceedings were digitally recorded.
[2] Ms N.S.Z Nxumalo, a Labour Relations Officer, represented the applicant (employer) and Mr S.O. Mvelase from SADTU represented Mr V.S. Buthelezi, the respondent (employee). The ELRC provided the services of an intermediary and interpreter who assisted with their respective services during the hearing.
[3] This matter was set down for hearing on 14 February 2025 and 8 April 2025 but had to be postponed due to the applicant and the applicant’s representative being ill respectively. The hearing proceeded on 24 April 2025, 25 and 28 July 2025, 22 August 2025 and 10 October 2025. The matter was concluded on 23 October 2025 when the parties submitted their written mitigating and aggravating circumstances as well as their closing arguments which was duly taken into consideration.
[4] In keeping with the ELRC Policy, the names of the minor witnesses (learners) will not be disclosed to protect their identity.
[5] The employer handed in two bundles of documents which were marked as bundle “A” and “B” and utilized as common bundles.
[6] The nature of the process and all rights was explained to the parties.
[7] The commissioner before the inception of the matter and during the hearing explained to the parties about challenging the evidence and putting their versions to the witnesses whilst they were on the stand.
ISSUES TO BE DECIDED
[8] I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND TO THE DISPUTE
[9] Mr Buthelezi is employed as an educator at Buhlebuyeza Secondary School.
[10] A learner made allegations against Mr Buthelezi and the employer subsequently charged him with misconduct.
CHARGE
The employer preferred the following charge against Mr Buthelezi: –
[11] You are hereby given notice to attend a disciplinary hearing in terms of Schedule 2, clauses 5 and 7 of the Disciplinary Code of the Employment of Educators Act 76 of 1988, as amended. The alleged misconduct is as follows:
CHARGE 1
It is alleged that on 21st March 2024, at or near Buhlebuyeza Secondary School, you committed an act of sexual misconduct on a female learner, in that you inserted your fingers in her vagina. You thereby contravened Section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended.
PLEADINGS
[12] Mr Buthelezi pleaded not guilty to the charge.
SUMMARY OF EVIDENCE AND ARGUMENTS
What follows hereunder is the summary of the evidence of the witnesses’ testimony and does not purport to be a verbatim account of all the witnesses’ testimony.
THE EMPLOYER’S CASE
The employer called four witnesses to testify on their behalf.
LEARNER A
[13] Mr Buthelezi had taught her Mathematics Literacy in Grade 11 at Buhlebuyeza Secondary School.
[14] Mr Buthelezi via Facebook asked her for her cell number as he no longer had their WhatsApp Grade 11 group.
[15] Mr. Buthelezi had sent Thabiso, a male learner, to call her to come to his technical science class. When she arrived there, he requested that she wash his two gym bags, a big black bag and a small blue bag. She agreed and he gave her the bags. Thereafter, he requested the security guard to open the gate for her and she went and left the bags in her room and then she returned to school.
[16] After a few days, when Mr Buthelezi saw her in school, he asked her to return his bags and when he asked her how much it was going to be, she replied that it was R120,00. He then asked the security guard to open the gate for her so that she could fetch his bags. When she gave him the bags, he gave her R110,00 and told her that she would get the remaining R10 some other time.
[17] One evening, Mr Buthelezi texted her on WhatsApp using the number that he had requested from her on Facebook. He asked to see her at 19h00 outside the school at the bus stop shelter. At 19h00, he sent her a text informing her that he had arrived and he asked her to come there. She went to the bus shelter, he greeted her and asked her to give him a hug and she gave him a hug. He then asked her to sit down on the bench. He asked her whether she knew that when she was in Grade 10 and Grade 11 that he loved her and she replied ‘no’. She did not take him seriously. He then told her that he had finished telling her what he had come to tell her and she left and went back to her room.
[18] Their school was closed on 21 March 2024 but they were attending matric classes at the school.
[19] On 21 March 2024, Mr Buthelezi sent her a WhatsApp message, greeting her and he started the conversation by saying, ‘how are you Nosipho?’; she replied that she was not Nosipho. He then enquired about her full name, whereafter she responded and thereafter she exited WhatsApp and switched off her phone.
[20] She then heard the sound of a motorbike at the gate, near where she stays. He shouted for her and she went out; he told her that he was coming back, she told him; ‘okay’, and she went back to her room and slept.
[21] She woke up at 20h00 and saw his WhatsApp messages, saying that the time that he had wanted to see her had passed. She responded that he had never said that he had wanted to see her. He replied that he wanted to see her and he would tell her when he had arrived at the place where he had met her the last time.
[22] He then sent her a WhatsApp saying; ‘I’m here’ but told her that she must wait and not come out for now as he saw that Ms Khumalo was washing her car. She saw Ms Khumalo washing her car but she did not see Mr Buthelezi at that time.
[23] He then told her to come out as Ms Khumalo was now in her room. She then went out to him. It had been raining but the rain had stopped. She had been wearing a black sleeping tights and a white vest.
[24] He requested her to hug him and she did. He then wiped the bench as it was wet and he sat down. He told her to sit on his thighs and she sat on him. Thereafter, he held both her hands together with his one hand and put his other hand on top of her thighs and inserted his fingers in her private part.
[25] She asked him to release her but he did not. Thereafter, he told her that he had ejaculated and he then released her. The back of her tights was wet. She then left and went and reported what had happened to Ms Khumalo who thereafter called and reported this incident to the principal.
[26] In the morning of the following day, she and Ms Khumalo went to the hospital. The police came to the hospital and they opened the case at the hospital. The detectives told her to text Mr Buthelezi so that they would become aware of his whereabouts in order for them to arrest him.
[27] Ms Khumalo told her to take a screenshot of her conversation with Mr Buthelezi which was in B8 and send it to her and the police as evidence.
[28] The other messages between her and Mr Buthelezi were on her phone which was taken by the police. The police told her that they could not release her phone and she could only have access to her phone after the court case was finalized.
[29] After this incident, she no longer felt the same as she did prior to the incident. She changed schools in term 2, tried to cope but could not and as a result she failed Grade 12.
[30] Before this incident she had trusted Mr Buthelezi as he was just a teacher like all the other teachers at school. After this incident, she sees him as a person who cannot be trusted with children at the school.
[31] Mr Buthelezi’s communications with her on 21 March 2024 after the incident related to him apologising to her for what he did to her when he had inserted his fingers in her private part.
[32] Mr Buthelezi’s WhatsApp message to her at 20h05 in B1 was informing her that he had arrived outside the gate.
[33] From B1 to B3, Mr Buthelezi sent her a message at 21h43 and the following messages after she had sent a voice note to him, telling him that she did not like what he did to her. Mr Buthelezi had said; “M sorry it will never happen again; I was overpowered by feelings….. I’m sorry. Sorry we just slept, without us having spoken. I am sorry, I want to make sure it never happens again. How maDlamini I’m begging you to calm down, calm down, calm down…. My soul is so painful, my soul is so painful.” She never responded to these messages.
[34] Referring to her communication with Mr Nice in B3, she stated that Mr Nice was Mr Buthelezi and he was called Mr Nice by the teachers and learners. In B8, Mr Buthelezi’s number 084 420 3499 was appearing under the profile message.
[35] In B3, the message at 04h36 was sent to her the day after the incident which reads; “Hello maDlamini it’s been some time waiting. I think about my yesterday’s behaviour, the way it ended or it annoyed you. I’m still saying even now that I’m sorry.” She did not respond to this message.
[36] In the WhatsApp message in B4, Mr Buthelezi stated; “I had high hopes about our story.” She did not respond to him and she did not understand what he meant. He further stated: “Sister, I’ve been waiting for long.” Mr Buthelezi thanked her for deleting the messages.
Under cross-examination she stated that;
[37] She had already given her number to Mr Buthelezi on Facebook prior to him sending Thabiso to call her.
[38] When it was put to her that Mr Buthelezi denies sending a boy to call her, she stated that he will be denying the truth as he knows that he had sent Thabiso.
[39] Learners were not allowed to go out of the gate during school hours. Mr Buthelezi made a request to the security guard who then allowed her to go out and leave the bags in her room and come back to write her history paper.
[40] She could not remember the date the first time Mr Buthelezi had texted her to come to the bus shelter at around 19h00. She felt it strange but because she knew him as a teacher from the school and she trusted him, she gave him a hug.
[41] When Mr Buthelezi told her that he had loved her from Grade 10, she did not feel it strange as she did not take him seriously and he was a funny person in school.
[42] Mr Buthelezi told her that she must wait for Ms Khumalo to finish what she was doing and go to her room and then she can come out; and not that Ms Khumalo was not supposed to see her. She did not find this strange as she did not think that Ms Khumalo was not supposed to see her.
[43] Prior to this incident, she did not think that it was dangerous when Mr Buthelezi had called her out that night but after the incident, she realised it was dangerous. She had trusted Mr Buthelezi and never thought that he could do something to hurt her because he is a parent.
[44] She knows what it means when a male tells a female he loves her. She did not see it as strange because the teacher is a parent to her and the teachers are the ones that they spend more time with at school.
[45] Ms Khumalo was teaching her IsiZulu in Grade 12 and she was staying at her place.
[46] She did not feel it strange when Mr Buthelezi told her to sit on top of him but felt it strange when he inserted his fingers in her and did not want to release her. She did not shout for help because it was scary, it was at night and perhaps he would kill her.
[47] When he released her, she did not run but she rushed back to her room. She thought that if she ran, he would come after and catch her.
[48] The distance from her room to the bus shelter and her room to the school gate was the same.
[49] She could not recall what Mr Buthelezi was wearing at that time but he was wearing a trouser.
[50] Her screenshot of the WhatsApp conversation between her and Mr Buthelezi was in A8 which she had sent to Ms Khumalo together with her statement. At the time Ms Khumalo had asked her to write her statement, she had dropped out of school.
[51] When the police arrived at the hospital and opened the case, they told her to block Mr Buthelezi and they subsequently told her to unblock him as they wanted to establish his whereabouts.
[52] She had saved Mr Buthelezi’s name under his number as ‘Mr Nice’ which was what he was called at school by the teachers and learners.
[53] Before the incident had taken place, disappearing messages had been turned on. She did not know when the setting of disappearing messages had been turned on as her phone was new and she only had it in her possession for one month.
[54] When it was put to her that all the messages in B8 under ‘Mr Nice’ were not Mr Buthelezi’s messages, she averred that the number that appears there is Mr Buthelezi’s number.
[55] She was referred to the WhatsApp messages in B6; at 7.15pm “why you say so”; at 7.17 “I was feeling cold when I came back”; at 7.17 “but you okay”; at 7.23pm “was glad to see you here” and was asked if she cared about Mr Buthelezi, she stated that because she knew him she cared about him; everyone that she knew she cared about.
NTOMBIFUTHI MAVIS BHENGU
[56] She is the mother of Learner A.
[57] When they arrived at the hospital, Ms Khumalo informed her that her daughter was raped the previous night by Mr Buthelezi.
[58] Her daughter informed her that Mr Buthelezi had told her to sit on top of him and while sitting on top of him, he started making movements and when her daughter was trying to free herself from him, he grabbed her, putting his hands around her waist so she was unable to free herself and stand up and when he had finished, he told her; ‘I have ejaculated’. Her daughter told her that Mr Buthelezi had ejaculated on her tights, and had she not been wearing her tights; he was going to enter her.
[59] The principal repeatedly told her and her husband that Mr Buthelezi had called him and was crying and saying that he was seeking forgiveness about his behaviour, what he had done to her daughter and that he wanted to come and apologize to Learner A’s parents.
[60] At that meeting, the principal, Ms Khumalo, Mr Mkhize and some other teachers from school whom she did not know were present. The principal showed them a gentleman and an elderly couple from Mr Buthelezi’s side and they were informed that Mr Buthelezi grew up with the elderly couple. From her side, it was her, her husband and Learner A’s grandmother.
[61] The principal commenced the meeting and said that they were there as requested by Mr Buthelezi as he was asking for forgiveness for what he did to Leaner A, he was pleading guilty, he was so sorry and could even give a cow. After the principal had spoken, the gentleman from Mr Buthelezi’s side said that Mr Buthelezi was asking forgiveness and they could pay or give whatever.
[62] When there was no resolution reached at this meeting, the gentleman from Mr Buthelezi’s side then said that he does not know why he was called there but he will hear from the Learner’s parents which angered her husband so much that he stood up and told that gentleman that he had called them but was asking to hear from them which means he was being rude to him and then her husband left the room.
Under cross-examination she testified that:
[63] When she left her daughter at Ms Khumalo’s place, Learner A told her that she knows their family rules and how to behave herself. She left her daughter in Ms Khumalo’s hands because she lives far away and Ms Khumalo is like a parent to her daughter.
[64] According to her understanding, rape was when you touch a woman in her private part, when you put your penis in her private part and there was no difference between sexual harassment and rape because you had ejaculated.
[65] When her daughter became better, she explained to her what had happened.
[66] Learner A explained to her that at home they say that a child respects a teacher hence she went out that night because Mr Buthelezi had called her when he had passed there and he had told her that he will see her when he comes back. Learner A went out as she wanted to know why he was calling her.
[67] Learner A told her that it had rained and the bench was wet so Mr Buthelezi told her that she must not sit on the bench, she must sit on his thighs.
[68] When the doctor examined Learner A, he found sperms on the tights.
[69] The principal told them that he had been sent by Mr Buthelezi to apologize and they were expecting to see Mr Buthelezi at the meeting and hear why and for what he was apologizing.
SIBONGELENI BEATRICE KHUMALO
[70] Leaner A was her tenant. One day in March 2024, after 21h00, Learner A came to her room wrapped in a towel. She was looking sick and was shaking as she explained what Mr Buthelezi had done to her.
[71] Learner A told her that Mr Buthelezi had called her around 19h00 and she went to him as he often calls her when he wants her to assist him with washing.
[72] Learner A told her that Mr Buthelezi called her to the bus stop and he told her that they must sit on the bench and thereafter he started touching her private part. Learner A said that he had ‘fingered her’. When she asked Learner A why she did not run or shout, she told her that Mr Buthelezi was holding her, she was scared because it was the two of them at that place, it was dark and she was afraid of Mr Buthelezi. She said that she was sitting on top of him and he released her after he had ejaculated and her underwear became wet.
[73] She gave Learner A her phone to call her parents but she refused; she said her father was going to beat her because she went out to the teacher.
[74] She called the principal to ask for advice and told him that there was a problem. She gave the phone to Learner A to explain to the principal what had happened and Learner A told him exactly what she had told her.
[75] The principal told her that he was in Pietermaritzburg and he could not tell her what to do because she was with the child and he did not know what the situation was.
[76] She did not take Learner A to the hospital that night but she gave her painkillers and food but she did not eat. They then went to lock Learner A’s room. Learner A slept in her room because she wanted to monitor the situation and perhaps call the ambulance if her situation worsened.
[77] The next morning, they went to the hospital. She called the principal and Learner A’s parents, informed them what had happened and that she was taking Learner A to the hospital. While they were at the hospital, the principal and Learner A’s parents came.
[78] On that day of the incident, there had been light rain and it was cold. She always washes her car and it may have happened on that day she also washed it.
[79] Mr Buthelezi was known at school as ‘Mr Nice’.
[80] She was not invited to the meeting at school regarding the issue of Mr Buthelezi but she was requested by Learner A’s family to attend that meeting.
[81] An elderly couple and a male who was said to be the brother of Mr Buthelezi, were representing the Buthelezi family.
[82] The principal chaired the meeting and said that the purpose of that meeting was not to conduct a case but to seek or ask for forgiveness from Learner A’s family. No one wanted to go into details as to what had actually happened; they were just apologizing on behalf of Buthelezi.
[83] The meeting ended badly because Learner A’s father cried and went out.
[84] The people were only talking about the good side of Mr Buthelezi and were emphasizing he did nothing and that learners will be protected when they come back to school. She told them that they were listening to only one side of the story and she then told them the whole story.
Under cross-examination she testified that:
[85] She has been an educator for 20 years. She had known Mr Buthelezi for more than 5 years.
[86] It was put to her that Learner A testified about one incident pertaining to her washing for Mr Buthelezi, she stated that Learner A told her that she used to go to Buthelezi’s place to do washing for him and she never questioned her on how often.
[87] When referred to her statement and told that she had not testified that Learner A told her that Mr Buthelezi asked for a hug, she averred that it has been a long time.
[88] Learner A told her that she had taken off her tights because it was wet. When she and Learner A went to lock her room, she advised her to put her clothes in a plastic bag. In the morning, Learner A took it to the hospital. She did not see whether the tights were wet.
[89] It was put to her that the principal never mentioned in his statement that he had spoken to Learner A, she stated that she called the principal and then she gave the phone to Learner A to speak for herself as to what had happened.
[90] She could not recall if she was washing her car on the day of the incident.
[91] The principal heard about the incident from her thus she was surprised that she was not invited to that meeting concerning Mr Buthelezi.
[92] When it was put to her that this whole incident was concocted by her because had she had nothing personal to do with it, she would have let the meetings to go on and not want to be in all the meetings which spoke about this issue, she contended that if Mr Buthelezi was saying that she had concocted this matter, then he must give her the reasons why she would do that.
[93] She had advised Learner A to take screenshots of her conversations with Mr Buthelezi to ensure that they keep the evidence because the case at that time had not been opened. The screenshots were needed and the principal told her to send it to him.
[94] When Learner A came to her after the incident, she took her phone and kept it because more messages were coming in and she told Learner A not to respond or answer the phone.
[95] She scrolled the phone to see whether there was any relationship between Learner A and Mr Buthelezi and to establish where this thing originated. At the time, she was doing the work of a parent to a child. She then gave the phone back to Learner A.
[96] She could not recall whether the screenshots were taken at that time or if Learner A had given her the phone later again. She could not remember who took the screenshots but it was like Learner A had sent the messages to her.
[97] It was put to her that Leaner A’s mother testified that there was no resolution and did not mention an acceptance of an apology. She stated that Learner A’s aunt was speaking on behalf of them and she said that they were welcoming peace, although there was a time when Learner A’s father had left the meeting. The Buthelezi family said that they can do whatever in order for this to end and they can even pay which was when Learner A’s father said that they welcome peace but they will not withdraw the case. According to her understanding there was no other meeting so it means that the matter ended and they accepted an apology.
[98] She knew Mr Buthelezi well because she worked with him; she had no problems with him and she was on good terms with him. According to her, being close to a person is to know all their secrets.
[99] She disputed that she did not verify this incident with Mr Buthelezi was because she had concocted this incident. The reason she did not ask him was because she had listened to Learner A’s story. Then she asked Learner A for her phone and found a message that was apologising and other messages kept on coming in thus she was angry which is why she called the principal because she thought that he was a neutral person.
[100] She disputed that she had tried to hook Mr Buthelezi up with her daughter and when he showed no interest, she cooked up this incident. Her daughter had a husband and a child and was not even staying here; and it has been years since her daughter stayed with her.
Under re-examination she testified that:
[101] When she scrolled Learner A’s phone, she saw that Mr Buthelezi had been sending messages to Learner A because she also had his number. She did not have anything against Mr Buthelezi.
[102] She disputed that she concocted this incident or hooked up Mr Buthelezi with her daughter. Her daughter was staying with her until she completed her schooling in 2015, and in 2016, she left to stay in Durban when she started university.
XOLANI INNOCENT NYOKA (“The Principal”)
[103] He is the Principal of Buhlebuyeza School.
[104] Ms Khumalo had called him just after 10pm on 21 March 2024. She told him that Learner A who was staying with her was sexually abused by Mr Buthelezi and that Learner A was crying. He told Ms Khumalo that he was not in Greytown but in Pietermaritzburg and that they would meet the following day at school.
[105] When he went to the school, he called her and she told him that she was with Learner A at the Crisis Centre in Greytown hospital.
[106] When he arrived at the hospital, Learner A was with the social workers. He could not speak to Learner A because she was so devastated. The social workers told him that they already called the police who were on their way to the hospital.
[107] He then called Mr Buthelezi and told him about the allegations. Mr Buthelezi informed him that he was in a taxi, on his way to Pietermaritzburg and would only come back in the afternoon. Thereafter, he called Mr Jila, the Circuit Manager who explained to him the procedure of what he was expected to do.
[108] Learner A’s father was very devastated and told him that he had trusted the school and he never thought that he would find his child in such a situation.
[109] He wrote the sexual offence report on 27 March 2024. Ms Khumalo sent him Learner A’s report and the screenshot of the WhatsApp message which indicated that they would meet at 20h05 on the very same night.
[110] He knew that Mr Buthelezi and Mr Mkhize, who is a teacher at his school, were good friends. At that time, Mr Mkhize was a member of the SADTU site committee. Mr Mkhize told him that Mr Buthelezi’s family wanted to meet and apologise to Learner A’s family and asked him to arrange a meeting.
[111] He invited Learner A’s family to the meeting as they had always asked him about what kind of teacher Mr Buthelezi was thus, he thought it was a good time for them to meet the Buthelezi family and say whatever they wanted to say.
[112] He did not interview Mr Buthelezi because he heard that on the very same day Mr Buthelezi had been detained by the police.
[113] There was one person from the Buthelezi family who said that he was a brother to Mr Buthelezi. Mr Buthelezi was not present in that meeting and he did not ask Mr Buthelezi’s brother about Mr Buthelezi’s whereabouts.
[114] He chaired the meeting and told everyone that they would not be discussing the case because the case was already with the department and the police but they were there because the Buthelezi family wanted to come and render their apology.
[115] He gave Mr Buthelezi’s brother a chance to speak and he said that they were very much sorry about what had happened to the child, they had not expected that from Mr Buthelezi and he apologised to everybody but said they believed that Mr Buthelezi was a good person. Learner A’s father kept on saying that a good person would not do that and he was very angry. The Buthelezi family apologized and said that they can do anything for the family to forgive them. The elderly lady appealed for forgiveness from Learner A’s family but when questions arose from Learner A’s family, Ms Khumalo tried to come in but she spoke about the case and Learner A’s father cried and went out.
[116] He told them that they were not there to discuss the case and could not continue thus he ended the meeting on that note. There was no resolution at that meeting which just stopped when Learner A’s father went out.
[117] In his school, male educators were not allowed to visit female learners at night and were not allowed to ask learners to do chores for them. Educators could chat with the learners on WhatsApp or phone the learners pertaining only to academic matters.
[118] Mr Buthelezi was known as ‘Mr Nice’. He saw the screenshot on B2 which he had referred to in his statement.
[119] Learners were allowed to go out of the school during teaching time depending on the request and provided that they had a signed permission letter. It does happen that sometimes a teacher would ask the security guard to allow a learner to go out without him knowing.
[120] On 3 April 2024, when school opened, Mr Buthelezi sent him a letter of resignation. The Department thereafter sent a letter to Mr Buthelezi whereafter he rescinded his resignation and he was then put on suspension.
Under cross-examination he testified that:
[121] Mr Buthelezi came to his school in March 2015 on a temporary position and in 2016, he became permanent educator.
[122] When it was put to him that Ms Khumalo had testified that on the night of the incident, she gave Learner A the phone to speak to him, he averred that he only spoke to Ms Khumalo and he did not think that he would have spoken to Learner A because of the condition that she was in at that time.
[123] After the incident, Learner A came back to school but when he looked for her, he found that she had left hence he was not able to interview her.
[124] He did not interview Mr Buthelezi after the incident because he was in custody. Mr Buthelezi sent him his resignation letter via WhatsApp informing that he was resigning with immediate effect on 3 April 2024. He spoke to Mr Buthelezi after the Department responded to Mr Buthelezi about his resignation letter.
[125] He convened the meeting at the school after receiving a request from the Buthelezi family through Mr Mkhize. He did not check with Mr Buthelezi because he knew of the relationship between Mr Buthelezi and Mr Mkhize. The Buthelezi family apologised but Learner A’s family did not accept the apology.
[126] When it was put to him that Mr Buthelezi did not send anybody to negotiate on his behalf, he argued that he heard from Mr Mkhize that the Buthelezi family wanted to meet and further averred that whenever Mr Buthelezi would come to discuss the Department’s letter, he would come with Mr Mkhize.
[127] Mr Jali mentioned that he must obtain a report from Ms Khumalo and Learner A hence he requested it from Ms Khumalo. In his report, he spoke about the WhatsApp conversation which was part of Ms Khumalo’s and Learner A’s report. He checked that WhatsApp message and saw a name, ‘Nice’ which is what they normally call Mr Buthelezi.
THE APPLICANT’S CASE
VELAPHI SANELE BUTHELEZI
[128] He had been teaching at Buhlebuyeza Secondary School from 4 March 2015.
[129] He knew Learner A as he had taught her Mathematical Literacy Grade 11 in 2024.
[130] On 22 March 2024, while on his way to Pietermaritzburg, Mr Nyoka called and told him that he was at the Greytown Hospital and that the doctor had confirmed that Learner A had been touched. He responded that he had no power to oppose what the doctor was saying but he was coming back and was going to listen to the matter.
[131] He referred to the charge and stated that he understood the charge but did not know about it. On 21 March 2024, at around 20h00 to 21h00, he was in the room.
[132] He had never asked Learner A to wash his bags; she was the one who actually asked to wash his bags. He confirmed that she did wash the bags for him and he gave her R100.
[133] Some learners would offer to clean his workshop, then he would give them money. On that day, Learner A offered to wash his bags for him and he could not refuse because he knew her, she was a good learner and was actually quiet; and because she was staying close to the school, it was going to be easy for him to get the bags when he needed them.
[134] He was not going to ask her for her number on Facebook because there was a WhatsApp group for Mathematical Literacy.
[135] He denied sending Learner A any WhatsApp messages and denied seeing her on 21 March 2024.
[136] He used to hear people calling him ‘Nice’ as a nickname and not ‘Mr Nice’.
[137] He confirmed that it was his cell number appearing on one of the WhatsApp messages with the name ‘Mr Nice’ but further stated that the name and text; “my richness is positive levity”, was not his. He argued that one could save the number, write a name and take a screenshot with another phone.
[138] He had a close relationship with Ms Khumalo as he used to visit her and she sometimes would lend him her car and sometimes she would send him to take her niece, Thando to the University of KwaZulu Natal, where she was studying at that time.
[139] The relationship between him and Ms Khumalo was no longer good because she wanted him to marry her niece because when Thando returned from school, Ms. Khumalo would bring him cakes and tell him that Thando baked it for him. They would cook and invite him for dinner but unfortunately, he was in another relationship at that time. Then his relationship with Ms Khumalo changed when he went to pay lobola to his fiancée’s family. Thereafter, sometimes when he greeted her at work, she would not greet him back. He never asked Ms Khumalo why she had changed but she would tell the reason to other people and they would come and tell him what she had said.
[140] Ms Khumalo never asked him anything about the incident.
[141] He disputed that he had asked Mr Mkhize to ask the principal to convene that meeting. Mr Mkhize and he were in the same department, they attended workshops and moderations together; his relationship with him ends there.
[142] After he received a letter from the Department, he then decided to rescind his resignation. He had resigned because he wanted to focus on his photography business.
[143] After he came out of prison, on 2 April 2024, he sent an email to the principal in respect of his resignation who informed him that he would forward it to the District or Circuit Manager.
[144] After he came out of prison, he was advised that he would require a lot of money because of the criminal charge hence he was looking to resign to be able to get money so as to face the criminal charge and then focus on his photography.
[145] When the principal gave him the letter from the Department pertaining to his intention to resign, he was Mr Mkhize because the principal had phoned Mr Mkhize and Mr Mkhize checked his whereabouts and helped him to get to Greytown High but when they were discussing this letter, it was just him and the principal as Mr Mkhize was in his car.
Under cross-examination he stated that:
[146] On 22 March 2024, while he was on his way to Pietermaritzburg, the principal called and told him that he was calling him in relation to Learner A’s matter. He did not ask him about the matter because he knew that he was going back and the taxi was playing loud music. What surprised him was that he taught Grade 12 that morning and Mr Nyoka was at the school but he had never asked him anything thus he wondered why he was calling him at that time.
[147] When the principal told him that the doctor confirmed that Learner A had been touched, he did not ask the principal to explain what he was talking about because he was already on his way back. He told the principal that he could not disagree with the doctor but would listen properly to the matter when he returned.
[148] He denied that he did not ask the principal about the matter because he knew what the principal was talking about.
[149] When questioned why he did not put his version to Learner A while she was on the stand that he had not asked her to wash his bags, he stated that he was not given a chance to speak at that time.
[150] When asked why he had not disputed Learner A’s version that they had an agreement about the amount that he would pay her but when she came back with the bags, he gave her R100 and told her he would give her the R10 later. He stated that he did not dispute that because he was waiting for a chance to say what happened and what he knew.
[151] It was put to him that as per the WhatsApp messages, he was chatting with Learner A because the name, Mr Nice was there and he had testified that Nice was his nickname, he stated that anyone can save whatever number with whatever name and if he wanted her number, he would have taken it from the 2023 WhatsApp group.
[152] He confirmed that the number that is appearing on WhatsApp was his but he was called ‘Nice’ and not ‘Mr Nice’.
[153] It was put to him that Ms Khumalo, the principal and Learner A testified that he was called Mr Nice which was not disputed, he averred that he heard the principal say Nice and not Mr Nice which is why he did not dispute that and he did not recall Ms Khumalo or Learner A refer to him as Mr Nice.
[154] It was put to him that on 21 March 2024 between 20h00 and 22h00, he was not in his room but with Learner A and he inserted his fingers into her vagina and only released her when he had ejaculated, he stated that there is nothing that he can say as he was in his room and he did not know about the allegations.
[155] According to his thinking, Learner A was sent by Ms Khumalo to say all these things that she said because he and Ms Khumalo were not on good terms during those dates. It also surprised him that Learner wanted to wash his bags at that time when he was not on good terms with Ms Khumalo; which is why Ms Khumalo as a colleague did not call and ask him about these allegations.
[156] Upon being questioned that if he knew that he was not on good terms with Ms Khumalo, why did he allow Learner A to wash his bags, he then averred that it was his assumption that Learner A had been sent by Ms Khumalo because he had had a misunderstanding with Ms Khumalo. Ms Khumalo had approached and told him to go to the hospital and discharge Thando who had just given birth at that time. Ms Khumalo got angry when he told her that he was not the father hence how could he just go and discharge someone whom he had never slept with. After a few days, Learner A started to come closer to him and at that time, he did not know what really was coming and only realized now that Thando was also part of this.
[157] The principal told him that Thando was making sure that this matter goes forward thus he speculated that Learner A was sent by her because he knew Learner A is a very bright child and quiet but she would not have the courage to actually approach him without someone having sent her. Thando was Ms Khumalo’s niece with whom Ms Khumalo had arranged for him to be in a relationship with back in 2016/2017.
[158] It was put to him that he never put his version to Ms Khumalo while she was on the stand that she was not in good terms with him because he had rejected her daughter and not her niece, he averred that Thando was Ms Khumalo’s sister’s child but was raised by her.
[159] He was detained on 22 March 2024. He did not know how Mr Mkhize became aware of his matter and disputed that they were close friends or that he had told him about the incident.
[160] It was put to him that the principal had testified that he and Mr Mkhize were close friends which was not disputed, he stated that the principal most of the time saw him and Mr Mkhize together at work thus he could not say he was lying because from his perspective he assumed that they were friends however he and Mr Mkhize were not friends but just friendly towards each other.
[161] It was put to him that he resigned because he was running away from the allegations and he withdrew his resignation because the Department’s letter was informing him that once he resigned, his resignation will be a deemed dismissed then he realised that he would be out of the system without trying to defend himself hence he decided to rescind it. He stated that he withdrew his resignation because he had no problem with the processes and he was not aware that the Department was aware that he had been arrested.
[162] When it was put to him that his family had asked to meet Learner A’s family on his behalf because he had asked them to apologise for him, he stated that he did not know that and there was nothing he could say.
[163] It was put to him that Learner A’s version was that he had asked the security guard to allow her to go out and leave the bags and to fetch his bags which was not disputed. He stated that he was waiting for his turn to actually share as to what really happened.
ANALYSIS OF EVIDENCE AND ARGUMENT
[164] Where there is an allegation of misconduct, the employer bears the onus to prove the allegations against the employee on a balance of probabilities.
[165] Section 17(1)(b) of the Employment of Educators Act 76 of 1998 (as amended) (EEA) provides that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employees.
[166] ELRC Collective Agreement 3 of 2018 provides for compulsory inquiries by arbitrators in cases of disciplinary misconduct against educators charged with serious misconduct in respect of learners.
[167] All educators are enjoined to adhere to the SACE Code of Professional Ethics. Clause 3 of the SACE Code of Professional Ethics provides that in terms of the conduct between the educator and learner, an Educator inter alia; …3.5 avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; 3.6 refrains from improper physical contact with learners; … 3.8 refrains from courting learners from any school; 3.9 refrains from any form of sexual harassment (physical or otherwise) of learners; 3.10 refrains from any form of sexual relationship with learners from any school; … 3.14 uses appropriate language and behaviour in his or her interaction with learners, and acts in such a way as to elicit respect from the learners.
[168] Section 28[2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[169] One of the objectives of the Children’s Act 38 of 2005 is to give effect to the constitutional rights of children. Section 120[2] supra provides that; “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.”
[170] In Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the court held that: “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, an investigation where questions of demeanour and impressions are measured against the contents of a witness’ evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
[171] Learner A testified about the allegations pertaining to the charge. She gave a clear and consistent account of what had transpired. She testified that Mr Buthelezi had asked for her number via Facebook, he had sent Thabiso to call her and he asked her to wash his gym bags, he had asked the security guard to allow her to go out of school and leave the bags and he had also asked the security guard to allow her to out of the school for her to bring his bags back. She further testified that he had sent her WhatsApp messages, he called her to the bus shelter and asked her to hug him, told her that he had loved her from Grade 10 and on 21 March 2024 he sent her WhatsApp messages, called her to the bus shelter and sexually assaulted her whereafter she immediately reported the sexual assault to Ms Khumalo. Learner A testified that she had trusted Mr Buthelezi as she considered him to be a parent to her.
[172] Mr Buthelezi failed to challenge some of the evidence of the Employer’s witnesses and put his versions to them whilst they were on the stand. When he tendered his evidence, he gave different versions from that of Learner A.
[173] Mr Buthelezi did not dispute Learner A’s testimony that he had asked for her cell number via Facebook but he had questioned Learner A how did she know that Mr Buthelezi did not have her cell number. When Mr Buthelezi testified, he stated that he was not going to ask her for her cell number on Facebook and if he wanted her cell number there was a Mathematics Literacy WhatsApp group.
[174] Mr Buthelezi did not dispute Learner A’s testimony pertaining to her version regarding the washing of his gym bags however when he testified, he alleged that Learner A was the one who had approached him to wash his bag.
[175] Mr Buthelezi admitted that the cell number appearing in the WhatsApp message was his and that he was known as ‘Nice’ but not ‘Mr Nice” however nothing much turns on this.
[176] Ms Khumalo testified that after she had listened to Learner A’s story, she asked Learner A for her phone and found a message that was apologising and other messages continued coming in which made her angry. She clarified that she saw that the messages were coming from Mr Buthelezi as she also had his number.
[177] Mr Buthelezi had contended that Ms Khumalo was conducting an investigation that she was not mandated to do when she had asked Learner A to take screenshots of the WhatsApp messages, which was quite a peculiar question as Ms Khumalo had acted as any parent would have done to secure the evidence.
[178] Mr Buthelezi denied that he had sent Mr Mkhize to the principal to convene a meeting to apologise to Learner A’s family. When Mr Nyoka testified, Mr Buthelezi did not deny that he and Mr Mkhize had a close relationship however during his testimony he sought to distance his relationship from Mr Mkhize and denied that their relationship was anything more than colleagues.
[179] Mr Buthelezi sought to create a version that Ms Khumalo had concocted these allegations against him. His versions that he raised during his evidence were never put to her whilst she was on the stand. Ms Khumalo had testified that Mr Buthelezi and Thando were close but she knew nothing about their relationship which was in 2016, some eight years ago when Thando was in matric.
[180] It is important to note that when Mr Nyoka called Mr Buthelezi and told him of the allegations and that the doctor had confirmed that Learner A had been touched, he never showed surprise and neither did he question Mr Nyoka about what these allegations were about. In his evidence-in-chief, he averred that he told Mr Nyoka that he had no power to oppose what the doctor had said but he was coming back and was going to listen to the matter. Under cross-examination he testified that he told Mr Nyoka that he could not disagree with the doctor, but he would listen properly to the matter when he returned. Mr Buthelezi failed to tender any evidence as to what he did to challenge the allegations against him which he claimed he had no knowledge of.
[181] Learner A’s testimony regarding Mr Buthelezi requesting her cell number via Facebook and the sequence of events leading up to him calling her to the bus shelter and the sexual assault was clear and consistent.
[182] Mr Buthelezi testified that Learner A was a bright but quiet child and would not have the courage to make these allegations herself hence it was Ms Khumalo who had orchestrated these charges against him and later he added Thando as also having a motive.
[183] Mr Buthelezi upon his release from custody immediately tendered his resignation and his initial version was that he had resigned because he wanted to pursue his photography business and under cross-examination averred that he withdrew his resignation as he needed money for his criminal court case.
[184] Ms Khumalo testified about the state Learner A was in on the day of the incident. Learner A’s mother testified about the condition of her daughter and the principal testified how devastated Learner A was at the hospital.
[185] Importantly, Learner A’ mother, Ms Khumalo and Mr Nyoka all testified that a meeting had been convened for the Buthelezi family to apologise to Learner A’s family while Mr Buthelezi denied asking Mr Mkhize or anyone to convene a meeting on his behalf. Both Ms Khumalo and Mr Nyoka testified that Mr Buthelezi’s brother had spoken and apologised to Learner A’s family and that they were prepared to do whatever to make this go away which Mr Buthelezi never challenged.
[186] As habitual, in cases of sexual incidents, there are no witnesses. Learner A in her evidence-in-chief and under cross-examination gave a consistent account of the incidents and what had transpired.
[187] I have considered the relevant cautionary rules relating to child witnesses and single witnesses which requires that the evidence accepted should be substantially satisfactory in respect of material aspects.
[188] It is trite law that in a disciplinary hearing both the employer and employee parties will be afforded an opportunity to cross-examine the other parties’ witnesses and during that cross-examination a party needs to challenge any evidence that they disagree with and put their version to the witness on the stand.
[189] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the LAC held, “that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examination but, indeed, also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may, in general, imply an acceptance of the witness’ testimony.”
[190] Mr Buthelezi’s defence was a bare denial to all the allegations and neither did he put all his versions to Learner A and the Employer’s witnesses during their testimony. During his testimony he simply claimed that he knew nothing about the allegations. The failure and omission by Mr Buthelezi to disclose his version during the cross-examination of the Employer’s witnesses and only presenting his narrative during his evidence shows evasiveness, a lack of candour and transparency. His argument that Ms Khumalo had fabricated and concocted all these allegations because he did not pursue his relationship with Thando has no substance. The question is why would Learner A, Ms Khumalo or Thando pursue these allegations or be seeking revenge against Mr Buthelezi.
[191] Learner A described the incident pertaining to Mr Buthelezi’s sexual misconduct; when it occurred, where it occurred, how it occurred and what had happened. She described how she could not cope which resulted in her failing matric and that Mr Buthelezi could not be trusted with learners.
[192] There was no evidence of a vendetta against Mr Buthelezi or that Learner A had lied or fabricated evidence against him. I accordingly find no probable motive for Learner A or any of the employer’s witnesses to have lied at the arbitration hearing. Importantly, Mr Buthelezi did not provide any probable evidence that would support his notion that Learner A was indeed lying. Learner A, Ms Khumalo and Mr Nyoka came across as credible witnesses.
[193] The test in determining whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus is more probable than the other party.
[194] In Mudau v MEIBC & Others [2013] 13 ILJ 663 [ LC] the court held that the task of an arbitrator in terms of section 188A is to determine on the balance of probabilities whether an employee has committed an offence for which he or she has been charged with and if so whether there exists a basis in fairness to terminate the employment relationship.
[195] Section 28 [2] of the Constitution Act 108 of 1996 provides that a child’s best interests are of paramount importance in every matter involving the child.
[196] Having regard for the totality of the evidence, I find the version of the employer more plausible, logical and the more probable version, and that Mr Buthelezi is guilty.
[197] The testimony by Learner A pertaining to charge is compelling for me to find on a balance of probabilities that Mr Buthelezi is guilty of Charge 1.
[198] Educators have a duty to care for and protect learners while they are at school as a consequence of their in loco parentis status. Section 32 of the Children’s Act 38 of 2005, as amended provides that a person acting in parentis in loco, such as an educator must, whilst the child is in that person’s care.
(a) safeguard the child’s health, well-being and development; and
(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards.
[199] As in loco parentis, the community and society at large expect an educator to conduct himself/herself in a trustworthy manner. Mr Buthelezi had a legal and moral obligation to safeguard and protect Learner A and not breach the trust placed in him as in loco parentis.
[200] Sexual assault involving a learner is addressed under Section 17(1)(b) of the EEA. According to legal definitions, assault refers to an unlawful and intentional act that either impairs another person’s bodily integrity or creates a reasonable belief that such harm is about to occur. Therefore, sexual assault is a form of assault that occurs in a sexual context, where the victim’s sexual integrity is either violated or threatened.
[201] In terms of Section 17 of the EEA, it is mandatory that an educator convicted under this section must be dismissed. There is no discretion to impose a lesser sanction than dismissal. Dismissal is a statutory sanction.
AWARD
[202] The employee, Mr V.S. Buthelezi, is found guilty of contravention of section 17(1)(b) of the Employment of Educators Act.
[203] The employee, Mr V.S. Buthelezi is dismissed with immediate effect.
[204] The employer, the KZN Department of Education must inform the employee, Mr V.S. Buthelezi of his dismissal immediately on receipt of this Award.
[205] Mr V.S. Buthelezi is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
[206] The General Secretary of the ELRC must, in terms of section 122 of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum for the Director General to enter Mr V.S. Buthelezi’s name as contemplated in section 120 in Part B of the register.
[207] The ELRC must also send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr V.S. Buthelezi’s SACE certificate.