IN THE EDUCATION LABOUR RELATIONS COUNCIL

INQUIRY BY ARBITRATOR HELD IN FORT BEAUFORT

In the inquiry by arbitrator between

Provincial Department of Education: Eastern Cape
(Employer)

And

M Njeza
(Employee)

AWARD

Case number: PSES1336-24/25EC
Nature of dispute: Misconduct: Section 17(1)(b) and 18(1)(f) Employment of Educators Act 76 of 1998
Nature of process: Inquiry by Arbitrator
Dates of hearing: 31 03 2025, 19 06 2025, 30-31 07 2025, 03 09 2025, 09 10 2025 & 20 11 2025
Closing arguments: 03 12 2025
Date of award: 09 01 2026
Panelist: JC Robertson

Safety & Security Sectoral Bargaining Council
261 West Avenue
ELRC Building, Centurion
Tel: 012 663 7446
Fax: 012 6639604

1 This matter was referred for an inquiry by arbitrator to the Education Labour Relations Council (ELRC) in terms of Clause 32 of the ELRC Dispute Resolution Procedures, read with clause 3 of ELRC Collective Agreement 3 of 2018 and section 188A of the Labour Relations Act, 66 of 1995 (LRA) on the dates above at the Department of Education, Eastern Cape, District Office, Fort Beaufort.

2 Mr M Hlekani (CES Employee Relations, Nelson Mandela Bay District) appeared for the Provincial Department of Education: Eastern Cape (employer). Initially Mr S Gashi (SADTU) then Ms C Royi (SADTU) and thereafter Mr L Tapa (SADTU), appeared for the employee, Mr Mawande Njeza. Ms S Myataza, acted as interpreter. Mrs N Nxala acted as intermediary in respect of the learner, the complainant and in respect of whom this inquiry arises. The hearing was digitally recorded.

3 The complainant / learner was 18 years old at the time of the alleged sexual assault, given the fact that she was a learner at the time and is still furthering her studies she will be referred to as Ms X. The complainant’s fellow learner, who was with her on 25 – 26 October 2024, and who was called to testify on behalf of the employee, for similar reasons, will be referred to as Ms Y.

Preliminary Matters
Application for postponement

4 On 31 03 2025, Mr Gashe (SADTU) exhibited a medical certificate emailed to him by the employee that morning. He requested the matter be postponed. After hearing the parties and for the reasons set out in my ruling, I granted the postponement. See my ruling dated 31 03 2025.

Objection to jurisdiction

5 At the next hearing on 19 June 2025, Ms LC Royi (SADTU), now representing the applicant, brought an application on his behalf challenging the jurisdiction of the ELRC to hear a matter of the nature in respect of which he was charged. After hearing the parties, I dismissed the application. See my ruling dated 19 June 2025 and the matter continued.

Application for postponement

6 On 30 July 2025, Mr L Tapa (SADTU), applied for a postponement on the basis that he had received instructions to represent the applicant at the last minute and had insufficient time to prepare. Ms Royi had been hospitalized and the applicant’s request for a postponement emailed to the ELRC at 16H33 on Friday 25 07 2025 had been declined by the ELRC on 29 07 2025 by way of an email at 10H06. After hearing the parties, I ruled that the matter proceed, subject to being stood down for two hours to enable Mr Tapa to familiarize himself with the documents and assist him in taking instructions. See my ruling dated 30 July 2025.

Issue to be decided

7 the applicant was charged with misconduct as follows
Charge 1
You contravened 17(1)(b) of Employment of Educators Act 76 of 1998 which inter alia states 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 employee;

“Touching Ms X inappropriately and making sexual advances to her whilst you shared a bed with her and Ms Y in your official residence in the early hours of 26th of October 2024

Charge 2
You contravened section 18(1)(f) of Employment of Educators Act 76 of 1998 which inter alia states that: – “Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if you–
unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or school or adult learning centre.”

8 The employee’s rights were explained to him, the charges were put and he pleaded not guilty to both charges.

9 I am required to determine whether the employee committed the above charged misconduct and if so, to determine on sanction.

Background and survey of evidence and argument

10 The employer led the testimony of:
Ms X A grade 12 learner at PAHS in 2024 and the complainant herein
Mr Fikile Bolani The father of Ms X

11 The employee, a post level 1 educator teaching mathematics at PAHS testified on his own behalf and led the testimony of:
Ms Y A grade 12 learner at PAHS in 2024, fellow learner of the complainant and together with her at material times pertaining to this matter
Ms Thingazwa Mxabangeli: Principal PAHS

12 The following sets out the events that led to the employee being charged:
12.1 It was common cause that the two learners, Ms X and Ms Y spent the night of the 25th / 26th October 2024 at the employee’s house and that they slept in his bed, one on either side of the employee, facing the opposite way (head to toe) from approximately 04H00, 26 10 2024, until they left in the morning of 26 10 2024.

12.2 The two learners, Ms X and Ms Y stayed in the girls’ hostel on the PAHS campus. The employee, a post level 1 educator stayed in staff quarters, portion of a house, on the PAHS campus. At the time, the learners, including the complainant Ms X and Ms Y, were preparing for end of year grade 12 exams. On the morning of 25 10 2024, Ms X and Ms Y had gone down to the school to attend extra maths lessons. The JENN tutor who was taking them for these lessons was late. They met the employee and while they were waiting for the JENN tutor, he assisted them with geometry in the library. The maths tutor then arrived and they attended the class and returned to the hostel. Both Ms Y and Ms X wished to follow up various aspects of geometry with the employee.

12.3 They then went to find the employee and saw him leaving the school / going up to his house. Ms X WhatsApped the employee a voice note , they caught up with him and despite Ms X’s pleas to go to the library, he said they should come to his place. According to Ms Y the employee asked them to accompany him to his house and they did. The employee denied that he invited them to his house and that it was they who decided to come to his quarters. They had not met up with him while far away, they had met him at his house.

12.4 The two learners then attended on the employee at his quarters. Ms Y charged her phone inside the premises. They had sat outside. The employee had asked the deputy principal to assist him to fetch water, he left the learner’s at his premises, saying he would be back. On his return, he had accompanied them to a class that they had, to make sure they attended. He greeted the teacher and returned home. The two learners had attended the class and again returned to the hostel.

12.5 When they had left the employee’s premises to go to the next lesson, Ms Y had locked up and inadvertently retained the employee’s key. On their return to the hostel she became aware of this and asked Ms X to contact the employee to check whether he had been able to enter his premises. It transpired that he had as he was able to use the key of another teacher there at the time. He would however require the keys for locking up later that night.

12.6 According to Ms X and Ms Y, earlier in the day they and the employee had discussed cooking meat (chicken) at the employee’s house. The employee had advised that he had a chicken in the fridge. According to Ms Y the employee said he would take the chicken out of the fridge. When discussing the return of the keys, it was arranged that they would take them to the employee and they had requested him to take the chicken out of the fridge. Ms Y testified that the keys of the hostel were left with one of the learners and they figured they could go to the employee’s house, have their meal, study and return while the hostel was still open. The two learners had then taken their backpacks and walked to the employee’s premises. Ms Y had cut up the chicken, cooked it and they had eaten it. While the chicken was cooking, they did their geometry and the employee helped them. There was no electricity where they would normally study, however the employees’ premises had electricity. The learners attended to their studies and the employee assisted them with how to answer certain questions.

12.7 According to the employee, the learners queried about his keys, he told them he had been able to enter his premises but that as the other teacher would be away, he would need them later to lock up. Ms X had WhatsApped him as to whether he would come to study. He had answered none of Ms X’s WhatsApp’s as to whether he would go to study (A14). They had arrived at about 20H00 with their backpacks and his keys. They requested to study there as there was no electricity at school. He had not requested that he teach the learners at his house. He allowed them to study at his house as he was well aware of the electricity crisis. At the time, he was preparing to cook supper and they asked if they too could eat as they had not eaten. He said they could assist by cooking the chicken. He reiterated in re-examination that he had not invited the learners to his house for the first time and the second time and neither did he invite them into his bedroom, in all instances he never invited the learners. They voluntarily came to where he was.

12.8 After eating, the learners continued with their studies. Ms X sat at the study desk / table and Ms Y on the couch, each doing their respective study. Ms Y quit studying after a while and accessed social media on her phone. Time went by and Ms X noticed that it was approximately 24H00. They were concerned as to whether they could get into the hostel and phoned a fellow learner at the hostel to check whether the gate was still open. The learner said she would check and come back to them, did so and advised that the gate was now locked / padlocked.

12.9 The employee asked the learners whether there was anyone he could call e.g. security or the matron. They told him her phone was off. He asked them what do you want me to do then, are you going to sleep here. They said yes and he assumed they would use the room, with beds and several blankets in it, next to the lounge. Later he added that he assumed this as Ms Y was aware of the two spare rooms with beds and linen.

12.10 Ms Y had no misgivings about sleeping over. It was late, Ms X was afraid to walk in the dark and she said they would stay over.

12.11 Ms X testified that the employee had not offered them other beds to sleep in and had said they would sleep in his bed. She stated that Ms Y went to the toilet and on her return asked the employee where they would sleep and he said they would sleep in his bed. Ms Y testified that this had not happened and she was not aware where they were required to sleep. The employee had not invited them to sleep in his room. It was put to Ms Y by the employee that there were other rooms in the employee’s quarters with beds in them. She was not aware of this and maintained her testimony in this regard throughout . The employee stated that he had not told the learners to sleep in his bed and that when they said they were going to sleep over, he had left it at that and he had retired to his bedroom.

12.12 Ms X testified that after deciding to stay over, they had remained in the lounge, she sitting at the study desk, Ms Y on the couch. Ms X had accessed social media on her phone and continued with this until approximately 04H00 hours . At this time she was feeling cold, she had a class the next morning, and wished to sleep. Ms Y had been charging her phone and had fallen asleep on the couch. She woke Ms Y and said that they should go and sleep and they had both gone through to the employee’s bedroom, removed their shoes and jackets and climbed into his bed, one on either side of the employee with their heads at his feet. Ms Y testified that she had been drowsy on being woken up and was not totally aware that they got into the employee’s bed. She was a heavy sleeper and had not heard anything from Ms X and the employee. She got up early in the morning to go to the loo, realised they had slept in the employee’s room and went back to bed and slept again.

12.13 At about 06H00, Ms X was awakened by the employee feeling her legs and buttocks. She started shaking, grabbed her phone and put it on record. The employee asked what was happening and if she was cold. She said she was. He had then wanted to take off her socks. She moved her feet away and turned away from him. He still continued to massage her legs and buttocks. She took his hands off and he put them back. He fell asleep and she too. The employee then continued with his touching of her and she continued to move his hands off her. He opened his legs and got on top of her. She moved away and he pulled her toward him. This went on for a while. Ms Y at the time was asleep. Around 07H00 the employee went to the loo. She took the opportunity to wake Ms Y and tell her that they should go. Ms Y said that the hostel would still be closed. The employee returned and Ms Y went back to sleep. The employee wanted to watch Netflix. She did not want to. He kept his hands on her body. After 08H00 she woke Ms Y and they left. It was her view that the employee had wanted to have sex with her. Ms X denied the employee’s version that he was no longer in the bed but that he was on the other side of the room, when they left.

12.14 Ms Y confirmed in cross-examination, her evidence in chief, that the employee was still in bed asleep when they left. In further cross-examination she did not wish to commit whether the employee was asleep in the bed or elsewhere, she was not sure whether he was awake or not. They just woke up and left. She did not speak to anyone at the employee’s house when they left but did speak at the hostel. Put to her that it was bizarre that learners would awake in the house of a teacher who had helped them and leave without saying thank you. She agreed.

12.15 The employee denied that he had touched Ms X at all. He was not aware that the learners had climbed into his bed and had been surprised to find them in his bed when he woke up. On waking early in the morning, he had noticed the two learners had slept in the same bed as him. His first question was “Whats happening ? What are you doing here ? In all the places you could have slept in you decided to sleep in my bed and crowd me ? … “ Asked how he felt when he had noticed the two learners in his bed, he responded “The way these kids were close to me, I regarded them as my kids and I assumed that’s why they slept in bed with me. I did not have bad intentions”. He had got out of bed and sat on the other side of the room watching a podcast on his phone. The learners had awakened and left. There had been no discussion.

12.16 He had followed and closed the door behind them. He had noticed the dirty dishes and sent a WhatsApp to this effect (A14) and got no response. The principal sent a message to him that there were no pupils in Ms Mgee’s class and so he sent a WhatsApp to Ms X as to whether the class had started as she was the class rep (A14). She did not respond.

12.17 Ms X had not reported to Ms Y what had happened to her during the night, and remained distant and withdrawn. Ms X told her sister in Port Elizabeth on the evening of 27 10 2024, what had happened. Her sister had phoned the employee and Ms Mkiva. In Ms X’s view, this prompted the text from the employee Tiisetso yintoni bro, why ?? Yhoo / (Tiisetso what is it bro ?? Yhoo). She did not respond due to him having touched her, she did not like him touching her, she did not want to speak as she was upset. To her, the employee’s text to her after the incident, Sorry Kaloko, was an attempt at apologizing. The employee’s explanation was that this was simply an expression used in conversation. He also testified that inter alia the complainant’s sister had told him to phone Ms X who at the time was at the hostel. He phoned her but she did not answer (A15, 8:33 pm).

12.18 Ms Y explained that Ms X had not reported the incident to her on their return to the hostel. Ms X was withdrawn and did not speak much. After they were called by the principal (28 10 2024) and asked to write a statement, Ms X told her about the incident. Later Ms X was scarce at school as she went to stay at home.

12.19 The employee complained about a phone call that he had received on Sunday(27 10 2024) from a woman claiming to be Ms X’s biological mother at around 20H00 and accusing him of sexually harassing her daughter, Ms X, and that the principal would be calling him. He had been with the principal earlier and she had said nothing. He phoned the principal and she told him that the mother of the complainant had phoned her. He and the principal were neighbours, he went across to her. He received a further call on the same number, this time a man, who said he was the father and who started out speaking reasonably but ended up insulting him, until he reached the principal’s house. He phone was on speaker, when the “father” told him it was best that he resign, as he would be after him and that he would pay for this. The “father” and “mother” took turns in speaking, they told him they would call the principal to call him, not knowing they (he and the principal) were together .

12.20 In cross-examination, he was of the view that the sister had conspired with Ms Mkiva in raising these allegations. When he left the principal, he was confused and sent a WhatsApp to Ms X, Tiisetso what is it bro Yhoo (A18). Ms X did not respond. The next day he had not gone to school. A member of the educator staff, Ms Mkiva, had also visited him. She claimed to be a relative of Ms X and accused him of sexually assaulting Ms X and suggested that he resign. This shocked him and he wondered how she could get to hear of this and tie it up to section 17 as she did not work with that and would not know about it. He refused and told her that what was bothering him was not what she had told him but that his grandmother and father were ill and needed two ambulances and were refusing to get into the ambulances when they arrived to collect them and a few minutes ago, he had received a call from the institution where his daughter was studying that she was about to be suspended. He then made a video call concerning the ambulances. Ms Mkiva however reiterated that he resign. He refused and she had then left.

12.21 Ms Mxabangeli, the principal of PAHS, testified that she received a call (Sunday 27 10 2024 at 20H45) from the person claiming to be Ms X’s mother and reporting that Ms X had been sexually harassed by the employee. She told the person she would take up the matter and had immediately called the employee and told him to give her a written statement of what had transpired.

12.22 Early in the morning of 28 10 2024, she called the matron and the two learners and requested their written statements. They went back to the hostel to write their statements. The matron returned with their statements later on 28 10 2024.

12.23 She arranged a meeting with Ms X’s parents and she together with Mr Stofile and two other educators visited at their home (28 10 2014). Only the father, Mr Bolani, was there. They reported what had occurred and that they would obtain statements and revert to the father. According to Mr Bolani they had come to see if they could deal with the matter internally. He wished to talk to Ms X’s mother before agreeing on further action.

12.24 The principal reported that Ms X, her father and mother then attended on her that evening at her house. They agreed to involve the other parent and a meeting was arranged for 31 10 2024.

12.25 On 29 10 2024, the educator, Ms Mkiva (a head of department in the school), had also reported the matter to her and she had told her to refrain from getting involved as her office was dealing with it. Despite this, she had attended on the employee and the employee had reported this to her.

12.26 The principal and others listed on the minute at A7 held a meeting on 31 10 2024 with parents of both Ms X and Ms Y (in the case of Ms Y, only her mother attended). The employee and the two learners did not attend the meeting. The employee however, was called in later. The meeting was convened to report developments and advise the parents on what further steps they could take. The statements were read out. The issue of Ms X’s complaint of being sexually harassed by the employee was not discussed. She stated amongst other things that Mr Baloni was vocal about the matter (i.e. there was no case here) and disputed it, his case based on the fact that Ms X did not report the matter to anyone. In the principal’s view, the outcome “The matter was finalised and closed with agreement that there’s no case, carelessness on both sides, happened. This should be a lesson to both of us. … The matter was officially closed” endorsed on the minute of the meeting and signed by all attendees, did not include the issue of the sexual assault of Ms X. After discussing the matter, they had called Mr Njeza / the employee in. This was Mr Baloni’s proposal. The parents were concerned that he might make things difficult for the learners and wished to ensure that he not do so, but continue assisting them as beforehand, given they were writing end of year grade 12 exams. According to the principal, the employee apologized and this was recorded in the minutes also signed by the employee. Mr Njeza apologised to parents for all what happened – he was offering assistance not knowing that he will be in such a trap. Asked to explain what exactly he apologized for, the principal was ambivalent. The principal had expressed the view that one of the issues was that Ms X had a key to the hostel on the night in question, but had not used it. Her attention drawn to Ms X’s statement (A16-A18) and the statement by the matron (A21) and further that Ms Y had not said that Ms X had a key, she conceded no mention was made of Ms X having a key. The principal referred to an arrangement made between parents and teachers living on campus during “out weekends” when the parents were unable to fetch their children. The learners would stay with a teacher. In her view, Ms Y would accordingly be aware of the extra rooms / beds in the employee’s house. Put to her that she was incorrect in her assumption as Ms Y in her testimony and under cross-examination had testified that she was unaware of any other room she could use. The principal responded variously that this was strange and that she did not understand. She agreed that Ms X had not stayed over in terms of the arrangement she referred to. Asked if a reasonable person, given there were an additional two rooms at a venue, would make arrangements for the learners to sleep in such rooms and not the educator’s room, she responded that at their age, the learners should have asked if they saw the employee going to bed, and further, reasonable learners should have asked where to sleep.

12.27 The employee stated that he narrated the entire event to the meeting and apologised for putting the parents through the meeting which would not have happened if he refused the learners when they had requested a place to study. They had indicated they saw something sinister in all of this and requested that if he wished to take the matter further, he wait until the children had finished their exams. Mr Baloni had said their internal departmental fights must not affect their learners, and requested, if he wished to take the matter forward, he wait until after exams. He, Mr Baloni, was the first to stand up, hug him and give him words of encouragement and to apologise for what had happened, humiliation and torture that he had undergone. The conclusion of the meeting was that he was careless for letting the closure of the hostels pass and the children also wrong in staying with him and sharing his bed when they could have slept in a bed that was not occupied and he now found himself with a problem, he was not aware he was being trapped, this should remain as a lesson to him and the children. The children were able to distinguish right from wrong and there was no reason for them to share a bed with him. He was of the view that the meeting dealt with the issue of Ms X’s complaint and that at school level, cases can be resolved without the presence of the child, irrespective of ELRC Collective Agreement 3/2018.

12.28 Mr Baloni was of the view that the employee never apologized. He had been of the view that he was attending at the school to obtain a report on the situation. He did not believe it was correct to hold a meeting without the learners and the employee present. It was his view that the meeting did not deal with the issue of the sexual assault on his daughter.

12.29 After the incident, his daughter had been unhappy and withdrawn and later, they removed her from the hostel and she stayed at home while writing exams.

12.30 The principal confirmed that she was aware of section 17 and 18 of the EDA, Collective Agreement 3 of 2018 and the required procedures to be followed in the event of any allegation against an educator relating to sexual misconduct against learners. She agreed in general that a principal would have no authority to deal with any allegation in terms of section 17 and section 18 against an educator. The department attended to this. Allegations of sexual misconduct were dealt with in terms of ELRC Collective Agreement 3/2018. She was aware the department had explained the provisions of 3/2018 to principals throughout the province and aware of the Rapid Incident Report (RIR) developed by Mr Steyn, Director for Labour Relations, for principals to report any allegations of sexual misconduct. She had received the statement of Ms X by the time she arranged the meeting with the parents. She was not aware this was a case of sexual harassment as the parents did not lodge any case with her as principal. She was of the view she had to tell the parents before she reported to the district office / the parents must lodge a complaint with her as principal before she reported it to the district office. It was put to the principal that she was required to report the matter directly to the Circuit Manager per ELRC Collective Agreement 3/2018 and the RIC and that the Circuit Manager would report it to the parents. Her response was argumentative. She confirmed that she had been contacted by the Circuit Manager, Mr Mboniswa, to whom the matter had been reported and he had required her to submit written reasons for not reporting the allegations of sexual harassment (A22-A23 dated 3 11 2024) and to submit a report (A19-A20 dated 12 11 2024).

12.31 Later in re-examination, she agreed with the proposal that the SGB establish disciplinary committees, the school dealt with discipline, Collective Agreement 3/2018 did not replace, e.g. the school disciplinary committee. Where a learner committed misconduct, the matter was reported to her office, they informed the parents, the matter was taken to the disciplinary committee who set a date for the hearing.

12.32 Ms X and her mother reported the matter to the South African Police however, nothing came of it. The mother received a smsSMS that the matter was dismissed.

12.33 The employee was precautionarily suspended pending investigation, over the period 15 11 2024 to 24 02 2025 when he was charged. He was arrested on 25 02 2025, obtained bail, the case was remanded and further postponed and he had been told it was dismissed as there was insufficient evidence. His suspension was uplifted on 5 May 2025.

13 The employer argued in summary to the effect:
13.1 That the learners had trusted the employee. They had both gone to his residence to study, they had stayed beyond the time the hostel was locked and were not successful in getting it opened although Ms X phoned a learner at the hostel. Whether or not the employee invited the learners to his house was irrelevant. The issue related to his sexual harassment of Ms X. According to Ms X, the employee had told them they would sleep in his bed. Ms X and Ms Y were unaware that the other rooms had beds in them. They had gone to bed at around 04H00 and at about 06H00 Ms X awoke to the employee feeling her buttocks and legs. He did not desist despite her moving away and pulling his hand off her and attempted to remove her socks. The employee’s conduct was unwanted and deliberate and constituted sexual harassment. Ms X and Ms Y had left early in the morning and did not say a word to the employee. Ms X had been withdrawn since then. She had not answered the employee’s WhatsApp messages and reported the incident to her sister in Port Elizabeth the next day (27 10 2024).

13.2 It was strange that the two learners would leave without a word on 26 10 2024. The fact that Ms X no longer answered the employee’s WhatsApp messages after the incident supported the fact that she had lost trust in him. The employee’s claim of a conspiracy was not substantiated.

13.3 There was no reason to doubt the credibility of the two learners and that the probabilities showed that the employee was guilty as charged.

13.4 The employee’s conduct was contrary to clause 3.6, 3.8 and 3.9 of the Code of Professional Ethics under Conduct. The nature of the misconduct was such that the employment relationship of trust was broken and dismissal was the only appropriate sanction and that in terms of section 120 read with section 122, of the Childrens Act 38 of 2005, the employee be declared unsuitable to work with children.

14 The employee argued, in summary, to the following effect:
14.1 The learners voluntarily approached the employee seeking academic assistance. None of their visits occurred at the invitation or request of the employee. The learners returned on the evening of 25 October 2024 to hand back the employee’s keys, again without any invitation from the employee. The learners’ decision to remain at the employee’s residence beyond reasonable study hours was self-initiated. The employee had already retired to his room clearly indicating that he did not facilitate, encourage or authorise any form of overnight stay.

14.2 The respondent had acted professionally at all times and had not initiated any private or secluded interactions.

14.3 Ms Y’s testimony contradicted the allegation of any sexual advances it being improbable that a person sharing the same bed would sleep through uninterrupted if such had occurred.

14.4 The WhatsApp messages were not inappropriate and indicated academic concern and pastoral care on the part of the employee and were not an admission of wrongdoing. The reference to sorry in the WhatsApp text was not an admission of wrongdoing rather a social convention to end a conversation. There was no WhatsApp message from the employee inviting the learners to his house to cook chicken. Ms X deliberately misled the hearing in this regard. In line with the outcome of the meeting between the principal and the parents, the employee had indicated in one of the WhatsApp texts, a motivational message to encourage students. The content of the WhatsApp texts was not improper it could not be said that in the circumstances the WhatsApp extracts referred to grooming behaviour, sexual invitation, coersive language or inappropriate messages.

14.5 Evidence from the meeting of 31 10 2024, attended by both learners’ parents, the principal, SGB representatives, and the union revealed that: both parents reviewed the statements; all parties agreed that there was no evidence of sexual misconduct; the matter was closed at school level; the employee apologized for poor judgement in allowing learners into his sleeping place, not for sexual misconduct. The meeting between the principal, SGB representatives, the union and the two parents (31 10 2024) was critical in that it demonstrated that the employer escalated a matter already resolved without producing new evidence. The escalation of the matter beyond the school was based on misinformation and unverified reports, rather than the employee’s conduct. The school level investigation, involving parents, senior staff, and union representatives, confirmed that the allegations lacked merit, and that the employee acted responsibly in accordance with professional and ethical standards.

14.6 There were material contradictions between what was contained in Ms X’s written statement and what she testified during the hearing. This undermined her credibility as to whether she was acting voluntarily or at the behest of the employer. The complainant’s credibility was seriously compromised, her testimony suffered from major multiple contradictions, mutually exclusive versions of events, versions disproved by her own peer witness, and discrepancies between her written and oral testimony. Not only was it inconsistent, it fundamentally conflicted with her own written account. The complainant changed her version only in respect of issues necessary to implicate the employee, suggesting reconstruction rather than genuine memory.

14.7 Mr Bolani’s testimony that the meeting of 31 10 2024 did not reflect on the matter; he did not recognise the meeting as one where the alleged incident was discussed; and his claim that the meeting had no substantive engagement with the allegations concerning his daughter, was demonstrably false and contradicted by both the minute of the meeting and the testimony of the principal. Accordingly Mr Bolani’s testimony was unreliable, given that it was contradictory, inconsistent with the recorded minutes, disproved by the principal’s sworn evidence and inconsistent with his own behaviour and statements on the day of the meeting.

14.8 No credible evidence had been advanced to support the allegations of sexual assault against Ms X. Neither had any evidence been advanced to show prejudice to the employer, to the effect that the employee’s conduct had an actual, measurable negative impact on the employer; or caused serious reputational damage to the school or the department; or disrupted discipline or normal functioning. The employee argued further that any reputational prejudice had been caused by the employer’s improper escalation based on hearsay and by unqualified individuals with no authority to do so and procedural steps taken contradictory to both DBE protocols and principles of fairness and accordingly could not have been caused by the employee.

14.9 The employee accordingly argued that the employer had failed to discharge the burden of proof required to sustain the charges both in respect of the alleged sexual assault and sexual harassment and prejudicing the employer.

14.10 The employee argued that the matter was procedurally unfair as it demonstrated departures from the EDA, the LRA and principles of administrative justice. There had been a failure to respect the school level resolution and the matter had been escalated without: any new evidence; any formal complaint from the learner or her parents; any rational basis for reopening the matter (the escalation was triggered by: a telephone call from an unknown person claiming to be the complainant’s biological mother, who it was later determined was her half-sister); information circulated by a teacher Ms Mkiva who told the employee to resign; both parents denying any knowledge of the allegation or any relationship with Ms Mkiva. The disciplinary process proceeded from a basis of hearsay; inaccurate assumptions; and unverified claims.

14.11 The employee further claimed that he had been suspended beyond the statutory time frames and argued that the prolonged suspension was disproportionate, irrational and inconsistent with statutory requirements.

14.12 As relief, the employee requested that the charges be dismissed in their entirety.

Analysis of evidence and argument

15 The parties have both presented written closing arguments. My thanks to the parties’ representatives for their respective written arguments. I do not intend to refer to all aspects of their respective arguments, nevertheless I have considered them and they are filed of record. The number of witnesses who testified, that they testified from different perspectives and in many cases their evidence was hearsay or of issues post the relevant events, would if all were covered in this award, obscure the issues. Suffice it to say that I have considered all the evidence and argument, but because the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons (Section 138 (7)), I have only referred to the evidence and argument necessary to substantiate my finding/s and award.

16 The onus, is on the employer, to prove that the employee is guilty of the allegations proffered against him, on a balance of probabilities. The employer needs to prove by way of credible evidence, that its version is the more probable and acceptable version . The rules underlying the charges, that the employee was aware of the rules, the rules were valid or reasonable, constituted serious misconduct and were consistently applied by the employer was not in dispute. What is in dispute is substantive fairness including whether the employee contravened the rules.

The legislative and regulatory context
17 The Constitution of the Republic of South Africa, 1996 (RSA Constitution)
Section 28(2) provides that “A child’s best interests are of paramount importance in every matter concerning the child.”

The Childrens Act, 38 of 2005
18 Section 9 provides that the best interests of the child are paramount:
In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.

19 Section 120 provides that a finding that a person is unsuitable to work with children may be made inter alia by any forum (of its own volition or on application by a person having a sufficient interest in the protection of children) established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child

20 In terms of section 122 the relevant administrative forum must notify the Director General in writing of any finding in terms of section 120 that a person is unsuitable to work with children.

The Employment of Educators Act 76 of 1998 (EDA)
21 Section 17 deals with serious misconduct. Section 17 (1)(b) provides that “[a]n educator must be dismissed if he or she is found guilty of- … committing an act of sexual assault on a learner, student or other employee.”

22 Section 18 deals with misconduct. Sanctions, depending on the nature or extent of the misconduct range from counselling to dismissal (section 18(3). Section 18(1)(f) provides that [m]isconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she- … unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre;

The South African Council for Educators (SACE) Code of Professional Ethics .
23 Excerpts of the SACE Code of Professional Ethics included in Schedule 1 hereto find application and provide context in the instant case.

24 The guidelines in Schedule 8 of the Labour Relations Act 66 of 1995 (LRA) and the instruction of the Constitutional Court as to what commissioners should take into account in determining whether dismissal is an appropriate sanction is instructive as to what should be considered in a disciplinary inquiry in regard to sanction. In Sidumo & Another v Rustenburg Platinum Mines (Pty) Ltd & Others the Constitutional Court held:
“In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list”

25 Where there are differing factual versions presented by witnesses, this entails, in summary, an assessment of the credibility, by way of their demeanour, any partiality, prejudice or self-interest , of the witnesses, the reliability and accuracy of their testimony , and the inherent probability or improbability of the witnesses testimony together with an overall consideration of the probabilities of each party’s version and to make a determination thereon as to the most natural and plausible conclusion .

26 I take into account that in the event of circumstantial evidence, inferences on the probability of the facts in dispute may only be drawn from proven objective facts. As such, it constitutes indirect proof and care must be taken as to the nature of the evidence from which it is sought to draw an inference about the facts in dispute. “If the facts permit of more than one inference, the Court must select the most ‘plausible’ or probable inference” . The distinction between speculation, (an impermissible inference), and a permissible inference grounded on objective facts, must also be born in mind :
“There can be no inference unless there are objective facts from which to infer other facts, which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

27 In summary, in the event of circumstantial evidence, it is necessary to determine whether there are proven objective facts , on which inferences can be drawn and the probability or otherwise of such inferences (i.e. where the facts permit of more than one inference, that it is the most ‘plausible’ or probable inference).

Procedure
28 ELRC Collective Agreement 3 of 2018 dated 25 September 2018 (providing for compulsory enquiries by arbitrator in cases of disciplinary action against educators charged with sexual misconduct in respect of learners), is a collective agreement entered into between the employer (Department of Basic Education) and trade union parties (SADTU) to the ELRC. A collective agreement in terms of the Act is not an ordinary contract and the context within which a collective agreement operates under the Act is vastly different from that of an ordinary commercial contract . In terms of Section 23 of the LRA, not only the actual parties to the collective agreement, but each member of the Trade Unions in question / employer’s organisations are also bound including Trade Union parties . Collective agreements differ markedly from conventional contracts , and are binding on and may vary existing contracts of non-signatories by virtue of the LRA.

29 Clause 1, ELRC Collective Agreement 3 of 2018 provides that the agreement applies to and binds the employer as defined in the Employment of Educators Act 76 of 1998, trade unions in the education sector and all employees of the employer as defined in the Employment of Educators Act 76 of 1998, whether such employees are members of trade union parties to the agreement or not.

30 In terms of clause 2.3, “Employer, means employer as defined in the Employment of Educators Act, or any person with delegated authority from the employer to Institute disciplinary proceedings against educators;”

31 Clause 3 deals with the referral of disputes and appointment of arbitrator and provides as follows:
3.1 In all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct committed towards any learner, an inquiry by an arbitrator (also known as a disciplinary hearing in the form of an arbitration), as intended in section 188A of the Labour Relations Act, and clause 32 of the Dispute Resolution Procedures of the ELRC, shall be mandatory.

3.2 In all such matters, the employer shall initiate the disciplinary process by completing ELRC Form E12 and referring the matter to the ELRC in order for the General Secretary to convene a disciplinary inquiry in the form of an arbitration, which will take the place of the internal disciplinary enquiry.

32 It is self-evident from the above, that the employee’s argument, supported by the principal, that the process of initiating discipline against him (an educator) by way of proceedings in terms of ELRC Collective Agreement 3/2018 was unsound, procedurally unfair and constituted an impermissible escalation of the matter already resolved at the school level, is without foundation. The discipline was not against a learner, but against the employee, an educator. It is the HOD as employer who initiates process in terms of Collective Agreement 3/2018 against an educator, see e.g. clause 3 and 2, not the principal. The HOD / delegate was obliged to take disciplinary action against the employee, an educator, in terms of Collective Agreement 3/2018, in view of the allegations of sexual misconduct allegedly committed by him against Ms X a learner at PAHS. Had the HOD / delegate done otherwise such action would be non-compliant. The employee’s allegations of a conspiracy are fanciful, far-fetched and improbable. In any event these claims were not substantiated. As evident from the documents (A7-A24 and B7-8) in Bundles A and B, the employer had sufficient information on which to reach a decision to proceed against the employee on a charge of alleged sexual misconduct in terms of Collective Agreement 3/2018. As testified by the principal, she was contacted by the Circuit Manager, to whom the sexual assault had been reported by the parent of the complainant learner, she submitted reports and the employer subsequently instituted proceedings in terms of Collective Agreement 3/2018.

33 A meeting on 31 10 2024 was attended by the principal, SGB chairperson and two other members of the SGB, Ms X’s parents and Ms Y’s mother. Towards the end of the meeting the employee was called in. The complainant, Ms X and Ms Y were not called to participate. As apparent ex facie the minute (A7) introductions were made, statements read and inter alia the way forward set out.
No more learners in teacher cottages
Not to call these learners, till they finish working

We agreed to call Mr Njeza to apologise.

The matter was finalised and closed with agreement that there is no case, carelessness on both sides happened. This should be a lesson to both of us.

Mr Njeza apologized to parents for all what happened he was offering assistance not knowing that he will be in such a trap.

The matter was officially closed.

34 In so far as the employee argues that the matter had already been resolved (at school level) and escalated without producing new evidence. This is not so as the principal and Mr Baloni categorically stated that the meeting did not deal with the sexual harassment/assault of Ms X. In any event, for the reasons mentioned above it is not possible to deal with allegations of sexual misconduct by educators against learners at school level, this is to be dealt with by the HOD in terms of section 17 of the EDA / ELRC Collective Agreement 3/2018. See above. Further and although not relevant in the context of this matter, fairness to both the employer and employee (and given that we are dealing with a teaching and learning environment involving education of children / learners, the constitutional imperative that the interests of the child are paramount in all circumstances, fairness not only to the employer and employee but also to the learner and his / her guardians) is the criterion against which the necessity to hold a second hearing is measured .

35 The employee has raised issue with the period in respect of which he was precautionarily suspended, as being disproportionally prolonged, irrational and inconsistent with the EDA. This matter as stated above arises out of a referral by the employer of an inquiry by arbitrator to the Education Labour Relations Council (ELRC) in terms of Clause 32 of the ELRC Dispute Resolution Procedures, read with clause 3 of ELRC Collective Agreement 3 of 2018 and section 188A of the Labour Relations Act, 66 of 1995 (LRA). At the time of his suspension and within the statutory time limits (or if outside the time limits, subject to a successful application for condonation), the applicant was entitled to refer a dispute to the ELRC concerning an unfair labour practice relating to suspension (section 186(2)(b) of the LRA). This would be the appropriate forum and process to deal with such a claim. I am not aware whether the employee has referred such a dispute to the ELRC.

Substantive Fairness

The charges:
36 The employee was charged with:
36.1 Contravening section 17(1)(b) of EDA, sexual assault of a learner. Assault is the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of their bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. …. The elements of sexual assault are (a) conduct of a sexual nature (b) which results in the victim’s sexual integrity being impaired (or inspiring the belief that it will be impaired) (c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent by the victim (d) intention to commit the misconduct – in other words accidental unintentional body contact is excluded from the definition. The test for determining whether a conduct is of a sexual nature is an objective one viewed in the light of all the circumstances.

36.2 Contravening section 18(1)(f) of EDA i.e. misconduct, causing a breakdown in the employment relationship by unjustifiably prejudicing the administration, discipline or efficiency of the department / school. The misconduct, causing a breakdown in the employment relationship referred to in section 18(1)(f) occurs where an educator unjustifiably (i.e. without justification, improperly or unreasonably so) prejudices (e.g. causes detrimental loss, negatively affects or causes damage to or harm) the administration (management/operations of an institution), discipline (order, rules and compliance) or efficiency (functioning and productivity) of the DBE or a school.

37 it was common cause alternatively not disputed that:
37.1 The two learners attended on the applicant (invited or uninvited) on two occasions inter alia for assistance with their studies on 25–26 10 2024 and on the second occasion spent the night at his quarters leaving early the next morning (26 10 2024). At the time, the employee’s premises had electricity whereas the place where the learners normally studied did not.
37.2 From approximately 04H00 they slept in the employee’s bed, lying on either side of him, in the opposite direction with their heads at his feet. The learners were dressed except for having removed their jackets and shoes.
37.3 The learners left early in the morning of 26 10 2024, once the hostel had opened, and did not communicate with the employee at all on leaving his premises.
37.4 Ms X and the employee communicated via WhatsApp as per the WhatsApp texts contained in bundle A and bundle B up until 25 10 2024. After the incident the employee sent various texts to Ms X and she did not respond.

38 There were differences between the various witnesses, see above (paragraph 12). E.g. as to who invited who to the employee’s house, the circumstances giving rise to the cooking of the chicken, whether the learners were aware or made aware of the other rooms (and beds and bed linen) in the employee’s house, who decided that the learners should sleep in the employee’s bed, whether the employee in fact sexually assaulted Ms X as alleged by her, where the employee was when the learners left in the morning, the significance of the WhatsApp text messages sent to the device of Ms X after the incident, and to which she did not respond.

39 The general sequence of events and that the learner’s slept in the employee’s bed is common cause.
39.1 Although to a large extent Ms Y corroborated the testimony of Ms X, she did differ on various aspects e.g.:
39.1.1 She did not ask the employee where they would sleep and the employee did not say that they should sleep in his bed. Based on her testimony; that she was unaware of what was in the rooms, the doors to which were closed; the fact that she, Ms Y, fell asleep on the couch and that Ms X was sitting in a chair. It is difficult to imagine where Ms Y thought both of them would sleep. Logic would have it, that faced with having to spend the night at the employee’s house, one or both of the learners would have asked the employee where they would sleep.
39.1.2 She was unaware where they would sleep, she, Ms Y, was drowsy when Ms X awakened her and she followed her to the employee’s bed. Again this does not add up. Ms X and Ms Y removed their jackets and shoes and got into the employee’s bed, one on either side of him and with their heads at his feet. It is hard to imagine that in the circumstances, Ms Y was not fully aware of what she was doing. Ms Y testified that she got up early in the morning to go to the toilet. It was then, according to her, that she realised they had slept in the employee’s bed. This apparently did not concern her and she got back in the bed and went to sleep. This would not be the case if she had been unaware that they would sleep in the employee’s bed all along.
39.1.3 Ms Y confirmed in cross examination that her testimony in evidence in chief was that the employee was asleep when they left on the morning of 2610 2024. Asked if this meant that the employee was still in bed, she vacillated and said she thought he was in bed, she was not sure. Asked if she was sure that the employee was asleep, again, she was not sure. Asked, based on the employee’s testimony whether at the time they left, the employee was outside of the bed sitting down with his phone, she said she did not check, they just left and she did not want to commit to where he was i.e. in bed or out of bed. Ms Y’s answers in this regard were highly unsatisfactory. Clearly, on realizing her error she was tailoring her testimony, in an attempt to bring it in line with the employee’s version.
39.2 The employee sought to distance himself from any misdemeanor on his part by denying that he invited the learners to his place to study, he did not invite them for a meal, the learners had stayed past the time the hostel closed and on being unable to gain access, he asked them whether they would stay over and on them replying yes, had assumed they would stay in one of the rooms (which had beds and linen) and of which Ms Y had knowledge. He denied telling the learners that they would sleep in his bed. He had gone to bed and had been surprised to find the learners in bed with him when he woke up and made the statement as to why of all places they would sleep in his bed. He denied touching Ms X as alleged by her. In so far as his WhatsApp comments to Ms X following on their leaving his house and which were not responded to by Ms X it was his view that these dealt with normal matters, the dishes were not washed, reprimanding Ms X for not answering, and that certain phrases e.g. Sorry, did not carry its colloquial meaning.

40 I do not find the applicant to be a credible and reliable witness and do not accept his testimony advanced as to who invited who, the circumstances surrounding the meal, whether Ms Y had knowledge of the layout of the premises, why the learners slept in his bed and what transpired in his bed in respect of Ms X. My reasons are:
40.1 Ms Y, the employee’s witness did not corroborate his testimony in several important and material respects:
40.1.1 In respect of the 1st visit by the learners to the employee’s house, Ms Y testified that the employee had invited them, contrary to the employee’s testimony.
40.1.2 In respect of the 2nd visit to the employee’s house she stated that they went there to return the employee’s key, to cook the meat (chicken), study and return to the hostel. They also told the employee to take out the chicken (from the fridge). This directly contradicts the employee’s testimony that he was cooking the chicken and presupposes that this was a planned event and accordingly that they had been invited, alternatively joint arrangements made to attend on the employee.
40.1.3 The doors of the other rooms, in the house occupied by the employee, were closed and she was unaware of what was in such rooms. This directly contradicts the employee’s case, to the effect that Ms Y was aware of the contents (i.e. beds and linen) of the additional rooms and that they could sleep there.
40.1.4 More importantly Ms Y’s testimony, that she was not aware of the contents of the rooms, discredits the employee’s testimony to the effect that as Ms Y was aware of the rooms and their contents that they would sleep there. The fact that both learners , at about 04H00, climbed into his bed, fully dressed, confirms that both Ms Y and Ms X were unaware of any other beds in which they could sleep.
40.1.5 Comparatively speaking, the testimony of Ms Y corroborated that of Ms X to a greater extent than that of the employee.

40.2 The employee testified that the principal had inter alia told him that she had received a call from the woman claiming to be Ms X’s mother. He also testified that he had walked to the principal’s house and that at the time the “father” and “mother” were taking turns to tell him he should resign as they would be after him and he would pay for this and stating that they would call the principal not knowing his mobile was on speaker and that he was with the principal at the time. In her testimony, evidence in chief, cross-examination and re-examination, Ms Mxabangeli, the principal of PAHS, made no reference to this. Her evidence was that on the incident being reported to her she had called the employee requesting a written statement of the incident.

40.3 The principal also testified that Ms Y had knowledge of the layout of the premises and was forced to concede that, based on Ms Y’s testimony, this could not be the case. She also testified that Ms X had the key to the hostel and was similarly forced to concede that this was not the case. Her testimony was in any event hearsay.

40.4 The principal’s testimony, e.g. regarding the meeting she arranged with Ms X’s parents (and Mr Bolani’s testimony relating thereto to the effect that they (principal and school / SGB members who attended with her) had wanted to deal with the matter internally and that he did not wish to agree on the way forward without consulting his wife, who was not present), the content of the minute of the meeting she arranged with the parents and members of the school / SGB (A7), her views on the implementation of discipline relating to educator staff, her view that, in the circumstances in question, it was up to the learners to ensure they had a safe place to sleep and no duty on the employee to ensure their safety, that Ms Y was aware of the layout of the employee’s house and that Ms X had the hostel key (both of these assumptions were false), and her failure to promptly report the allegation of sexual assault against a learner, all point to a bias in favour of the employee. I accordingly do not accept the testimony of the principal as credible and or reliable.

40.5 On the employee’s version, he did not tell the learners where to sleep and left this hanging. He assumed they would sleep in one of the rooms. His testimony was that after the learners had told him the hostel was locked and the matron’s phone was off; he asked them if they were going to sleep there and they said yes. He assumed that as Ms Y knew about the other rooms from previous occasions, she would know where to sleep. The employee did not follow up on this or check that the learners had located the beds and had suitable bedding for the night. He went into his room watched Netflix and went to sleep.
40.5.1 The employee testified that he knew Ms X from class. She was a member of the RCL and a class captain. She was a child who was close to him because she loved learning. She was a child who helped him a lot because he was a student developer. She would assist him with some of his projects. Prior to the incident, they would meet every few days and catch up with the syllabus. Because of all of this, Ms X was one of the learners who had become close to him. So much so that she was also involved in some aspects of his personal life e.g. she would use his phone to take pictures. If he carelessly left something lying around, she would take it and follow him.
40.5.2 The employee testified that the next day (26 10 2024) he had gone to school for an unconnected reason and saw one of his male students, who reminded him that he had promised to buy him a cake. He had then arranged for a colleague to buy a cake and meat and he had arranged a braai for the learner and his friends. They had sat outside and braaied and left his house at about 19H00 .
40.5.3 The point about recording the above is that the employee indicates that Ms X was one of his special students and assisted him in some of his projects, even getting involved in aspects of his personal life. In addition, he was a student developer and he took an interest in his learners he had purchased a cake and meat and had held a braai for another learner and his friends the following day 26 10 2024. Yet despite having this concern for his learners, he simply, on his testimony, left Ms Y and Ms X to their own devices as to where to sleep on the flimsy basis that Ms Y would know about the other rooms. The employee’s attempt to evade responsibility for why the learner’s slept in his bed is not only improbable but leaves more questions than answers.

40.6 The employee is an educator and charged with seeing to the safety and well-being of the learners. His conduct in allowing the learners to sleep over, given his position as an educator and on the basis of his testimony, is the opposite of that required of an educator in his position. Not to mention that he should have ensured that the learners should not have been there in the first instance. It is unacceptable that an educator should allow learners of the opposite sex to visit them in their personal quarters, without the necessary permission and safeguards being obtained and arranged beforehand. In addition and when it was discovered that the hostel was now locked, it behooved the employee, as educator, to make arrangements for safeguarding the learners, in this instance their safe sleeping. It was not as if the employee had no options in this regard. He resided on the PAHS campus, he lived in school accommodation, other educators also resided on the property including the principal who he testified was his neighbour. At the very least he should have attended on the matron, the distance to her quarters would not be prohibitive to walk, given that the learners had walked from the hostel to the employee’s house. Alternatively, he could have sought assistance from the principal (who on his testimony was his neighbour) either via cellphone or visiting her, He did none of these. The employee’s conduct was certainly not in line with the SACE Code of Professional Conduct .

41 Ms Y testified that she was not aware of the contents of the rooms. Ms X also did not know the layout of the premises or what was behind the doors. It was her testimony that the employee had told them that they would sleep in his bed. The testimony presented to the hearing was to the effect that Ms X sat at a table / study desk and Ms Y on a couch, on which she fell asleep. Ms X remained at the desk and later in the morning around 04H00 felt cold and wished to sleep. Ms X awoke Ms Y (asleep on the couch) and they both went to sleep in the employee’s bed.

42 I find on the probabilities that the employee did say that the learner’s would sleep in his bed. That this is the case is supported also by the following:
o Ms Y denied that she asked the employee where they would sleep and that he said they would sleep in his bed. Given that the learners were in a predicament in that the hostel was closed, both were unaware of the contents of the rooms to which the doors were closed and clearly would not know where to sleep, it is improbable that one or both of them would not ask where they could sleep. In addition if she had already taken the couch, where did Ms Y imagine Ms X would sleep ?. Further, Ms Y testified that she became aware in the morning that they had slept in the employee’s bed, when she got up to go to the toilet. However this did not stop her from getting back into the employee’s bed and falling asleep. This could only be the case if the employee had told them where they would sleep. And given that she appeared to have no issue with this, the probabilities favour that she had in fact asked the employee.
o Ms X waited until 04H00, by which time she needed to sleep and was cold, to awake Ms Y on the couch and together to get into the employee’s bed.
o The fact that Ms X waited until 04H00, remained dressed and that the learner’s placed themselves at either side of the employee with their heads at his feet in his bed, indicates a reluctance, on Ms X’s part, to sleep in the employee’s bed.
o There were, as far as Ms Y and Ms X were concerned, no other rooms with beds in which they could sleep.
o Although the fact that two female students would be required to sleep in the bed of their male educator is totally unacceptable, in this regard, it is noted that firstly the learner’s hostel had been closed for the night, the learners were unaware of any other rooms with beds in which they could sleep, they had been told by the employee that they would sleep in his bed.

43 Ms Y testified that she is a deep sleeper and that she had not been awakened by anything untoward in the bed. It was her view that Ms X would know what happened.

44 The employee denied touching/feeling Ms X’s buttocks and legs at all.

45 Ms X testified that she was awakened by the employee feeling her buttocks and legs. She had removed his hand and attempted to move away, he had attempted to remove her socks and again she moved away. He had continued for some time, with his inappropriate advances with her shifting and moving his hand away, until he fell asleep. She was scared and shaking, she did not scream or tell Ms Y what the employee was doing as she was afraid and did not know what the employee might do . She did not like him touching her.

46 Ms X testified in a straightforward manner and although there are various discrepancies in her testimony this is to be expected given her age and the impact that the incident must have had on her. The general sequence of her testimony was in line with that of Ms Y, the only aspect not covered by Ms Y being the testimony of Ms X relating to the sexual assault, of which Ms Y was unaware. Ms Y testified she had no knowledge of this as she was asleep on the other side of the employee in the bed and a heavy sleeper. Other factors also support Ms X’s version of events as to the sexual assault.
o It was common cause that when the learners left in the morning there was no communication between them and the employee. Ms Y agreed, given that she had gone there to eat the meal and study, that this was bizarre.
o As per her testimony, Ms X reported the sexual assault to her sister in Port Elizabeth on 27 10 2024.
o Ms X did not speak to Ms Y on their return to the hostel. She was withdrawn and only told Ms Y of the sexual assault when they were requested to write statements for the principal (28 10 2024). Thereafter Ms X had remained withdrawn and stopped sleeping at the hostel and stayed at home.
o Prior to the incident, the employee and Ms X engaged in frequent communication (text and some voice notes) via WhatsApp (A8-A14). After the incident, the employee continued to WhatsApp Ms X and she did not respond (A15).
Simply put, why would Ms X, the applicant’s special student and to whom she turned for assistance in her studies, suddenly act as set out above ?

47 Ms X impressed as a credible and reliable witness and I accept her testimony on the balance of probability as the correct version of what transpired relative to the sexual assault, namely the employee without justification, inappropriately touched and felt her buttocks and thighs, and attempted to remove her socks, without her consent, while at all times she attempted to get him to desist by removing his hand or shifting away.

48 In the circumstances, I find the employee guilty of sexual assault, acting deliberately and with intention, against Ms X in that on the morning of 26 10 2024 he repeatedly touched and felt Ms X’s buttocks and thighs and attempted to remove her socks, while she at all times moved his hands away and attempted to move away. In doing so, the employee impaired Ms X’s sexual integrity, acted unjustifiably, without her consent and unlawfully, as envisaged in section 17(1)(b) of the EDA (Charge 1).

49 The employee’s misconduct undermines the administration, the discipline and efficiency in the department of education eastern cape (employer) including the teaching and learning environment in the school, necessary for the effective functioning of a school. In addition, he has unjustifiably brought the name of the employer and the school into disrepute (prejudice).

50 On the basis of all that is set out above, it is self-evident that the employee is guilty of misconduct causing a breakdown in the employment relationship by unjustifiably prejudicing the administration, discipline or efficiency of the department (employer) and school (PAHS) as envisaged in section 18(1)(f) of the EDA (Charge 2).

Sanction.

51 As stated above, the existence of the rules, that the applicant was aware of the rules, the rules were reasonable or valid, constituted serious misconduct (section 17) and misconduct (section 18) and that the rules are consistently applied by the respondent was not placed in dispute. What was in dispute, was the commission or not of the misconduct by the employee. I have found that the employee was guilty of misconduct as set out in charge 1 and charge 2.

52 In the instant case and in view of the fact that I have found the employee guilty of serious misconduct, section 17(1)(b) of the EDA finds application and the employee must be dismissed . In the circumstances, I find that the employee, Mawande Njeza, is dismissed as provided for in section 17(1) of the Employment of Educators Act 76 of 1998

53 I have also found the employee guilty of misconduct in terms of section 18(1)(f) of the Employment of Educators Act 76 of 1998 and deal with what is a fair and appropriate sanction in respect of this contravention below.

54 The employee’s misconduct and attitude that he is not responsible or guilty, displayed during the arbitration, in the face of overwhelming evidence to the contrary, did not assist him.

55 The employee’s misconduct goes to the heart of the employment relationship in that he can no longer be trusted to uphold the administration, discipline and efficiency of the employer and PAHS. Trust and confidence are fundamental pillars of the employment relationship. Accordingly, conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employment relationship, will entitle the employer to bring it to an end .

56 With regard to trust and confidence, the Labour Court in Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others , held:
“The general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long-established one. See Council for Scientific and Industrial Research v Fijen (1996) 17 ILJ 18 (A) at 26E-G .”

57 On this basis alone, there can be no continued employment relationship. The employee has by his conduct destroyed any trust between him and the respondent.

58 In denying his guilt when manifestly he was guilty, the applicant showed a total lack of remorse for his conduct. The approach to lack of remorse on the part of an employee is appositely set out by Snyman AJ in Masubelele V PHSDSBC & others (LC) JR1151/08 (17 January 2017) as follows:
“[43] … In this regard, the relevant issues are that the applicant never showed any genuine remorse and persisted with what were entirely unacceptable and unreasonable explanations for his misconduct. Furthermore, the misconduct of the applicant clearly related to offences of dishonesty. As to the absence of any remorse in this instance, reference is made to the De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others .
This brings me to remorse. It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust, which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”

59 The employee failed to acknowledge any wrongdoing on his part and throughout the hearing persisted in the view that he had not committed misconduct. The applicant’s misconduct, undermines the administration, the discipline and efficiency in the department of education eastern cape (employer) including the teaching and learning environment in the school, necessary for the effective functioning of a school. In addition, he has unjustifiably brought the name of the employer and the school into disrepute (prejudice). In the absence of an acknowledgement of and remorse on his part for such wrongdoing, there can be no re-establishing of the trust relationship / employment relationship between him and the respondent.

60 The risk of retaining the employee in its employment, is unacceptable given the Constitutional imperative and legislation, on the best interests of the child and learner .

61 The Labour Appeal Court has held that dismissal is a rational response to risk management and is a legitimate reason for dismissal as effectively as a breakdown in trust . In De Beers Consolidated Mines Ltd V CCMA & Others (2000) 21 ILJ (LAC) at 1058F –G it was further stated:
“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”

62 In Miyambo v CCMA and Others the Labour Appeal Court followed the approach in De Beers and held as follows:
“[13] It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust. …”

63 The applicant has been in the employ of the employer for some 10 years. Long service as such does not justify a lesser sanction. The following comments by the Labour Appeal Court, in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others, are apposite.
“[22] …. Long service is no more than material from which an inference can be drawn regarding the employee’s probable future reliability. Long service does not lessen the gravity of the misconduct or serve to avoid the appropriate sanction for it. A senior employee cannot, without fear of dismissal, steal more than a junior employee. The standards for everyone are the same. Long service is not as such mitigatory. Mitigation, as that term is understood in the criminal law, has no place in employment law.”

64 The applicant is a post level 1 educator. In terms of statute, the misconduct of which he has been found guilty, charge 2, refers to a breakdown in the employment relationship and constitutes misconduct by the employee. The employee’s misconduct has prejudiced the administration, discipline or efficiency of the employer and PAHS. I am accordingly of the view, based on the misconduct of the applicant, that his length of service does not assist him when it comes to determining on sanction. No inference, based on his misconduct, his failure to acknowledge his wrongdoing and lack of remorse, can be drawn to the effect that he will change his ways. What the applicant’s years of service demonstrate is that he should know better than to commit the misconduct with which he was charged and found guilty. Rather, the applicant’s length of service, is an aggravating factor.

65 No work-related personal circumstances of the applicant have been drawn to my attention that may impact on the issue of sanction.

66 The interests of the employer far outweigh the interests of the employee. Fairness dictates that the respondent should not be forced to retain in its employ an employee who has been found to have committed misconduct of the nature the applicant has been found guilty of and thereby undermined the administration and discipline of the department of education eastern cape (employer) and a public school (PAHS).

67 There are no redeeming features that may be considered with a view to imposing a lesser sanction. It follows that a sanction less than dismissal / progressive discipline cannot be applied. For the same reason, additional training and instruction cannot be considered. Accordingly, in taking into account the totality of the circumstances, I find that the sanction of dismissal is an appropriate and fair sanction for contravening charge 2.

68 A child’s best interests are of paramount importance in all matters concerning the child . Given the employee’s misconduct, the employer cannot be expected to retain him in its service as an educator. He has shown by his misconduct that he is unsuitable to work with children and learners in the education system.

69 I make the following award.

AWARD

70 The employee, Mawande Njeza, is guilty as charged. i.e. charge 1 and charge 2.

71 The sanction imposed in respect of charge 1 is dismissal and the sanction imposed in respect of charge 2 is also one of dismissal.

72 The employment of Mawande Njeza, by the employer, the Provincial Department of Education, Eastern Cape is terminated with immediate effect, without notice. The employer, the Provincial Department of Education, Eastern Cape, must inform Mawande Njeza, of his dismissal.

73 The employee, Mawande Njeza, is found unsuitable to work with children In terms of section 120(4) of the Children’s Act, Act 38 of 2005.

74 The General Secretary of the Education Labour Relations Council must:
74.1 As the administrator of this Section 188A enquiry, in terms of section 122(1) of the Children’s Act, Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this Forum, made in terms of section 120(4) of the Children’s Act 38 of 2005. That Mawande Njeza, is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in Part B of the National Child Protection Register.

74.2 Send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mawande Njeza’s SACE certificate.

75 The employee has the right to take this award on review to the Labour Court .

JC Robertson
ELRC Panelist

Schedule 1
Excerpts from the South African Council for Educators (SACE) Code of Professional Ethics
“‘Educator’ means any educator registered or provisionally registered with the Council ;
‘Learner’ means a pupil or a student at any early learning site, school, further education and training institution or adult learning centre ;
GENERAL

… .”

The educators who are registered or provisionally registered with the South African Council for Educators:

1. acknowledge the noble calling of their profession to educate and train the learners of our country;
2. acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
3. acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa;
4. commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code; and
5. act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute.

CONDUCT: THE EDUCATOR AND THE LEARNER

1. An educator:

1. respects the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality;

2. acknowledges the uniqueness, individuality, and specific needs of each learner, guiding and encouraging each to realise his or her potentialities;

3. strives to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;

…. ;

4.avoids any form of humiliation, and refrains from any form of abuse, physical or psychological;

5. refrains from improper physical contact with learners;

6. promotes gender equality;

7. refrains from courting learners from any school;

8. refrains from any form of sexual harassment (physical or otherwise) of learners;

9. refrains from any form of sexual relationship with learners from any school;

…. ;

10. 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;

11, takes reasonable steps to ensure the safety of the learner;

12. does not abuse the position he or she holds for financial, political or personal gain;

13. is not negligent or indolent in the performance of his or her professional duties; and

15. …  .”