In the DISCIPLINARY INQUIRY

of

DETAILS OF HEARING AND REPRESENTATION

1.         The matter came before the ELRC in terms of Collective Agreement No. 3 of 2018 and was set down for an Inquiry on 27 May 2025 at Westering Primary School, Gqeberha.

2.          The Department of Education was represented by Mr S Kralo, a Employee Relations Officer. The   

interpreter was Mr N H Hart and the intermediary Ms N O Nxala.

3.          The Educator was represented by Ms V van Wyk of SAOU.

4.          The applicant submitted written closing arguments on 9 June 2025, as agreed and the 

              respondent on 10 June 2025 due to no electricity at the District Office. I have considered both    

               their closing arguments.

5.           CHAIRPERSON’S DISCIPLINARY CHECKLIST

 BACKGROUND TO THE DISPUTE:

• The Educator, Mr Romano Sutton is permanently employed as a post level one (1) educator at Winterberg Primary School.

•  The Educator was charged and pleaded not guilty to the following:

• Section 17(1) (b) of the Employment of Educators’ Act 76 of 1998, as amended, in  

       that he had committed an act of Sexual Harassment to a learner where it is said that:

• On or about 1August 2024 he inappropriately physically touched a then grade 7 learner, MG at Winterberg Primary School.

• Section 18(1) (q) of the Employment of Educators’ Act 76 of 1998, as amended, in that he whilst on duty, conducts himself in an improper, disgraceful or unacceptable manner, where it is said that:
• On or about 1August 2024, he inappropriately physically touched a then grade 7 learner, MG

at Winterberg Primary School.

• Section 18(1) (u) of the Employment of Educators’ Act 76 of 1998, as amended, in that

he whilst on duty he intimidates or victimises a leaner, where it is said that:

• On or about 16 August 2024, he sexually intimidates or victimises a leaner, MG at

Winterberg Primary School.

ISSUE TO BE DECIDED

8. I must decide whether the Educator was guilty as charged by the Department of Education.

SURVEY OF EVIDENCE

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

  THE DEPARTMENT OF EDUCATION’S EVIDENCE

10. The Department of Education called MG, a 14-year-old learner currently in Grade 8 at Brandwag School, provided a detailed account of incidents involving Mr. Sutton in 2024, when she was a learner at Winterberg Primary School. She recalled that on April 3rd, during the final period of history class, there was considerable noise and disruption. Despite Mr. Sutton’s multiple requests for silence, the class remained noisy. When Mr. Sutton instructed MG to sign a merit for misbehaviour, she refused, explaining that she was not solely responsible for the disturbance. Mr. Sutton subsequently asked her to stay behind after class. During this time, he questioned her behaviour and made comments about her character, ultimately allowing her to leave with a caution not to repeat the behaviour.

11. The following day, April 4th, during an English lesson, MG was instructed by Mr. Sutton to bring her Economic and Business Studies (EBW) book to his classroom after the first period. She was asked to come alone. Once in the classroom, Mr. Sutton engaged her in personal conversation, inquiring about her home life and her sister’s behaviour. During this interaction, he posed an inappropriate question regarding whether he was her favourite teacher, to which she replied she had no favourite teacher.

12. While she was standing behind Mr. Sutton’s chair, Mr. Sutton inappropriately touched her breasts and buttocks over her school uniform. She immediately pulled away and expressed her discomfort, telling him to stop. Despite her clear refusal, Mr. Sutton blocked her exit from the classroom and then attempted to offer her a R10 note, which she also declined. After she left the classroom and headed towards the bathroom, Mr. Sutton followed her down the hallway, seemingly to ensure she did not report the incident.

13. Upon reaching the bathroom, MG encountered a fellow student, C. Observing this, Mr. Sutton quickly returned to his classroom. MG then reported the incident to her class teacher, Ms. Meyer, who escorted her to the deputy principal, Ms. De Vos. From there, MG was taken to the principal’s office, where she remained for the rest of the day. The principal, Mr. Mapoe, along with Ms. Meyer and Ms. De Vos, later took her home to inform her parents about the alleged incident.

14. MG addressed discrepancies regarding the incident dates, confirming that while an earlier written statement referenced July 31st and August 1st, 2024, the actual incidents occurred on April 3rd and 4th, 2024. She acknowledged that the earlier statement was written by her and signed by her grandmother.

15. In her testimony, MG described the inappropriate touching in detail, explaining that Mr. Sutton used his left hand to rub her buttocks and pressed her breasts over her clothing from behind while she stood behind his chair. She confirmed there were no other individuals present in the classroom at the time of the incident.

THE EDUCATOR’S EVIDENCE

16. Mr. Romano Sutton, an educator at Winterberg Primary School, provided his testimony regarding the allegations involving MG, a Grade 7 learner whom he taught English, Social Sciences, and Geography. Mr. Sutton firmly denied the allegations of inappropriate physical contact and pleaded not guilty to the charges of sexual assault.

17. He recalled that the incident in question occurred on August 1, 2024. On the previous day, July 31, he observed MG exhibiting unusual behaviour by lying on her arms during class, which was uncharacteristic for her typically talkative nature. Concerned about her well-being, he approached her to inquire if she was alright but did not receive a response.

18. On August 1, during the first period English lesson with Grade 7A, Mr. Sutton invited MG to come to his classroom during the first break for a private discussion regarding her well-being. He emphasized that this invitation was unique, as it was the first time he had asked a learner to meet him privately under such circumstances.

19. According to Mr. Sutton, during the break when MG entered his classroom, the door was open. His colleague, Mr. Human, briefly entered and asked about coffee, to which Mr. Sutton responded before returning attention to MG. He reassured MG that if she did not feel comfortable speaking with him, she could approach her class teacher instead.

20. Mr. Sutton categorically denied any form of physical contact with MG. He explained that he maintained appropriate distance throughout their interaction. He also refuted claims that he blocked the classroom door, stating that he left first, carrying a cooler bag with his lunch in his right hand, followed by the learner.

21. He first became aware of the allegations on August 2, 2024, when the principal contacted him for a meeting. During the subsequent discussion with the principal and deputy principal, Mr. Sutton expressed deep shock and distress over the accusations, which he found unexpected and traumatic.

22. Mr. Sutton confirmed that he was not suspended nor asked to stay home during the investigation. MG remained in his class until the end of the school term. He described the relationship with MG during this period as cautious and somewhat strained, noting that while she resumed her usual talkative behaviour at times, there were instances where she did not follow instructions. Due to the complexity of the situation and concern about potential misunderstandings, he sought guidance from the principal on how to proceed appropriately.

23. Regarding allegations of victimization on August 16, Mr. Sutton stated he had no knowledge or recollection of any such incident, affirming that the only matter under consideration was the incident on August 1.

24. Mr. Sutton addressed the issue of giving MG a R10 note after their interaction, explaining that it was intended for her to purchase snacks from the tuckshop. He clarified that this was a common practice extended to multiple learners, regardless of gender, reflecting sensitivity to the socio-economic challenges many students face.

 ANALYSIS OF EVIDENCE

25.     Section 17(1)(b) of the Employment of Educators Act (as amended) relates to the grounds on which an educator may be found guilty of misconduct. Specifically, it covers acts or omissions by an educator that constitute improper conduct or conduct prejudicial to the education service. This section is broad and can include various forms of unacceptable behaviour by educators, including breaches of professional ethics, dishonesty, or actions that undermine the integrity or functioning of the education system.

26. Section 18(1)(q) of the Employment of Educators Act (as amended) sets out more specific misconduct offences for which disciplinary action can be taken against an educator. This subsection typically addresses conduct that includes, but may not be limited to, any form of harassment or inappropriate behaviour towards learners, such as sexual harassment, abuse of authority, or any conduct that adversely affects the dignity and well-being of learners and colleagues. It encapsulates actions that are considered grievous breaches of professional conduct standards expected from educators.

27. Section 18(1)(u) of the Employment of Educators Act 76 of 1998 (as amended) pertains to misconduct by educators which may lead to disciplinary action or dismissal. This section identifies specific acts or omissions that are considered grounds for disciplinary measures against educators employed in South Africa.

The Employment of Educators Act primarily governs the conditions of employment, discipline, and conduct of educators in public schools and institutions. Section 18 lists various instances of misconduct that justify disciplinary hearings.

28.     In the matter of Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA) the Supreme Court of Appeal has laid out the accepted test applicable to both a trial court and an arbitrator when faced with a factual dispute, in particular when faced with two irreconcilable versions. According to this judgment (at para 5) the court concluded on the disputed issues by making findings on:

1. the credibility of the various factual witnesses.
   1. their reliability; and
   1. the probabilities

The court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. This finding will, in turn, depend on a variety of subsidiary factors, such as

• the witness’ candour and demeanour ;
• his or her bias, latent and blatant;
• internal contradictions in his or her evidence;
• external contradictions with what was pleaded or put on his or her behalf, or with established

    fact or with his or her own extra-curial statements or actions;

•  the probability or improbability of particular aspects of his or her version; and
•  the calibre and cogency of his or her performance compared to that of other witnesses

    testifying about the same incident or event.

A witness’ reliability will depend, apart from some of the factors above, on

•  the opportunities he or she had to experience or observe the event in question; and
•  the quality, integrity and independence of his or her recall thereof.

 Finally, an analysis and evaluation of the probabilities and improbabilities of each party’s version

 on each of the disputed issues are necessary components in reaching conclusion.

28.    During cross-examination, MGconfirmed that she authored a written statement regarding the incidents, which was signed by her grandmother. She clarified that the events in question occurred on July 31 and August 1, 2024. Although there was an initial inconsistency concerning the subject taught by Mr. Sutton—where MG’s statement referenced English but she testified that it was History—she explained that Mr. Sutton instructed both subjects.

          MG testified that she was called to Mr. Sutton’s classroom alone during break time. She further explained that two other learners, C and K, were initially present in the classroom but were asked by Mr. Sutton to leave before MG entered.

          Regarding Mr. Sutton’s conduct, MG stated that he approached her from behind but did not pull her closer. She described that he touched her breasts for approximately three seconds and also touched her chin in a way that gave her the impression he intended to kiss her.

          MG confirmed that the classroom door remained open throughout the entire incident, including when a colleague, Mr. Human, entered the room. She indicated that no other students were present in the corridors during break time, as they were not permitted there.

          Following the incident, MG left the classroom and went outside, then proceeded to the bathroom after the bell rang. She did not personally call for her teacher, Mrs. Meyer; instead, a fellow learner named L observed her distress and fetched Mrs. Meyer. From there, MG was escorted to the deputy principal, Mrs. De Vos.

 MG returned to school the following Monday and confirmed that she was not moved to a different class. She continued attending classes taught by Mr. Sutton; however, she was advised by Mrs. De Vos that she was not required to make eye contact with him. MG remained in Mr. Sutton’s class for the remainder of the academic year.

29.     During cross-examination, Mr. Sutton unequivocally denied the allegations that he touched MG or asked her if she enjoyed the contact. He maintained that he never made such inquiries and explained that he did not challenge MG’s testimony on this point because he asserts that no physical contact occurred. When pressed on whether it was accurate to accept MG’s claim that he posed such a question, he reaffirmed his denial and emphasized that he did not touch her.

Mr. Sutton confirmed observing MG on July 31, 2024, lying on her arms in class, describing her as typically a talkative and engaged learner. He noted that other learners were present in the classroom during this time. Following MG’s non-response to his initial concern about her well-being, he invited her to visit his classroom the next day, August 1, 2024, to discuss her state privately. He explained that this invitation was motivated solely by concern for MG’s unusual behaviour.

 He denied that MG was again found lying on her arms on August 1 and highlighted that the school encourages staff to interact closely with learners, many of whom come from disadvantaged backgrounds. Mr. Sutton also explained that the 31st of July was the last period of the day and the school adjourned immediately afterward, limiting his opportunity to engage MG further on that day.

 Regarding the matter of the R10 note, Mr. Sutton admitted providing MG with money to purchase snacks from the tuckshop as a customary gesture of kindness extended to learners. He claims that MG did purchase items and brought them to him after the break. He stated that he did not dispute MG’s claim that she refused the money during questioning because he felt it was inappropriate to interrupt the proceedings.

 Mr. Sutton acknowledged not having reported MG’s behavioural concerns to the principal or any other authority prior to the emergence of the allegations. He stated that inviting a learner to his classroom for a private discussion was unprecedented in his year and a half of teaching experience, and he expressed regret that the situation escalated beyond his intentions.

 When recounting his meeting with the principal and deputy principal, Mr. Sutton said that no other staff members, including Mrs. Meyer, were present. He was informed of the allegations that he had touched MG during break time. He reiterated his position that the classroom door was open, that his colleague briefly entered, and that he did not touch MG at any time.

 Finally, Mr. Sutton stated that on July 31, MG was lying on her arms during the last period, but he could not definitively recall whether this was the middle or the end of that period.

30.     During re-examination, Mr. Sutton clarified that while he had been teaching at Winterberg Primary School for a year and a half, his total teaching experience spanned six years. When questioned about the period on July 31 during which he observed MG lying on her arms, he confirmed it was the last period of the day and explained that he saw her again early the following morning.

 Regarding whether he reported MG’s behaviour to the principal or any other staff member, Mr.    Sutton stated that he was not obliged to report everything that occurred in his classroom.

 Concerning the R10 note he gave to MG to purchase snacks, Mr. Sutton acknowledged that a witness observed MG buying and returning with the items. However, he was unaware that MG was found crying in the toilet and only learned of this distress from the principal after the report was made.

31.    The Labour Court in Potgietersrus Platinum Ltd. v CCMA (J1459/98 of 30 July 1999) held that, “it is merely required of the employer to show that circumstantial evidence that an employee is guilty of the misconduct, is more plausible than the possibility that he/she did not commit the misconduct. Should the employer be able to demonstrate a sufficient evidentiary basis to implicate the employee on a balance of probabilities, a mere and persistent denial by an employee without offering an actual version in answer to the evidence of the employer, is not a sufficient defence. As pointed out by the court, consistent denial does not constitute an alternative persuasive version and undue weight should not be attached to this as opposed to detailed, consistent, corroborated, and essentially unchallenged evidence presented by the employer. Should the employer demonstrate a sufficient evidentiary basis to prima facie implicate the employee on a balance of probabilities, the onus to prove whatever defence / explanation he offers, lies with the employee.”

32.     The credibility of Mr. Sutton’s evidence warrants a thorough and nuanced evaluation, taking into account his testimony during his evidence in chief, his conduct under cross-examination, clarifications provided during re-examination, and notable omissions in his account.

In his initial testimony, Mr. Sutton categorically denied all allegations of inappropriate physical contact with MG, assertively maintaining that at no point did he engage in any form of touching. His account was coherent and detailed, emphasizing that the classroom door was open during the relevant period and that his colleague briefly entered, thereby providing a purported context of transparency during his interaction with the learner. He conveyed a palpable sense of shock and distress upon being informed of the allegations, illustrating the seriousness with which he regarded the accusations. Mr. Sutton also described his post-incident relationship with MG as cautious yet professional, underscoring the delicate nature of their continued classroom interaction.

Throughout cross-examination, Mr. Sutton remained unwavering in his denial of the physical contact allegations and repudiated having asked any inappropriate or suggestive questions posed by MG. Although he did not explicitly dispute some of MG’s specific assertions, his consistent position was that no physical contact occurred. He corroborated witnessing MG’s atypical behaviour on July 31, citing genuine concern which led him to invite her for a private discussion the following day. However, Mr. Sutton admitted that he failed to report MG’s concerning behaviour to any school authority prior to the allegations, reflecting an apparent lapse in adherence to mandatory welfare reporting protocols. He acknowledged the institutional emphasis on staff engaging with learners, which introduces a tension given his earlier omission to report. This omission potentially affects the perceived diligence and responsibility expected of an educator entrusted with learner safety.

During re-examination, Mr. Sutton expanded upon his professional background, clarifying that his cumulative teaching experience extends over six years, with one and a half years at the current institution. He reaffirmed the timing of his observations regarding MG’s demeanour and confirmed that he was not under any obligation to report every observation made in class—a position that may be viewed critically in light of professional safeguarding standards. Regarding the R10 note, he acknowledged that a witness observed MG purchasing snacks and delivering them to him.

 Nevertheless, he expressed ignorance of MG’s subsequent emotional distress until informed by the principal, which raises further questions about his attentiveness and responsiveness to the learner’s wellbeing following their interaction.

 Importantly, and significantly impacting the assessment of his credibility, Mr. Sutton’s evidence omitted any reference to the R10 note as a routine gesture extended to multiple learners, a point that MG raised and that his own testimony later touched upon only after prompting during re-examination.

 Critically, there was no mention of the cooler bag he purportedly carried in his right hand while allegedly engaging in inappropriate physical contact—a central detail in MG’s testimony. It was never put it to the learner that Mr Sutton left the classroom first and that she followed him. It was also never put to the learner that he did not notice her going to the bathroom. The failure to disclose these material facts in his evidence, either in chief or during cross-examination, raises concerns about the completeness and transparency of his account. Furthermore, the absence of these points being put to MG during cross-examination deprived the inquiry of fully testing MG’s account and a failure to challenge or explain these assertions formally.

 Such omissions may, in a legal context, be interpreted as evasiveness or lack of candour, undermining confidence in the reliability of his evidence. They introduce a significant gap that diminishes the overall persuasiveness and credibility of Mr. Sutton’s narrative. When considered alongside his admissions regarding non-reporting and apparent lack of awareness of MG’s distress, these factors necessitate a cautious and critical appraisal of his testimony.

 In summary, while parts of Mr. Sutton’s evidence are internally consistent and articulated with a degree of clarity and sincerity, the cumulative effect of omissions, equivocations, and lapses in professional vigilance substantially impact the assessment of his credibility. His evidence should therefore be weighed carefully and in conjunction with MG’s detailed and consistent testimony, as well as all other relevant evidence, to ensure a fair, balanced, and just determination of the facts in this disciplinary inquiry.

33.     A finding on a balance of probabilities is also not merely a mechanical balancing of evidence – or for that matter, the number of witnesses on each side. In Selamolele v Makhado 1988 (2) SA 372 (V) at 374J–375B the approach to the question whether the onus has been discharged was dealt with as follows: 

 “Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable.”

34.     Having carefully considered the evidence in chief and cross-examination of the learner MG, her credibility can be evaluated with due regard to the detailed nature of her testimony, the consistency and discrepancies within her account, and the broader contextual factors.

 MG provided a comprehensive, detailed narrative describing the incidents involving the accused educator, including specific references to circumstances, physical actions, and her responses. She demonstrated an ability to recall key facts such as the setting of the incidents, the sequence of events, and the involvement of other persons, including fellow learners and staff members to whom she reported. Such specificity and clarity add weight to the reliability of her testimony.

 However, during the inquiry, MG acknowledged discrepancies regarding the dates of the incident—the written statement she authored referred to July 31 and August 1, 2024, whereas in oral testimony she initially referred to April 3 and 4, 2024. MG explained that the statement was indeed hers, signed by her grandmother, but she maintained that the incidents themselves occurred in April. This inconsistency in dates may raise questions concerning the accuracy of temporal details. Nonetheless, this does not necessarily imply fabrication; rather, it may reflect the challenges faced by witnesses, particularly young learners, in recalling exact dates under stressful circumstances.

 Moreover, MG’s testimony was consistent in its core assertions of inappropriate physical contact by the educator, describing precisely how and where the contact occurred, and the nature and duration of such contact. She further described her immediate reactions and the actions she took to report the matter, highlighting her distress and the steps taken by school authorities in response. MG also addressed matters raised in cross-examination with forthrightness, including clarification of the presence and movement of other pupils and staff during the events, the openness of the classroom door, and her own movements following the incident.

 Significantly, MG’s testimony concerning the emotional and procedural aftermath—such as being escorted to the deputy principal, remaining at the principal’s office for the day, and subsequent parental notification—corroborate the seriousness with which the incident was treated.

  While the noted discrepancies in dates and minor elements do require careful consideration, MG’s overall testimony displays a level of coherence, detail, and directness indicative of a credible witness. Her readiness to admit inconsistencies and clarify details under questioning further supports this assessment. Additionally, the contextual factors—including her immediate reporting and the involvement of multiple adults—lend credence to her account.

 In conclusion, when weighed in totality and in the absence of compelling evidence to the contrary, MG’s evidence merits substantial weight in the inquiry. Her testimony should be evaluated alongside all other evidence to ensure a fair and balanced determination of the facts.

35.     The Children’s Act, 2005 and the Children’s Amended Act 2007, codifies the common law  

          Principal of in loco parentis, which refers to a person who steps into the shoes of a child’s parents for a specific purpose. It means that a person acting in loco parentis, such as a teacher, has a responsibility to:

         ‘(a) safeguard the child’s health, wellbeing and development; and

          (b) protect the child from maltreatment, abuse, neglect, degradation, discrimination,    

               exploitation, and any other physical, emotional or mental harm or hazards’.

36.     Based on the totality of the evidence presented in this disciplinary inquiry, a careful and balanced assessment must be made regarding the allegations against Mr. Sutton. The learner MG provided a detailed and consistent account of incidents involving inappropriate physical contact, specifically describing unwanted touching of her breasts and buttocks over her clothing. She also recounted suggestive remarks made by Mr. Sutton, including questions that implied an inappropriate interest, which caused her significant discomfort. MG’s testimony further describes a pattern of conduct that would reasonably be perceived as creating a hostile and intimidating environment, evidenced by her immediate distress, the need to seek assistance from staff, and ongoing discomfort in the classroom setting.

 Mr. Sutton’s evidence, while firm in denying all physical contact and inappropriate behaviour, contains notable omissions and inconsistencies. He failed to address material aspects raised, such as the presence of a cooler bag during the alleged touching and the giving of money to learners, which were not properly explored during cross-examination, especially that she went to buy snacks for him and a witness who apparently saw her. It was also never put to MG that she brought the sweets and change back to him. Moreover, his admitted failure to report concerning behaviour and lack of awareness of MG’s emotional distress after their interaction reflect a concerning lack of professional vigilance. These factors collectively diminish the credibility of his account.

 Given MG’s detailed and credible testimony, corroborated by the school’s response and the involvement of several staff members, coupled with the weaknesses and gaps in Mr. Sutton’s defense, there is sufficient basis to conclude that Mr. Sutton engaged in conduct amounting to sexual harassment. This includes making inappropriate remarks, engaging in unwanted physical contact, and creating a hostile environment for MG, thereby violating professional boundaries and standards of conduct expected of an educator.

 A reasonable and justifiable conclusion is imperative when a finding of guilty of sexual harassment and inappropriate conduct is made. This conclusion should, of course, be made in full consideration of all evidence and in accordance with applicable policies and legal standards governing educator conduct.

37.     In the case of Assmang Ltd (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC), the Labour Court has considered what it means to discharge an onus on a balance of probabilities. “It stated that it is not enough for the chairperson to simply find that the evidence seems to be evenly balanced (or that neither side’s evidence had been discredited) and that therefore the employer had not discharged its onus – especially if the evidence on both sides are diametrically opposed and mutually destructive. The conflicting versions must be weighed up against the inherent or general probabilities of the matter and a finding must be made. Both versions cannot be allowed to stand and a finding made on onus alone. The court stated that the enquiry is two-fold: there has to be balancing of the probabilities; and there has to be a finding on credibility of the witnesses.”

38.      Section 17(1)(b): This section generally sets the professional standards and ethical duties expected from educators, including maintaining proper conduct and respecting learners’ dignity and rights.

Section 18(1)(q): This section addresses misconduct related to abuse of power, harassment, or any inappropriate behaviour by an educator toward a learner or colleague.

Section 18(1)(u): This section specifically covers sexual victimisation or any form of sexual misconduct by an educator towards a learner.

Nature of the Misconduct:

• Mr. Sutton’s conduct, including inappropriate touching of MG’s breasts and buttocks, blocking her exit, offering money to prevent reporting, and following her in the corridor, constitutes serious sexual misconduct and abuse of authority.
• His questioning of MG’s behaviour and comments about her character after she refused to sign for misbehaviour also suggest misuse of his position to intimidate or unfairly discipline her.

      Accountability and Protection:

• These sections hold educators accountable for maintaining a safe, respectful, and ethical learning environment.
• They protect learners from exploitation, abuse, and harassment by educators who hold positions of trust.

         Disciplinary Process:

• MG’s report initiated a formal disciplinary inquiry.
• The inquiry must consider MG’s detailed testimony and supporting evidence, following due process to allow investigation and fair hearing.
• If allegations are substantiated, disciplinary measures including dismissal may be imposed to uphold the law and protect learners.

           Legal and Ethical Implications:

• Mr. Sutton’s behaviour violates South African laws protecting children, including the Children’s Act and Sexual Offences Act.
• It breaches professional ethics and undermines trust in educators.
• The Employment of Educators Act sections cited serve to reinforce legal prohibitions with disciplinary mechanisms to ensure educator accountability.

    MG’s evidence highlights serious breaches of Sections 17(1)(b), 18(1)(q), and 18(1)(u), necessitating prompt and decisive disciplinary action to protect learners and uphold the integrity of the education profession.

39.      In Centre for Child Law v Minister of Justice and Constitutional Development and Others, 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) at para 26, it was stated:

“The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.”

40.    The argument that Mr. Sutton was not suspended and that MG’s parents allowed her remaining in his classroom does not significantly advance his defense against the substantive allegations. The absence of suspension and parental consent pertain primarily to procedural and administrative decisions and do not negate or undermine the factual inquiries regarding the alleged misconduct.

 Non-suspension may simply reflect the stage of the disciplinary process or decisions taken by the Department of Education in balancing various factors, including the presumption of innocence and the best interests of the learner’s education. Similarly, parental agreement to MG’s continued placement in Mr. Sutton’s class may have been influenced by considerations unrelated to a determination of guilt or innocence, such as logistical or educational concerns.

 These circumstances do not address the core issues raised by the allegations: whether inappropriate physical contact, suggestive remarks, or a hostile environment existed. They do not constitute evidence disproving the claims nor do they mitigate the seriousness of the accusations.

 Therefore, while relevant in the context of procedural fairness and educational continuity, the fact that Mr. Sutton was not suspended and that MG remained in his class with parental consent does not materially affect the evaluation of his guilt or innocence concerning the allegations of misconduct. The matter must instead be decided on the credibility and weight of the substantive evidence presented during the inquiry.

41.    The absence of testimony from key school officials such as the Principal Mr. Mapoe, Ms. De Vos (Deputy Principal), and Ms. Meyer (class teacher) may have some bearing on the outcome of the inquiry, but the extent of its impact depends on the context and the evidence already before the inquiry.

These individuals likely had direct involvement or knowledge of the events following MG’s report of the alleged misconduct, including how the school responded to the complaint and the support provided to MG. Their testimony could have provided important corroboration or further context, such as confirming MG’s distress, describing the school’s procedures, or clarifying any communications with Mr. Sutton.

The absence of their evidence means that potential corroborative accounts supporting MG’s testimony or clarifying procedural aspects are missing. This lack may weaken the overall evidential matrix and could be viewed as a gap in the record. However, this should not automatically undermine the credibility of the evidence that is available, especially if MG’s testimony is detailed, consistent, and credible.

 From a procedural fairness perspective, it is preferable for all relevant witnesses to be heard to

ensure a comprehensive and balanced inquiry. If the school officials were available but did not testify without satisfactory explanation, this could raise concerns about the thoroughness of the inquiry.

          Ultimately, while the non-appearance of these witnesses may affect the completeness of the evidence, the inquiry’s outcome should be based on the totality of the evidence presented, weighing the credibility, consistency, and reliability of the testimonies before the inquiry.

41.     The educator argued that there was no evidence in respect of victimisation. In a legal and educational context, victimisation is defined as the act of subjecting a person, especially a vulnerable individual such as a learner, to harmful, abusive, or unfair treatment, typically involving intimidation, harassment, or exploitation. It often involves the misuse of power or authority to cause physical, emotional, or psychological harm. Relating to MG’s evidence, victimisation refers to Mr. Sutton’s inappropriate and non-consensual touching of her breasts and buttocks, which constitutes sexual abuse and an abuse of his authority as an educator. This behaviour inflicted harm and distress on the learner and breached her rights to safety and dignity within the school environment. Mr. Sutton’s actions exemplify victimisation by exploiting his position of power to harm a learner, which Section 18(1)(u) of the Employment of Educators Act seeks to prevent and penalize.

42.     Having carefully considered the evidence and the relevant constitutional provisions, it is fitting to incorporate the constitutional framework into the findings regarding Mr. Sutton’s conduct. The Constitution of the Republic of South Africa, 1996, enshrines fundamental rights that protect learners from violence, abuse, and violations of dignity. Section 12 guarantees every person the right to bodily integrity and protection from cruel, inhuman, or degrading treatment. This right is intimately connected with Section 10, which secures every person’s right to dignity. These rights are not merely passive guarantees but are actively to be promoted, fulfilled, and safeguarded as per Section 7 of the Constitution, imposing an obligation on the state and its institutions, including schools, to take proactive measures to ensure these rights are fully realized.

 Further, Section 8 imposes a binding duty upon all branches of the state and associated institutions to respect, protect, and advance the Bill of Rights. Schools, as state-sanctioned institutions responsible for the education and welfare of learners, are specifically charged with the duty to protect learners’ rights to a safe, dignified, and violence-free learning environment. Any act that interferes with a learner’s bodily integrity, dignity, or rights constitutes a violation of constitutional rights under Section 8 and warrants accountability.

 Moreover, Section 9 of the Constitution recognises the need to address historical and systemic inequalities, affirming the right to equality for every individual. This principle underscores the heightened responsibility of educators and the education system to safeguard especially vulnerable learners and ensure equitable and respectful treatment.

 Crucially, Section 28(1)(d) enshrines every child’s right to protection from maltreatment, neglect, abuse, or degradation, reinforcing the imperative that children must be shielded from all forms of harm, whether physical, emotional, or psychological.

43.   In light of MG’s credible testimony and the corroborated facts of unwanted physical contact, inappropriate remarks, and the creation of a hostile environment by Mr. Sutton, it is evident that his conduct constitutes a serious infringement of MG’s constitutional rights to bodily integrity and dignity. His actions amount to sexual harassment and inappropriate conduct, violating the protections afforded under the Constitution.

  In the context of the evidence and findings, contravention of Section 17(1)(b), section 18(1)(q) section(1)(u) and would mean that Mr. Sutton’s conduct—unwanted physical contact, inappropriate remarks, and creating a hostile environment for a learner—amounts to improper and prejudicial conduct toward the education service and breaches the specific standards prohibiting harassment and misconduct towards learners.

 This finding aligns with the constitutional duty of schools and educators to provide a safe, respectful, and nurturing educational environment, free from abuse and violations of personal dignity. Mr. Sutton’s failure to uphold these standards justifies a finding of guilt consistent with the legal and constitutional mandate to protect and promote the rights of all learners.

44.       The Court in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (15 August 2019) stated that:

  “[16] …The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed.

45.     The nature of the misconduct of which Mr. Sutton has been found guilty is of the utmost seriousness. This is underscored by the constitutional obligation to protect children’s rights as stipulated in section 28(2) of the Constitution of the Republic of South Africa, 1996, which places the best interests of the child as a paramount consideration in all matters affecting them. Furthermore, Mr. Sutton’s conduct stands in direct violation of the professional standards established by the South African Council for Educators’ Code of Professional Ethics, which seeks to safeguard learner safety and uphold the integrity of the teaching profession.

46.     It is of additional concern that Mr. Sutton has not acknowledged responsibility, nor expressed any remorse or willingness to rehabilitate. Such a position undermines the principles enshrined in the Children’s Act 38 of 2005, which mandates proactive measures to protect children from harm and emphasizes the importance of rehabilitation where appropriate. Mr. Sutton’s failure in this regard indicates a continuing risk to learner safety.

• The behaviours exhibited by Mr. Sutton bear comparison to grooming conduct as recognized in South African jurisprudence, notably in S v M 2007 (2) SACR 539 (SCA), wherein grooming is identified as a precursor to sexual assault. The disciplinary consideration must therefore address whether it is justifiable to await an actual assault before imposing the ultimate sanction of dismissal, or whether dismissal upon conviction for grooming-related misconduct is warranted to prevent foreseeable harm. The decisions in Premier, Mpumalanga Province v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC) affirm the primacy of the public interest and child protection in such matters.

48.     Mr. Sutton’s conduct has demonstrably endangered the safety and well-being of learners within the educational environment. Allowing Mr. Sutton to continue in his role poses an unacceptable and preventable risk to learners, contrary to the principles of fair labour practice as upheld in South African Police Service v Solidarity obo Barnard [2014] ZALAC 37, which recognize the legitimacy of dismissal in cases of serious misconduct involving vulnerable persons.

49.     In determining the appropriate sanction, the enquiry must have due regard to the paramountcy of  the best interests of the child as outlined in section 28(2) of the Constitution and the protective framework of the Children’s Act 38 of 2005. This obligation extends beyond the immediate learner(s) affected, encompassing all children potentially under Mr. Sutton’s care now and in the future. Ensuring their safety and well-being must be the guiding principle of this disciplinary process.

   I therefore make the following ruling:

   AWARD

50.     The educator, Mr.  Roman Sutton is guilty of the contravention ofSection17(1)(b) and Section18(1) (q) and Section (1)(u) of the Employment of Educators’ Act 76 of 1998, as amended.

51.     The educator, Mr.  Romano Suttonto be dismissed with immediate effect.

52.      Mr. Romano Sutton is unsuitable to work with children in terms of section 120(4) of the Children’s   

Act 38 of 2005. The General Secretary of the Council must, in terms of section 120(1) of the

 Children’ Act 38 of 2005, notify the Director General: Department of Social Development in writing    

of the finding of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005 that Mr Romano Sutton is unsuitable to work with children, for the Director General to enter his name as

contemplated in section 120 in part B of the register.

53.      That the educator,Mr. Romano Sutton, is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.