30 June 2025 2025 – ELRC1240-2425GP

Case Number: ELRC 1240-24/25GP
Commissioner: M.A. HAWYES
Date of Award: 25th of June 2025

In the ARBITRATION between

Department of Education: Gauteng
(Employer)

and

Mr. V. Phasha

(Employee)

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 6th of March 2025, 27th of March 2025, 9th of May 2025 and was finalized on the 11th of June 2025.
1.2 The hearing was mostly dealt with in person at the Soshanguve Education, Support and Resource Centre, Soshanguve, until electricity issues forced the matter to be finalized at the Tshwane North District Office in Pretoria.
1.3 Mr. M.M Masehela, a union official from the trade union SADTU, represented the employee.
1.4 Ms. M. Ralioma, a labour relations officer, represented the employer.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 19th of June 2025. The said arguments were timeously received and my award now follows.
1.6 The employer made use of a bundle of documents consisting of 24 pages.
1.7 Detailed notes and a digital recording was kept of the entire arbitration process.
1.8 The minor witnesses that testified at this hearing were assisted by an intermediary and interpreter.
ISSUE IN DISPUTE
2.1 Whether the employee is guilty of two allegations of sexual misconduct as contemplated in section 18 (1) (q) of the Employment of Educators Act no 76 of 1998 (as amended) (EEA). Firstly, the employee was charged with alleged sexual misconduct in that on the 1st of October 2024 whilst on duty at Makhosini Secondary School, in that he sexually harassed BM by calling her into his classroom (JT-1) by holding her hand and hugging her.
2.2 Secondly, the employee was charged with alleged sexual misconduct whilst on duty at Makhosini Secondary School, on the 1st of October 2024 in that he called KT into his classroom (JT-1) and requested her to be his girlfriend, hugged her and touched her buttocks.
2.3 The date of the second allegation was later amended by consent to read the 2nd of October 2024 and not the 1st of October 2024.
BACKGROUND TO THE ISSUE
3.1 The Respondent employs the Applicant as a PL1 mathematics educator at Makhosini Secondary School.
3.2 It is common cause that both complainants were pupils in the employee’s Grade 10B mathematics class.
3.3 The employee pleaded not guilty to both the charges preferred against him.
3.4 It is common cause that on the 1st of October 2024, the employee was with BM in his classroom (JT-1) after the school day had finished.
3.5 It is also common cause that on the 2nd of October 2024, the employee was with KT in his classroom (JT-1) after the school day had finished.
3.6 It is also common cause that on both occasions the learners were alone with the employee in the class.
SURVEY OF PARTIES EVIDENCE AND ARGUMENT
EMPLOYERS EVIDENCE AND ARGUMENT
4.1 The employer lead the evidence of the following witnesses namely Mr. E. Machete, the principal of Makhosini Secondary School, Ms. Mokwena, BM’s mother, Ms Tsakane, KT’s mother and the two complainants themselves.
4.2 Machete testified, inter alia, that the parents of both of the above-mentioned learners reported two incidents of alleged sexual misconduct against the learners which the learners had reported to them.
4.3 My survey and evaluation of the evidence given will not necessarily be done in the order in which the evidence was given.
4.4 Machete testified that mother Mokwena told him that when the employee called her daughter into class after school he asked her to be his girlfriend and asked permission to hug her, which she obliged out of fear.
4.5 Machete recorded that mother Tsakane reported a similar version that her daughter had told her.
4.6 Both complainants were with their mothers when the incidents were reported to Machete.
4.7 All relevant hearsay evidence was provisionally admitted since I was assured that both mothers and the complainants would be called as witnesses later.
4.8 Mrs. Mokwena later testified that her daughter is 16 years old and at the time of the alleged incident she was in grade 10.
4.9 She observed that her daughter was struggling to concentrate on her work at school and homework at home. She was always crying and was uncomfortable around male figures. Mokwena testified that she took her daughter for counselling and later removed her from the school.
4.10 Mokwena testified that BM reported an incident that had occurred with the employee on the 1st of October 2024 and BM had reported this to her on the 2nd of October 2024.
4.11 BM told her that the employee had called her to his class and took her to a small room in the class which stored books. He advised her that her marks had gone down and he would make a plan if she was able to keep a secret.
4.12 BM had told Mokwena further that the employee mentioned that he was attracted to her and he could ensure that she never fails if he became his girlfriend. The employee had then asked to hug her and she had done so but she was uncomfortable and afraid.
4.13 BM told her mother that she made an excuse to leave by telling the employee that her and her mother needed to attend a wedding.
4.14 BM told her mother that her friends at school noticed her crying when she entered the employees classroom and someone reported the incident to a Mr. Mogale (geography teacher at the school). This was around the time that both complainants began communicating with each other.
4.15 Mogale had spoken to both complainants and encouraged them to speak to no one because the employee was still young and if the incidents were formally reported the employee would lose his job.
4.16 Both complainants nonetheless decided to tell their parents.
4.17 Tsakane in her testimony reported that KT had reported the incident of the 2nd of October 2024 with the employee in his classroom which accorded materially with what BM had told her mother.
4.18 Tsakane testified that her and her husband decided that they would report what KT had told them to Machete and did so on or about the 8th of October 2024.
4.19 As it turned out both sets of parents had arrived on the same day to report the incidents to Machete.
4.20 Tsakane mentioned during cross-examination that the employee had sent KT a text asking her for pictures. Tsakane testified that she had seen the text but the employee had later deleted it.
4.21 On the 11th of June 2025 both BM and KT testified separately and remotely from the place where the hearing was taking place.
4.22 They both described the employee speaking to them about the drop in their mathematics marks and the employee then offered TS the opportunity to re-write a mathematics test then and there.
4.23 KS testified that she wrote the test. After that the employee asked if she could keep a secret and asked that she be his girlfriend. He also told her to tell no one about their relationship.
4.24 KS replied ‘no’ and the employee then hugged her and touched her buttocks. When she gave no indication of consent to his suggestion the employee told her that she had failed the test that she had just written.
4.25 Because she was scared KS testified that she made an excuse to get out of this situation and left the classroom.
4.26 During cross-examination KS testified that she was afraid of the employee because at times when they could not answer questions correctly the employee would beat them.
4.27 BM, in her later testimony, stated that the employee also called her in allegedly because he was concerned about her mathematics marks.
4.28 The employee later told her that he had been keeping an eye on her in class and felt charmed by her. He then mentioned that he wanted to give her another opportunity to improve her marks but first he wanted the two of them to be in a dating relationship. They then moved to the storeroom at the back of the class.
4.29 Whilst seated the employee asked her to come closer and he held her hand and told her not to be afraid.
4.30 He told her that he loved her and wanted to know what her response was. She kept quiet.
4.31 The employee then asked her for a hug and she reluctantly gave him one because she was frightened.
4.32 BM testified that she made an excuse to leave telling the employee that there was a wedding at home and she and her mother needed to go to the shops.
4.33 The employee then asked her when she could give him an answer and she replied that she would give him a decision by Friday.
4.34 BM testified that after the incident she burst into tears and later communicated with one of her friends who later spoke to geography teacher Mohale. Mohale later called her and apologized for the incident but pleaded with her not to tell anyone what had happened. He promised to speak to the employee. He also mentioned that if she reported the incident she would destroy the employee’s future as he was still young.
4.35 BM testified further that her mother went to the school the following day. Whilst waiting to speak to another educator the employee approached them four times wanting to speak to them. The employee mentioned speaking to educator Mohale about what had been reported to him. BM testified that the employee stated that he did not realize how deeply she felt about this and it all amounted to a misunderstanding.
4.36 BM testified that the incident was reported later to the principal of the school who was apparently not available on the day of the first report.

EMPLOYEE’S EVIDENCE AND ARGUMENT
4.37 The employee testified under oath and called no witnesses.
4.38 The employee testified that on the 1st of October 2024 the matrics had started their final examinations and he was doing revision in class with his Grade 10B learners.
4.39 The employee spoke about handing booklets to learners that had arrived from the district.
4.40 The employee testified that all the learners had received the booklets except for the two complainants in this matter and he wanted to meet with them so that he could hand out the booklets to them.
4.41 He then went back to his classroom to fetch the booklets and shortly afterwards BM arrived at his class and he asked her where KS was. BM said she did not know.
4.42 He later gave BM the booklet.
4.43 The employee also testified that he was concerned about the drop in marks of both complainants and offered BM advice and told her to practice the examples in the booklet alone and not to work in groups when attempting the examples. After that she left his class.
4.44 On the 2nd of October 2024 he repeated what he had done with BM the day before with KS.
4.45 The employee emphatically denied that he had engaged both learners as they had described.
4.46 The employee also denied attempting to engage the learners and their parents four times when they initially attempted to report the incidents to the school on the 2nd of October 2024.
4.47 In cross examination the employer representative put it to the Applicant why he did not hand the booklets to the learners in their register class and why there was a need to engage with the learners at his classroom at JT-1. The employee’s vague response was that he moved around to different classes.
4.48 The employer representative mentioned that the reason he invited both complainants alone to JT-1 was so that he could engage them alone on their poor performance.
4.49 It was argued on behalf of the employee that the reason that the reports were only properly made to the school on or about the 8th of October 2024 was because the complainants were fabricating versions against the employee.

ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The employer bears the onus of proving the allegations against the employee on a balance of probabilities. In this case the employer is required to prove that both incidents described by the complainants occurred at all.
5.2 In assessing evidence it is important to note the age of children when evaluating the probity of their evidence.
5.3 I find that both children were in grade 10 at the time of the alleged incidents and both were 16 years old.
5.4 Both children impressed me as good honest witnesses that were capable of understanding the difference between the truth and a lie and were clearly motivated to tell the truth.
5.5 The evidence of both children were consistent with the versions given by their parents and the version given by principal Machete.
5.6 The evidence given by both complainants and their parents was that prior to reporting the incidents proper at the school the employee approached them on four occasions on the same day at the school to speak to him and attempted to discourage/influence the reports from being lodged at all.
5.7 The employee was also aided and abetted by geography educator Mohale who attempted to discourage the minors/parents from lodging complaints against the employee on the basis that the employee was young and would lose his job if the complaints were officially made. This probably amounts to misconduct and the employer is encouraged to investigate misconduct charges against Mohale for his attempt to interfere in the investigation of this case.
5.8 Interference by employee’s, their colleagues and others is a common feature of sexual misconduct cases and should be dealt with firmly where it manifests itself.
5.9 When asked why the minors (indeed also the parents) would fabricate sexual misconduct charges against him the employee could not give any coherent explanation.
5.10 From the time that the incidents occurred to when the reports were made to Machete was less than a week. This is a short time period in the grand scheme of things. I find that the reason the complaints were not dealt with sooner was because of the interference of the employee and Mohale, which gave the parents and their children time to pause and reflect.
5.11 I reject the version of the employee in that it is improbable, lacks content and is in truth completely fabricated.
AWARD
6.1 The employee is found guilty on both counts of sexual harrassment as described in the respective charges.
6.2 The parties are directed to lodge written submissions in mitigation and aggravation within three calendar days of receiving this award. The same email addresses utilized for submission of the initial written closing arguments must be used to make the mitigation and aggravation submissions.
6.3 The parties must also address me on the question of whether the employee should be declared unfit to work with children in terms of section 120 (4) of the Children’s Act, no 38 of 2005 (as amended).