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30 September 2025 -ELRC27-25/26EC          

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EASTERN CAPE APPLICANT
AND
SADTU obo BONGINKOSI JIM RESPONDENT
CASE NO ELRC27-25/26 EC
DATE/S OF HEARING 13 MAY 2025 – 29 AUGUST 2025
DATE AWARD SUBMITTED 17 SEPTEMBER 2025
NAME OF PANELIST SIZIWE GCAYI
SUMMARY : Labour Relations Act No 66 of 1995 – section 188A – Inquiry by an arbitrator: Alleged misconduct of sexual nature against learners by an educator.
ARBITRATION AWARD
Inquiry in terms of section 188A of the LRA of the LRA 66 of 1995

DETAILS OF THE HEARING AND REPRESENTATION

  1. The inquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 (LRA) as amended read together with ELRC Resolution 3 of 2018. The matter was held on 13 May 2025 – 29 August 2025 at Mthatha department of education offices at 09h00. Mr Khwezi Dalasile an official represented the Applicant [department of Education Eastern Cape]. Mr Lungile Fazi an official from the SADTU represented the Respondent – [Bonginkosi Jim ]
  2. The proceedings were electronically and manually recorded.
  3. The proceedings were conducted in English and there was Xhosa interpreter, and an intermediary. Two witnesses of the Applicant were minors and for purposes of this award their names will not be revealed. We will refer to them as FP and DC.
    ISSUES TO BE DECIDED
  4. I am required to determine following:
    Whether the employee is guilty of the charges proffered against him by the employer. If I find him guilty on all or any of the charges, I should decide the appropriate sanction. Charges were read on record. The employee confirmed that he understood the charges levelled against him. He was questioned about his plea; he pleaded not guilty on both charges. A plea of not guilty was entered on his behalf.

BACKGROUND OF THE DISPUTE

  1. The employee is employed as an educator at Joyi Senior Secondary School, OR Tambo Inland.
  2. The employee is charged with the charges mentioned:
    Charge 1
    • It is alleged that you committed an act of misconduct in terms of section 18 (a) of the Employment of Educators Act 76 of 1998 [ as amended] which inter alia reads as follows “ fail to comply or contravenes this act or any statute, regulation or legal obligation relating to education and the employment relationship”.
    • In that on or about October 2024, you proposed a love relationship to learners ZN, TM, DS and SM which are all learners at Joyi SSS.
    • It is also alleged that you promised to pay rent for ZN if she agreed to your request and threatened that her school future is depending on you if she does not agree to your request.

Charge 2.
• It is alleged that you committed an act of misconduct in terms of section 17 (c ) of the Employment of Educators Act, 76 of 1998 ( as amended) which inter alia read as follows “having a sexual relationship with a learner of the school where he is employed”.
• In that on or about the 16th of June 2024, you had sexual intercourse with two learners from your school, that you also teach and these learners are PF and SM
• You also bought alcohol for these learners and slept with both on the same day in your room at Chris Hani Park, in Mthatha.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case

  1. The Employer led evidence of four witnesses. Their evidence is summarised below. Learner FP testified as follows: She was born on 06 June 2007. The Respondent was known to her. He taught her life orientation. The Respondent started teaching her in 2021.She mentioned that in 2023 the Respondent wrote messages for her on Facebook proposing love. She did not entertain them. He invited her for drinks, and she made excuses. In June 2024 she was with her friend SM at Chris Hani, the Respondent wrote her a message on Facebook inviting her to his place. She told her friend and they both proceeded to his place. The Respondent was in the company of Mr Pantswa. They found them drinking and they joined them. They all became drunk. She slept [ engaged in sexual intercourse] with the Respondent on that night and her friend slept with Mr Pantswa. The following morning Mr Pantswa left. They continued drinking, Mr Pantswa rejoined them. He was heavily drunk and was chased away by the Respondent. It was her testimony that her friend slept with the Respondent in her presence. They were highly intoxicated. They spent four days at the Respondents place.
  2. On the issue of cash send, she mentioned that the Respondent did cash send for her friend. It was an amount of R1500-00. They proceeded to town to withdraw the money. They failed. Days passed and the Respondent kept on sending her messages on facebook.
  3. In July 2024 schools were reopened. The girlfriend of the Respondent was a student at the same school. She confronted her and they fought at school. The matter was reported to the educators. She was summoned to the office. She was questioned by the school principal about the fight. She explained what led to the fight but did not disclose the incident that took place during June holidays. The schools were closed for December. It was in 2025 when she informed the School principal, deputy principal and LSA about the incident of June 2024.
  4. In relation to the facebook messages, she mentioned that she had some and did not have others because the Respondent deleted the account. Bundle A pages 1-3 was read on record, facebook chats for November 2023.
  5. Learner SM testified as follows: The Respondent was known to her. He taught her life orientation in grade 10. It was also her evidence that the Respondent proposed love to her. All this happened on whatsup. She also testified about the incident that occurred at Chris Hani in June 2024. She was contacted by her friend PF and requested her to accompany her to the Respondents place of residence. They all proceeded to his place of residence. They joined him and they all drank alcohol. Mr Pantshwa was also present drinking with them. In the evening, he went to another room with Mr Pantshwa and her friend remained behind with the Respondent. She also mentioned that they enjoyed themselves. They engaged in sexual intercourse. In the morning Mr Pantshwa left for school. The Respondent called her to join them in another room with her friend. They all stayed in the same room. In the evening, they slept in the same room. The Respondent shared a bed with her friend. They engaged in sexual intercourse in her presence. The Respondent moved from her friend and joined her, and they also engaged in sexual intercourse. In the morning the Respondent mentioned that he did cash send of R1500-00. They proceeded to town to withdraw the money, and they failed. The whole incident embarrassed her. There were times she was afraid to go to school to face the Respondent and Mr Pantshwa. She reported the incident this year when she was called to the office by Sisi Lisa.[Learner support agency].
  6. Learner ZN testified that she was schooling at Joyi SSS doing grade 12. The Respondent was known to her. He taught her history in grade 11 and 12. They were staying in the same residence at Baziya. They had a good relationship. The Respondent normal request them to buy groceries for him. Relationship changed when the Respondent invited her in his room at night and requested that she does not inform anyone. He also promised to give her R500-00. She did not respond to his request. She reported the matter to her aunty. She was advised by the aunty to block him and never speak to him. Bundle A pg 3 was read on record. It was the conversation between them on Facebook. The message that was sent to her by the Respondent made her uncomfortable because of the stories she had from other students who turned him down on his love request. She also mentioned that the Respondent wanted to sleep with her, and she was afraid of him.
  7. Learner DC testified that she was 17 years old, doing grade 10 at Joyi SSS. The Respondent was known to her. He was her teacher since 2023. He taught him history. As history students they had a facebook group. It was her evidence that they had conversations on facebook with the Respondent. The Respondent first declared his love for her on Facebook and she dismissed him. At school she suffered as she would get sever punishment from the Respondent. It was noticed by her friends and Andile questioned her about the ill treatment she received from the Respondent. In June 2023 during the exams the Respondent continued with ill treatment. In 2024 he told her that her future was on his hands. In 1st term of 2025, she had courage and reported the matter to the school principal, deputy principal and Lisa. The name the Respondent used on facebook was Mira Jim.
    Employee’s Case
  8. Bonginkosi Jim [ Jim] testified himself and called two witnesses in support of his case. He testified as follows: He was an educator at Joyi SSS. He joined the school in 2010. He taught the following grades: 8,9,10,11& 12. He taught the following subjects: social science, life orientation, history and geography. It was his evidence that he knew the learners at school. He taught ZN history and geography in 2024. They were also residing in the same premises in Chris Hani. He has requested her to do groceries for him. He usually asked learners to wash dishes for him. He also communicates with learners on social media eg whatsup. He also mentioned that he had a facebook account. The name he used on facebook was Mira Jim. Bundle A pg 3, there was no profile picture and he was not familiar with the chats. In relation to PF, he mentioned that he taught her life orientation in 2024 and SM he taught life orientation in grade 10 in 2024. He mentioned that he never meet with SM and PF outside school. They had a teacher and learner relationship. Both learners resided in Baziya. He denied the allegations levelled against him. He mentioned that on 16 June 2024 he was at his place of residence with his son. On 15 June 2024 he received a phone call from the school principal about two learners who were expelled from Mthatha technical school, he informed the school principal he can accommodate the two learners. They utelised his sons bedroom. In relation to the allegations against him, he distanced himself and maintained that he never communicated with them. [ PF & SM] . In relation to Lisa , he mentioned that they were colleagues and had a casual relationship. They worked together; she was a learner support agency. There were issues between them when he paid lobola for her partner. Lisa started to give him a cold shoulder and even confronted him about the lobola.
  9. In relation to DS, he mentioned that he taught her social science and history in grade 8 & 10. He also denied the allegations against him and facebook conversations. He maintained that he had a good relationship with Chantel. He was transport co-ordinator. To the statement that her future was in his hands, that was the statement that they normal make as educators with no harm to students. He was very close with the learners.
  10. Esethe Ncombo [ Ncombo] testified as follows: He was residing at Bhaziya- Makhawula. Siphe Mpetsheni and Philiswa Fayo were known to him. They were all schooling together at Joyi SSS. In 2024 he was doing grade 12 at Joyi SSS. In relation to 16 June 2024 he mentioned that they were expelled at Mthatha technical school because they were drunk. The school principal phoned the Respondent. They were accommodated at the Respondents premises for the whole duration of the winter school. In the morning and evening they were at the Respondents premises during the winter school period. He never saw Philiswa and Sphe at the Respondents premises. He also maintained there were no other people at the Respondents premises besides the Respondent and his son.
  11. KAMVA MATAMBO [ MTAMBO] testified that he was doing grade 12 at Dumrana Senior Secondary School. In 2024 he was doing grade 12 at Joyi SSS. The Respondent was known to him. He taught him history. It was also his testimony that Siphe Mpetsheni and Philiswa Fayo were known to him. They all attended same school at Joyi SSS . He also testified about winter school period. He mentioned that they were expelled at Mthatha technical school and the Respondent accommodated them. He mentioned that he never saw SM and FP at the Respondents place, maybe they visited during the day. The person he saw was Sitshotho and other people that visited. The Respondent stayed with his son and Mr Sitshotho.

ANALYSIS OF SUBMISSIONS AND ARGUMENTS

18. In MUDAU v MEIBC & OTHERS [2013] 13 ILJ 663 [ LC] the Court held that “the arbitrators mandate in terms of section 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties”

19. Section 17(1)(c) of Employment of Educators Act [EEA] of 76 of 1998 provides that “ an educator must be dismissed if he or she is found guilty of having sexual relationship with a learner of the school where he or she is employed.”

20. In Stellenbosch Farmers Winery Group Ltd v Martell, the Court held that a tribunal must make findings with reference to (a) credibility of the various factual witnesses; (b) their reliability and ( c) the probabilities. In the matter before the Council, I am required to make credibility findings of the destructive versions by both parties.

21. In theses proceedings the onus is on the Employer to prove the guilty of the Employee who is charged with misconduct. The standard of proof that is applied in civil proceedings is balance of probabilities. It is different from the one applied in the criminal justice system which is beyond reasonable doubt. Therefore, proof on a balance of probabilities of probabilities is sufficient, the same was confirmed by the Court in Early Bird Farms Ltd v Mlambo [1997] 5 BLLR 541 (LAC) .

22. It is common cause in these proceedings that the Employer led evidence of four witnesses, the Employee had three witnesses. The total number of witnesses that testified was seven. Their evidence is on record it will not be repeated however reference will be made where relevant.

23. Both parties were given 10th of September 2025 to file their closing arguments as per the request of the Respondent. Both parties complied, the Council received written submissions from both parties. I have taken their heads of argument into consideration in penning this award.

24. On behalf of the Employer it was submitted that Mr Jim is guilty of both charges as contained in the charge sheet and should be dismissed. On behalf of the Mr Jim it was submitted that he was not guilty of any misconduct. It was also submitted that Mr Jim was wrongly charged by the Employer by using section 17. Both charges should have been in terms of section 18 (a).

25. The two witnesses PF and SM, their evidence was in relation to charge 2
• Charge 2 : [ It is alleged that you committed an act of misconduct in terms of section 17 (c ) of the Employment of Educators Act, 76 of 1998 ( as amended) which inter alia read as follows “having a sexual relationship with a learner of the school where he is employed”.
• In that on or about the 16th of June 2024, you had sexual intercourse with two learners from your school, that you also teach and these learners are PF & SM
• You also bought alcohol for these learners and slept with both on the same day in your room at Chris Hani Park, in Mthatha.]

26. These two witnesses placed the employee on scene. During cross-examination their evidence was not disputed. At no stage when they were questioned by Mr Fazi, the allegations against Mr Jim were disputed. They maintained that they were at Mr Jim’s place, he bought alcohol for them, they were all drunk. Mr Jim slept with both. It was not disputed that they both engaged in sexual intercourse with Mr Jim instead they were asked, did he force you to have sex with him? Answer , we were under the influence of alcohol. Who initiated the thing that happened the two of you? Ans its Mr Jim. How did you respond? Ans, I agreed as I was under the influence of alcohol. Did you sleep with him because you wanted money? Ans, No. These are some of the questions and answers on cross-examination for FP. With Mpetsheni, she was asked why did you allow Mr Jim to engage in sexual intercourse with you? Ans, I did not think because I was drunk. Most of the questions that were asked from these two witnesses on cross-examination did not assist the Respondents case. They did not distance Mr Jim from the scene, instead they placed him on scene. The only thing that seemed to be disputed was that he bought them alcohol, because they found alcohol at his place. Mr Fazi, from time to time requested stand down of the matter to consult with Mr Jim. He was granted. Mr Jim was in attendance all throughout the proceedings, he heard what the witnesses said about him. I still struggle to understand why I should disregard the evidence of the witnesses which was not disputed. There is a big danger in not cross-examining the witness on relevant and important aspects, general that suggest that the evidence and testimony of that witness should be accepted. Courts have commented on this issue, in ABSA BROKERS (PTY) LTD V MOSHOANA AND OTHERS (2005) 10 BLLR 939(LAC) the court stated that it was an essential part of the administration of justice that a cross- examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross examination but, indeed also a responsibility to cross- examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony”.

27. The Respondent during its case led new evidence which was never tested with FP and SM There were even two witnesses that were called by the Respondent Ncombo and Mantambo. The Respondent knew the allegations against him as early as 28th March 2025 when he received the charge sheet. On 11 April 2025 he received the notice of setdown inviting him for the hearing scheduled for 13 May 2025. Mr Jim confirmed on record that he heard sufficient time to prepare for the hearing. In preparation for the hearing, it is expected that one will also consult with relevant witnesses. We only learnt on 28 July 2025 that Mr Jim never met with FP and Mpetsheni outside the school. He also never communicated with them outside school. If that were to be true, why was such not tested with the two witnesses? Why are we only learning about this now, after the employer has closed its case. I reject this version of Jim because of what I have highlighted above. I must also mention that the two witnesses that were called in support of his also did not assist his case at all. With the two witnesses he introduced new evidence which was never tested on SM and FP. There was no explanation presented by the Respondent for this move, as indicated above, he knew about his case as early as 28th March 2025. Why did he not put his version to Mpetsheni and FP.? The only conclusion I can draw is that this was a made-up story, if not they could have even called the school principal who dropped the two learners at the Respondents premises as alleged by Mr Jim. All their evidence could have been tested with FP and SM. This did not take place for reasons known by the Respondent.

28. In relation to charge 1, the Employer led evidence of two witnesses and their evidence is on record it will not be repeated. Their evidence was clear; it was easy to follow. On cross-examination they maintained their version. Unfortunately, the same cannot be said about the Employees case. ZN was told that the account on FB did not belong to Mr Jim, she maintained that it belonged to Mr Jim, and the conversations were between her and Mr Jim. The speaker that they discussed about belonged to Mr Jim and she handed it over to Mr Mkutu. She maintained that Mr Mkutu was friend of Mr Jim. She also stated that Mr Jim communicated with them on facebook as students. On the other hand Mr Jim confirmed that he had a facebook account and he used the name Mira Jim. He denied that he communicated with students on Facebook. He mentioned that he communicated with the students on whatsup not facebook. It is difficult to follow his evidence. When placed in a corner he changes his version of events, it was his evidence that he had facebook account and created groups with the students to communicate with them. Late he changes and mention that it was whatsup, when confronted with bundle A pages 1-3. His name on facebook according to him was Mira Jim, the same was confirmed by the witnesses of the Employer, however he distanced himself from bundle A pages 1-3, even though it was also an account for Mira Jim, and the profile pictures were also known to him, being that of his family members. Mr Jim did not take the Council into confidence. He tried very hard to distance himself from the commission of the offence, despite overwhelming evidence against him.

29. In relation to the evidence placed before the Council I have no reasons to reject the evidence of the Employer for the reasons stated above. I am satisfied that the Employer managed to discharge the onus placed on it to prove the guilty of Jim on both charge 1 and 2. Mr Bonginkosi Jim is found guilty on charge 1 and charge 2.
SANCTION

30. In arriving at an appropriate sanction, I have considered the submissions made by the Applicant, the aggravating factors and the mitigating factors of the Respondent. I will not repeat them, they are on record as submitted to the Council by both parties. As indicated above it was argued for the Employer that sanction of dismissal was an appropriate sanction. On the side of Jim it was argued that he had a clean record, a final written warning would be an appropriate sanction.

31. Section 188 of the LRA provides that (1) a dismissal that is not automatically unfair, is unfair if the employer fails to prove(a) that the reason for a dismissal is a fair reason [i] related to the employees conduct or capacity or [ii] based on the employer’s operational requirements and [b] that the dismissal was effected in accordance with a fair procedure.”

32. In the present matter Jim was charged for misconduct in terms of section 17 (1)(c ) of the EEA and section 18[a] of EEA, and has been found guilty on both charges.

33. Section 17(1)(c) of Employment of Educators Act [EEA] of 76 of 1998 provides that “ an educator must be dismissed if he or she is found guilty of having sexual relationship with a learner of the school where he or she is employed.”

34. In NEHAWU v UNIVERSITY OF CAPE TOWN 2003 the Court held “ the Arbitrator is expected to have regard to the interests of both parties in coming to a conclusion whether the conduct of the Employer to dismiss the Employee was fair or not”.

35. In MIYAMBO v CCMA & OTHERS [2010] 10 BLLR 1017 (LAC) the Court held “ in deciding on an appropriate sanction, a Commissioner must consider all relevant circumstances. However the role of trust relationship remains predominant.”

36. The question that needs to be answered, is can Jim be trusted with learners? How did he prove himself amongst learners? He was placed in a position of trust. The parents trusted him with their children. A school is a home away from home where there are Educators who are parents to the learners. He misused his position on social media to advance his dirty conduct. The misconduct he committed goes beyond mere sexual exploitation of a learners, but it was a criminal conduct, and such characters had no place in the schooling environment. It is clear on the evidence of four witnesses that Jim cannot be trusted with learners. His conduct towards FP and SM has left scars that cannot be mended. The department has no space for employees like Jim who consume with learners and thereafter abuse them sexually.

37. The law is very clear on educators who have been found guilty of contravention of section 17(1) (c) of the EEA 76 OF 1998 [ as amended].

38. Section 28 [2] of the Constitution Act 108 of 1996 provides that in any decision that has to be taken involving children,” the interests of the children enjoy paramount importance.”

39. I am satisfied that I have weighed up the interests of both parties.

40. Section 120 [2] of the Children’s Act 38 of 2005 provides that “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.” In the current matter I make the finding on my own accord.

41. In the circumstances I hereby make the following award:
AWARD

42. The Employee [ Bonginkosi Jim] is found guilty of contravention of section 17 (1)(c) and 18 [a] of the EEA.

43. The Employee [ Bonginkosi Jim] is dismissed with immediate effect. The Employer [ Dept of Education- Eastern Cape] must inform Jim of his dismissal.

44. Mr Bonginkosi Jim is found unsuitable to work with children in terms of section 120 [4] of the Children’s Act 38 of 2005. The General Secretary of the ELRC, must in terms of section 122(1) of the Act 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 Mr Bonginkosi Jim is unsuitable to work with children, for the Director General to enter his name as contemplated in in section 120 in part B of the register.

Commissioner: Siziwe Gcayi
Sector: Basic Education