IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN SOSHANGUVE (GAUTENG PROVINCE)

Case No ELRC 878-25/26GP

In the matter between

GAUTENG DEPT OF EDUCATION EMPLOYER

and

NYASHA KUWANDIRA EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 29 May 2026 & 03 July 2026

CLOSING ARGUMENTS: 13 July 2026

DATE OF AWARD: 30 July 2026

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This is an inquiry by arbitrator scheduled by the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and held at the Soshanguve West Teachers Centre in Soshanguve Gauteng West District. The matter sat over two dates, 29 May 2026 and finalised on 03 July 2026.

[2] Both parties attended the arbitration proceedings with Ms. Lehlogonolo Mashaba, the Labour Relations Practitioner in the department representing the employer, the Gauteng Education Department while Ms. Boikhutso, a trade union official form the trade union SADTU, represented the employee on both dates. Both parties submitted bundles with the bundle of documents submitted by the employer marked as “Employer’s Bundle” while the bundle submitted by the employee was marked as “Employee’s Bundle”. Proceedings were digitally recorded with typed minutes having been taken. An interpreter and an intermediary were also in attendance with the intermediary attending only on 29 May 2026 as learner witnesses testified only on that date. Parties requested to submit written closing arguments, a request I duly granted with the directive that parties file the written closing arguments with the Council on 13 July 2026. Only the written closing arguments submitted by the employer were received.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the charge preferred against him by the department, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee is Mr Nyasha Kuwandira who is employed as an educator by the Gauteng Education Department and teaching Mathematics at Hammanskraal Secondary School. The employer is the Gauteng Department of Education which has charged the employee for alleged misconduct envisaged in section 17(1)(b) of the Employment of Educators Act (EEA). The following allegation was levelled against the employee:

Allegation 1:

It is alleged that on or around 11 September 2025 while on duty at Hammanskraal Secondary School you committed an act of sexual assault in that you touched and squeezed (name withheld) a Grade 11 girl learner’s breast at Hammanskraal Secondary School.

In view of your actions, you are thus charged with misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 as amended.

[5] The employee pleaded NOT GUILTY to the charge.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[6] The employer called learner A as its first witness. She testified that she is 18 years old and was doing Grade 11 in 2025. The educator was her Maths teacher in 2025. On 11 September 2025 she was in class and, during the Geography class, Ms. Mndebele asked them to submit assignments and further asked her to take the assignments to the staffroom and asked learner B to accompany her. On entering the staffroom, she put the assignments on Ms. Mndebele’s desk. The employee entered the staffroom and asked them to greet him in Tsonga. She greeted him in English, but the employee asked her to come closer to him and greet him in Tsonga. She went and stood in front of the employee, and the employee squeezed her breast and did so four times before she pushed his hand away. Learner B was standing next to the door. She went to the door and on exiting the staffroom, asked learner B if she saw what happened, and learner B responded that she did see what happened. They thereafter went back to the classroom.

[7] Learner B then told another learner, learner C about what the employee had done. Learner C asked her why she did not report the incident as it amounted to sexual harassment. She and learner C approached another educator, Mr Motsumi to report the incident, but whose response was that there was nothing he could do because he was a male and advised them to report the incident to Ms. Mndebele. Ms. Mndebele undertook to escalate the matter, and she learner A, was with another learner, learner D who had accompanied her. Ms. Ndebele called her and, in the presence of Ms. Moeng who is the deputy principal, asked her to explain what happened. The principal was not present at the school. She explained what happened to Ms. Moeng and reported the incident to the principal the following day.

[8] She was taken by surprise by what happened and did not believe what had happened to her. The employee tried to distract learner B by pretending to be pinching her under the arm while he was squeezing her breast. She was shocked and could not believe what had happened.

[9] Learner B was called as the employer’s second witness. She testified that she is 17 years and a Grade 12 learner at Hammanskraal Secondary School. She was doing Grade 11 in 2025, and the employee was her Maths teacher in 2024 and 2025. She was present when the incident involving the allegation preferred against the employee happened. She and learner A went to the staff room to drop off assignments on Ms. Mndebele’s desk. They were about to leave when the employee came in and asked her and learner A to greet him in their language. Her response was that she was Tsonga but did not know Tsonga. She thereafter went and stood by the door. The employee then called learner A to come and greet him in her language, Tsonga. The employee then pretended as if he was pinching learner A close to the armpit and trying to conceal what he was doing by turning his body around. He pretended as if he was pinching learner A’s armpit while he moved his hand and touched and squeezed learner A’s breast. She was not comfortable with what she saw, and she immediately looked away.

[10] After she and learner A left the staffroom, they went back to class and on arrival at the class, Mr Motsumane was inside the classroom. She took her seat, but learner A went to learner C and explained to learner C what had happened in the staffroom. Learner C told learner A that she should report the incident, and they reported the incident to Mr Motsumane who advised them to go to Ms. Mndebele because he was a man and would not be able to assist them. Learner A and learner C went to report to Ms. Mndebele. She did not accompany learner A and C because she was already seated in class.

[11] The employer called learner C as its third witness. Learner C testified that she is a Grade 12 learner at Hammanskraal Secondary School and is 17 years old. She was doing Grade 11 in 2025. On 25 September 2025 she was in class and standing by the door of the classroom when she saw learner A and B returning from the staffroom. Learner A went to her and told her that something strange happened in the staffroom and proceeded to tell her that the employee touched and squeezed her breast. She asked learner A what she was talking about, and learner A proceeded to explain to her that the employee touched her under her arm pretending to be pinching her as they used to when they were in class. Learner A told her that the employee’s hand moved to her breast. She told learner A that what had happened was not acceptable, and she told learner A to go and tell one of the teachers. She and learner A went to Mr Motsumane to report the incident. Mr Motsumane told them to report the incident to Ms. Mndebele because she would know what to do about the allegation. They reported the incident to Ms. Mndebele.

[12] When they got to Ms. Mndebele, she was the first one to tell Ms. Mndebele that learner A had something to tell her, and learner A went on explain what happened to Ms. Mndebele. Ms. Mndebele told them to go back to class and that she would escalate the matter. She asked learner A to report the employee’s conduct because it was unacceptable for the educator to touch learners’ breasts. Learner A appeared shocked when she told her about what happened.

[13] The fourth witness called by the employer was Ms Zetty Zanele Mndebele. She testified that she is currently employed as the educator at Hammanskraal Secondary School and teaches Life Orientation. She knows learners A, B and C. She became aware of the allegation against the employee on 11 September 2025 when she was going to class C2 and when, while on her way to the class, she met learner A and a friend of hers, learner B. Learner B had wanted to submit her assignment, and she told learner A that her submission was late and that her assignment might be lost. She asked learner A to put the assignment on her desk in the staffroom. When she came out of the class, she saw the very same learners who came to her and told her that they were sent to her by Mr Motsumane.

[14] She asked the learners to accompany her to the nearest tree at the school. Learner A then told her that she had a problem with her Maths teacher who had asked for her numbers and who would ask her to meet him next to the Spar supermarket. Learner A further told her that when she went to the staffroom, the employee touched and fondled her breast. She told the learners to go back to class, and she saw another educator, Mr Makgaga who was on his way to his class. She told Mr Makgaga what she was told by the learners. She and Mr Makgaga thereafter went to the deputy principal’s office, Ms. Moeng, and told her everything that the learners told her, and they thereafter left. In 2025 she shared the staffroom with the employee and other educators.

[15] She has a very good relationship with the employee. While learner A did not show visibly signs of shock her friend, learner B kept patting learner A on her shoulder, comforting her while learner A narrated what happened.

Employee’s Evidence

[16] The educator, Mr Nyasha Kuwandira testified that he is employed as the PL 2 educator Hammanskraal Secondary School and has taught at the school for 14 years. He was on duty on 11 September 2025. During the first period, he was in the staffroom with four other teachers, and, during the second period, he left the staffroom to teach Mathematics at class 10I 2 from 08h40 to 09h40. At 09h40 to 10h40, he taught at the class where learner A attended at. He remained at class 10I 2 until the end of his period. He did not have any interaction with learner A during the second period. It was during the third period that he got in contact with learner A when he called learners to bring their scripts which he marked. Learner A was with another learner when he marked their scripts, and there was nothing untoward about her behaviour. He at no stage touched learner A’s breast as alleged. She only saw learner A when he went to teach the third class. He spent thirty years teaching Mathematics and it is the first time that he has been accused of engaging in conduct set out in the charge sheet.

[17] He became aware of the allegations on 13 October 2025 when preparing for the graduation of his son when he was called into the principal’s office by Mr Makola from the district offices. He was surprised and confused when the allegation was brought to his attention. He was forced to sign the letter to respond to the allegations. He and the principal thereafter drove to Ratshepo where the principal told him that the allegation he faced was very serious and that he must resign. The shop steward who was in attendance however told him not to resign. He did not resign because he did not touch learner A’s breast. There are cameras at the school, and these cameras do monitor movement around the whole school including the staff room. He asked for a CCTV footage for the 11th of September 2025 when the incident is alleged to have occurred, but the principal, did not give him the footage telling him that the investigators would show him the footage.

[18] Mr Itumeleng Tshabangu was called as the employee’s first witness. He testified that he is employed as an educator at the Hammanskraal Secondary School and also seats in the safety and security committee at the school. On 11 September 2025 he was inside the staffroom busy doing moderation the whole day and was inside the staffroom during the second period together with other teachers. He could see the door of the staffroom from where he was sitting. No learners entered the staffroom during the day. They could not have allowed learners because of the moderation they were doing, and no learner came into the staffroom during the second period. Mr Kuwandira left after the first period. He was not in the staffroom during the second period and only came back during lunch. When there are incidents at the school, the principal would ask him to rewind the cameras so that any activity involving an incident could be viewed. The principal never called him when Mr Kuwandira asked for the footage. If the footage was made available, the learners could have been seen going to the staffroom. After the incident, the camera is no longer facing the door but is facing another direction.

19] Mr Nkadilahla Lucas Makgaga was called as the employee’s second witness and testified that he is employed as an educator at the school and a member of the disciplinary committee at the school. On 11 September 2025, he was in the staffroom preparing for his third period. He only left the staff room at the beginning of period three. He did not see any learners entering the staff room. There were no learners who entered the staff room during the second period. He is not aware of any incident that happened during the second period in the staff room. He became aware of the allegations against the employee on his way to class at the beginning of the third period. He was stopped by Ms. Mndebele who told him that she received a report from learner A who told her that the employee had touched her breast. Upon receiving this report, they decided to tell Ms. Moeng who was the deputy principal about the allegation as the principal was not present at the school on the day. He and Ms. Mndebele serve on the disciplinary committee, and Ms. Mndebele approached him because they handle many cases at the school.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[20] In terms of Section 17(1)(b) of the EEA an educator commits serious misconduct when engaging any act of sexual assault on a learner, student or other employee. The abovementioned section the mandates that a sanction of dismissal be imposed where an employee is found guilty. The employee pleaded not guilty to the charge. His defense was that he was not in the staffroom around the time the allegation is said to have happened. Through evidence of two witnesses, the employee maintained that he did not commit the said misconduct and that he never had interaction with learner A and B except when he went to class during his period. The learners, in particular learners A and B were adamant that the employee did touch and squeeze learner A’s breast.

[21] Having heard evidence, it is my finding that, on a balance of probabilities, the conduct alleged by learner A did happen. The three learners who testified were not shown to have any ulterior motives that would cause them to falsely implicate the employee. If their version is to be rejected, sufficient basis should exist for such rejection. And that could only happen through the employee presenting as such evidence as would point to the learners’ version either having been manufactured or a fabrication.

[22] I should perhaps start with how all the three learners narrated how the allegation came about. Both learner A and B testified that they were both sent to the staffroom by Ms. Mndebele. Their version in this regard was not disputed. That they went to the staffroom was corroborated by Ms. Mndebele whose version to the effect that she had sent the learners to the staffroom to drop off the assignments was not gainsaid. I thus had no reason not to accept that the two learners, learner A and B possibly could not have been at the staffroom where they alleged the touching and squeezing of learner A’s breast occurred. The employee of course sought to belatedly, through two of his witnesses, pour cold water on the versions by the learners to the effect that the incident happened inside the staffroom by both witnesses testifying that they were inside the staffroom the whole day, suggesting that the incident in the circumstances could not have occurred. I shall return to dealing with this version later on in the award.

[23] When learner A and learner B went back to the classroom, it was to learner C that learner A narrated what happened, an even that caused learner C to take a view that the employee’s conduct was not acceptable and needed to be reported. That learners A and C approached another educator, Mr Motsumane, to report the incident was not disputed, and that Mr Motsumane in turn told the two learners to approach Ms. Mndebele because he was a male teacher and would not know how to handle what they reported to him was also not disputed. As it turned out, the two learners approached Ms. Mndebele who had them explain what happened and who later, together with Mr Makgaga, went to the deputy principal’s office, Ms. Moeng, to report the incident. This version was confirmed by Mr Makgaga, the employee’s own witness who, on his own version during cross examination, never questioned Ms. Mndebele but joined her in reporting the incident to the principal.

[24] Learner A did not take along learner B but was with learner C when she reported the conduct by the employee to Mr Motsumane, Ms. Mndebele and later Ms. Moeng. If learner A had ulterior motives or if her claim was informed by malice with the intention of falsely accusing the employee, learner A would have, to achieve that objective, taken learner B who was present in the staffroom with her instead of taking along learner C. The sequence of events does not, in my considered view, suggest that the learners’ version was a fabrication. I do not believe that, if sexual assault on learner A did not happen as alleged, the learners and the educators in particular including the deputy principal, would go through the trouble they did.

[25] Ms. Mndebele’s version to the effect that she had a good relationship with the employee was not disputed. The employee also did not point to any history of animosity with the three learners that would cause the learners to falsely state that he sexually assaulted learner A. If that be the case, it fell on the employee to provide a cogent explanation of why the learners and Ms. Mndebele would state that sexual assault on learner A happened. An attempt by Mr Makgaga, who was the employee’s witness, at casting doubt on learner A’ credibility by stating that she was a problematic child and that her version was likely a fabrication falls to be outrightly rejected. At no point when learner A testified was this version put to her. While Mr Makgaga made these claims, he failed to explain why he, when asked by Ms. Mndebele to go to the deputy principal’s office to report the allegation of sexual assault, did not tell Ms. Mndebele about learner A’s alleged wayward conduct but instead go along with Ms. Mndebele to report the allegation. It was further not Mr Makgaga’s version that when he and Ms. Mndebele arrived at the deputy principal’s office, he expressed his doubts about the veracity of the allegation by learner A and, to that extent, point out how learner A was, according to him, a problematic child. As things stand. He and Ms. Mndebele reported the allegation, and the employee was subsequently charged.

[26] Turning to the testimony by Mr Makgaga and Mr Tshabangu that they were in the staffroom the whole day and that the incident thus could not have happened because the employee was in class and only came to the staffroom during lunch. Having heard their version, I am not persuaded that their version is truthful, but I regard their testimony as an attempt to shield and protect the employee. The learners were adamant that the incident happened in the staffroom and that they, Mr Makgaga and other teachers, only came to the staffroom shortly after the employee engaged in the conduct and that they were alone with the employee when the sexual assault happened. As already alluded to, I had no reason not to believe the version presented by the learners as I found them to be credible witnesses with nothing to gain, at least as far as evidence suggests.

[27] I cannot say the same with the two educators, Mr Makgaga and Mr Tshabangu. Mr Tshabangu appeared to be more focused on the CCT footage which he believed could have shown the learners entering the staffroom and proceeded to throw suspicion around the CCTV footage not having been made available. While Mr Tshabangu testified that no learners entered the staffroom because there was moderation taking place, the employee did not put this version to Ms. Mndebele and put to her that she could not have sent learners to the staffroom to drop off the assignments because there was moderation taking place. Also, Mr Makgaga, who accompanied Ms. Mndebele to the deputy principal’s office to report the allegation against the employee, did not tell Ms. Mndebele that the incident could not have occurred because there were teachers busy with moderation in the staffroom the whole day. The version by the two educators to the effect that they were in the staffroom the whole day and that the learners could not have been to the staffroom falls to be rejected.

[28] In trying to explain the possibly motive for the allegation following a question posed during cross examination on while the learners would single him out while there were many other male teachers at the school, the employee referred to a deputy principal’s post that was advertised with interviews scheduled to commence in October 2025 and intimated that the allegation arose because he had applied for the position, was more experienced with none of the other educators possessing the qualifications he has. But again, this version was never put to Ms. Mndebele and was presented only when the employee testified. Even if by so stating, the employee wanted to show that individuals possibly jealous of him may may have set the learners to falsely implicate, I would still find that the employee did not substantiate this claim by way of evidence pointing the individual/s who may be involved

[29] In my considered view, the version by the learners is more probable than the version by the educators. An employee facing a serious allegation as that levelled against the employee would be expected to do much more than the employee did in defending the allegations. It is, for an example, not enough for the employee to provide a very flimsy explanation on why Ms. Mndebele who had a very good relationship with him, would assert during her testimony that misconduct of sexual assault was reported to her. Ms Mndebele did not stop there, she, during her testimony, explained that learner A also told her about the employee requesting learner A’s contact number and asking to meet up with her next to the Spar supermarket. The employee would have to come up with a more plausible explanation on why Ms. Mndebele would corroborate the version by the learners. Also, the employee would have to come up with a more plausible explanation on why learners he no history of strained or problematic relationship with, would single him out and falsely accuse him of having engaged in the misconduct alleged.

[30] The employee is an educator with more than thirty years’ experience. Experience should have taught him that engaging in the conduct of sexually assaulting a learner carries serious consequences. It goes without saying that an educator is a parent because children, while at the school, are left in educator’s care with parents trusting that their children are safe and that educators would assume the role of not only impacting knowledge but also take over the role of protectors. It is thus important for a clear message to be sent out that any breach of such trust can never be tolerated. Learners should look up to educators as models as how learners’ futures turn out is largely dependent on exemplary conduct by educators.

[31] Mindful of the above, the South African Council for Educators (SACE) Code of Professional Ethics states that educators must: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” The above provision emanate from the provision in the Constitution of the Republic of South Africa which provides that children have a right to protection of their dignity and bodily integrity and protection from “maltreatment, neglect, abuse or degradation.”

[32] Mr Kuwandira, the employee, is found guilty of misconduct, conduct that warrants that he be dismissed in terms of section 17(1)(b) of the EEA. As a result, Mr Kuwandira is found to be unfit to work with children, a finding that is consistent with the provisions of the Childrens Act 38 of 2005 .

[33] In the premises, I make the following award:

AWARD

[34] The employee, Mr Nyasha Kuwandira is found guilty of serious misconduct in terms of Section 17(1)(b) of the Employment of Educators Act by sexually assaulting a learner by touching and squeezing her breast.

[35] The sanction of dismissal is imposed effective from 31 July 2026.

[36] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[37] The employee, Mr Nyasha Kuwandira is found unsuitable to work with children in terms of Section 120(40 of the Children’s Act 38 of 2005.

[38] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s 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 Mr Nyasha Kuwandira, 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.

[39] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Senior Panelist: ELRC