ELRC342-25/26 NC

PSA oho MANELI GORDAN MZUKISI Applicant

AND

EDUCATION DEPARTMENT OF NORTHERN CAPE Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the award in the arbitration between PSA on behalf of Maneli Gordan Mzukisi, Applicant, and the Education Department of Northern Cape, Respondent.
2. The arbitration was held under the auspices of the CCMA in terms of section 191(5)(a) of the Labour Relation Act, 1995, as amended, the (LRA), and the award is issued in terms of section 138(7) of the Act.
3. The arbitration hearing commended on and concluded on 17 March 2026.
4. The Applicant was present and represented by Mr. Bryan Landry, a PSA official.
5. The Respondent was represented by Advocate Grant Van Staden.

ISSUES TO BE DECIDED

6. I have to decide whether the dismissal of the Applicant was substantively fair or not.
7. In regard to the substantive fairness, the Applicant stated that he did not commit the alleged misconduct on 1 December 2023.
8. The procedural issue is whether the Respondent failed to produce an investigation report.

BACKROUND TO THE ISSUE IN DISPUTE.

9. The applicant referred a dispute relating to the alleged unfair dismissal to the ELRC. The matter was conciliated and remained unresolved.
10. A request was made that the dispute be resolved through arbitration. The matter proceeded on various dates which concluded on 17 March 2026. The applicant’s bundle submitted was also used by the Respondent.

SURVEY OF EVIDENCE AND ARGUMENTS

RESPONDENT’S CASE

11. Grant Van Staden, Deputy Principal Corporate Services stated under oath that he investigated this matter after receiving a complaint from the Northern Cape Urban TVET College. The complaint was in relation to an incident that took place on 01 December 2023 in Kimberly. Following his investigation, he established that sufficient grounds existed that an act of sexual harassment was perpetrated on 01 December 2023, on the victim, Ms. Jackie Nguye, a lecturer, and the applicant’s colleague on 01 December 2023. Evidence was presented in the form of witnesses’ testimony, WhatsApp messages and documentary evidence.
12. The Respondent gave the Employee sufficient time in the notice to attend the hearing. The Applicant attended the hearing and the Respondent’s witness were cross – examined. The Applicant lodged an appeal and the Appeal Authority upheld the dismissal.
13. Under cross – examination, it was put to the Applicant that the dismissal was unfair because there was no investigation report. He stated that it was agreed that the hearing could proceed without the report and had a series of WhatsApp messages will be relied upon.
14. The second witness, Ms. Ayanda Elizabeth Mbalanli stated under oath that she is the Deputy Principal Corporate Services. She indicated that the college received an interdict application from Ms. Nguye who stated that the Applicant had sexually assaulted her in his office. The Applicant was suspended whilst in the police holding cells in prison.
15. When Ms. Nguye reported to her, she was hysterical and confused. She started not coming to work. The Respondent sent her to a psychologist and submitted an Anton Pillar application on her behalf. She stated further that sexual harassment is considered as a serious misconduct. Ms. Nguye eventually resigned and stated in the exit interview that it was because of a rape incident.
16. The third witness, Ms. Sesi Mahlobogoane, Director of Social Inclusion and Equity within the Department of Higher Education and Training, stated that she was appointed as chairperson to oversee the disciplinary enquiry involving the applicant and Urban TVET College in the Northern Cape. She stated that on 02 January 2024, which is the date of the sitting of the hearing, an application for a postponement of the hearing was submitted. She considered the application and did not grant a postponement because the Applicant had been aware of the charges since December 2023.

The college reopened on 08 January 2024 and the Applicant could have asked for postponement of the hearing before the 12th. After denying the postponement application, she granted the application and gave his union representative an hour to prepare. The Applicant and the union representative came back before the end of an hour to proceed. She stated that she found the evidence of Ms. Jacqueline Nguye consistent and credible when she provided her account of what transpired. She stated that she could not scream during the ordeal due to shock and the physical presence of the Applicant. A witness that corroborated Ms. Nguye was Ms. Mama. Ms. Mama testified about the state of Ms. Nguye after the incident. She further stated that the applicant admitted to sending inappropriate and sexualized message between 28 and 30 November 2023. He also confirmed that he still had sexual desires on the date of the incident. He further admitted to pushing for sexual favours as well as apologizing. The Applicant was an HOD occupying a position of influence.

17. Under cross – examination she stated that Ms. Nguye described how the applicant unbuttoned her pair of jeans, inserted his finger in her private part, she tried to remove his hand when the finger had already penetrated. The applicant did not deny the version. Ms. Nguye lied to the applicant that her boyfriend was coming which the applicant said he would sleep with her now and the boyfriend later. She went further and said she was fasting.

APPLICANT’S CASE

18. Gordan Mzukisi Maneli stated under oath that he was employed as Head of Department for Business Studies at City Campus. On 01 December 2023, he had received an email from Human Resources giving names of staff members who were to attend training during the week commencing on 5th to 10th of December 2023. He stated that Ms. Nguye was one of the staff nominated to attend the training with two others. He had sent them a WhatsApp message about the training. Two of the staff members responded and Ms. Nguye did not respond. He then enquired from her and she stated that she was not going to attend. She later sent him a message informing him that she was in the office. He told her that he was busy and would see her later since he was busy with examinations. Later the principal’s secretary told him that Ms. Nguye came to her office to establish as to who had sent her name to attend the training and that she was not going to attend.
19. Later Ms. Nguye pleaded with her that she did not want to attend the training and should get someone to replace her. He refused because it was too late. She grabbed his arm and pleaded with him not to leave whilst she was talking to him. She told him that he always told her that he cared for her and now wanted to send her to her enemies. He left and later called to his office. He reprimanded her for raising her issues with the Principal’s office instead of her Supervisor. She accused him of shouting at her and said she already spoke to the Principal’s Secretary.

ANALYSIS OF EVIDENCE AND ARGUMENTS

20. The Applicant was initially charged with two allegations of misconduct namely:

1.1 It was alleged that you committed an act of sexual harassment on or about date 01 December 2023, in that you raped/sexually assaulted Ms. Mguye.

1.2 Alternatively, it was alleged that you threatened to assault Ms Nguye while on duty on or about 01 December 2023 at the City Campus of the Northern Cape TVET College.

At the end of the internal disciplinary hearing, the Chairperson found the Applicant guilty of the first allegation and stated that no evidence was led with regard to allegation number 2. The Applicant was accordingly dismissed. Following an appeal, the sanction of the dismissal was upheld. The Applicant challenged the dismissal.

21. The Respondent called three witnesses. The first witness, Mr. Grant Van Staden stated that he investigated the allegation on behalf of the Respondent and established that sufficient grounds existed to charge the Applicant. The Applicant was charged and given sufficient time in writing of the hearing. At the hearing, the Employee was represented by a SADTU official, Mr. Khoboko. During cross – examination, Mr. Laundry stated that the dismissal was unfair because there was no investigation report presented. No prejudice was raised by virtue of the fact that no investigation report was presented. In fact, Mr. Van Staden stated that the parties agreed to proceed with the disciplinary hearing without any written investigation report. Mr. Van Staden gave evidence and was cross – examined, I find no basis for challenging the dismissal on the grounds that there was no investigation report presented. The Applicant was duly represented throughout the proceedings. The Respondent however produced and relied on WhatsApp messages that were presented in the hearing which are attached to the Applicant’s bundle. I will deal with these messages later in the award.
22. The Respondent’s second witness, Ms. Ayanda Mbalanli stated that when the complainant, Ms. Mguye, came to report to her office, she was hysterical and confused. The Respondent sent her to a Psychologist and a Anton Pillar application was made on her behalf because of extended absenteeism. In her exit interview, Ms. Mguye stated that she resigned because of the rape incident. Under cross – examination she stated that she could not confirm if Ms. Mguye was raped or sexually assaulted. Whilst this may be so, the act of rape or sexual assault took place in the applicant’s office and the few witnesses could not confirm. What was not challenged was her evidence that Ms. Mguye resigned and stated that the reason that precipitated the resignation was the alleged rape or sexual assault. Why would Ms. Mguye leave her employment when the incident did not take place? Ms. Mbalanli’s evidence is further that Ms. Mguye reported the incident to her and she looked hysterical. This clearly shows that indeed she was sexually assaulted.
23. The third witness, Ms. Sesi Mahlobogoane stated that she was the Chairperson of the internal disciplinary enquiry. Mr. Laundry raised with her that here were no appointment letters from the Respondent. This issue came during cross – examination and I could not understand why the issue was not raised at the commencement of the proceedings. In any case, nothing material or prejudicial to the applicant’s case was presented relating to how the non- production of the appointment letter prejudiced the Applicant. The only issue that was raised was that this witness refused a postponement application on the 12th January 2024. It is so that a postponement is not a right but an indulgence. The Applicant was served with a notice to attend a disciplinary enquiry in December 2023. Whilst the TVET had closed after that, the Applicant had enough time to arrange a colleague or union official to represent him. The fact that the union offices close around 15th December 2023 is not a justifiable reason. The Applicant had sufficient time to make arrangements for a representative. I find no unfair conduct in how he declined the application, in fact, his witness stated that she granted them an hour to prepare and was surprised that they came back early, before the lapse of an hour, to proceed with the disciplinary enquiry.
24. As I stated before that I will deal now with the WhatsApp messages, this witness stated that Ms. Mguye was consistent in the hearing. WhatsApp messages were sent by the Applicant to her which were inappropriate and sexual messages. The applicant himself conceded to sending these messages between 28 and 30 November 2023. The applicant admitted that he still has sexual desires on the date of the incident. The applicant admitted to heavily pushing for sexual favours and even apologised. The Applicant did not deny these messages during the arbitration proceedings. He also did not deny the evidence of this witness. What he raised though was that the hearing was unfair because he was denied a postponement. This witness stated that Ms. Mguye demonstrated during the proceedings on how the applicant unbuttoned her pair of jeans and inserted his fingers in her vagina. She tried to remove his hand but failed. This evidence was not disputed.
25. The overall assessment of the evidence, in my view, confirms that the applicant indeed sexually assaulted Ms. Mguye and I therefore confirm the sanction of dismissal meted out at the disciplinary enquiry.

AWARD

26. The dismissal of the Applicant, Gordan Mzulusi Maneli, by the respondent was procedurally and substantively fair.
27. The Applicant’s dispute referral is dismissed.

COMMISSIONER
MN MASETLA