IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC338-22/23NW
In the matter between
PSA obo PS LIHOLO Applicant
and
DEPARTMENT OF EDUCATION (NW) Respondent
ARBITRATOR: S Fourie
HEARD: Commenced on 5 September 2022 with various sittings thereafter.
FINALISED: 20 August 2024
DELIVERED: 04 October 2024
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Applicant is Mr. PS Liholo, who was represented by Mr. A Moribe, an official from PSA. The Respondent is the Department of Education – NW. Respondent was represented by Ms B Phuswane, a labour relations officer at the Office of the District Director – NW.
2. Evidence in this matter was heard at Peter Huge Building Mahikeng on 9 February 2023, 10 February 2023, 4 April 2023, 19 July 2023, 20 July 2023, 21 July 2023, 25 October 2023, 26 October 2023, 27 October 2023, 17 January 2024, 18 January 2024, 19 January 2024, 3 June 2024, 4 June 2024, 13 August 2024, 14 August 2024, 15 August 2024 and 20 August 2024. The proceedings were digitally recorded.
THE ISSUES TO BE DETERMINED
3. I am tasked with determining whether the Applicant’s dismissal was for a fair reason and conducted in accordance with a fair procedure. The parties have agreed that a key aspect of procedural fairness to be evaluated is whether the Respondent failed to allow the Applicant legal representation during the disciplinary inquiry, which proceeded in the Applicant’s absence, thus denying him the opportunity to present his case. The Applicant contends that it was unfair to deny him legal representation. The inquiry proceeded without the Applicant, with the Applicant contention that this absence compromised his ability to respond to the charges effectively. It must also be determined whether the Applicant was afforded the opportunity to submit closing statements, as this is an essential part of ensuring a fair hearing. And finally the fact that the Minister, rather than the MEC, signed the outcome of the inquiry raises additional questions about the legitimacy of the process and whether proper authority was exercised.
4. In assessing substantive fairness, I must determine whether the Applicant is guilty of the ten charges brought against him. The Applicant has conceded to charges 6 and 7 during his plea. He contends that the messages he sent were not intimidating, which is a key point for consideration. Additionally, I must evaluate whether the offenses under section 18 justify dismissal as a sanction. Specifically, I will consider whether dismissal is an appropriate and proportional response to the charges, taking into account the nature of the offenses and any mitigating factors presented by the Applicant.
BACKGROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent as an educator at Mmabatho High School since 17 January 2017, and was dismissed on 12 July 2022, with a monthly salary of R27,375.57. The charges against the Applicant stem from incidents that occurred on 21 August 2020, 15 September 2020, 1 October 2020, and 1 October 2020, where he allegedly insulted and intimidated the Principal and the School Management Team (SMT), demonstrating insolent behavior. As a result of this the applicant was charged with the following charges:
Charge 1 –
On the 21 August 2020, whilst at Mmabatho High School, your place of work, you allegedly intimidated your fellow employee Ms. Sethibe when you sent her intimidating messages telling her to resign resulting in pre-empting the outcome of the disciplinary enquiry. In doing so you contravened section 18(1) (a) of the Employment of Educators, Act 76 of 1998 as amended.
Charge 2 –
On the 15 September 2020, whilst at Mmabatho High School, your place of work, you allegedly prejudiced the administration of the school when you held the school management in the office demanding answers on the pending matter against you and about the precautionary suspension. In doing so you contravened section 18(1) (f) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 3 –
On the 15 September 2020, whilst at Mmabatho High School, your place of work, you allegedly intimidated the fellow employees, i.e. the SMT accusing them of supporting the decision by the school Principal. In doing so you contravened section 18(1) (u) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 4 –
On the 15 September 2020, whilst at Mmabatho High School your place of work, you allegedly displayed insolent and abusive behaviour when you held the SMT in the principals’ office. In doing so you contravened section 18(1) (i) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 5 –
On the 01 October 2020, whilst at Mmabatho High School, your place of work, you allegedly intimidated your fellow employee, Ms. Sethibe, the Principal of the school, by threatening to make her life miserable and render the school ungovernable for as long as she was the Principal at school. In doing so you contravened section 18(1) (u) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 6 –
On the 2 October 2020, whilst at Mmabatho High School, your place of work, you allegedly prejudiced the administration of the school by disrupting the morning briefing, ordering teachers not to do their extra-curricular activity of collecting donations from learners, you went to an extent of entering the Principal’s office to try to announce to the learners not to donate. In doing so you contravened section 18(1) (f) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 7 –
On the 2 October 2020, whilst at Mmabatho High School, your place of work, you allegedly disrupted the running of the school by occupying the office of the Principal, insulting her and the two deputies which resulted in the SMT reporting at the sub-district. In doing so you contravened section 18(1) (f) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 8 –
On the 2 October 2020, whilst at Mmabatho High School, your place of work, you allegedly displayed disrespect towards Ms Sethibe, demonstrating abusive and insolent behaviour by swearing at Ms. Sethibe the Principal of the school, when you forcefully occupied the office. In doing so you contravened section 18(1) (a) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 9 –
On the 2 October 2020, whilst at Mmabatho, your place of work, you allegedly displayed insolent behaviour by swearing at Mr. Jack, the Chairperson of the SGB when he was called to come and intervene when you forcefully occupied the office of the Principal. In doing so you contravened section 18(1) (f) of the Employment of Educators, Act 76 of 1998 as amended;
Charge 10 –
On the 01 October 2020, whilst at Mmabatho High School, your place of work, you allegedly displayed disrespect to Ms. Makhema by shouting at her in front of learners telling her that she administered corporal punishment to a learner. In doing so you contravened section 18(1) (f) of the Employment of Educators, Act 76 of 1998 as amended
SUMMARY OF THE EVIDENCE
6. I do not intend to summarise each and every detail of documentary or oral evidence which was presented. I did however consider all the oral and documentary evidence, even those parts that are not summarised here. Two bundles of documents were submitted during the arbitration hearing. I will refer to these documents, where necessary and relevant during my summary and evaluation of the evidence. Based on the charges levelled against Liholo, it is essential to assess whether his dismissal was both substantively and procedurally fair. The charges include serious allegations of intimidation, disrespectful behavior, and disruption of school operations, all of which contravene section 18 of the Employment of Educators Act 76 of 1998.
The Respondent case
7. Botlhale Sechele, the assistant HR Director testified under oath. He was the chairperson of the disciplinary hearing. The first sitting was supposed to be in December 2020 but was postponement because the Applicant wanted legal representation. The second notice was sent out in January 2021, but the Applicant informed the Respondent that he was of ill health. The third notice was for February 2021 on which day the Applicant had a legal representative, Mahlangu from Mahlangu Attorneys and was informed that legal representation was not allowed but needed to apply for it which the Applicant did and was not opposed by the Respondent and he ruled that Mahlangu could represent the Applicant.
8. Mahlangu then requested a postponement because the Applicant informed him of the charges the previous day which was granted until 2 March 2021. On the 2nd of March 2021, Mahlangu recused himself not seeing eye to eye with the Applicant. The Applicant then requested a further postponement to seek a representative which was granted up to the 9th of March 2021 but also cautioned the Applicant not to look for an attorney but rather seek help for his union being a union member. On the 9th of March 2021 the Applicant was alone without representation and presented a letter from Marais attorneys dated 8 March 2021, who was representing the Applicant but not available on the said day seeking a postponement to which the Respondent objected to having 90 days to finalise matters and the postponement was not granted. The Applicant decided not to participate and walked out and the process continued in his absence. When the hearing was concluded the Applicant was not present when he informed the Respondent to submit their closing statements.
9. As to the Minister who released the appeal instead of the MEC, Sechele explained that the Department was under administration and powers of all officials were taken away. Appeals are directed to the MEC but being under administration the National Office was consulted and advised that the Minister would deal with appeals. Referring to R42 the HR delegations, the powers were taken by the Minister including that of the MEC. Section 18 offences can include dismissal as a sanction referring to A31 section 18(3) the gravity of the misconduct resulted in dismissal.
10. During cross examination Sechele denied that the third postponement was for the Respondent’s witness and did not postpone the enquiry for the Respondent Sechele cannot recall that the Applicant requested to be recused when he walked out. He recalls that the Applicant asked for an adjournment and on his return, Sechele told the Applicant that the enquiry would proceed notwithstanding what the attorney requested. It was when the Applicant stood up uttered something and left. He informed the Applicant that it could be detrimental to himself should he leave because the enquiry would proceed in his absence. He was referred to a letter from the attorney on R46 paragraphs 3-4 which was supposed to be done before the enquiry even though the 5th of March as a Friday when the Applicant consulted with the attorney. He told the Applicant the priority. He was referred to R43 – the delegation of powers section 38(3) of the EEA he responded that the MEC normally deals with appeals but the North West Province was under section 100(1) (b) placed under administration of the Minister.
11. Tsholofelo Frieda Sethibe, the Principal at Mmabatho Secondary School since 2010, testified under oath regarding the Applicant’s conduct. She stated that the Applicant sent her intimidating messages urging her to resign. It reads: “Are you considering legal representation’’ – “The above is a judicial precedence involving the principal…” Look who was dismissed? Mr. William Modiroa. Is this the same man I know? The principal was dismissed mam” You shouldn’t have done this to me. Really! “My second advice would be to resign with dignity than to go through what I experienced. Yours is dismissal, eventually, mama Sethibe. There are no loopholes in your case. Please resign to avoid further embarrassment…I can’t reverse this even if I wanted to. We did not know things would end like this”. This communication, received on the same day as an intervention meeting concerning the Applicant’s case, suggested that Sethibe should consider early retirement to avoid shame, implying that the outcome would mirror a previous case involving Modirwa, which resulted in dismissal. Sethibe reported the intimidating messages (R15-16) to her superiors, Mr. Kgosimang and Mr. Seshibe (see R14), indicating that she felt emotionally and mentally affected by the Applicant’s threats. She expressed concern over the implications of the messages, stating that they pre-empted the outcome of the disciplinary process and created a fear for her safety as a woman. This intimidation significantly impacted her ability to manage the school effectively
12. In relation to both charges 2 and 4, which took place on 15 September 2020, Sethibe received a request from the Applicant to meet with her. She allowed the meeting and called in the SMT members, Mr. Ramalla and Ms. Setshedi, as requested by the Applicant. During the meeting, the Applicant began by apologizing, stating that he was not there to fight but to talk. He then took them back to the day he was suspended and demanded that they apologize to him. Sethibe testified that on the day the Applicant was called to receive his suspension letter from Mr. Modirwa, he caused chaos by not recognizing Modirwa’s position and referring to him as “Monna” (man). The Applicant refused to receive the letter and blocked Modirwa when he tried to leave, although Modirwa eventually managed to exit the room. The Applicant then returned, handed his phone to Sethibe, and she was telephonically instructed to call the South African Police Service (SAPS). Sethibe and the other SMT members were held against their will and not allowed to leave the office.
13. Upon arrival at Mmabatho High School, the South African Police Service (SAPS) found the Applicant shouting and intimidating them. The Applicant claimed that he had been dismissed by Principal Tsholofelo Sethibe and proceeded to disrupt classes while addressing learners. He made derogatory comparisons, likening Mr. Ramalla to a “weak female” and accusing Ms. Setshedi of misleading Sethibe. The incidents did not occur on the same day; the confrontation with Mr. Modirwa happened when the Applicant was suspended. On the day the SAPS intervened, the Applicant exhibited violent behavior, provoking and pushing Mr. Ramalla. He insulted Sethibe with vulgar language, stating “fuck you” to her and other staff members, and expressed disdain for women in leadership positions. Additionally, during a confrontation with Ramalla, the Applicant made inappropriate sexual references about Sethibe. When SAPS separated him from Ramalla, he invoked the case of George Floyd to highlight police brutality.
14. On the morning of the incident, the Applicant emailed the two Deputy Principals, expressing disdain for their support of Principal Tsholofelo Sethibe, labeling them as “stupid.” Following this, an incident occurred in Ms. Setshedi’s office, which Sethibe reported to her superiors. During this time, the Applicant displayed violent behavior, prompting teachers to intervene by taking him to the staff room and closing the door. Someone called the Applicant’s wife, who arrived and left with him. However, the Applicant returned abruptly, running back to Sethibe’s office.
15. In relation to charge 5 – On 10 October 2020, the Applicant was expected to return from sick leave and precautionary suspension. Mr. Kgosimang accompanied the Applicant and reintroduced him to the two Deputy Principals and the rest of the SMT. The welcome was cordial, and the Applicant was given the opportunity to address the team, but he indicated that he would do so in the staff room. After Kgosimang left, the SMT attempted to discuss curriculum matters with the Applicant. However, he left for the men’s room and, unaware of a situation unfolding, encountered Ms. Makhema in her classroom, where she was teaching learners. Something Ms. Makhema did was interpreted by the Applicant as corporal punishment, leading to an altercation that drew the attention of learners and educators. The Applicant then returned to the SMT meeting, and they continued discussing curriculum planning. However, he stated that he was not ready to return to class but promised his support. As the meeting concluded, the Applicant stood up in an intimidating manner and said he would meet Ms. Sethibe in the staff room, implying that something was going to happen.
16. The Applicant caused significant disruption during the staff meeting upon his return. When welcomed back by Sethibe, he was given the opportunity to speak. However, he stood up and accused everyone of being hypocrites for pretending to be happy with him, asserting that they had not apologized for the charges and suspension he faced. His aggressive demeanor included banging his fist on the table and threatening the staff. The Applicant swore at Ms. Makhema regarding corporal punishment, demanding to know what she, as Principal, would do about it. Despite his aggressive outburst, the SMT remained calm and returned to their offices once he finished speaking. Following this, the Applicant approached Ms. Makhema, who was marking papers and showed disinterest in engaging with him. He became agitated with her, and she prompting assistance from two teachers, Ms. Thutlwa and Ms. Dikudu. At reception, Sethibe found Ms. Makhema visibly shaken and crying, advising her to go home. Subsequently, Ms. Thutlwa was called to explain the situation.
17. In relation to charge 8 – On 2 October 2020, the Applicant caused significant disruption at Mmabatho High School. While Sethibe was absent from the early morning staff meeting to collect question papers, Ms. Setshedi facilitated the meeting. When the Applicant arrived, he retrieved all class lists from teachers and instructed them not to collect funds for a school fundraiser. Upon entering her office, Sethibe encountered the Applicant next to the intercom. Inquiring if there was an announcement to be made, she was surprised to learn that because educators were not permitted to make announcements. The Applicant declared that no one would work until he, along with Ms. Setshedi and Mr. Mahaje, were removed from the school, threatening to call the Economic Freedom Fighters (EFF) to protest. Furthermore, the Applicant announced to students that they should not participate in fundraising activities and encouraged them to inform their parents about alleged mismanagement of funds.
18. The Applicant then started with the usual allegation of his precautionary suspension and called the EFF. She then called the SGB chairperson, Seshibe and Kgosimang with the Applicant uttering at the top of his voice that no one will work and he will remain seated in the chair and is going to be the Principal of the school. There was English scripts next to the Applicant which Setshedi wanted to collect for 12 learners writing exams. The Applicant grabbed the papers telling Setshedi to fetch it which she did not do avoiding a confrontation and the Applicant continued on the intercom. Whilst taking to Seshibe the Applicant took the phone and spoke to Seshibe and she left but the Applicant followed her to Ramalla’s office. With only the two of them in the office, the Applicant standing at the other side of the table saying to her face “Tsholofelo o sefebe, wa fana, why nna o sa mpha, o letagwa, le sefatlhego sa gago se a bontsha” These words are directly translated to mean “Tsholofelo (referring to Sethibe) you are a bitch, you freely give away your vagina, why did you not give me as well, you are a drunkard, even your face shows” meaning bitch and that she is a drunkard sleeping around. She never felt so threatened and unsafe just keeping quiet.
19. After the Applicant’s aggressive outburst in the staff meeting, Mr. Kgosimang informed the security, and Mr. Jack, the SGB Chairperson, arrived at the school. The Applicant began swearing at Mr. Jack, telling him he was a “nobody” and insulting him, stating that they both have testicles and that the Principal also sleeps with him. When the South African Police Service (SAPS) arrived, Sethibe tried to leave in her vehicle, but the Applicant remained in her office. After some time, the Applicant emerged, stating that he had achieved his goal of holding the school hostage. Mr. Kgosimang then said they must report to the district office. While waiting in her vehicle, the Applicant approached Sethibe again, repeating the derogatory term “sefebe,” meaning “bitch,” and then went to Mr. Jack’s vehicle. As Sethibe attempted to make a u-turn due to the number of vehicles, the Applicant opened her car door, got into the backseat, and told her to take him to his place. Sethibe refused and told him to get out, feeling unsafe in her own vehicle. The Applicant’s friend, Mr. Tshabalala, arrived and pleaded with the Applicant to exit the vehicle, which he did. They drove to the sub-district office but were called back, where they explained the situation and were told to go home and report to the sub-district the following day to make statements.
20. During cross examination – regarding charge 1, Sethibe addressed the allegations of assault against a learner. She denied that the Applicant did not pre-empt the outcome of the disciplinary inquiry, stating that she felt intimidated due to the Applicant’s actions. Although the Applicant had a similar case pending against him, Sethibe asserted that he had no right to make such statements, and she was not charged because her case was still under investigation. Sethibe clarified that the email from the Applicant was not meant as advice, as she did not seek counsel or intend to resign. While she acknowledged that the message did not constitute a direct threat of harm, she still felt intimidated by its content. She emphasized that the message was sent before the investigation began, thus pre-empting any potential outcomes. Additionally, she confirmed that the Applicant reported the matter to the South African Council for Educators (SACE) following his precautionary suspension for an alleged assault on a learner in 2018, which had strained their professional relationship.
21. In relation to charge 2, Sethibe testified that the School Management Team (SMT) comprises herself, the two deputy principals, and the two Heads of Department (HODs), although there should be seven members in total. She refuted the Applicant’s claim that he did not hold them hostage, stating that he closed the door and declared that no one would leave. Sethibe asserted that the Applicant swore at her multiple times, not just in connection with this charge, and denied his denial of using derogatory language, including “fuck you Tsholofelo,” “sefebe” (meaning “bitch”), “ofa bona nna” (meaning “I sleep around”), and “O letwaga” (meaning “your drunkard”). The Applicant also accused her of having inappropriate relationships (sleeping with them) with Mr. Kgosimang and Mr. Modirwa, suggesting these were reasons for their support of her. Sethibe denied the Applicant’s assertion that he did not assault anyone, stating that he assaulted Mr. Ramalla by blocking his exit. When asked whether the Applicant requested or demanded answers regarding his concerns, she clarified that he demanded answers aggressively and became violent during the confrontation.
22. In relation to the Applicant’s precautionary suspension, which was effective from 5 March 2020, and lifted on 20 June 2020, Sethibe testified that she did not show the Applicant away when he reported for work on 24 June 2020. She stated that her deputy informed her that the Applicant would be returning to school accompanied by a union representative. The union representative claimed to have a letter from Mr. Seshibe authorizing the Applicant’s return. However, Sethibe denied having received any such correspondence. To clarify the situation, she contacted her supervisor, Mr. Kgosimang, to follow up on the matter and informed the union representative that she would await further instructions from Kgosimang.
23. In relation to charge 4, which alleges that the Applicant displayed abusive behavior on 15 September 2024. Sethibe responded that the Applicant came to school while he was on sick leave and on precautionary suspension. The incident began with Ms. Setshedi in her office and then moved to the staff room. Someone called the Applicant’s wife, who arrived and calmed him down, after which they left. Ms. Setshedi then came to Sethibe’s office, and they saw the Applicant running back from the gate to Sethibe’s office. Other educators followed, trying to talk to him, but he was violent and swearing. Mr. Ramalla then came to Sethibe’s office and handed her the phone with Mr. Kgosimang on the line. However, Sethibe could not hear Kgosimang properly due to the Applicant’s continued swearing at her.
24. In relation to charge 5, Sethibe addressed a contradiction (R18) regarding whether she felt insulted or intimidated. She clarified that being insulted also made her feel intimidated, especially in front of educators. The Applicant had threatened to make the school ungovernable and their lives miserable as long as she remained Principal. His actions included dividing the staff, disrupting meetings, and belittling colleagues. Furthermore, the Applicant utilized social media to publicly target Sethibe and the two deputy principals, whom he referred to as the “Trio,” making her life increasingly difficult. Despite her efforts to make peace after tensions began in 2018, the situation worsened when the Applicant returned from a wellness institution at the end of 2019 and refused subject allocations. Sethibe filed for a protection order, which was resolved with a signed agreement before a Magistrate. However, shortly after, the Applicant shared details of this agreement on social media, including her personal information, leaving her feeling unsafe. As a result, she returned to the Magistrate’s Court to reinstate the protection order.
25. In relation to charge 8, Sethibe acknowledged that she was not present during the incident but confirmed that it was reported to her. When asked about the disruption of the morning meeting, she pointed out that the Applicant’s guilty pleas to charges 6 and 7 demonstrated his role in disrupting the meeting, which corroborated her earlier statement (on R18). Sethibe was questioned about the language used by the Applicant on 15 September and 2 October 2, 2020. She responded that the Applicant admitted to swearing at her during the incident in Mr. Ramalla’s office, stating that while the exact words may not have been identical, he did say “fuck you.”
26. Sameul Dipanka Ramalla, a deputy principal, testified under oath regarding charges 2, 3, and 4 related to the events of 15 September 2020. He stated that he received an insulting and degrading email from the Applicant, which referenced the Principal’s private life, sleeping with her and accused him of running the school like a private home while treating teachers poorly. Later that day, the Applicant followed up with the administration clerk about the email. Ramalla observed the Applicant confronting Ms. Setshedi in her office, which escalated to a situation where she ran to Ramalla’s office for help, accompanied by other educators attempting to prevent the Applicant from entering the Principal’s office.
27. The Applicant was taken to the staff room by educators trying to calm him down, while he confronted Ms. Setshedi in the Principal’s office about the events that had transpired. The staff room was locked to contain the situation, and the Applicant’s wife arrived with a friend and security personnel, after which they left the premises. However, shortly thereafter, noise erupted again as educators attempted to block the Applicant from entering the Principal’s office. Ramalla requested the administration clerk to call the South African Police Service (SAPS) while he forced his way into the Principal’s office handing his phone to Sethibe with Kgosimang on the line. Upon entry, Liholo immediately began swearing at Ramalla accusing him of sleeping with Sethibe. Liholo also accused Sethibe of infidelity and calling her derogatory names. He expressed a lack of fear when SAPS arrived, stating he had been waiting for that moment. The situation escalated further when he asked to be released to the men’s room, but he was provoked by others present. Mr. Sekgobela assisted him during this chaotic episode. Ramalla recalled a meeting on 10 September 2020, during which the Applicant requested an apology from management for his unlawful suspension. Ramalla informed the Applicant that they were departmental employees without the authority to impose suspensions, a statement that the Applicant did not accept well. This discontent led to the insulting email Liholo later sent to Ramalla.
28. In relation to charge 5, the Applicant reported for duty after his suspension was lifted by Mr. Seshibe. Mr. Kgosimang arranged a meeting with the School Management Team (SMT) to formally reintroduce the Applicant to the staff. During this staff meeting, the Principal introduced the Applicant, who was given an opportunity to speak. Instead of expressing gratitude, the Applicant used this platform to insult top management, referring to them as “the Trio.” He threatened to make the school ungovernable, create a hostile environment, and harm their reputations on social media.
29. During cross examination, regarding charge 3, Ramalla testified that he initially had a good relationship with the Applicant, but it deteriorated over time as the Applicant became increasingly uncooperative and refused to take instructions from the School Management Team (SMT). This tension was compounded by complaints from female Heads of Department about the Applicant’s behavior. Referring to R19, which the Applicant cited as a reason for not reporting to work after 2 October 2020, Ramalla stated that he had indicated to Ms. Seshibe that the conflict needed resolution before the Applicant could return. The Applicant also used social media to insult Ramalla and sent him an email while he was hospitalized in Pretoria, accusing him of supporting the Principal and undermining Liholo. The Applicant held them against their will by preventing Ramalla from exiting to go to the men’s room observing a lack of fear towards the South African Police Service (SAPS), despite being subject to potential arrest. The SAPS arrived approximately 45 minutes later, followed by Mr. Sekgobela, who pleaded with the Applicant to release the staff members.
30. In relation to charges 4 and 5, Ramalla testified that the Applicant’s focus was primarily on the Principal, whom he referred to as part of “the Trio” along with the two deputy principals. The Applicant threatened to make the Principal’s life miserable and directed insults at all three members of the management team.
31. Naume Sinah Setshedi testified under oath as a deputy principal since 2012 and has known the Applicant since 2017. Regarding charges 2, 3, and 4, which occurred on 15 September 2020, she recounted an incident where the Applicant entered her office without knocking while she was with a student teacher. He referred to an email he sent, calling it a “love letter,” and insisted on having a meeting with her, which she declined, stating the email was self-explanatory. The Applicant became aggressive, raising his voice and accusing her of siding with the Principal. The Applicant with a loud voice said: “you Sinah you supporting your friend Tsolo’”. He also insulted her by saying she disrespected teachers and pointed his finger in her face, making her feel unsafe in the small office. As she opened the door to leave, he followed her out, shouting profanities: “fuck you Sinah – fuck you Tsolo”. Teachers rushed in to intervene and took the Applicant to the staff room while Setshedi went to the administrator’s office to inform Mr. Ramalla about the incident.
32. After the incident, Setshedi immediately reported what had happened to Principal Sethibe. They reviewed the CCTV footage, which confirmed the events in the staff room. Shortly after, the Applicant’s wife and a friend arrived to speak with him before leaving the school premises. Setshedi then returned to her office to call the student teacher as a witness and explained the situation to the Principal. However, the Applicant soon returned, running into the Principal’s office and instructing the student teacher to “get the hell out of the office,” which terrified her, prompting her to leave. Setshedi remained in the office with the Applicant, who became aggressive and loudly declared that no one would leave. This behavior left Setshedi feeling terrified and unable to exit the office
33. During the incident, the Applicant shouted derogatory remarks, including “fuck you Tsolo, fuck you Sinah, fuck all women in power; I don’t respect any woman in power,” in front of other teachers. His wife and a friend attempted to calm him down as Ramalla entered the office and handed the Principal his cell phone, which had Mr. Kgosimang on the line. The Applicant insulted Ramalla, suggesting that his support for the Principal was due to a personal relationship, and made further derogatory comments about the Principal and other officials. As tensions escalated, the Applicant continued to use profane language the Principal refused to speak with his mother when she was called by Liholo’s friend. When the SAPS arrived to investigate the situation, the Principal explained the events, while the Applicant expressed his dissatisfaction with previous meeting (of 10 September 2020) regarding his unlawful suspension and demanded apologies from management.
34. When Ramalla attempted to exit to the men’s room, the Applicant raised his voice and forcibly removed Ramalla’s mask, escalating the situation to a potential physical confrontation. The SAPS intervened, blocking the Applicant and ensuring their firearms were secure due to the volatile nature of the incident. Security official Sekgobela entered the office, urging the Applicant to calm down and let Ramalla leave. As they exited, Sekgobela instructed them to pack their belongings and leave the school. After some time, Sekgobela escorted Ramalla and others to the area office for safety.
35. In relation to charge 5, the 1st of October 2020, Setshedi was present when Mr. Kgosimang brought the Applicant back to school following his suspension. Sethibe agreed to introduce the Applicant to all staff during break time. The Principal requested words of support from educators, to which Setshedi raised her hand and welcomed the Applicant back, expressing the staff’s support. Setshedi had conveyed similar sentiments earlier in the office when they met with the Applicant, who was not pleased. When given the opportunity to speak, the Applicant told the staff that the School Management Team (SMT) was untruthful in claiming he was welcomed back. He referred to Sethibe, Setshedi, and Ramalla as “the Trio,” stating he would make their lives miserable and the school ungovernable, singling out the Principal to make her life especially difficult. Ramalla walked out, and Sethibe closed the meeting and left the staff room. Setshedi felt belittled, intimidated, and demoralized by the Applicant’s aggressive behavior, which made it difficult for her to perform her duties effectively.
36. In relation to charges 6, 7 and 8, the 2nd of October 2020, while Sethibe was out collecting exam papers, Setshedi and Majahi conducted the morning meeting with the fundraising committee. During this meeting, the Applicant loudly declared that no one would collect money from students, accusing the Principal and the School Governing Body (SGB) of misusing funds. He then collected the stamped class lists and tore them up, throwing them in the bin. After the meeting, as Sethibe returned, she followed Sethibe to her office and heard her greeting the Applicant, who then announced to students that they should not contribute any money and reiterated his claims of financial misuse by the school.
37. The Applicant confronted Sethibe, declaring that he would assume her role and make the school ungovernable. The words Liholo uttered was: “today he is the Principal and will occupy her chair and that he would make sure he removes her from this office and want to make the school ungovernable.” During a meeting where the Principal intended to discuss matters with the School Management Team, the Applicant insisted he was part of the SMT and disrupted the environment by asserting his authority. As exam time approached, Setshedi left for the school hall but returned to find the Applicant still in her office, where he obstructed her access to exam papers and continued to assert his dominance as Principal. When Sethibe attempted to call for support, the Applicant’s behavior escalated, leading to further derogatory statements. Sethibe took her lunchbox and went to Ramalla’s office. She left to her office but returned to the admin office but she was blocked by the Applicant. The NAPTOSA representative assisted her. She heard Jack, the SGB chairperson passing her office.
38. After hearing voices from the Principal’s office, Setshedi was informed by Jack to pack her belongings and leave the school. She saw the Applicant sitting near the staff room, where he boasted, “Yes, they are leaving as I said I would make the school ungovernable.” When the SAPS arrived, they found the Applicant attempting to speak with them. Setshedi returned to her office to retrieve something but overheard the Applicant making comments about George Floyd and threatening to file a harassment case against the police. Upon exiting, she noticed the Applicant in the back seat of the Principal’s vehicle, instructing her to take him wherever he wanted. The Applicant’s friend, Tshabalala, helped him out of the vehicle, after which he proceeded to Jack’s vehicle, leaving Setshedi unaware of what transpired next.
39. During cross examination, Setshedi acknowledged that she was present with other SMT members when they wrote their statements at the area office, but she denied that their statements were identical. She clarified that the other SMT members were not involved in making statements and emphasized that top management is part of the SMT. When comparing her statement (R21) with those of Ramalla and Sethibe (R19 and R18), she agreed that the charges were formulated based on their statements. Regarding the period from 2017 to 2020, Setshedi stated she was unaware of any wrongdoing in her support for the Principal. While she conceded that the statements had similarities, she insisted that she wrote her own statement independently while they were together at the area office.
40. According to the testimony, Setshedi did not personally see the letter uplifting the Applicant’s suspension. She only saw the NAPTOSA union representative and Sethibe reading the letter, but they agreed that the Department had not followed proper protocol. Neither the Principal nor Mr. Kgosimang were aware of the suspension being lifted at that time.
41. She confirmed that no educators had formally complained to her about the Applicant’s behavior, although Ms. Makhema had experienced harassment in her classroom. Setshedi recalled a meeting with the Applicant on 10 September 2020, where he apologized but then criticized her and Ramalla for supporting the Principal and discussed his unlawful suspension. She could not recall any corporal punishment investigation involving the Applicant when Chabedi and Masibi were called.
42. In response to the Applicant’s statement that it took 6 months (from 5 March 2020 to 15 September 2020) for Liholo to display the kind of conduct in question, Setshedi replied that this was the Applicant’s own conclusion. The Applicant argued that if he had intended to disrespect, insult, harass, and intimidate on 15 September 2020, he would have done so on 10 September 2020, when he met with management and expressed his own apology for incidents from 2017 to 2020, expecting an apology in return. Setshedi responded that she could not speak for the Applicant’s intentions, but she recalled that the day before the 15 September 2020 incident, the Applicant had left the office being aggressive and speaking loudly.
43. During her testimony, Setshedi confirmed that the events in Sethibe’s office felt like a hostage situation, expressing that she was very afraid and traumatized during the incident. Although she acknowledged that the Applicant was unarmed, she maintained that his behavior made her feel genuinely threatened. Setshedi denied the Applicant’s claim that individuals could come and go freely, asserting that she was too afraid to leave when he declared no one would exit the office. She rejected the Applicant’s denial of holding the top management against their will, emphasizing her feelings of intimidation during the encounter.
44. In relation to charges 1, 3, and 5, Setshedi expressed her concern for Sethibe after receiving a message from the Applicant that she felt was demoralizing which Sethibe shared with her. She acknowledged that the email referenced in R21, bullet 3, was not directed at any individual but related to the meeting where the Applicant was introduced to the educators, implying it referred to the Top 3. As a deputy principal, she recognized that she should be able to handle stronger criticism than a PL 1 teacher; however, she found the Applicant’s email and his aggressive entry into her office to be disrespectful and intimidating. Although the Applicant did not physically touch her, he pointed his finger violently at her face and forehead, which she described as a form of intimidation. Despite her use of the word “poke,” she felt he was playing with words and exhibiting violent behavior towards her.
45. Setshedi testified that she had never experienced an aggressive encounter with the Applicant prior to 15 September 2020, and maintained a peaceful relationship with him, despite acknowledging that he had conflicts with other teachers. She recalled an incident at the school gate where she was taken aback by the Applicant’s response to her greeting, in which he accused her of pretending to be his friend while speaking about him behind closed doors. Setshedi agreed that during her tenure as Head of Department (HOD), their relationship was good. Addressing the Applicant’s claim that he expected her to publicly support him during the meeting on 10 September 2020, which prompted his email to her, she stated that she felt no obligation to respond in that context. Regarding the investigation into his case and allegations against the Principal, clarified that she was called in alone and could not take a definitive stance for or against the Applicant. Being emotional, while the Applicant seemed to expect her support as a member of the Top 3, Setshedi expressed uncertainty about what he anticipated from her, emphasizing that she did not know what he expected given their professional relationship.
46. Being emotional the Applicant asked Setshedi whether he has killed anyone to which she responded no, but their life’s were threatened and she was miserable to go to school and could not function. She was also pregnant at the time. During her testimony, Setshedi becoming emotional responded negatively to the question whether the Applicant would murder anyone but expressed that their lives felt threatened, leading her to feel miserable and unable to function at school. At the time of this incident, she was also pregnant, which heightened her distress.
47. The Applicant listed seven agenda items that he claimed were addressed on 10 September 2020; however, Setshedi could only partially recall these items. She remembered that the Applicant apologized, raised his voice, and then left the meeting. Following this, she learned about the accusations against them through social media, newspapers, and radio. When the Applicant asserted that he only mentioned the Principal and a member of the SGB on social media, Setshedi countered that as part of the school’s management team, she was also included in his remarks
48. Mpho Makhema testified under oath. She is a mathematics teacher appointed by the SGB, the following emerge in relation to charge 10 dated 1 October 2020, when a learner arrived late for class and apologized, proposing to do frog jumps as punishment. Makhema heard the Applicant’s voice telling the learner to stop and enter the class, followed by a loud bang as the learner entered. The Applicant then shouted that corporal punishment was not allowed. Makhema remained silent, thanking the Applicant, who then left. This disrupted Makhema and the learners, preventing them from teaching effectively. Later, during a staff meeting where the Applicant was welcomed back to the school, he stated that he had found Makhema applying corporal punishment and wanted to see if the Principal would report her. While seated in the staffroom, the Applicant approached Makhema’s desk, banging the table and her calculator, stating that her actions were wrong. Feeling scared, Makhema apologized. Colleagues Dikudu and Thutlwa came to assist her, and she went to her vehicle before returning to the office. The Deputy Principal, Ramalla then called Makhema to write a report (R47-48) and instructed her to go home. Prior to this incident, Makhema and the Applicant had a good relationship, but his behavior had changed dramatically, leaving her feeling intimidated and disrupting the learning environment.
49. During cross examination, Makhema explained that she crossed out the date on her statement due to having written the wrong date while feeling emotional on the day of the incident. She acknowledged that frog jumping could be considered a form of corporal punishment and agreed that the Applicant raised the issue in the staffroom to determine whether the Principal would report her. However, she was unaware if the Principal did report her and clarified that she had not been charged with applying corporal punishment to a learner. Regarding her statement that the Applicant “snatched” her calculator, she clarified that he took it and used it to bang on the table. When asked about interactions at home, she mentioned that she and the Applicant were neighbors, and his wife had inquired about the incident. The Applicant later apologized to her. In response to the Applicant’s assertion that the Principal was being protected against corporal punishment allegations similar to his own, and that Makhema was trying to shield the Principal due to their friendship, she acknowledged knowing the alleged victim’s family but denied any knowledge of allegations against the Principal. She confirmed that she is not a South African citizen and admitted to being friends with the Principal but denied having engaged with the family of the victim involved in the incident.
Applicant’s Case
50. Mr. Liholo testified under oath regarding significant events related to charges against the him. He stated that on 23 June 2020, he filed a theft case with the SAPS concerning UIF-TERS and informed the School Management Team (SMT) and the School Governing Body (SGB) about it. On 5 August 2020, Mr. Seshibe authorized investigators to look into the discord between the Principal and the Applicant concerning allegations of corruption. The investigation commenced on 17 August 2020, while Liholo was suspended from 5 March 2020, until 20 June 2020, during which he was also on sick leave. Liholo noted that on 24 June 2020, the Principal denied the Applicant’s return to school due to not receiving proper notification from the relevant authorities.
51. Liholo testified that the investigators, Chabedi and Masibi, did not address the fraud allegations related to UIF-TERS or the corporal punishment allegations against the Principal for 2019. Instead, their investigation focused solely on his alleged misconduct while he was on sick leave. On 4 December 2020, Liholo was surprised to be charged without any prior mandate of an investigation against him and without being informed of any investigation. He believed the investigators were meant to examine the disharmony between himself and the Principal. Liholo referenced a letter (A32) in which he sought to engage with Dr. Mvula on 2 October 2020, but felt that Dr. Mvula did not consider his perspective, only listening to the SGB and SMT.
52. The disciplinary inquiry against the Applicant proceeded in his absence. The first hearing, scheduled for 14 December 2020, was postponed multiple times—first to January 2021, then to February 2021, and finally to 9 March 2021. On that date, the Applicant’s legal representative recused himself. Due to an inability to find a replacement, the chairman of the inquiry rejected the attorney’s letter when requesting another postponement, citing excessive delays and the need to conclude the matter within 90 days. Additionally, a psychological report was presented but not considered by the chairman. When the inquiry continued without further postponement, the Applicant stood up and informed the panel that he would seek an interdict if they proceeded. Following this incident, he received no further communication until he was dismissed on 9 July 2021. The Applicant subsequently appealed the dismissal (A38) to the MEC, which remains unresolved.
53. Liholo testified regarding a letter (A37) issued by the Minister of Education on 9 June 2022, which he discussed with Mr. Ntoane. Liholo claimed the letter was forged and contained technical errors, indicating it did not originate from the Minister. Ntoane explained that the province was under Section 100(1)(B) administration, which was why the MEC did not respond to Liholo’s appeal. Liholo argued that the Minister could not interfere with the appeal process and contended that the Respondent misinterpreted Section 100, asserting that it does not imply a complete takeover of functions.
54. In relation to charge 10 (see A28 and R13), Liholo testified that on 1 October 2020, he returned to work after his unlawful suspension, which lasted from 5 March 2020 to 30 September 2020. Upon reintroduction with Kgosimang and Marakala from the union and the Top 3, he went to the bathroom and observed a learner performing frog jumps unsupervised outside Makhema’s classroom. He noted this as an opportunity to test the consistency of the School Management Team (SMT), particularly the Principal, regarding corporal punishment. Liholo approached the situation with a clear objective and stood at the open doorway, instructing the learner to stop and return to class. He did not raise his voice but engaged with Makhema to confirm her awareness of frog jumping as corporal punishment. She acknowledged this with a nod and thanked him before he left.
55. Following the direction of Kgosimang, a general staff meeting was convened, led by the Principal, who welcomed the Applicant back to school. However, during her address, she mistakenly stated that all issues were resolved and that there was no need to apologize for the Applicant’s suspension. Liholo listened quietly until he insisted on speaking, expressing that the Principal had overstepped Kgosimang’s request by making an uncalled-for moral judgment. Although he acknowledged being upset and raising his voice, he contended that his reaction was not as portrayed and resulted in an exchange of words that left a negative atmosphere due to the ongoing conflict between him and the Principal. During the meeting, he informed the Principal about Makhema frog jumping a learner and indicated that he intended to use her as collateral damage in their ongoing disputes. He noted that while the Principal had reported him on 22 August 2018, he had reported her on 16 August 2019, seeking to expose her conduct and determine if she would report Makhema. After the Top 3 left the meeting, other teachers remained, including Makhema, who was marking papers at her desk. The Applicant approached her calmly to discuss what she had done wrong, emphasizing his awareness of her friendship with the Principal. He wanted to see if she would report Makhema because his focus was on the Principal rather than on her. He stated that Makhema did not respond and appeared unable to concentrate on her work. When he closed her papers and said, “Listen to me,” Makhema began to scream that he was attacking her, although he claimed he was merely trying to gain her attention. Dikudu intervened and took Makhema outside.
56. In relation to charge 1, Liholo stated that he was on sick leave on 21 August 2020, and had been under precautionary suspension since 5 August 2020. He alleged that investigators Chabedi and Masibi exceeded their mandate by conducting a clandestine investigation into him rather than focusing on events prior to his suspension. He maintained that the message he sent to the Principal was respectful and not intimidating, referring to her as “Mam” and suggesting she resign in a humble manner. Liholo contended that charge 1 was linked to accusations of corporal punishment against Sethibe, arguing that staff needed to be informed of her charges, similar to how he was informed of his own charges on 20 February 2020. He expressed frustration that no action had been taken against Sethibe despite the allegations against her.
57. In relation to charge 2 on 15 September 2020, the Applicant was accused of an incident of corporal punishment to a learner that occurred in 2018. He was suspended on 5 March 2020, based on this 2018 incident. On 10 September 2020 the Applicant came to school to initiate peace between himself and Principal Sethibe. At her request, Ramalla and Setshedi joined them. The Applicant presented an agenda that included the issue of the alleged 2018 corporal punishment incident, which had been reported but not the alleged the incident against Sethibe in 2019. His suspension was lifted, as he had not done anything wrong. He knew the Top 3 had no power to suspend him, but they contributed to his unlawful suspension by not allowing him to give his side during the investigation. When the child reported to Sethibe, she did not call him to hear his version. Sethibe immediately contacted Labour to have him investigated, and they arrived the same day. The Applicant reminded them of what happened in 2018, and now that his suspension was lifted, he was found not guilty. It did not appear that Sethibe’s case would succeed, so his intention on 10 September 2020, was to make peace and forget about the injustices done to him. He never forced them to apologize for the suspension or for not following proper procedure in handling the 2018 corporal punishment allegation.
58. On 15 September 2020, the Applicant went to school to follow up on the mediation discussed during the previous meeting on 10 September 2020. On his way, he encountered Setshedi and inquired about her receipt of his “love letter,” which he later regretted. He realized that she was not in a good emotional state for such a joke, which shocked him given their peaceful interaction the prior week. The two exchanged heated words in her office, with a student present. The Applicant denied shouting at Setshedi or pointing a finger at her, although he acknowledged that their conversation was loud. Ramalla and other teachers in the staff room heard the altercation and subsequently went to the Principal’s office. The Applicant emphasized that while their voices were raised, he did not intend to intimidate Setshedi. He expressed that the ongoing conflict between himself and the Principal had created a charged atmosphere, contributing to the intensity of their exchange.
59. In the Principal’s office, the atmosphere was disrupted by a confrontation between the Applicant and Sethibe. During this meeting, issues discussed on 10 September 2020, were revisited. The Applicant denied holding the Trio hostage, emphasizing that he was unarmed and still on sick leave while under medication. He asserted that an email sent to Setshedi, which sparked charges 3 and 4, was not intended to be intimidating but rather respectful. The Applicant also denied using any swear words during the meeting on 15 September 2020, stating that he was public with his accusations against the SMT and was merely telling the truth in pursuit of justice.
60. In relation to charge 3, the Applicant acknowledged that on 1 October 2020, he stated he would make Sethibe’s life miserable in front of other teachers upon his return from precautionary suspension, which ended on 30 September 2020. He clarified that this statement was not intended as a threat but rather a factual expression of his perspective regarding the UIF TERS money. The Applicant argued that the Top 3 could not manage his public criticism and interpreted his statement as swearing or vulgarity. He felt compelled to speak out and not remain silent about the issues at hand.
61. In relation to charge 8, the Applicant denied using any swear words towards Sethibe. He alleged that the Top 3 colluded to support each other and sought to eliminate him due to the unresolved UIF-TERS allegations, which they could not adequately explain. The Applicant contended that their strategy was to falsely portray his comments about making their lives miserable as vulgar or threatening language. He maintained that his statement was a reflection of his frustration with the situation rather than an intention to intimidate, asserting that he felt compelled to speak out against what he perceived as injustices.
62. On 2 October 2020, after a morning meeting, the Applicant objected to the fundraising event due to concerns about financial mismanagement and the disappearance of funds under the leadership of Sethibe and SGB Chairperson Jack. He went to Sethibe’s office, which she was not in at the time, and entered her office without force, intending to inform learners not to participate in the fundraising because the money was being misused for private gain. The Applicant acknowledged that his actions disrupted the Grade 12 learners who were writing exams. When Sethibe arrived, they engaged in a casual conversation.
63. During cross examination, the Applicant raised procedural issues regarding the denial of his request for a postponement. He secured a new legal representative on 8 March 2021, just one day before the scheduled hearing, following a consultation on 5 March 2021. His previous legal representative had withdrawn from the hearing set for 2 March 2021, believing that the Applicant would likely be dismissed and advising him to obtain new representation. The hearing was subsequently rescheduled for 9 March 2021. The Applicant referenced the case of Jacob Zuma, highlighting that it had been postponed multiple times without issue, arguing that there was no valid reason for his own request to be denied.
64. The Applicant acknowledged that the chairman advised him to obtain a union representative, which would be easier to secure than an attorney. He admitted that he did not express any dissatisfaction with the union representative to the chairperson. Regarding the submission of closing statements, he stated that he would not have been informed about them due to his absence, as he had requested to be excused after being denied legal representation. In relation to his appeal, referencing R35, the Applicant noted that the Act does not specify that the Minister should handle appeals; rather, it is the responsibility of the MEC as a PL1 educator. He agreed that the Department of Education was under administration due to intervention by the National Government in the North West Province. When referred to the delegations outlined in Section 100 (see R43) and Item 38 of Section 25(2), the Applicant disagreed with the assertion that the right to appeal to the MEC had been delegated to the Minister with the cooperation of the MEC.
65. Referring to the correspondence on R56, the Applicant confirmed that he was the writer of the letter dated 8 February 2024, and noted that he was no longer an employee of the Respondent. He described himself as a writer who often plays with words to satirize public officials through his writing. The Applicant mentioned a previous “bosberaad” (strategic meeting) that he made fun of, particularly because he was blocked from attending after his suspension from 6 to 8 March 2020. His intention was to expose corruption within the administration. He humorously commented that while workers would only receive “Black Label Long Toms,” the Top 3 would enjoy expensive alcohol, indicating a disparity in treatment and resources.
66. In relation to charge 10, on 1 October 2020, the Applicant observed Makhema frog jumping a learner outside the classroom while on his way to the bathroom. He approached her, and she directed the learner back to class. Standing in the open doorway, he reminded her that frog jumping constituted corporal punishment. The Applicant stated that there was no argument between them, and he left to return to his office afterward. He denied banging the door upon leaving, asserting that it was already open and that he did not challenge Makhema’s version of events. The Applicant also refuted claims of disrupting the class, arguing that Makhema’s actions were unlawful and needed to be addressed. He initially described his actions as disruptive but later retracted this statement, clarifying that he aimed to make Makhema aware of the learner outside. While he maintained that he did not shout, he acknowledged that other learners heard their exchange. The Applicant explained that he did not wait until the end of the period to address Makhema because she was a close friend of the Principal, whom he had accused of various infractions. He intended to see if the Principal would take action against Makhema as a means of collateral damage in their ongoing conflict. He approached Makhema with a clear objective, which he felt was achieved by bringing attention to her conduct
67. Also on 1 October 2020, the Applicant was accompanied by Kgosimang back to school, where Kgosimang introduced him to the Trio in the Principal’s office and instructed Sethibe to address the staff during break time to welcome Liholo back. In the staffroom, the Principal welcomed him back but stated that the Trio did not see anything wrong with their actions towards him and could not apologize as he had requested. In response, the Applicant stood up and asserted that the matter was indeed in the hands of the Department, citing his uplifted suspension as proof of their mistake. He then referenced an incident involving Makhema, stating that she had administered corporal punishment on a learner outside her classroom and expressed his desire to see if the Principal would take action against her, similar to how she had acted against him in 2018 when he was found innocent. The Applicant suggested that it was likely the Principal would not act against Makhema because of their friendship, indicating he wanted to use this situation as collateral damage in their ongoing conflict. He acknowledged that his remarks were made in a heated exchange and that he did not whisper but was angry during the discussion. He emphasized that all staff members were colleagues and raised concerns about the toxic environment created by perceived unequal treatment regarding disciplinary actions related to corporal punishment. Makhema was present in the staffroom, occupied with marking scripts during this exchange.
68. Most educators left the staffroom, but Ms. Makhema and a few others remained. The Applicant approached Makhema, with whom he had previously maintained a cordial relationship. His intention was not to attack her but to discuss whether Sethibe would take action against her, similar to actions taken against him in the past. He addressed her directly, stating, “My sister, you know what you did was wrong,” and repeated his statement in an attempt to elicit a response, but Makhema remained silent. The Applicant expressed his belief that Makhema’s friendship with the Principal would influence whether any disciplinary action would be taken against her. When she ignored him, he took her calculator as she reached for it but denied grabbing it forcefully or banging it on the floor. He claimed that Makhema overreacted, screaming for help, which he interpreted as an exaggeration of the situation. He questioned why she screamed and noted that he was speaking quietly at the time, suggesting that no one else could hear their conversation. Dikudu arrived after hearing Makhema’s scream and intervened, taking her out of the staffroom. The Applicant acknowledged that while he did take Makhema’s calculator and close her scripts, he denied banging the table or being aggressive. He indicated that he did not calm down immediately after the incident and that it took about 20 to 30 minutes for everyone to leave.
69. In response to the statement that Makhema did not respond to him due to the incident in her classroom, the Applicant stated that he wanted to press the matter and did not think to stop or pursue it further beyond this forum until today. He denied provoking Makhema, as they had a good friendship, and he saw no reason why she would not want to talk to him. However, he noted that she did speak to his wife that same afternoon, as they resided in the same complex. The Applicant’s intention was to see if Sethibe would report Makhema in the same way she had reported him in 2018. He claimed to have been very cautious like serpent and soft-spoken as a dove in his interaction with Makhema, with nothing wrong in his approach. The Applicant asserted that Makhema and Sethibe were friends and that Makhema had interfered with the case against Sethibe, prompting him to report Makhema, Sethibe’s friend. The Applicant raised the issue in the staffroom, knowing that he had “registered” the matter because Makhema, being a foreign national, was employed by the SGB and not the Department of Education, which would not be able to discipline her. Therefore, the Principal was required to report the matter that the Applicant had raised in the staffroom.
70. In relation to the first charge, Liholo acknowledged that he wrote to Sethibe suggesting her resignation but denied any intention to preempt the outcome of an inquiry. He characterized his message as objective, using respectful language such as “Mam please” and the term “advise.” He maintained that he was merely advising her to resign rather than commanding her to do so. The Applicant described himself as a voracious writer, asserting that if he intended to belittle Sethibe, he would have chosen more derogatory language. He expressed an intelligent assumption that action would be taken regarding Sethibe, yet noted that no disciplinary inquiry was forthcoming. Drawing from his past experiences, he referenced Sethibe’s previous accusation of corporal punishment against him in 2018 and highlighted the lack of action taken against her in a similar 2019 case, which Modirwa refused to investigate. He escalated his concerns to SACE while composing his message, feeling aggrieved after being suspended for nearly two years and reminding Modirwa and Kgosimang of Sethibe’s 2019 case. The Applicant suggested that Sethibe felt intimidated by his words, but he maintained that his intention was simply to make her aware of the situation.
71. In relation to charge five, dated 1 October 2020, the Applicant recalled using the phrase “to make her life miserable and render the school ungovernable” during a staff meeting. He explained that when he was introduced and Sethibe commented on his case, he felt provoked and stood up to address the staff, uttering these words in response to her remarks. The Applicant denied that his statements would leave Sethibe feeling worried or lacking confidence however he appreciated the effects his words had on her. He asserted that by that date, he had already made their lives miserable and rendered the school ungovernable through his public criticisms on social media, in local newspapers, and via WhatsApp, which made the Trio feel belittled. He maintained that he was acting in a conscientious manner by exposing corruption and fraud related to school funds. The Applicant concluded by asserting his innocence, identifying himself as a whistleblower under the Protected Disclosures Act. He argued that any discomfort felt by the alleged wrongdoers was not his intention but rather a consequence of his disclosures regarding misconduct.
72. In relation to charge 8, dated 2 October 2020, the Applicant stated that he does not recall swearing at Sethibe, noting that during their reconciliation agreement, Sethibe acknowledged that he did not use such language. The Applicant recalled Sethibe’s evidence regarding the words he allegedly uttered but emphasized that she had previously renounced any claims that he swore at her. He criticized Setshedi for repeating Sethibe’s renouncement during the proceedings, arguing that Setshedi was not present during their conversation in Ramala’s office and therefore could not accurately report what was said. The Applicant contested Setshedi’s assertion that he had heard the alleged swearing on two occasions, asserting that Sethibe’s prior renouncement undermined Setshedi’s credibility. He agreed that Sethibe took his words personally but argued that she was complicit in perpetuating falsehoods by taking offense and not addressing the matter truthfully. He maintained that the reconciliation agreement nullified any accusations of swearing. The Applicant concluded that while Sethibe may have felt insulted, his intention was merely to advise her and not to belittle her.
73. In relation charges 2, 3, and 4, the Applicant denied demanding answers regarding the pending matters against him during his meeting with the Trio on 10 September 2020. While he had a listed agenda, he conceded that he agreed with Setshedi’s version of events, recalling only an apology and discussions about his suspension. He acknowledged that his version of the agenda items remained unchallenged by Ramalla and Setshedi but emphasized that he wanted them to apologize and reflect on the issues raised. The Applicant noted that the subsequent meeting on 15 September 2020, was disrupted by an exchange of words between himself and Setshedi, which ultimately compromised the planned discussions from the previous week. This disruption contributed to the ongoing tensions surrounding his suspension and the allegations against him. He maintained that his intent was not to confront or demand but rather to seek acknowledgment of his grievances.
74. It is noteworthy that the Applicant, Liholo, displayed a sarcastic undertone towards Phuswane during the proceedings. He explained that this sarcasm stemmed from a prior incident in 2023 when Phuswane had referred to Moribi, his representative, suggesting that he has a “Bible of questions.” As the commissioner overseeing the matter, I noted that Liholo’s sarcasm was directed at Phuswane for her remarks regarding Moribi. Liholo expressed that if Phuswane were to apologize to Moribi, he would cease his sarcastic remarks. I directed that the Applicant to respond to the questions asked.
75. In relation to the third charge, Liholo, denied the allegation that the School Management Team (SMT) supported Sethibe, asserting that he specifically accused only Ramalla and Setshedi. He clarified that the meeting on 15 September 2020, involved only the Top 3 and not the entire SMT. Liholo pointed out that Sethibe had unilaterally decided to call Ramalla and Setshedi without involving the rest of the SMT, leading to decisions being made without their input. When questioned about why Ramalla and Setshedi were named in the charge rather than the SMT, Liholo responded that he would concede to the allegation.
76. In relation to charge 4, the Applicant, Liholo, denied any allegations of insolent or abusive behavior on 15 September 2020. He stated that his objective was to continue discussions from the previous meeting on 10 September 2020. During this time, he made a light-hearted comment to Setshedi about whether she had received his “love letter,” but this was met with an unexpected negative reaction as Setshedi was not in a good mood. Liholo expressed surprise that she took offense, especially since they had previously maintained a cordial relationship when she was Head of Department. He noted that Setshedi did not voice any concerns during the prior meeting and attributed the ensuing altercation to her reaction to his joke. Ramalla witnessed the exchange and later reported it to the Principal, leading to further conflict in the Principal’s office. Liholo acknowledged that he became upset and angry during this incident, which drew the attention of other educators who rushed to the office. He maintained that he did not attack anyone and had no intention of fighting; his goal was simply to express his grievances regarding his suspension and perceived unfair labor practices. Liholo stated that he had taken his medication that day and was mentally stable, countering any assumptions about his mental health based on cultural stigmas associated with individuals from mental institutions. As events unfolded, he left the staffroom but later returned to the Principal’s office unobserved, where he sat down calmly to demonstrate that he was not mad. When others entered, their noise prevented any peaceful engagement due to the earlier disruption with Setshedi. The situation escalated to the point where SAPS were called to intervene; however, they determined there was no danger and denied that Liholo had held anyone hostage. Liholo recalled Sekgobela from security speaking with him before the Top 3 left for the district office. He conceded that the events of 15 September 2020, did not unfold well because the Trio failed to apologize for their actions.
77. Liholo claimed that when he asked Setshedi about the “love letter” he had sent her, she was already irritated, despite their previously cordial relationship. He expected her to defend him, but instead, she aligned herself with the SMT (School Management Team), which disappointed him. Regarding the allegation that Liholo pointed his finger at Setshedi, he maintained that given their friendship, he wanted to find out what he had done wrong, but she was not in a good mood, unlike in the past. He denied poking her with his finger, stating that he was “cautious as a serpent and innocent as a dove.” They only spoke in an angry tone and used gestures, but he did not poke Setshedi, who was the one with a problem. Liholo claimed he was unaware that Setshedi took offense at the “love letter” he had sent her, and he considered it direct counseling from him to her. He felt that the relationship had deteriorated because Setshedi had become a Deputy Principal and agreed with the SMT, which was not what he expected from her as a friend.
78. Liholo denied any allegations of disrespectful behavior, asserting that in the North West Province, criticizing public officials is viewed differently than in Gauteng, where he originally comes from. He argued that such criticism is often deemed disrespectful in the North West, but he found nothing wrong with his comments, especially given the serious issues he believed were present within the school administration. He labeled the SGB Chairperson, Mr. Jack, and the Principal Ms. Sethibe as corrupt, stating that criticizing a public official does not equate to disrespect. Liholo acknowledged that he was disturbed during his visit to Setshedi’s office regarding their relationship and admitted to being angry and upset. He agreed that he spoke loudly and pointed fingers at Setshedi but denied intentionally causing chaos. While he conceded that he may have contributed to the events on 15 September 2020, he maintained that he was cautious as a serpent and innocent as a dove in his demeanor. He referenced a previous meeting with the Trio on 10 September 2020, where he attempted to extend an olive branch to resolve their issues. Liholo recognized that things did not go well on 15 September 2020, but insisted that he did not act like a criminal during the encounter.
79. Liholo denied any intention to disrupt the school when he ran back to the Principal’s office, stating that his goal was to prove he was not mad or insane, and he rejected claims of carelessness. He expressed regret over losing his temper and acknowledged that he became out of control, which may have disrupted school operations. Liholo maintained that he was not the cause of the problems; rather, he felt that the Principal failed to manage the situation appropriately after his return from sick leave and suspension. He described how the Trio had made his life miserable, leading him to publicly criticize them. He felt justified in his actions, believing he laid the groundwork for addressing these issues during a meeting on 10 September 2020. While he expressed pride in standing up for himself, he could not forgive what Modirwa did by subjecting him to a Wellness Centre for mental health evaluation. Liholo expressed remorse for the incident involving Setshedi but expected her to act as a manager and address the situation appropriately.
80. Liholo acknowledged that his suspension was uplifted not because he was found not guilty, but rather because he was deemed not to pose a risk to the ongoing investigation. He criticized Sethibe for failing to follow proper protocol by not allowing him to present his side regarding the corporal punishment allegations before reporting them to higher authorities, which he felt left him ambushed. Liholo stated that the case against him remains unresolved. He admitted to entering Sethibe’s office without an invitation, acknowledging that this may have irritated her, but he denied being abusive. Liholo also conceded that he should not have entered Sethibe’s vehicle on 15 September 2020 without permission, but maintained that he did not act abusively. He understood that she would not have taken him home.
81. In relation procedural issues raised, Liholo agrees to different interpretations of A47 but for him it was in the hands of the MEC hence he was not dismissed when the Minister purportedly being the author of the dismissal letter.
82. Liholo acknowledged that he wrote the letter dated 8 February 2024 which was forwarded to the SMT and Phuswane, but denied that it served as an invitation. He explained that since he was no longer an employee of the Respondent, he had no power to invite anyone to a “bosberaad” (strategic meeting). Liholo stated that he was simply playing with words through his writing, as it was his democratic right to freedom of speech to make fun of public officials. He referenced a “bosberaad” that took place from 6 to 8 March 2020, shortly after his suspension on 5 March 2020. Liholo claimed he wanted to expose corruption during this meeting but was blocked from attending. He mocked this meeting, suggesting that while the Trio (referring to the top three officials) would drink expensive alcohol, the workers would only get “Long Tom Black Label” beer, implying a disparity in treatment.
83. Moipeng Marakalla testified under oath as the NAPTOSA representative who accompanied Liholo to the school. She confirmed that the Applicant reported allegations against him, including accusations of dragging a pupil who had fallen. On 24 June 2020, she received a call from Liholo informing her of his suspension and his poor health. In September 2020, Liholo received a letter from the Administrator indicating that his suspension had been uplifted. Marakalla accompanied Liholo to the Principal’s office to present this letter, as they had previously reported to Kgosimang at the circuit level. Upon showing the letter to Sethibe, Marakalla stated that Sethibe expressed regret but claimed she had not received the letter and therefore could not allow Liholo to return to work. Sethibe insisted that she needed the official letter before making any decisions regarding Liholo’s reinstatement.
84. During cross examination, Marakalla agreed that the Principal did not receive the letter in person. She clarified that they were under the impression that the Principal had received the letter, but this was not the case. Upon seeing the letter, Marakalla stated that she would contact her senior, Mr. Kgosimang, for further guidance. When asked whether the Principal followed the correct procedures after realizing she had not received the letter, Marakalla responded that the Principal could have instructed them to wait while she made the call to her senior in their presence.
SUBMISSIONS IN ARGUMENT
85. Both parties submitted argument in writing and afforded more time for it to be submitted. The submissions of both parties were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
86. Where dismissal is proven or agreed, the onus to prove the fairness of a dismissal (on a balance of probabilities) rests with the Respondent party in terms of Section 192(2) of the LRA. The parties in this matter agreed that I have to decide under substantive fairness whether the Applicant was guilty of the allegations levelled against him. Under procedural fairness, whether the Respondent failed to allow the Applicant legal representation during the disciplinary inquiry, which proceeded in the Applicant’s absence, thus denying him the opportunity to present his case. The Applicant contends that it was unfair to deny him legal representation. The inquiry proceeded without the Applicant, with the Applicant contention that this absence compromised his ability to respond to the charges effectively. It must also be determined whether the Applicant was afforded the opportunity to submit closing statements, as this is an essential part of ensuring a fair hearing. And finally the fact that the Minister, rather than the MEC, signed the outcome of the inquiry raises additional questions about the legitimacy of the process and whether proper authority was exercised.
87. Liholo sees himself as a whistleblower who is fighting for his reinstatement after being fired for reporting misconduct. He has been accused of intimidation, harassment, and disrespecting authority figures at the school and admits to losing his temper and disrupting school operations during confrontations with staff. He continues to pursue his allegations of corruption against the school through the police and other authorities even after his dismissal. Liholo maintains he did nothing wrong and was unjustly dismissed for his whistleblowing activities. Liholo denies certain allegations against him, such as being disrespectful and disrupting school operations however he acknowledges losing his temper and was very angry. Liholo contradicted himself when he made it clear that he became furious when the Top 3 failed to apologise to him of what Sethibe did to him in reporting the corporal punishment allegation and not to take it up with Liholo first before he was suspended seeing his suspension as unlawful. However, when he testified he premised his actions on him as a whistle-blower pursuing allegations of corruption against the school. Liholo avoided to answer questions with long deliberations blaming others for his actions and not willing to accept any wrongdoing. Liholo did plead guilty and conceded to charges 6 and 7 which in itself impacted his credibility in relation to the other charges which he denied. Charge 7 speaks to the Liholo disrupting the administration of the School and insulted Sethibe and the two deputy Principals.
88. Liholo displayed a sarcastic tone during the proceedings, particularly towards Phuswane. This sarcasm appears to stem from a prior incident where Phuswane made a comment about his representative, suggesting that he had a “Bible of questions.” His willingness to use sarcasm in a formal setting may reflect a lack of professionalism. Liholo directed in his closing statement to view the absence of five witnesses for the Respondent with suspicion not present to corroborate the Top 3 and Makhema although if he felt convinced they would contradict the evidence presented by the Top 3 and Makhema, he could have subpoenaed them to be present at the arbitration but failed to do so. Liholo was not a good witness. His defence rested solely on a blatant denial of any guilt at all. He attempted to distance himself from any responsibility for anything. He was blatantly unremorseful and sought to place the blame for everything on Sethibe, the Principal.
89. The Respondent’s witnesses, impressed me as credible and reliable witnesses who just stated what they knew and were willing to make concessions detrimental to the case of the Respondent. They corroborated each other in all material respects although Liholo felt they concocted against him as the Top 3 including Makhema. Their testimony and demeanour reflected earnestness and sincerity and a high sense for discipline but also emotional of the past events involving Liholo, which continued even after his dismissal. Sethibe impressed as a witness. She knew the Applicant well and attempted to convey what she knew of the issues raised in as impartial manner as possible, carefully weighing up her responses and not commenting without thought, on questions put to her under cross-examination. She became emotional but was clearly focused on giving her evidence truthfully, but without tendering damaging comment in respect of anyone involved. Setshedi was also a good witness, whose focus was largely on the sequence of events and the altercation at her office insofar as it related to the “love letter”. She testified in a very sincere, logical, consistent and clear manner. Her evidence was valuable in the sense that she had been close to the Applicant, whilst she was a HOD they had interacted often on a number of issues and concerns. I have no reason at all to doubt the evidence of any of the Respondent’s witnesses. Their versions were credible and factual with no signs of any “tailoring” evident at all. Most importantly, their versions were corroborated in every respect by each other.
89. It is common cause that Applicant was dismissed for the allegations listed above and that Liholo conceded to charges 6 and 7. Charge 6 reads: On the 2 October 2020, whilst at Mmabatho High School, your place of work, you allegedly prejudiced the administration of the school by disrupting the morning briefing, ordering teachers not to do their extra-curricular activity of collecting donations from learners, you went to an extent of entering the Principal’s office to try to announce to the learners not to donate. Charge 7 reads: On the 2 October 2020, whilst at Mmabatho High School, your place of work, you allegedly disrupted the running of the school by occupying the office of the Principal, insulting her and the two deputies which resulted in the SMT reporting at the sub-district. It is also common cause that Liholo wrote the message to Sethibe referred to in charge 1. It is also common cause that the on 1 October 2020, Liholo confronted Makhema at her classroom about a learner doing frog jumps in front of her class which lead to a discussion in the staffroom. It is common cause that at the time of his dismissal, the Respondent was under administration in terms of s100 (1)(a) and (b) of the Constitution of the Republic of South Africa (“The Constitution”).
Substantive Fairness –
90. I must reference the guidelines stipulated in Schedule 8, which have been established by the Constitutional Court in Sidumo and Another V Rustenburg Platinum and Others (2007) 12 BLLR (CC) Paras 78-79). 8.5 “The reasonable employer test as a means of determining whether to interfere with a sanction imposed by the employer has been rejected by Sidumo. Clear guidelines have been given about what factors need to be considered in considering the sanction. The following quotation appears at page 1131 at paragraphs 78 and 79 of Sidumo suffices: “In approaching the dismissal dispute impartially, a commissioner will take into account the totality of the circumstances. He or she will necessarily take into account the importance of the rule that had been breached.…. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair…” 8.6. The test is foreshadowed both in section 23 of the Constitution of South Africa and section 188 of the LRA.” Judge Navsa J commented as follow, “the CCMA correctly submitted that the decision to dismiss belongs to the employer, but the determination of its fairness does not. Ultimately, the Commissioner’s sense of fairness must prevail and not the employers view”; and “in approaching the dismissal dispute impartially, a Commissioner will take into account the totality of circumstances”.
Charge 1 – On the 21 August 2020, whilst at Mmabatho High School, your place of work, you allegedly intimidated your fellow employee Ms. Sethibe when you sent her intimidating messages telling her to resign resulting in pre-empting the outcome of the disciplinary enquiry. In doing so you contravened section 18(1) (a) of the Employment of Educators, Act 76 of 1998 as amended.
91. It relates to the following message:
• “Are you considering legal representation”
• “The above is a judicial precedence involving the principal…”
• Look who was dismissed? Mr William Modiroa. Is this the same man I know? The principal was dismissed mam”
• You shouldn’t have done this to me. Really!
• “My second advice would be to resign with dignity than to go through what I experienced. Yours is dismissal, eventually, mama Sethibe. There are no loopholes in your case
• Please resign to avoid further embarrassment…I can’t reverse this even if I wanted to. We did not know things would end like this”.
92. Liholo denied that the message is intimidating and also not pre-empted but mere advice. Liholo did not distinguish between advise or advice however it was far from either the two. The message from Liholo to Sethibe can be interpreted as intimidating. Liholo explicitly stated to Sethibe, “Yours is dismissal,” which directly implies that he believes she will face severe consequences for her actions. This statement could create a sense of impending doom for Sethibe, especially given her position as Principal. Liholo referred to a previous case where a principal was dismissed for administering corporal punishment. By drawing this parallel, he not only reinforces the seriousness of the allegations against Sethibe but also suggests that she is likely to face a similar fate. This could be perceived as an attempt to intimidate her by highlighting the potential repercussions of her actions. Liholo’s suggestion that Sethibe should resign “to avoid embarrassment” can be seen as an implicit threat. It implies that if she does not resign, she will face public humiliation or disciplinary action, which could further contribute to her feeling intimidated. Sethibe felt intimidated by Liholo’s messages, particularly because they seemed to pre-empt the outcome of ongoing investigations. Under the Intimidation Act, intimidation is defined by the perception of the victim rather than the intent of the perpetrator. Whether the conduct of Liholo amount to an act of intimidation as provided for in terms of Intimidation Act 1982 must be considered. Section 1(1) states: “Any person who (a) without lawful reason and with intent to compel or induce any person or persons of a particular nature, class or kind of persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint – (i) assaults, injures or causes damage to any person; or (ii) in any manner threatens to kill, assault, injure or cause damage to any person or persons of a particular nature, class or kind” Liholo’s actions were directed at Sethibe following her report of alleged corporal punishment. Although Liholo may not have intended to intimidate, his intent to harm Sethibe for her actions indicates a motive that aligns with the definition of intimidation. The evidence directs that Liholo engaged in various actions aimed at making Sethibe’s life miserable, which she experienced as intimidating. This pattern of behavior can be interpreted as an attempt to compel her to change her stance regarding the allegations against her which Liholo pursued. While there may not be direct threats of physical harm, the cumulative effect of Liholo’s conduct created an environment of fear and distress for Sethibe, which aligns with the broader interpretation of intimidation under the Act. The psychological impact on Sethibe, who felt compelled to alter her behavior or stance due to Liholo’s actions, further substantiates the claim of intimidation. The Act encompasses not only physical threats but also actions that instill fear and compel compliance. The surrounding circumstances, including the pending case against Sethibe and Liholo’s focus on her specifically, contribute to understanding his conduct as intimidating. Liholo’s conduct can be characterized as intimidating under the Intimidation Act of 1982. His actions were aimed at inducing fear in Sethibe, compelling her to reconsider her position
Charges 2, 3 and 4 relates to 15 September 2020 – you allegedly prejudiced the administration of the school when you held the school management in the office demanding answers on the pending matter against you and about the precautionary suspension. – you allegedly intimidated the fellow employees, i.e. the SMT accusing them of supporting the decision by the school Principal – you allegedly displayed insolent and abusive behaviour when you held the SMT in the principals’ office. In doing so you contravened section 18(1)(f)(u) & (i) of the Employment of Educators, Act 76 of 1998 as amended;
93. Both Sethibe and Setshedi provided consistent accounts of Liholo’s behaviour on 15 September 2020. They testified that Liholo used obscene language, including phrases like “fuck you” directed at them and other derogatory remarks about women in leadership. This consistency strengthens their credibility. Setshedi’s account that Liholo barged into her office without greeting and raised his voice adds to the perception of intimidation. Liholo admitted to raising his voice and using inappropriate gestures (waving his finger) during the confrontation, which suggests an acknowledgment of at least part of the behaviour being described by the witnesses. His failure to dispute specific accusations, such as swearing at Sethibe and Setshedi, undermines his defence. During cross-examination, Liholo became evasive when questioned about demanding answers from Sethibe and Setshedi regarding his suspension. This evasiveness indicates a lack of credibility in his version of events. His attempt to frame his interactions as requests rather than demands contradicts the testimonies of others who perceived his behaviour as aggressive. Liholo did not present any witnesses to corroborate his claims that he had a different interaction with Setshedi or that he was merely requesting information. The absence of supporting testimony from other educators in the staffroom further weakens his position. The fact that multiple witnesses (teachers, police, and his wife) were called to intervene during the incident suggests that Liholo’s behaviour was problematic for those present. The context in which Liholo’s statements were made summarised as the Top 3’s failure to apologise to the wrong they did to him in particular Sethibe—during an ongoing investigation into his conduct—adds weight to the argument that his words were intended to intimidate. On a balance of probabilities, the evidence presented strongly supports the conclusion that Liholo engaged in intimidating and abusive behaviour towards Sethibe and Setshedi. The corroborated testimonies, combined with Liholo’s admissions and evasive responses during cross-examination, suggest that he is guilty of the charges against him. The overwhelming nature of the evidence indicates disrespectful conduct that aligns with the definition of intimidation.
Charge 5 – On 01 October 2020…you allegedly intimidated the fellow employee, Ms. Sethibe, the principal of the school, by threatening to make her life miserable and render the school ungovernable for as long as she was the principal at school thereby contravening s18(1)(u) of the EEA as amended.
94. On 1 October 2020, Liholo admitted to stating in front of staff that he intended to make Sethibe’s life “miserable” and render the school “ungovernable.” He showed no remorse for these threats, even boasting about having already made the school ungovernable and expressing the impact of his actions on Sethibe and others. Liholo’s behavior included publishing Sethibe’s personal information, such as her name and identity number, which posed a threat to her safety. Both Sethibe and Setshedi testified that Liholo sought apologies when Sethibe reported him to Labour Relations that led to his suspension which was now uplifted. Sethibe expressed fear for her safety due to Liholo’s threats and reported suffering from depression as a result of his actions. Liholo’s previous conduct had already disrupted school operations, leading to police involvement on 15 September 2020. His derogatory remarks about school management during the arbitration further demonstrated a lack of respect for authority. Overall, the evidence indicates that Liholo’s actions constituted intimidation, supporting the conclusion that he is guilty of the charges against him.
Charge 8 – On the 2 October 2020, whilst at Mmabatho High School, your place of work, you allegedly displayed disrespect towards Ms Sethibe, demonstrating abusive and insolent behaviour by swearing at Ms. Sethibe the Principal of the school, when you forcefully occupied the office. In doing so you contravened section 18(1) (a) of the Employment of Educators, Act 76 of 1998 as amended
95. On 2 October 2020, Liholo was found in Principal’s office attempting to use the intercom. When asked to leave, he refused and declared that no one would be working that day, effectively forcefully occupying the office in my view. His presence disrupted a scheduled meeting, preventing staff from carrying out their duties. During the chaos, Sethibe managed to leave for Ramalla’s office, but Liholo followed her and began swearing at her. He used derogatory language, including phrases Tsholofelo o sefebe, wa fana, why nna o sa mpha, o letagwa, le sefatlhego sa gago se a bontsha” These words are directly translated to mean “Tsholofelo (referring to Sethibe) you are a bitch, you freely give away your vagina, why did you not give me as well, you are a drunkard, even your face shows”. This behavior was corroborated by Setshedi, who confirmed that the words used were obscene and degrading which she could hear. Liholo did not dispute these allegations; instead, he attempted to claim that such language was used on a different date, which only served to admit guilt regarding the offensive remarks. Sethibe testified that Liholo’s threats and public insults made her fear for her safety and contributed to her depression. The evidence presented indicates that Liholo’s actions were intimidating and disrespectful, as he had previously made similar threats about making Sethibe’s life miserable and rendering the school ungovernable. Given the consistent testimonies from Sethibe and Setshedi, along with Liholo’s own admissions of using inappropriate language and his refusal to leave the office when asked, the balance of probabilities strongly supports the conclusion that Liholo engaged in misconduct. His actions not only disrupted the school environment but also constituted intimidation towards Sethibe, confirming his guilt.
96. Liholo has consistently displayed a confrontational demeanor, particularly towards authority figures like the Principal, Ms. Sethibe and the SGB Chairperson Jack by labeling them as corrupt. Sethibe’s version that Liholo began swearing at Mr. Jack, telling him he was a “nobody” and insulting him, stating that they both have testicles and that the Principal also sleeps with him (Jack), remained unchallenged by Liholo. Even though charge nine was not separately dealt with, evidence direct Liholo’s behavior towards Jack with the likelihood that he displayed insolent behaviour by swearing at Mr. Jack, the Chairperson of the SGB.
Charge 10 – On the 01 October 2020, whilst at Mmabatho High School, your place of work, you allegedly displayed disrespect to Ms. Makhema by shouting at her in front of learners telling her that she administered corporal punishment to a learner. In doing so you contravened section 18(1) (f) of the Employment of Educators, Act 76 of 1998 as amended.
97. On 1 October 2020, Makhema testified that she heard Liholo instructing a learner to stop performing frog jumps and subsequently experienced a loud bang on the classroom door. Liholo contradicted himself when he testified he directed the learner back to class but during cross-examination he stated that it was Makhema. The context is that Liholo returned to work after a so-called unlawful suspension when he observed a learner performing frog jumps unsupervised outside Makhema’s classroom. His decision to intervene was not an intention to address what he perceived as corporal punishment but rather as collateral for what he perceived what was done to him by Sethibe. His approach raises questions about his motivations and the appropriateness of his actions. Liholo came from the meeting in Sethibe’s office with Kgosimang when he went to the bathroom before break time to convene in the staffroom for his welcoming back as requested by Kgosimang. It is also viewed against the backdrop of the disastrous meeting of the 15th of September 2020. It is likely that Liholo shouted that corporal punishment was not allowed, therefore disrupting Makhema’s class and the learning environment. This likelihood is strengthened by the events in the staffroom not long after the encounter at Makhema’s classroom. In response to the statement that Makhema did not respond to Liholo due to the incident in her classroom, Liholo stated that he wanted to press the matter to “register” it for all to know. The events in the staffroom started with Sethibe welcoming the Liholo back which triggered the Applicant to take the “podium” so to speak which was in a very disrespectful manner and flowed over to Makhema at a desk in the staffroom who rather chose to ignore Liholo who was aggressive and in my view out of control. Liholo looked for something to get back at Sethibe and found the learner frog-jumping (the collateral) when he left the meeting with the Top 3 and Kgosimang but before the staff meeting. Liholo carried an underlying anger and hatred towards Sethibe and he played it out in the staff room not the person he portrayed to be – “as cautious as a serpent and as innocent as a dove”.
Procedural Fairness –
98. The repeated granting of postponements reflects an effort to ensure fairness in the process. The first sting was supposed to be in December 2020 but was postponement because the Applicant wanted legal representation. The second notice was sent out in January 2021, but the Applicant informed the Respondent that he was of ill health. The third notice was for February 2021 on which day the Applicant had a legal representative, Mahlangu from Mahlangu Attorneys and was informed that legal representation was not allowed. On the 2nd of March 2021, Mahlangu recused himself not seeing eye to eye with the Applicant. The Applicant then requested a further postponement to seek a representative which was granted up to the 9th of March 2021. It was undisputed that Sechele cautioned the Applicant not to look for an attorney but rather seek help for his union being a union member. On the 9th of March 2021 the Applicant was alone without representation and presented a letter from Marais attorneys dated 8 March 2021, who was representing the Applicant but not available on the said day seeking a postponement to which the Respondent objected to. Sechele’s refusal to grant a fifth postponement on 9 March 2021, due to the number of prior delays and the need for expeditious resolution. I am of the view that Liholo was given sufficient opportunity to prepare his defense and could have represented himself or utilized a union representative seeing that there was already delays from December 2020. It is trite that legal representation is not allowed at internal disciplinary processes except on application in some instances. Liholo’s repeated requests for postponements and subsequent absence from the disciplinary hearing raise significant legal issues related to procedural fairness and equitable treatment under labor law. While Sechele made efforts to accommodate Liholo’s requests for postponement, her ultimate decision to proceed without him reflects a necessary balance between ensuring fairness for Liholo and upholding the employer’s right to resolve disciplinary matters efficiently. The refusal of further postponements must be viewed within the context of ensuring timely resolution and an employee to present his/her case. I am of the view that Liholo had opportunities to present his case, his actions may have compromised his position legally.
99. Closing arguments are intended to summarize key facts and highlight weaknesses in the opposing party’s case. Since Liholo did not present any evidence or witnesses, he would have been unable to formulate an effective closing argument. In my view, Sechele was under no obligation to make special arrangements for Liholo regarding closing arguments, especially since he had made it clear that he did not intend to participate further in the process.
100. The circumstances surrounding Liholo’s dismissal while the North West province was under administration, as per Section 100(1)(a) and (b) of the Constitution of the Republic of South Africa, raise several important legal considerations regarding administrative authority, procedural fairness, and the handling of appeals. At the time of Liholo’s dismissal, the North West province was under administration, which meant that the powers typically held by local authorities were transferred to national authorities, specifically the Minister of Basic Education. Section 100(1)(b) of the Constitution allows for such administrative interventions when a province is unable to fulfill its obligations. This provision grants the Minister authority over various functions, including handling appeals that would normally fall under the jurisdiction of the Member of Executive Council (MEC). Liholo’s assertion that his appeal could not be handled by the Minister because he was a PL 1 educator lacks legal basis. The relevant legislation does not differentiate between educators based on their position when it comes to appeal rights. Therefore, his appeal was validly processed through the Minister’s office during this period of administrative oversight. Liholo’s dismissal while the North West province was under administration raises significant legal issues regarding administrative authority, procedural fairness in handling appeals, and evidentiary standards, however, the evidence presented indicates compliance with legal requirements during a period of administrative oversight.
Whether the offenses under section 18 of the Employment of Educators Act (EEA) justify dismissal as a sanction and whether dismissal is appropriate considering the proportional response to the charges.
101. The substantive fairness of Liholo’s dismissal must be evaluated against the criteria established under Section 18 of the Employment of Educators Act (EEA) and the principles of fairness outlined in the LRA. Section 18 (2) and (3) directs – (2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2. – (3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of-
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
102. Section 18 (3) (i) of the EEA recommend dismissal if the nature or extent of the misconduct warrants dismissal. Liholo testified that he intentionally engaged in behavior that undermined the authority of top management (the Trio”), including making serious derogatory comments about them on social media. His acknowledgment of this behavior indicates a clear disregard respect towards his superiors especially the Principal. His actions included publicly mocking management and attempting to manipulate situations involving colleagues, such as checking whether Principal Sethibe would report a fellow educator, Makhema. This behavior reflects a lack of respect. Instead of addressing his grievances through appropriate internal channels, which Liholo feels he did but not able to show a formal grievance route, Liholo chose to publicize his issues on social media although this also Liholo sees nothing wrong with having the right to criticize public officials which I find disturbing in the context of the employment relationship. Liholo’s actions created a hostile work environment for those in top management (” The Trio”) and his colleagues. His behavior was nothing less than disrespectful which lead to decreased morale among staff and disrupted team cohesion, which was detrimental to the overall functioning of the school not considering the learners who was in the process also affected. Throughout the proceedings, Liholo showed no signs of remorse for his actions but kept on blaming others.
FINDING
103. The substantive fairness of Liholo’s dismissal must be evaluated against the backdrop of the legal framework governing dismissals for misconduct considering the provisions of the Labour Relations Act (LRA) and the Code of Good Practice. Liholo’s use of derogatory language and his intentional efforts to undermine management’s authority through boastful derogatory and mocking comments on social media, clearly demonstrate disrespect towards his colleagues and superiors. Liholo is not the person he portrayed to be – “as cautious as a serpent and as innocent a dove”. The nature or extent of the misconduct warrants dismissal.
104. In relation to the procedural fairness of Liholo’s dismissal, at the time of Liholo’s dismissal, the North West province was under administration, meaning that the Minister had authority over appeal matters typically handled by the MEC. While Sechele made efforts to accommodate Liholo’s requests for postponements, her ultimate decision to proceed without him reflects a necessary balance between ensuring fairness for Liholo and upholding the employer’s right to resolve disciplinary matters efficiently. On the day of the hearing, Liholo appeared without legal representation after his attorney recused themselves. Sechele advised him to seek union assistance instead of external legal representation, which aligns with common practices in internal disciplinary processes. Since Liholo did not present any evidence or witnesses, he would have been unable to formulate an effective closing argument. Sechele was under no obligation to make special arrangements for him regarding closing arguments, particularly given his stated intention not to participate further.
AWARD
105. In the premises, I therefore find the dismissal of Mr. Liholo to have been procedurally and substantively fair.
106. The matter is dismissed.
S Fourie
ELRC Arbitrator
North West