ELRC480-19/20
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ELRC480-19/20
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Award Date:
08 March 2021
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IN THE ELRC ARBITRATION
BETWEEN:
NATU obo
Joseph Taylor Applicant
and
THE HEAD OF THE DEPARTMENT OF THE
KWAZULU-NATAL DEPAERTMENT OF EDUCATION First Respondent
OYAMA TUNTUTWANA Second Respondent
Arbitration Award
_________________________________________________________________________________
Case Number: ELRC480-19/20
Date of arbitration: 26 February 2021
Date of award: 8 March 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 22 October 2020, continued on 30 October 2020 and the hearing of evidence was finalised on 26 February 2021. The parties were to submit closing arguments by 5 March 2021. The Applicant’s closing arguments were received on 5 March 2021 but on that day I received a message from the representative of the First Respondent in which he stated that he had been unable to access his office on 4 and 5 March 2021 due to protest action by SADTU but that he would go to his office the week-end to access his closing argument. I duly received the combined closing argument for both Respondents on Saturday, 6 March 2021.
2. Ms Shusha, an official of NATU, appeared on its behalf and that of its member, Joseph Taylor (the Applicant.)
3. The First Respondent was represented by Mr Makhooe, its employee.
4. Mr Gumede, an official of SADTU, acted on behalf of the Second Respondent.
5. The Applicant and First Respondent submitted bundles of documents.
6. The services of an interpreter were utilised.
7. The proceedings were digitally recorded.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
8. The issue that I am required to determine is whether the Applicant was subjected to an unfair labour practice relating to promotion as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995. In particular, it is recorded in the minutes of the pre-arbitration meeting that the issue to be decided is whether the Second Respondent was appointed principal of Cottonlands Primary School (the School) as a result of undue influence being placed upon the members of the School Governing Body and Interview Committee.
BACKGROUND
9. The Applicant was the deputy principal and acting principal of the School when he applied for the post of principal. The Second Respondent was the successful candidate. It is common cause that had the Applicant been appointed, this appointment would have been a promotion.
10. The Applicant avers that the appointment of the Second Applicant as principal of the School was unfair due to the following alleged irregularities:
10.1. A member of the School Governing Body (SGB) was not a parent of a learner at the School;
10.2. Corrupt payments (referred to as “bribes” by witnesses) were solicited from candidates, including himself, by members of the School Governing Body;
10.3. The resource person present at the Interview Committee meeting did not execute his duties properly.
11. All of the abovementioned alleged irregularities are said to have undermined the integrity of the process by which the Second Respondent was appointed thereby rendering it unfair. The Applicant sought to have the appointment of the Second Applicant set aside and the process of appointing the principal of the School redone.
12. The Applicant does not allege that but for the abovementioned alleged irregularities, he would have been appointed.
13. It is evident from the First Respondent’s bundle of documents that the Second Respondent was the recommended candidate and that the Applicant was placed second.
14. (I)n terms of paragraph 7 of the minutes of the pre-arbitration meeting, the parties agreed that they would advise one another by no later than 11 August 2020 whether and in respect of which documents, oral evidence would be required to establish their authenticity. No such notice was given by either party and thus the documents in the parties’ respective bundles of documents are accepted as proven.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
15. Shortly before the interviews were due to be held for the position of principal of the School, the Applicant received a phone call from Shinga, the chairperson of the SGB. He also spoke to the deputy chairperson, Vilakazi, during the call. The Applicant was asked how much he could afford to pay for the position of principal. The Applicant did not name his price during that initial call but he was subsequently contacted again and asked whether he would agree to pay them R40 000. The Applicant agreed to make the payment once he had received his letter of appointment. He was interviewed for the post on 16 March 2019.
16. Despite the agreement to pay, it was never the Applicant’s intention to do so.
17. The Applicant is aware of an investigation conducted on behalf of the First Respondent into whether Vilakazi was a parent of a learner at the School (and thus qualified to be a member of the SGB.) An extract of the school register is at page 20 of the Applicant’s bundle of documents and it records that on 11 April 2019 S S S Lushozi came to the School for “parent verification” of Vilakazi. It is further recorded that the initial investigation resulted in contradictory findings and that it was to be pursued further. It is understood by the Applicant that this investigation was prompted by a letter written by Ntuli, who also testified at this hearing.
18. The school register further records (at page 21 of the Applicant’s bundle) that the investigation into the status of Vilakazi continued on 17 April 2019 and that an affidavit that was due to have been received from the administration clerk, Gina, was not available and that Gina undertook to email it to the investigators. At page 24 of the Applicant’s bundle it is recorded that the mother of two learners had stated that the recording of the identity of their parents had been changed without her consent and that Vilakazi had approached her to be appointed as the learners’ guardian so that he could stand for election to the SGB.
19. As a result of him becoming aware of this investigation and also on him being shown a visual and audio recording of another candidate stating that he had made a corrupt payment to the SGB, he wrote the letter at page 25 of the Applicant’s bundle. The letter is dated 11 July 2019 and is address to “The CES-Mafukuzela Gandhi Circuit Mr S S S Lushozi.” It makes reference to the investigation into Vilakazi and states that allegations of corruption have subsequently surfaced. The Applicant called upon Lushozi to inform him of the outcome of the investigation.
20. The Applicant never received a response to his letter and after the appointment of the Second Respondent and attempts to be transferred from the School failed, he resigned.
21. Under cross-examination by the First Respondent the Applicant conceded that he had no evidence indicating that Second Respondent had made any corrupt payments to members of the SGB.
22. He further conceded that he had asked the SGM members who had phoned him how much they wanted but he denied that this meant that he was equally guilty of corruption as he had decided before the appointment was announced, not to pay.
23. It was put to the Applicant that he and Ntuli, who also testified on his behalf, had concocted this version of corruption only once the Applicant had learnt that he had been unsuccessful. This was denied.
24. With regards to the letter written by the Applicant to Lushozi dated 11 July 2019, it was put to the Applicant that with approximately 540 SGB’s in the district the First Respondent could not be expected to investigate every alleged irregularity. The Applicant responded by stating that an investigation had in fact been undertaken and that officials had visited the School on 11 and 17 April and 29 May 2019. He had not in the said letter requested that an investigation be undertaken but rather that he be informed of the outcome of the investigation.
25. The Second Respondent put it to the Applicant that Vilakazi became the guardian of a learner, Anele Vilakazi, following the death of her father. The Applicant had no knowledge of this assertion.
26. On being questioned by me, the Applicant stated that he had not reported the case to the police as he thought that it would be easier to simply ask for a transfer to escape the toxic environment at the School.
27. Buyile Mngonyama (Mngonyama) was an educator at the School whilst the Applicant was the acting principal. She no longer works at the School.
28. Prior to having been employed at the school, she had placed her name on a list of unemployed educators. She subsequently attended an interview at the School and was employed on a part-time basis.
29. Sometime after the commencement of her employment she was approached by Gina, a member of the SGB, who said to her that she had not yet paid for “cool drink.” Mngonyama replied that she did not know that she was required to pay and enquired as to the price. Gina responded that she would need to ask the SGB and the following day told her that the price was R5 000. Mngonyama understood by this that she had been approached to make a corrupt payment for having been appointed.
30. Mngonyama did not think of reporting the action of Gina to the police as she did not want to ruin her relationships at the School but she understood that the Applicant had questioned Gina in this regard.
31. Under cross-examination by the First and Second Respondents Mngonyama conceded that she had only spoken to Gina and not other members of the SGB and that she did not know anything about the appointment processes in respect of the Applicant and the Second Respondent.
32. At the time of testifying Simagile Ntuli (Ntuli) had been on the SGB for a period of approximately ten years, six years of which were as chairperson. She is now an ordinary member.
33. Ntuli is the author of the letter at pages 18 and 19 of the Applicant’s bundle of documents and in which she raised the issue of whether Vilakazi could be a member of the SGB without having children at the school. She had disputed his eligibility when he was elected in 2018. She had highlighted then the fact that he was not the parent of children at the School and was told that the issue would be investigated. People covert being elected to the SGB as this is seen as a way of accessing school funds that might need to be spent on service providers. On the day on which interviews were held a certain Zwane from the local business chamber came to the school and said that the Applicant should not be appointed as he would not give out jobs to members of the leading political party.
34. As far as she is aware, Vilakazi is unemployed.
35. Ntuli raised the following issues with regards to the interview process:
35.1. The members of the interview committee did not receive training, whilst on previous occasions when she had been a member of interview committees the members had received training;
35.2. The resource person, Chetty, did not fulfil his duties and left the meeting early to deal with a personal emergency. The duties of the resource person are set out in paragraph 12 of HRM Circular 70 of 2018, which is at page 11 of the Applicant’s bundle of documents. He left the meeting before he had finished reading out the candidates curriculum vitae ;
35.3. The ratification form had only been signed sometime after the interviews. The union officials had refused to sign the form as they were unhappy that Chetty had left early. She had signed the form after it had been brought to her residence by Gumede, the secretary of the SGB. Unlike on previous occasions, the Interview Committee did not report back to the SGB on the interview process. All that they did was sign the ratification form.
36. Approximately one week after the interviews had been held, she was approached at her home by C S Dladla (Dladla,) who had been a candidate for the position of principal, and Kunene, his neighbor and an educator at a school in Verulam.
37. Dladla said that after having been approached by Vilikazi and Shinga he had paid over R10 000 to them. They had told him that Ntuli was no longer a member of the SGB. When Ntuli realized the reason for Dladla’s visit, she started to record the meeting. Dladla said that corruption was wrong and he thus wanted his money back from Vilikazi.
38. It was after this meeting with Dladla that Ntuli wrote her letter (at pages 18-19 of the Applicant’s bundle) to the Department and gave a copy of the recording to Lushozi of the Department. Lushozi subsequently came to the School to investigate the allegations in respect of Vilikazi.
39. Under cross-examination by the First Respondent Ntuli stated that Gina was a clerk at the School, a member of the SGB and had been chairperson of the Interview Committee. She was unaware of any allegations of corruption made against her. She also accepted that a decision by an individual member of the SGB to be corrupt, did not mean that the SGB itself was corrupt. She was, however, aware from what Dladla had said to her that Shinga and Vilakazi, the chairperson and deputy chairperson of the SGB respectively, had received money from him. She had submitted the recording of her conversation with Dladla to Lushozi of the Department before the end of March 2019. In contradiction to the evidence of the Applicant, Ntuli denied having told the Applicant about this evidence.
40. It was further put to her that a member of the SGB did not have to be the biological parent of a learner as a member may qualify as a co-opted member or as the guardian of a learner; such as someone taking care of a brother’s child. Ntuli responded that she had been informed that a biological parent or guardian would qualify and that it was the responsibility of the Department to investigate whether a person qualified to be a member of an SGB.
41. Under cross-examination by the Second Respondent she stated that both she and Vilakazi had been elected members of the SGB in 2018. She had raised her objection with regards to the eligibility of Vilakazi at that time. She had subsequently been informed by Khubeka that the investigation had found that Vilakazi does not qualify to be a member of the SGB.
42. It was further put to her that she was using the issue regarding the SGB to wage political battles and that she had prevented the Second Respondent from entering the School premises when he had reported for duty. Ntuli denied this stating that she had gone to the School as she had heard that the ruling party was going to hold a meeting on the premises. She had closed the School gate to prevent the holding of the meeting, unaware that the Second Respondent was simultaneously trying to enter the School premises.
43. With regards to the recording involving Dladla it was put to Ntuli that she and Dladla had colluded in making the recording as they both “had an axe to grind.” This was denied. Prior to Dladla having approached her, she did not know him personally.
44. It was put to Ntuli that Chetty would testify that the Interview Committee agreed that he could leave the meeting to attend to a personal emergency and to proceed in his absence. While disagreeing with this assertion, Ntuli agreed that she had not told Chetty that he should not leave the meeting.
45. Ntuli denied that the Second Respondent ought to have received a score of 35.
46. It was submitted on behalf of the Applicant that despite having commenced an investigation into Vilakazi and having been advised of the allegations of corruption, the First Respondent had not reverted to him in respect of the outcome of the investigation. Officials had responded to the request by Ntuli for there to be an investigation into the status of Vilakazi and despite indications that did not qualify as a “parent,” no report back was received.
47. Dladla could be heard on the audio recording stating that he had paid R10 000 to Vilakazi and Shinga, both of whom were on the Interview Committee and the evidence of Mngonyama was that she had previously been approached to make a corrupt payment by Gina, who was the chairperson of the Interview Committee for the position under dispute.
48. The Applicant sought to have the appointment of the Second Respondent set aside and for the process of appointing the principal to be recommenced.
The Respondents’ case
49. A single witness, Selvan Chetty (Chetty,) testified on behalf of the Respondents.
50. Chetty has been the circuit manager for the Billy Nair Circuit for the past 15 years. Whilst the Applicant had been acting principal of the School, Chetty had been his superior.
51. He was resource person responsible for the shortlisting and interview process for the post of principal of the School. A vigorous shortlisting process had been followed and all parties expressed their satisfaction with the shortlisted candidates. Chetty had not been present throughout the shortlisting process as he had to attend a ceremony commemorating a donation that had been given to a local school. When he had left the meeting all that he was doing was reading out the curriculum vitae of candidates. All parties had agreed to him leaving and on his return that had confirmed to him that the process was proceeding smoothly.
52. Chetty was unaware of any allegations concerning corrupt payments and the Applicant whilst acting principal of the School, had not raised any concerns regarding the make-up of the SGB.
53. Under cross-examination it was put to Chetty that when he left the meeting Gumede, an educator at the school and a member of the Interview Committee, had assumed his functions as resource person and in such circumstances he could not ensure that the process followed was fair, transparent, non-discriminatory and in accordance with the provisions of the Constitution. Chetty’s response was that he had left the meeting in the hands of the chairperson. In any event, no special competencies were required at that stage as all that he was doing was reading out the curriculum vitae. On his return to the meeting he had satisfied himself that the scores allocated to the five shortlisted candidates were consistent with the content of their respective curriculum vitae.
54. It was put to Chetty that the union representatives had not signed the minutes of the shortlisting committee minutes(at page 17 of the Respondent’s bundle,) the schedule of shortlisted candidates (at page 22 of the Respondent’s bundle) and the Interview Committee meeting minutes (at page 23 of the Respondent’s bundle) as they had been dissatisfied with the process followed. Chetty responded that he could not comment on why the union representatives had not signed the said forms. He, however, went on to state that had they been dissatisfied with the shortlisting of candidates, the process would not have moved to the interview phase and that trade unions are in the habit of not signing these documents as way of reserving their rights to object at a later stage. No dissatisfaction was expressed to him.
55. It was further put to Chetty that the reason for the trade union representatives having not signed the minutes of the Interview Committee meeting is recorded at page 23 of the Respondent’s bundle as being that they had concerns regarding the interview process. Chetty responded by stating that all participants had attended a workshop on the correct procedures and at which they had been informed that if any party is dissatisfied with the procedures followed, they ought to lodge a grievance. No grievance had been lodged. He confirmed under re-examination that all participants had attended this workshop.
56. Lushozi is Chetty’s supervisor. Lushozi had not informed him that he was conducting an investigation at the School. Chetty had no knowledge of this investigation.
57. The Respondents submitted a combined closing argument.
58. It was submitted by them that while the Applicant had established that certain members of the SGB were corrupt, he had not established that the SGB as a whole was corrupt. It was the Applicant and not the Respondents who should have called Lushozi to testify about his investigation.
59. Ntuli had attempted to prevent the Second Respondent from entering the School and her evidence should be treated with caution as she was biased.
60. Lastly it was submitted that Chetty had overseen fair shortlisting and interview stages. No grievances had been lodged.
ANALYSIS OF EVIDENCE AND ARGUMENT
61. The Applicant bears the onus to demonstrate that the failure by the First Respondent to promote and appoint him to the position of principal of the School constituted an unfair labour practice.
62. Whilst the onus is on the employee in unfair labour practice cases involving promotion to show that the failure to promote is unfair, the employer is obliged to defend challenges to the procedural and substantive fairness. In this regard, the following was said at paragraph 37 of the case of Pamplin v Cape Education Department (C1034/2015) ZALCCT [2018:]
“The circumstances of the litigation in unfair labour practice disputes such as in casu is that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is in the same token, obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for the appointment/non-appointment, to satisfy a tribunal that the appointment/non-appointment was rational and thus fair. The employer must demonstrate that it acted fairly, in good faith, and applied its mind to the selection. A conclusion that an employer acted fairly or in good faith in making an appointment cannot be reasonable nor rational in circumstances where that employer places no such evidence before a tribunal, irrespective of where the onus lies.”
At paragraph 38 the Court continued as follows:
“In such circumstances and given the nature of the litigation before the Commissioner, if an adverse inference was to be drawn by the failure to call available witnesses, then it should have been drawn against the Department for its failure to call the HOD not against Pamplin for failing to subpoena the HOD. For the Commissioner therefore to have required of Pamplin to have subpoenaed the HOD to demonstrate that her decision was fair failing which an adverse inference was drawn against her is akin to requiring of her to call the HOD to rebut her own case.”
The Applicant avers that the failure to promote and appoint him was unfair for the following reasons:
62.1. Vilakazi, the deputy chairperson of the SGB and a member of the Interview Committee, did not qualify to occupy these positions as he was not a parent, as defined in section 1 of the South African Schools Act 84 of 1996, as amended. As such the SGB and Interview Committee were not properly constituted and it was unfair for the First Respondent to have acted upon the recommendation of such an SGB;
62.2. Members of the SGB had been influenced in their decision making by corrupt arrangements that they had entered into with candidates for the challenged position; and
62.3. The Interview Committee did not perform its functions properly as it had been abandoned by the resource person, Chetty.
63. I shall deal with each of these issues and the relevant evidence below.
The Interview Committee did not perform its functions properly
64. It is common cause that Chetty, the appointed resource person, left the shortlisting meeting for a period of time. It is submitted on behalf of the Applicant that this conduct compromised the process rendering it unfair.
65. Associated with this complaint is the evidence of Ntuli that the members of the Interview Committee had not received any training. It is the unchallenged evidence of Chetty, the Respondents’ witness, that all interview committees of the various schools were invited to a workshop prior to the shortlisting and interview processes commencing.
66. No evidence was led on behalf of the Applicant in support of his allegation that the absence of Chetty rendered the shortlisitng process unfair. The Applicant was shortlisted and interviewed for the position of principal. I accept the unchallenged evidence of Chetty that the union representative observers did not submit any grievances in this regard.
67. In light of the above, I find that the Applicant has not established that the conduct of Chetty rendered the process unfair for the Applicant.
Members of the SGB solicited corrupt payments from the Applicant and other candidates
68. The Applicant, Mngomyana and Ntuli gave evidence on his behalf in respect of this aspect.
69. Mngomyama testified in respect of her own experience of having been approached for a corrupt payment by Gina (the chairperson of the Interview Committee that interviewed the Applicant and the Second Respondent.) At the time of the approach Gina was a member of the SGB. Mngomyama had no knowledge relevant to the process involving the Applicant and Second Respondent. Although her evidence may be viewed as “similar fact evidence” and hence relevant to the issues involved in this case, I have not had regard to her evidence in coming to my findings.
70. The evidence of the Applicant was that prior to the shortlisting process he had been contacted by the chairperson (Shinga) and deputy chairperson (Vilakazi) of the SGB and asked by them how much he was willing to pay for the position of principal. No amount was initially agreed to but during a second call they suggested and he agreed to an amount of R40 000. While he had agreed to pay the amount on receipt of his letter of appointment, it was not his intention to do so. He could not implicate any other members of the SGB and he could not implicate the Second Respondent in wrongful conduct.
71. Under cross-examination it was put to the Applicant that he and Ntuli had conspired to dispute the appointment of the Second Applicant by raising this issue of corruption once he realized that he had not been appointed. This was denied by the Applicant. In this regard, I find that the evidence does not support the notion of the Applicant having made a false claim of corruption so as to undermine the appointment of the Second Respondent as the letter he wrote to Lushozi of the Circuit Office (at page 25 of the Applicant’s bundle) is dated 11 July 2019, which is a month prior to the appointment having been made. It is in this letter that the Applicant, after referring to the issue of the investigation into the status of Vilakazi, states that “further allegations have surfaced, that pertained to bribery…” He then proceeds to call for an investigation into these allegations. He would thus have only known at this stage that he had been unsuccessful if advised by Ntuli of the Interview Committee’s preference. This allegation, however, was not put to either of Ntuli or the Applicant. I can in any event rule out this possibility as it is highly unlikely that the Applicant would wait from 16 March 2019, when the ratification was done, until 11 July 2019, when he wrote the letter calling for an investigation, if he had been so informed and it had been his intention to undermine the process once he knew that he would not be appointed.
72. Vilakazi and Shinga were not called as witnesses to refute the evidence of the Applicant. The Applicant is a single witness in respect of this aspect. His evidence was consistent throughout his evidence in chief and cross-examination. I also find it improbable that the Applicant would implicate himself in this manner if his evidence were not true. I am accordingly satisfied that the Applicant was approached by Shinga and Vilakazi to make a corrupt payment to them and that an amount of R40 000 was agreed to. Shinga and Vilakazi were members of the Interview Committee and any serious impropriety by them would have negative implications for the integrity of the process of recommending candidates for appointment.
73. It was, however, not his own corrupt arrangement that the Applicant had referred to in his letter of 11 July 2019 but that allegedly involving Dladla, another candidate for the position of principal. He had learnt of Dladla’s allegation from Ntuli.
74. Ntuli’s evidence is that she was approached by Dladla at her residence shortly after the interviews had been conducted. When she realized that he was going to speak about malfeasance at the SGB, she began to record their meeting. She testified that Dladla had confessed to having paid R10 000 to Vilakazi and Shinga. She had alerted Lushozi to the allegation made by Dladla and given him a copy of the recording of their meeting. This evidence of Ntuli was not challenged in any material way.
75. The evidence of Ntuli in respect of Dladla, however, is hearsay as Dladla was not called as a witness. The significance of Ntuli’s evidence, however, is not whether what Dladla alleged is true or not but rather that she informed Lushozi of the allegation and provided him with a recording of their meeting. Lushozi, a senior employee of the First Respondent, was not called as a witness and thus we do not know whether the allegation was investigated or whether the First Respondent was advised of the allegation or the outcome of the investigation before he appointed the Second Respondent. In light of the Pamplin judgement above, I find that in these circumstances there was an evidentiary burden on the First Respondent to present evidence in respect of the investigation and on whether the findings of the investigation were given to the First Respondent so that he could make a rational decision in the appointment of the Second Respondent. The allegations of Dladla are sufficiently serious to call into question the integrity the entire process by which the Second Respondent was appointed. Only the First Respondent and those employees such as Lushozi could testify as to whether the First Respondent was notified of the allegation before he appointed the Second Respondent. The Respondents, however, chose not to call them as witnesses. As such the only evidence before me is that of Ntuli and the Applicant. Ntuli’s evidence is that in March 2019 she notified Lushozi of Dladla’s allegation, gave him a copy of the recording and that she had not been given any feedback. The Applicant’s evidence is that he notified Lushozi of the allegation by way of a letter dated 11 July 2019. In light of the failure of the Respondents to call the said witnesses, I infer that an investigation was not carried out and/or the Investigation supported the authenticity of the recording of Dladla and thus that members of the Interview Committee had received a corrupt payment and/or the First Respondent was not informed of the allegation before he made the decision to appoint the Second Respondent. In such circumstances, a decision to appoint would be irrational. On the other hand, if he was informed of Dladla’s allegation but appointed the Second Respondent nonetheless without an investigation that refuted the allegation of Dladla, his decision to appoint the Second Respondent would equally be unreasonable.
76. I also need to consider the fact that the Applicant himself confesses to having agreed to make a corrupt payment of R40 000 to Vilakazi and Shinga. In such circumstances should he benefit from a possible finding that the failure to promote him was an unfair labour practice? As indicated above, I am satisfied that the allegation of Dladla that was brought to the attention of Lushozi was sufficient on its own to render the decision to appoint the Second Respondent irrational. As a result of the Applicant’s confession to having been complicit with Vilakazi and Shinga in reaching an agreement to make a corrupt payment in the event of him being the successful candidate, I have not considered the payment of compensation to him to be suitable relief.
A member of the SGB did not qualify to be a member in terms of section 23 read with section 1 of the South Africa Schools Act84 of 1996
77. “Parent” is defined in terms of the South African Schools Act 84 of 1996, as amended, to mean:
77.1. The biological or adoptive parent or legal guardian of a learner;
77.2. The person legally entitled to custody of the learner; or
77.3. The person who undertakes to fulfil the obligations of a parent referred to in either of the two sub-paragraphs above towards the learner’s education at school.
78. Section 23 of the South African Schools Act 84 of 1996, as amended, provides that an SGB consists of elected members, the principal, in his or her official capacity and co-opted members. It is further stipulated that elected members of an SGB will comprise a member or members of each of the following categories:
78.1. Parents of learners at the school;
78.2. Educators at the school;
78.3. Members of staff at the school who are not educators; and
78.4. Learners in eighth grade or higher at the school.
79. It was the unchallenged evidence of Ntuli that Vilakazi was elected as a member of the SGB in the capacity as a parent of a learner at the school. As such, Vilakazi needs to meet the criteria of a parent as set out in section 1of the South African Schools Act 84 of 1996, as amended. It was the unchallenged evidence of Ntuli that Vilakazi was not the natural parent of a learner and when it was put to her by the Second Respondent’s representative that he was the guardian of a learner, her response was that she had seen no evidence in support of this assertion.
80. None of Vilakazi, the mother of the learner/s involved or the officials who conducted the investigation into the status of Vilakazi were called as witnesses. The School register records (at pages 20, 22 and 23 of the Applicant’s bundle) that an investigation into the status of Vilakazi was undertaken by officials of the First Respondent. I have, however, not heard evidence in respect of the investigation. Whilst the content of the said entries indicates that there is substance to the complaint of the Applicant is hearsay evidence, I am of the opinion that the entries are relevant insofar as they establish that officials of the First Respondent did undertake an investigation into the status of Vilakazi.
81. Both Ntuli and the Applicant wrote to Lushozi, a senior official employed by the first Respondent, raising the issue of Vilakzi’s qualification to be a member of the SGB. It is further not in dispute that Lushozi launched an investigation in respect of this issue prior to the First Respondent having appointed the Second Respondent. It was the attitude of the First Respondent’s representative that were Vilakazi not to qualify to be a member of the SGB then the Applicant, when he was acting principal of the School, had presided over an illegitimate SGB. This is, however, not relevant as it is the decision of the First Respondent to appoint the Second Respondent that is being challenged. In light of the Pamplin judgement above, I find that in these circumstances there was an evidentiary burden on the First Respondent to present evidence in respect of the investigation and on whether the findings of the investigation were given to the First Respondent so that he could make a rational decision in the appointment of the Second Respondent. Only the First Respondent and his employees such as Lushozi, could present this evidence.
82. The investigation would be expected to have found evidence as to whether Vilakazi met any of the meanings of “parent.” Without this evidence, the only evidence before me is that of Ntuli that she challenged Vilakazi’s election as a member of the SGB in 2018 as he did not have a child at the School and that she had since not seen any evidence that he was a legal guardian of a child at the School, as was put to her by the Second Respondent’s representative. I accordingly find that Vilakazi was not a “parent” of a child at the School as defined by section 1 of the South African Schools Act 84 of 1996, as amended.
83. In terms of section 6(3)(a) of the Employment of Educators Act 76 of 1998 any appointment or promotion at the School can only be made on the recommendation of the SGB. In this case, the SGB is improperly constituted and thus any recommendation made by it is invalid. As such, it cannot be said that the Second Respondent was appointed as a consequence of a recommendation of the SGB and the appointment of the Second Respondent is thus found to be invalid.
84. The Applicant seeks to have the appointment of the Second Respondent set aside but does not seek to be appointed in his place. Before granting any relief, however, I must consider the impact that the relief might have upon the School, its learners and the Department. Decisions taken pursuant to corrupt activities and by an improperly constituted SGB are not in any of their best interests. There is no evidence that any irregularities resulting in unfairness occurred before the shortlisting stage. I accordingly intend to make an award setting aside the appointment of the Second Respondent and ordering the First Respondent to recommence the process appointing the principal of the School from the shortlisting stage.
AWARD
85. The appointment of the Second Respondent is set aside.
86. The First Respondent is ordered recommence the process of appointing the principal of the School from the shortlisting stage.
J Kirby
Arbitrator 8 March 2021
ELRC480-2019/20 KwaZulu-Natal
BETWEEN:
NATU obo
Joseph Taylor Applicant
and
THE HEAD OF THE DEPARTMENT OF THE
KWAZULU-NATAL DEPAERTMENT OF EDUCATION First Respondent
OYAMA TUNTUTWANA Second Respondent
Arbitration Award
_________________________________________________________________________________
Case Number: ELRC480-19/20
Date of arbitration: 26 February 2021
Date of award: 8 March 2021
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 22 October 2020, continued on 30 October 2020 and the hearing of evidence was finalised on 26 February 2021. The parties were to submit closing arguments by 5 March 2021. The Applicant’s closing arguments were received on 5 March 2021 but on that day I received a message from the representative of the First Respondent in which he stated that he had been unable to access his office on 4 and 5 March 2021 due to protest action by SADTU but that he would go to his office the week-end to access his closing argument. I duly received the combined closing argument for both Respondents on Saturday, 6 March 2021.
2. Ms Shusha, an official of NATU, appeared on its behalf and that of its member, Joseph Taylor (the Applicant.)
3. The First Respondent was represented by Mr Makhooe, its employee.
4. Mr Gumede, an official of SADTU, acted on behalf of the Second Respondent.
5. The Applicant and First Respondent submitted bundles of documents.
6. The services of an interpreter were utilised.
7. The proceedings were digitally recorded.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
8. The issue that I am required to determine is whether the Applicant was subjected to an unfair labour practice relating to promotion as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995. In particular, it is recorded in the minutes of the pre-arbitration meeting that the issue to be decided is whether the Second Respondent was appointed principal of Cottonlands Primary School (the School) as a result of undue influence being placed upon the members of the School Governing Body and Interview Committee.
BACKGROUND
9. The Applicant was the deputy principal and acting principal of the School when he applied for the post of principal. The Second Respondent was the successful candidate. It is common cause that had the Applicant been appointed, this appointment would have been a promotion.
10. The Applicant avers that the appointment of the Second Applicant as principal of the School was unfair due to the following alleged irregularities:
10.1. A member of the School Governing Body (SGB) was not a parent of a learner at the School;
10.2. Corrupt payments (referred to as “bribes” by witnesses) were solicited from candidates, including himself, by members of the School Governing Body;
10.3. The resource person present at the Interview Committee meeting did not execute his duties properly.
11. All of the abovementioned alleged irregularities are said to have undermined the integrity of the process by which the Second Respondent was appointed thereby rendering it unfair. The Applicant sought to have the appointment of the Second Applicant set aside and the process of appointing the principal of the School redone.
12. The Applicant does not allege that but for the abovementioned alleged irregularities, he would have been appointed.
13. It is evident from the First Respondent’s bundle of documents that the Second Respondent was the recommended candidate and that the Applicant was placed second.
14. (I)n terms of paragraph 7 of the minutes of the pre-arbitration meeting, the parties agreed that they would advise one another by no later than 11 August 2020 whether and in respect of which documents, oral evidence would be required to establish their authenticity. No such notice was given by either party and thus the documents in the parties’ respective bundles of documents are accepted as proven.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
15. Shortly before the interviews were due to be held for the position of principal of the School, the Applicant received a phone call from Shinga, the chairperson of the SGB. He also spoke to the deputy chairperson, Vilakazi, during the call. The Applicant was asked how much he could afford to pay for the position of principal. The Applicant did not name his price during that initial call but he was subsequently contacted again and asked whether he would agree to pay them R40 000. The Applicant agreed to make the payment once he had received his letter of appointment. He was interviewed for the post on 16 March 2019.
16. Despite the agreement to pay, it was never the Applicant’s intention to do so.
17. The Applicant is aware of an investigation conducted on behalf of the First Respondent into whether Vilakazi was a parent of a learner at the School (and thus qualified to be a member of the SGB.) An extract of the school register is at page 20 of the Applicant’s bundle of documents and it records that on 11 April 2019 S S S Lushozi came to the School for “parent verification” of Vilakazi. It is further recorded that the initial investigation resulted in contradictory findings and that it was to be pursued further. It is understood by the Applicant that this investigation was prompted by a letter written by Ntuli, who also testified at this hearing.
18. The school register further records (at page 21 of the Applicant’s bundle) that the investigation into the status of Vilakazi continued on 17 April 2019 and that an affidavit that was due to have been received from the administration clerk, Gina, was not available and that Gina undertook to email it to the investigators. At page 24 of the Applicant’s bundle it is recorded that the mother of two learners had stated that the recording of the identity of their parents had been changed without her consent and that Vilakazi had approached her to be appointed as the learners’ guardian so that he could stand for election to the SGB.
19. As a result of him becoming aware of this investigation and also on him being shown a visual and audio recording of another candidate stating that he had made a corrupt payment to the SGB, he wrote the letter at page 25 of the Applicant’s bundle. The letter is dated 11 July 2019 and is address to “The CES-Mafukuzela Gandhi Circuit Mr S S S Lushozi.” It makes reference to the investigation into Vilakazi and states that allegations of corruption have subsequently surfaced. The Applicant called upon Lushozi to inform him of the outcome of the investigation.
20. The Applicant never received a response to his letter and after the appointment of the Second Respondent and attempts to be transferred from the School failed, he resigned.
21. Under cross-examination by the First Respondent the Applicant conceded that he had no evidence indicating that Second Respondent had made any corrupt payments to members of the SGB.
22. He further conceded that he had asked the SGM members who had phoned him how much they wanted but he denied that this meant that he was equally guilty of corruption as he had decided before the appointment was announced, not to pay.
23. It was put to the Applicant that he and Ntuli, who also testified on his behalf, had concocted this version of corruption only once the Applicant had learnt that he had been unsuccessful. This was denied.
24. With regards to the letter written by the Applicant to Lushozi dated 11 July 2019, it was put to the Applicant that with approximately 540 SGB’s in the district the First Respondent could not be expected to investigate every alleged irregularity. The Applicant responded by stating that an investigation had in fact been undertaken and that officials had visited the School on 11 and 17 April and 29 May 2019. He had not in the said letter requested that an investigation be undertaken but rather that he be informed of the outcome of the investigation.
25. The Second Respondent put it to the Applicant that Vilakazi became the guardian of a learner, Anele Vilakazi, following the death of her father. The Applicant had no knowledge of this assertion.
26. On being questioned by me, the Applicant stated that he had not reported the case to the police as he thought that it would be easier to simply ask for a transfer to escape the toxic environment at the School.
27. Buyile Mngonyama (Mngonyama) was an educator at the School whilst the Applicant was the acting principal. She no longer works at the School.
28. Prior to having been employed at the school, she had placed her name on a list of unemployed educators. She subsequently attended an interview at the School and was employed on a part-time basis.
29. Sometime after the commencement of her employment she was approached by Gina, a member of the SGB, who said to her that she had not yet paid for “cool drink.” Mngonyama replied that she did not know that she was required to pay and enquired as to the price. Gina responded that she would need to ask the SGB and the following day told her that the price was R5 000. Mngonyama understood by this that she had been approached to make a corrupt payment for having been appointed.
30. Mngonyama did not think of reporting the action of Gina to the police as she did not want to ruin her relationships at the School but she understood that the Applicant had questioned Gina in this regard.
31. Under cross-examination by the First and Second Respondents Mngonyama conceded that she had only spoken to Gina and not other members of the SGB and that she did not know anything about the appointment processes in respect of the Applicant and the Second Respondent.
32. At the time of testifying Simagile Ntuli (Ntuli) had been on the SGB for a period of approximately ten years, six years of which were as chairperson. She is now an ordinary member.
33. Ntuli is the author of the letter at pages 18 and 19 of the Applicant’s bundle of documents and in which she raised the issue of whether Vilakazi could be a member of the SGB without having children at the school. She had disputed his eligibility when he was elected in 2018. She had highlighted then the fact that he was not the parent of children at the School and was told that the issue would be investigated. People covert being elected to the SGB as this is seen as a way of accessing school funds that might need to be spent on service providers. On the day on which interviews were held a certain Zwane from the local business chamber came to the school and said that the Applicant should not be appointed as he would not give out jobs to members of the leading political party.
34. As far as she is aware, Vilakazi is unemployed.
35. Ntuli raised the following issues with regards to the interview process:
35.1. The members of the interview committee did not receive training, whilst on previous occasions when she had been a member of interview committees the members had received training;
35.2. The resource person, Chetty, did not fulfil his duties and left the meeting early to deal with a personal emergency. The duties of the resource person are set out in paragraph 12 of HRM Circular 70 of 2018, which is at page 11 of the Applicant’s bundle of documents. He left the meeting before he had finished reading out the candidates curriculum vitae ;
35.3. The ratification form had only been signed sometime after the interviews. The union officials had refused to sign the form as they were unhappy that Chetty had left early. She had signed the form after it had been brought to her residence by Gumede, the secretary of the SGB. Unlike on previous occasions, the Interview Committee did not report back to the SGB on the interview process. All that they did was sign the ratification form.
36. Approximately one week after the interviews had been held, she was approached at her home by C S Dladla (Dladla,) who had been a candidate for the position of principal, and Kunene, his neighbor and an educator at a school in Verulam.
37. Dladla said that after having been approached by Vilikazi and Shinga he had paid over R10 000 to them. They had told him that Ntuli was no longer a member of the SGB. When Ntuli realized the reason for Dladla’s visit, she started to record the meeting. Dladla said that corruption was wrong and he thus wanted his money back from Vilikazi.
38. It was after this meeting with Dladla that Ntuli wrote her letter (at pages 18-19 of the Applicant’s bundle) to the Department and gave a copy of the recording to Lushozi of the Department. Lushozi subsequently came to the School to investigate the allegations in respect of Vilikazi.
39. Under cross-examination by the First Respondent Ntuli stated that Gina was a clerk at the School, a member of the SGB and had been chairperson of the Interview Committee. She was unaware of any allegations of corruption made against her. She also accepted that a decision by an individual member of the SGB to be corrupt, did not mean that the SGB itself was corrupt. She was, however, aware from what Dladla had said to her that Shinga and Vilakazi, the chairperson and deputy chairperson of the SGB respectively, had received money from him. She had submitted the recording of her conversation with Dladla to Lushozi of the Department before the end of March 2019. In contradiction to the evidence of the Applicant, Ntuli denied having told the Applicant about this evidence.
40. It was further put to her that a member of the SGB did not have to be the biological parent of a learner as a member may qualify as a co-opted member or as the guardian of a learner; such as someone taking care of a brother’s child. Ntuli responded that she had been informed that a biological parent or guardian would qualify and that it was the responsibility of the Department to investigate whether a person qualified to be a member of an SGB.
41. Under cross-examination by the Second Respondent she stated that both she and Vilakazi had been elected members of the SGB in 2018. She had raised her objection with regards to the eligibility of Vilakazi at that time. She had subsequently been informed by Khubeka that the investigation had found that Vilakazi does not qualify to be a member of the SGB.
42. It was further put to her that she was using the issue regarding the SGB to wage political battles and that she had prevented the Second Respondent from entering the School premises when he had reported for duty. Ntuli denied this stating that she had gone to the School as she had heard that the ruling party was going to hold a meeting on the premises. She had closed the School gate to prevent the holding of the meeting, unaware that the Second Respondent was simultaneously trying to enter the School premises.
43. With regards to the recording involving Dladla it was put to Ntuli that she and Dladla had colluded in making the recording as they both “had an axe to grind.” This was denied. Prior to Dladla having approached her, she did not know him personally.
44. It was put to Ntuli that Chetty would testify that the Interview Committee agreed that he could leave the meeting to attend to a personal emergency and to proceed in his absence. While disagreeing with this assertion, Ntuli agreed that she had not told Chetty that he should not leave the meeting.
45. Ntuli denied that the Second Respondent ought to have received a score of 35.
46. It was submitted on behalf of the Applicant that despite having commenced an investigation into Vilakazi and having been advised of the allegations of corruption, the First Respondent had not reverted to him in respect of the outcome of the investigation. Officials had responded to the request by Ntuli for there to be an investigation into the status of Vilakazi and despite indications that did not qualify as a “parent,” no report back was received.
47. Dladla could be heard on the audio recording stating that he had paid R10 000 to Vilakazi and Shinga, both of whom were on the Interview Committee and the evidence of Mngonyama was that she had previously been approached to make a corrupt payment by Gina, who was the chairperson of the Interview Committee for the position under dispute.
48. The Applicant sought to have the appointment of the Second Respondent set aside and for the process of appointing the principal to be recommenced.
The Respondents’ case
49. A single witness, Selvan Chetty (Chetty,) testified on behalf of the Respondents.
50. Chetty has been the circuit manager for the Billy Nair Circuit for the past 15 years. Whilst the Applicant had been acting principal of the School, Chetty had been his superior.
51. He was resource person responsible for the shortlisting and interview process for the post of principal of the School. A vigorous shortlisting process had been followed and all parties expressed their satisfaction with the shortlisted candidates. Chetty had not been present throughout the shortlisting process as he had to attend a ceremony commemorating a donation that had been given to a local school. When he had left the meeting all that he was doing was reading out the curriculum vitae of candidates. All parties had agreed to him leaving and on his return that had confirmed to him that the process was proceeding smoothly.
52. Chetty was unaware of any allegations concerning corrupt payments and the Applicant whilst acting principal of the School, had not raised any concerns regarding the make-up of the SGB.
53. Under cross-examination it was put to Chetty that when he left the meeting Gumede, an educator at the school and a member of the Interview Committee, had assumed his functions as resource person and in such circumstances he could not ensure that the process followed was fair, transparent, non-discriminatory and in accordance with the provisions of the Constitution. Chetty’s response was that he had left the meeting in the hands of the chairperson. In any event, no special competencies were required at that stage as all that he was doing was reading out the curriculum vitae. On his return to the meeting he had satisfied himself that the scores allocated to the five shortlisted candidates were consistent with the content of their respective curriculum vitae.
54. It was put to Chetty that the union representatives had not signed the minutes of the shortlisting committee minutes(at page 17 of the Respondent’s bundle,) the schedule of shortlisted candidates (at page 22 of the Respondent’s bundle) and the Interview Committee meeting minutes (at page 23 of the Respondent’s bundle) as they had been dissatisfied with the process followed. Chetty responded that he could not comment on why the union representatives had not signed the said forms. He, however, went on to state that had they been dissatisfied with the shortlisting of candidates, the process would not have moved to the interview phase and that trade unions are in the habit of not signing these documents as way of reserving their rights to object at a later stage. No dissatisfaction was expressed to him.
55. It was further put to Chetty that the reason for the trade union representatives having not signed the minutes of the Interview Committee meeting is recorded at page 23 of the Respondent’s bundle as being that they had concerns regarding the interview process. Chetty responded by stating that all participants had attended a workshop on the correct procedures and at which they had been informed that if any party is dissatisfied with the procedures followed, they ought to lodge a grievance. No grievance had been lodged. He confirmed under re-examination that all participants had attended this workshop.
56. Lushozi is Chetty’s supervisor. Lushozi had not informed him that he was conducting an investigation at the School. Chetty had no knowledge of this investigation.
57. The Respondents submitted a combined closing argument.
58. It was submitted by them that while the Applicant had established that certain members of the SGB were corrupt, he had not established that the SGB as a whole was corrupt. It was the Applicant and not the Respondents who should have called Lushozi to testify about his investigation.
59. Ntuli had attempted to prevent the Second Respondent from entering the School and her evidence should be treated with caution as she was biased.
60. Lastly it was submitted that Chetty had overseen fair shortlisting and interview stages. No grievances had been lodged.
ANALYSIS OF EVIDENCE AND ARGUMENT
61. The Applicant bears the onus to demonstrate that the failure by the First Respondent to promote and appoint him to the position of principal of the School constituted an unfair labour practice.
62. Whilst the onus is on the employee in unfair labour practice cases involving promotion to show that the failure to promote is unfair, the employer is obliged to defend challenges to the procedural and substantive fairness. In this regard, the following was said at paragraph 37 of the case of Pamplin v Cape Education Department (C1034/2015) ZALCCT [2018:]
“The circumstances of the litigation in unfair labour practice disputes such as in casu is that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is in the same token, obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for the appointment/non-appointment, to satisfy a tribunal that the appointment/non-appointment was rational and thus fair. The employer must demonstrate that it acted fairly, in good faith, and applied its mind to the selection. A conclusion that an employer acted fairly or in good faith in making an appointment cannot be reasonable nor rational in circumstances where that employer places no such evidence before a tribunal, irrespective of where the onus lies.”
At paragraph 38 the Court continued as follows:
“In such circumstances and given the nature of the litigation before the Commissioner, if an adverse inference was to be drawn by the failure to call available witnesses, then it should have been drawn against the Department for its failure to call the HOD not against Pamplin for failing to subpoena the HOD. For the Commissioner therefore to have required of Pamplin to have subpoenaed the HOD to demonstrate that her decision was fair failing which an adverse inference was drawn against her is akin to requiring of her to call the HOD to rebut her own case.”
The Applicant avers that the failure to promote and appoint him was unfair for the following reasons:
62.1. Vilakazi, the deputy chairperson of the SGB and a member of the Interview Committee, did not qualify to occupy these positions as he was not a parent, as defined in section 1 of the South African Schools Act 84 of 1996, as amended. As such the SGB and Interview Committee were not properly constituted and it was unfair for the First Respondent to have acted upon the recommendation of such an SGB;
62.2. Members of the SGB had been influenced in their decision making by corrupt arrangements that they had entered into with candidates for the challenged position; and
62.3. The Interview Committee did not perform its functions properly as it had been abandoned by the resource person, Chetty.
63. I shall deal with each of these issues and the relevant evidence below.
The Interview Committee did not perform its functions properly
64. It is common cause that Chetty, the appointed resource person, left the shortlisting meeting for a period of time. It is submitted on behalf of the Applicant that this conduct compromised the process rendering it unfair.
65. Associated with this complaint is the evidence of Ntuli that the members of the Interview Committee had not received any training. It is the unchallenged evidence of Chetty, the Respondents’ witness, that all interview committees of the various schools were invited to a workshop prior to the shortlisting and interview processes commencing.
66. No evidence was led on behalf of the Applicant in support of his allegation that the absence of Chetty rendered the shortlisitng process unfair. The Applicant was shortlisted and interviewed for the position of principal. I accept the unchallenged evidence of Chetty that the union representative observers did not submit any grievances in this regard.
67. In light of the above, I find that the Applicant has not established that the conduct of Chetty rendered the process unfair for the Applicant.
Members of the SGB solicited corrupt payments from the Applicant and other candidates
68. The Applicant, Mngomyana and Ntuli gave evidence on his behalf in respect of this aspect.
69. Mngomyama testified in respect of her own experience of having been approached for a corrupt payment by Gina (the chairperson of the Interview Committee that interviewed the Applicant and the Second Respondent.) At the time of the approach Gina was a member of the SGB. Mngomyama had no knowledge relevant to the process involving the Applicant and Second Respondent. Although her evidence may be viewed as “similar fact evidence” and hence relevant to the issues involved in this case, I have not had regard to her evidence in coming to my findings.
70. The evidence of the Applicant was that prior to the shortlisting process he had been contacted by the chairperson (Shinga) and deputy chairperson (Vilakazi) of the SGB and asked by them how much he was willing to pay for the position of principal. No amount was initially agreed to but during a second call they suggested and he agreed to an amount of R40 000. While he had agreed to pay the amount on receipt of his letter of appointment, it was not his intention to do so. He could not implicate any other members of the SGB and he could not implicate the Second Respondent in wrongful conduct.
71. Under cross-examination it was put to the Applicant that he and Ntuli had conspired to dispute the appointment of the Second Applicant by raising this issue of corruption once he realized that he had not been appointed. This was denied by the Applicant. In this regard, I find that the evidence does not support the notion of the Applicant having made a false claim of corruption so as to undermine the appointment of the Second Respondent as the letter he wrote to Lushozi of the Circuit Office (at page 25 of the Applicant’s bundle) is dated 11 July 2019, which is a month prior to the appointment having been made. It is in this letter that the Applicant, after referring to the issue of the investigation into the status of Vilakazi, states that “further allegations have surfaced, that pertained to bribery…” He then proceeds to call for an investigation into these allegations. He would thus have only known at this stage that he had been unsuccessful if advised by Ntuli of the Interview Committee’s preference. This allegation, however, was not put to either of Ntuli or the Applicant. I can in any event rule out this possibility as it is highly unlikely that the Applicant would wait from 16 March 2019, when the ratification was done, until 11 July 2019, when he wrote the letter calling for an investigation, if he had been so informed and it had been his intention to undermine the process once he knew that he would not be appointed.
72. Vilakazi and Shinga were not called as witnesses to refute the evidence of the Applicant. The Applicant is a single witness in respect of this aspect. His evidence was consistent throughout his evidence in chief and cross-examination. I also find it improbable that the Applicant would implicate himself in this manner if his evidence were not true. I am accordingly satisfied that the Applicant was approached by Shinga and Vilakazi to make a corrupt payment to them and that an amount of R40 000 was agreed to. Shinga and Vilakazi were members of the Interview Committee and any serious impropriety by them would have negative implications for the integrity of the process of recommending candidates for appointment.
73. It was, however, not his own corrupt arrangement that the Applicant had referred to in his letter of 11 July 2019 but that allegedly involving Dladla, another candidate for the position of principal. He had learnt of Dladla’s allegation from Ntuli.
74. Ntuli’s evidence is that she was approached by Dladla at her residence shortly after the interviews had been conducted. When she realized that he was going to speak about malfeasance at the SGB, she began to record their meeting. She testified that Dladla had confessed to having paid R10 000 to Vilakazi and Shinga. She had alerted Lushozi to the allegation made by Dladla and given him a copy of the recording of their meeting. This evidence of Ntuli was not challenged in any material way.
75. The evidence of Ntuli in respect of Dladla, however, is hearsay as Dladla was not called as a witness. The significance of Ntuli’s evidence, however, is not whether what Dladla alleged is true or not but rather that she informed Lushozi of the allegation and provided him with a recording of their meeting. Lushozi, a senior employee of the First Respondent, was not called as a witness and thus we do not know whether the allegation was investigated or whether the First Respondent was advised of the allegation or the outcome of the investigation before he appointed the Second Respondent. In light of the Pamplin judgement above, I find that in these circumstances there was an evidentiary burden on the First Respondent to present evidence in respect of the investigation and on whether the findings of the investigation were given to the First Respondent so that he could make a rational decision in the appointment of the Second Respondent. The allegations of Dladla are sufficiently serious to call into question the integrity the entire process by which the Second Respondent was appointed. Only the First Respondent and those employees such as Lushozi could testify as to whether the First Respondent was notified of the allegation before he appointed the Second Respondent. The Respondents, however, chose not to call them as witnesses. As such the only evidence before me is that of Ntuli and the Applicant. Ntuli’s evidence is that in March 2019 she notified Lushozi of Dladla’s allegation, gave him a copy of the recording and that she had not been given any feedback. The Applicant’s evidence is that he notified Lushozi of the allegation by way of a letter dated 11 July 2019. In light of the failure of the Respondents to call the said witnesses, I infer that an investigation was not carried out and/or the Investigation supported the authenticity of the recording of Dladla and thus that members of the Interview Committee had received a corrupt payment and/or the First Respondent was not informed of the allegation before he made the decision to appoint the Second Respondent. In such circumstances, a decision to appoint would be irrational. On the other hand, if he was informed of Dladla’s allegation but appointed the Second Respondent nonetheless without an investigation that refuted the allegation of Dladla, his decision to appoint the Second Respondent would equally be unreasonable.
76. I also need to consider the fact that the Applicant himself confesses to having agreed to make a corrupt payment of R40 000 to Vilakazi and Shinga. In such circumstances should he benefit from a possible finding that the failure to promote him was an unfair labour practice? As indicated above, I am satisfied that the allegation of Dladla that was brought to the attention of Lushozi was sufficient on its own to render the decision to appoint the Second Respondent irrational. As a result of the Applicant’s confession to having been complicit with Vilakazi and Shinga in reaching an agreement to make a corrupt payment in the event of him being the successful candidate, I have not considered the payment of compensation to him to be suitable relief.
A member of the SGB did not qualify to be a member in terms of section 23 read with section 1 of the South Africa Schools Act84 of 1996
77. “Parent” is defined in terms of the South African Schools Act 84 of 1996, as amended, to mean:
77.1. The biological or adoptive parent or legal guardian of a learner;
77.2. The person legally entitled to custody of the learner; or
77.3. The person who undertakes to fulfil the obligations of a parent referred to in either of the two sub-paragraphs above towards the learner’s education at school.
78. Section 23 of the South African Schools Act 84 of 1996, as amended, provides that an SGB consists of elected members, the principal, in his or her official capacity and co-opted members. It is further stipulated that elected members of an SGB will comprise a member or members of each of the following categories:
78.1. Parents of learners at the school;
78.2. Educators at the school;
78.3. Members of staff at the school who are not educators; and
78.4. Learners in eighth grade or higher at the school.
79. It was the unchallenged evidence of Ntuli that Vilakazi was elected as a member of the SGB in the capacity as a parent of a learner at the school. As such, Vilakazi needs to meet the criteria of a parent as set out in section 1of the South African Schools Act 84 of 1996, as amended. It was the unchallenged evidence of Ntuli that Vilakazi was not the natural parent of a learner and when it was put to her by the Second Respondent’s representative that he was the guardian of a learner, her response was that she had seen no evidence in support of this assertion.
80. None of Vilakazi, the mother of the learner/s involved or the officials who conducted the investigation into the status of Vilakazi were called as witnesses. The School register records (at pages 20, 22 and 23 of the Applicant’s bundle) that an investigation into the status of Vilakazi was undertaken by officials of the First Respondent. I have, however, not heard evidence in respect of the investigation. Whilst the content of the said entries indicates that there is substance to the complaint of the Applicant is hearsay evidence, I am of the opinion that the entries are relevant insofar as they establish that officials of the First Respondent did undertake an investigation into the status of Vilakazi.
81. Both Ntuli and the Applicant wrote to Lushozi, a senior official employed by the first Respondent, raising the issue of Vilakzi’s qualification to be a member of the SGB. It is further not in dispute that Lushozi launched an investigation in respect of this issue prior to the First Respondent having appointed the Second Respondent. It was the attitude of the First Respondent’s representative that were Vilakazi not to qualify to be a member of the SGB then the Applicant, when he was acting principal of the School, had presided over an illegitimate SGB. This is, however, not relevant as it is the decision of the First Respondent to appoint the Second Respondent that is being challenged. In light of the Pamplin judgement above, I find that in these circumstances there was an evidentiary burden on the First Respondent to present evidence in respect of the investigation and on whether the findings of the investigation were given to the First Respondent so that he could make a rational decision in the appointment of the Second Respondent. Only the First Respondent and his employees such as Lushozi, could present this evidence.
82. The investigation would be expected to have found evidence as to whether Vilakazi met any of the meanings of “parent.” Without this evidence, the only evidence before me is that of Ntuli that she challenged Vilakazi’s election as a member of the SGB in 2018 as he did not have a child at the School and that she had since not seen any evidence that he was a legal guardian of a child at the School, as was put to her by the Second Respondent’s representative. I accordingly find that Vilakazi was not a “parent” of a child at the School as defined by section 1 of the South African Schools Act 84 of 1996, as amended.
83. In terms of section 6(3)(a) of the Employment of Educators Act 76 of 1998 any appointment or promotion at the School can only be made on the recommendation of the SGB. In this case, the SGB is improperly constituted and thus any recommendation made by it is invalid. As such, it cannot be said that the Second Respondent was appointed as a consequence of a recommendation of the SGB and the appointment of the Second Respondent is thus found to be invalid.
84. The Applicant seeks to have the appointment of the Second Respondent set aside but does not seek to be appointed in his place. Before granting any relief, however, I must consider the impact that the relief might have upon the School, its learners and the Department. Decisions taken pursuant to corrupt activities and by an improperly constituted SGB are not in any of their best interests. There is no evidence that any irregularities resulting in unfairness occurred before the shortlisting stage. I accordingly intend to make an award setting aside the appointment of the Second Respondent and ordering the First Respondent to recommence the process appointing the principal of the School from the shortlisting stage.
AWARD
85. The appointment of the Second Respondent is set aside.
86. The First Respondent is ordered recommence the process of appointing the principal of the School from the shortlisting stage.
J Kirby
Arbitrator 8 March 2021
ELRC480-2019/20 KwaZulu-Natal
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