ELRC644-20/21 EC
Text
ELRC752-20/21KZN
Award Date:
21 January 2022
Case Number: ELRC752-20/21KZN
Arbitrator: Livhu Nengovhela
Date of Award: 21 January 2021
In the MATTER between
Mandlenkosi Phowakhe Zulu
(Applicant)
and
Department of Education Kwazulu-Natal Provincial Government
(1st Respondent)
Langa M G
(2nd Respondent)
Applicant’s representative: Musawenkosi Mbambo
Union/Applicant’s address: T V Madela INC
Thuthuka Centre, Ground Floor
Lot 47, Jan Smuts Avenue
Mtubatuba
Telephone: 035 550 1207/8 03 079451 4609
Telefax:
E-mail: mbambo@tvmadelainc.co.za
1st Respondent’s representative: Mr Sthembiso Mkhwanazi
Respondent’s address: Provincial Department of Education: Kwazulu-Natal
Mkhuze, 3965
Telephone: 072 588 9948/ 035 573 9858
E-mail: sthembiso.mkhwanazi@kzndoe.gov.za/ Merisha.Naidoo@kzndoe.gov.za/ Indran.Pillay@kzndoe.gov.za
Merisha.Naidoo@kzndoe.gov.za/ Indran.Pillay@kzndoe.gov.za Indran.Pillay@kzndoe.gov.za
Indran.Pillay@kzndoe.gov.za
2nd t Respondent’s representative: Ms Lungile Zibane (NATU)
Respondent’s address: National Teachers Union
199 Anton Lembede Street, 14th Floor
Embassy Bld, Durban
Telephone: 066 023 4561 / 072 122 2074/ 0313321343
E-mail:
Lungile.legal@natu.org.za/mbhekenig51@gmail.com mbhekenig51@gmail.com Merisha.Naidoo@kzndoe.gov.za/ Indran.Pillay@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for Arbitration between Mr Zulu Mandlaenkosi Phowake, the applicant; the Department of Education Kwazulu-Natal Provincial Government, the 1st respondent and Mr M G Langa the 2nd respondent. The matter was set down for arbitration on 03 May 2021 at 09h00 via Microsoft Teams webinar, but cloud not proceed as scheduled. The arbitration was to be held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5) (a)(ii) of the Labour Relations Act (“the LRA”).
2. The applicant submitted a referral form to the ELRC alleging an unfair labour practice in terms of the Section 186(2)(a) of the Labour Relations Act (LRA) regarding appointment.
3. The applicant attended the hearing and he was represented by Mr Mbambo from TV Madela INC. The 1st respondent was also present and was represented by Mr Sthembiso Mkhwanazi, its Human Resources Manager. The 2nd respondent was present and was represented by Ms Lungile Zibane, an official from National Teachers Union(NATU).
4. The applicant submitted his bundle of documents which was subsequently marked bundle A. The 1st respondent also submitted its bundle of documents that we marked bundle R. The 2nd respondent did not submit any bundle of documents. The documents were admitted as they were.
5. The hearing was scheduled on 5 May and continued on the following days: 23 &24 June, 16 September, 1 & 28 October, 18 & 19 November and finally 22 November 2021. The parties initially agreed to submit written closing arguments on 3 December 2021 and I later granted extension on their request to 8 December 2021. I received the arguments from all the parties on time on or before the 8 December 2021.
6. Since the parties were represented by experienced officials, I informed them that I would be adversarial in my approach.
7. The proceedings were digitally recorded via Microsoft Teams arranged by the ELRC.
BACKGROUND TO THE DISPUTE
8. The applicant was employed by the respondent as an educator at Mtubatuba High School. He was appointed to acting principal when then principal was promoted and left the school. During his acting period, the principal post was advertised under HRM Circular No.13 of 2020, Post No:793.
9. The applicant applied for the position and he was shortlisted. The process was however stopped, a new panel was constituted, and the process was restarted from the shortlisting stage. During this second round of shortlisting, the applicant was not shortlisted. The respondent ultimately appointed Mr. MG Langa (2nd respondent) to the post.
10. The applicant subsequently challenged in the main, various procedural defects in the appointment process. After exhausting the internal dispute resolution process, the applicant referred the matter to the ELRC on the basis section 186 (2) (a)of the LRA.
ISSUE TO BE DECIDED
11. I am to determine whether the respondent’s recruitment process in the appointment of the principal of Mtubatuba High School amounted to an unfair labour practice contemplated in terms of section 186(2) (a) of the LRA.
12. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath and arguments:
APPLLICANT’S CASE
Mr Mandlenkosi Zulu
13. Mr Zulu testified under oath that he was acting principal of Mtubatuba High School when he applied for the principal position he was acting on in September 2020. He was shortlisted for the interviews to the process that was declared void since the SGB and the Interview Committee (IC) did not have minutes in their processes. When the selection process was restarted, he was not shortlisted.
14. The applicant was aggrieved by this since the same documents were used for his shortlisting that was successful the last time. He even later established that some of the candidates that were shortlisted were far less qualified than he was. He had been a departmental head for more than 16 years and had acted as a principal before. He was also concerned that the SGB at the school was not in compliance with the South African Schools Act 84 of 1996. The reason was that Mr Mazibuko SV (Treasurer of the SGB) was not a parent of a leaner at the school. The SGB did not form a quorum and there were no elections on annual basis to appoint the Chairperson and Treasury.
15. Zulu indicated he realised that Mazibuko SV was registered as the parent of one learner in the name of Sthembele Khoza. This was as per school management system called SASSAM. The summary of his version is as per the letter he sent to the circuit manager, Mr. Ngcobo WS dated 30 September 2021 on pages A9-10. He called the leaner (Khoza) to establish if Mazibuko SV was the parent. Khoza indicated that she did not know of Mazibuko SV and indicated that her registered parent was Mss. Nozipho Mdaka. Mdaka also appeared on the system as parent of the learner (A5-6). The witness could not meet with Mdaka due to different diary clashes, but through their telephone conversion, he established that Mdaka had no knowledge as to who Mazibuko SV was and was concerned that he had been registered as a grandparent for Khoza.
16. Khoza made a written statement in front of the witness that Mazibuko SV asked approached him to make him her guardian so that he could rejoin the SGB (A-5). He had asked the leaner to come and testify in this hearing to which she agreed. But the grandparent, Mr. Mathebula later withdrew the statement on her behalf.
17. Zulu further established that the instructions to add Mazibuko SV as guardian of Khoza was given by Mazibuko PM who was the chairperson of the SGB (A3-4). Mazibuko PM had sent a WhatsApp message to 073 724 8188 and instructed that the current parents on the system to be deleted.
18. The Interview Committee (IC), was nominated by the SGB that Mazibuko SV participated in. This was illegitimate since Mazibuko SV did not have a child in the school. The SGB itself, never conducted an election to appoint office-bearers: Chairperson, treasurer and a secretary when their term came to an end at the end of the year. The SGB was just badly managed, with no records and no attempt to fill vacancies as they arose. The IC recorded the applicants in numbers without names. Only the top four candidates had their names disclosed in the IC. The applicant did not know which number he was, and he also did not know how he performed.
19. When Zulu realised that he was not shortlisted he lodged a grievance and raised all the procedural issues that had been stated earlier on. The minutes of the District Grievance Committee held on 03 November 2020 reflect the discussions (R11-14) at the DGC. The weakness of the GDC was that Mr Shandu NG, who was part of the IC was also a member of the IC that shortlisted and appointed for the post. His participation in the GDC to review the decision of the IC that he was part of was therefore unfair to him as an applicant. Mazibuko SV, who was an illegitimate member of the SGB also represented the school in this meeting.
20. Under cross examination the witness indicated that he had overall responsibility of managing the school and reported to the circuit manager. He set in the SGB as acting principal and raised issues about the SGB administration including the fact that Mazibuko SV was not a legitimate member of the SGB directly with Mazibuko MP.
21. Zulu further indicated under cross examination that Ms. Nozipho Mdaka was the sister of the deceased mother of Khoza. He believed the record on SASSAM in regard with Mazibuko SV being a registered parent of Khoza, was only done after the instruction by Mazibuko MP. Zulu was shortlisted for the first round, but was not shortlisted for the second round of interviews. Shandu participated as a department representative on the second round and was not part of the first round of shortlisting.
22. Zulu was of the view that he should have at least be shortlisted to be interviewed since he has good qualifications, has been a Head of Department (HOD) and he was the acting principal of the school. He did not see the cv of the candidates, but was surprised that there was a Young AE who was also shortlisted. Young is only a PL, did not have management experience and he was surprised that Young was shortlisted ahead of him.
23. He concluded by stating that he believed the conduct of Mazibuko’s of arranging that the records be updated to include Mazibuko SV as guardian of Khoza was fraudulent. He believed that the SGB was not legitimate since Mazibuko SV was illegitimate member and the office bearers were never elected annually.
Mr Mduduzi Mabaso
24. Mabaso took oath and indicated that he was an educator at Mtubatuba High School. He assisted the school with capturing and updating information on the SASSAM system. He received a photo (screenshot) via WhatsApp from Mrs Cele who is the educator representative in the SGB (A3). The instruction on the message was saying that he should include Mazibuko SV as a guardian of Sthembile Khoza. Cele indicated that he must remove the parents that were already on the system (A4). The witness later captured Mazibuko SV (treasurer) on the system (A5) The messages that came from Cele were sent to her from Mr Mazibuko MP who was the chairperson of the SGB.
Mr Wiseman Ngcobo
25. Ngcobo took oath and indicated that he was the circuit manager for Mtubatuba high school. His responsibility was amongst others to monitor schools. The first process of recruiting the principal was stopped, when the unions lodged a grievance. The process was stopped and had to be restarted again. Zulu was shortlisted during the first process, but he was not during the second process. The witness supervised the first process and he appointed Mr Meyer to be the departmental nominee. The second process was supervised by Mr Shandu who was his immediate supervisor.
26. The witness confirmed that he received a letter of complaint from Zulu dated 30 September 2020 (A9). He subsequently investigated the matter by visiting the school met with Zulu and discuss the matter. He also interviewed Mdaka who was concerned that the child might be refused to write exams because of this issue of who the true guardian was. He compiled a report about the crisis that was at Mtubatuba High school regarding the SGB. He later submitted the report with Mr Shandu, the chief education specialist (CES) in person. He never heard from Mr Shandu on the matter again.
27. He was not aware that Shandu was a departmental nominee to the Interview Committee (IC) and later participated as a member of the DGC (A19 and 20). According to him, the participation of Shandu in the IC and again in the GDC it would be contradicting the rule a natural justice by being a referee and a player and he should have recused himself from participating in the GDC and adjudicating the matter.
28. The witness is aware that the South African Educators Act requires the office bearers of the SGB to be elected on annual basis. He was already a circuit manager when the post was advertised. He had asked for the minutes of or record of the SGB appointing the office bearers and that was never provided to him by the SGB. He was of the view that the elections of the office bearers did not take place for the year 2020.
29. Under cross-examination Ngcobo indicated that he was appointed a circuit manager for Mtubatuba High School from around January/ February 2019. He had supervisory role over Mtubatuba High School from the district. He conducted workshops with the SGB’s and principals to capacitate the SGB and ensure that they are always in full quarter.
THE RESPONDENT’S CASE
First Respondent
Mr Nobleman Shandu
30. Mr Nobleman Shandu took oath and stated that he was the chief education specialist (CES) for the circuit. The DGC had recommended that Ngcobo be removed from his role as a resource person for the recruitment of the principal at Mtubatuba High School. As the applicant, directly reported the witness, he (Shandu) ended up the resource person for this recruitment process.
31. During cross examination, he indicated that he participated in the shortlisting and the interviewing of candidates for the post. He was a member of the DGC that decided on the grievance that was lodged by Zulu. He did not see a need to recuse himself from being a member of the GDC.
32. The witness further indicated that the investigation was not done as yet as directed by the SGB. He said this while responding to the question regarding the whereabouts of the investigation report emanating from the GDC outcome stating that: “Subsequent to that the allegations raised by the aggrieved person during the grievance meeting that were outside the terms of reference, CES of Hlabisa CMC will co-ordinate the proper investigation.” (R14). It was further put to him that nothing had come out from his side including the report that was escalated to him by Ngcobo and letters from Zulu’s legal representative.
33. It was put to the witness that the SGB at Mtubatuba High School was not properly constituted in terms of the SASA Act to appoint the IC. The first reason being that Mazibuko SV did not have a child at Mtubatuba High. The witness indicated that he SGB investigated the matter and concluded that Mazibuko SV was a legitimate member of the SGB. Supporting documents were presented to that effect. He how ever did not respond to the question as to why the documents were not at the hearing.
34. The second reason was that Section 31 of the SASA Act requires the office bearers of the SGB to elected annually. The chairperson of the 2020 SGB (Mazibuko PM); the treasurer (Mazibuko SV) and the secretary were not elected and this was in transgression of the SASA Act. The witness indicated that the SGB did an investigation and decided that the departmental representative, Ngcobo be removed.
Second Respondent
Mr Mazibuko Sabelo Vincent
35. Mazibuko SV took oath and indicated that he was a father of two kids who were at Mtubatuba High, that was Owami Ngcobo and Sithembile Khoza. He became a treasurer of the SGB from 2018.
36. The witness indicated that he went to explain at the GDC of November 2020 that he was a guardian of Khoza (R11-13). He even submitted the affidavit confirming this, that was signed by Mathebula, the grandfather of Khoza. Mathebula was his friend, but they had some distant family relationship from his mother’s side. He further clarified that Mdaka was not the mother, but the sister to Khoza’s mom who is passed on.
37. Under cross-examination the witness indicated that he left the SGB meeting of 19 October 2020 when he was asked to do so by Zulu to avoid confrontation with Zulu. The witness even asked the matter be escalated to Mr Shandu.
38. It was put to the witness that Owami, his child, left Mtubatuba High at the end of 2019. It was not true that Owami was in grade 11 in 2020 since he would have been taught by Mabaso. The attendance register on A 12 & 13 did not have Owami’s name and therefore he was not telling the truth. The witness responded by saying that Owami’s details must have been omitted by the teachers.
39. The witness explained that Mathebula was a pensioner and had financial challenges. That was why they had agreed that he would be Owami’s guardian. Mathebula made an affidavit to that effect. No family advocate and social workers were consulted about this. When asked about a copy of the affidavit he indicated that he had it but did not bring it to the hearing.
40. He was elected to serve on the SGB from 2018, in 2019 there were by election to replace SGB members that have left the SGB. He was not aware that they were required to be elected every year as chairperson, treasurer and secretary. But he would think there were some elections in 2020.
41. He could not remember the number of SGB members who were there in 2020. What he could remember was that four of them seized to be members since their children finished school.
42. It was put to the witness that he was not eligible to be an SGB member since he was convicted of crime and he had to do time for the crime he was convicted of. He was asked if he ever informed the SGB members about his criminal record. The witness denied that he had a criminal record.
Ms Nozipho Mdaka
43. Ms Mdaka took oath and confirmed that Khoza was the daughter of her late sister. Mazibuko SV was a relative and was asked to be the guardian of Khoza by Mathebula.
44. She knew Ngcobo since he had a child with her sister. She never met with Ngcobo to discuss this matter, but they only had a telephone discussion and he asked her to open the case.
45. Under cross examination, the witness did not remember receiving a telephone call from Zulu’s lawyer (Mbambo) who wanted her to ask her to be a witness on the matter. She was asked by the family to register her at grade 8 at the time. She had indicated that she did not know Mazibuko SV when asked since she was not familiar with the names Sabelo Vincent. It was put to her that she did not know the names since Mazibuko SV was not their relative.
46. When the witness was asked how Mazibuko and Mathebula were related, she indicated that they were brothers. They were related from the mother and also father side. On the mother side they were related through their grannies.
47. The witness was aware that Mathebula made an affidavit, but was not sure at which police station it was made. She was told about the statement that Khoza was forced to make by Zulu, she did not do that on her free will.
Mr Mazibuko Mfanamcani Petros
48. Mazibuko MP took oath and confirmed that he was the chairperson of the SGB at Mtubatuba High since 2019. His child at the school is Lungile Mazibuko.
49. There was a dispute regarding the appointment of Langa as principal by the applicant assisted by Sadtu. One of the challenge against the process was that Mazibuko SV did not have a child at the school and that the SGB was not properly constituted.
50. Mazibuko MP was of the view that the SGB was legitimate and the parent, teacher and learner component was properly constituted. He was also of the view that Mazibuko SV still hand a child in the school in the name of Sithembele Khoza. When the district conducted training to the SGB’s and principals, it was emphasised that there should be verification of leaners and link to the parents who were in the SGB. That was why he amongst others sent WhatsApp message to a Ms. Cele to update Mazibuko SV’s details to be the guardian of Khoza since he had even seen the affidavit by Mathebula confirming guardianship.
51. The witness indicated that Zulu initially sent him his CV when the post was advertised. He later phoned and informed him that his CV was wrong should read PL2 educator and not ordinary PL2. Zulu later indicated to him that he will take the cv to Ngcobo after correcting it. It was illegal that Zulu was firstly sending the cv to Ngcobo before applying.
52. Under cross examination, it was put to the witness that Zulu was acting principal, his immediate boss was the circuit manager, Ncgobo and he had to take his application to his immediate supervisor to validate it. There was nothing illegal about Zulu seeking validation from Ngcobo.
53. It was also put to the witness that, SGB membership is subject to eligibility criterion spelled out in clause 2 of the “Guidelines Relating to Elections of School Governing Bodies of Public Schools”. In 2(c) persons with criminal record are exclude from being members of the SGB. It was further put to the witness that Mazibuko SV had a criminal record of which he indicated that he was not aware.
54. The following case numbers were put to the witness that they were previous convictions aginst Mazibuko SV and he was still allowed to be a member of the SGB:
i. 75/2/2008: convicted of theft and sentenced to 5 years’ imprisonment.
ii. 2777/1/2013: Burglary received as suspended sentence.
iii. 162/2/2014: Burglary and he was convicted to 3 years’ imprisonment.
iv. 7/5/2017: Common assault and was sentenced to 3 years’ imprisonment.
The witness denied knowing any criminal convictions of Mazibuko SV.
55. The witness further indicated that the last meeting that Mazibuko SV attended was around September when he had an altercation with Zulu. Mazibuko did not even attend the AGM to read the budget since he was admitted at hospital due to heart problems.
56. It was also put to the witness that the IC that he was part of, deliberately exclude Zulu since for example, one Young AE was shortlisted. This person had no school management experience, and was only a post level 1. Zulu on the other side was a post level 2, was acting principal, was a Head of Department. The witness indicated that it depends on how one perform.
Mr. Leonard Fikanae Mathebula
57. Mathebula took oath and stated that he was a pensioner, and a grandfather of Khoza and a daughter of his niece. Mazibuko SV is a friend and relative on his wife side. He gave guardianship of Khoza to Mazibuko SV.
58. Zulu dictated to khoza on what to write on the statement on A11. He asked for the letter and Zulu delivered it to his place.
59. Under cross examination, Mathebula indicated that he had worked for the South African Police Service (SAPS) for more than 38 years. He had worked at various police stations in the area held several positions. He retired a Lieutenant Colonel.
60. Mazibuko SV was his friend for more than 20 years. After the four criminal cases and convictions were presented to him, the witness indicated that he was not aware about the criminal convictions.
Ms. Sthembile Khoza
61. Khoza took oath and indicated that Mathebula is her grandfather. She wrote the statement on A11. Mr. Zulu told her what to write on the statement and she respected him as an adult and a teacher. What she wrote was not true. She immediately reported the matter to her grandfather when she arrived home.
62. She was registered under Mazibuko SV, but she did not know how they were related.
63. Under cross examination she indicated that she gave Mdaka’s cellphone instead of the once by Mazibuko SV because Mazibuko SV was always busy and she leaves with Mdaka. She has never been to Mazibuko SV’s place but has an idea where the village was. He sometimes bought her things when she had asked.
64. The day she wrote the statement, Mdaka was waiting in the car to pick her up.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
65. This matter started when the applicant, Zulu was shortlisted for the principal post he was acting on at Mtubatuba High School. This process was however stopped, and restarted again. During the second shortlisting, the IC did not shortlist the applicant from the 16 applications that were received. However, the following were shortlisted: Langa MG, Young AE, Thusi BC, Mabika BP and Mbatha SN. Langa MG was ultimately selected and appointed to the position of principal. I do not know what position of the candidate was out of the list of the 16 candidates since minutes of the IC did not convert the number to the name. It is important to disclose this information for the purpose of completeness and transparency.
66. Let me immediately also state what was also glaringly omitted is who scored how much to each candidate to come to the aggregate figure of for example 39 for Langa or 21 for candidate number 6. What was the breakdown of the aggregate figure.
67. In view of the fact that the respondent failed to shortlist him, the applicant lodged a grievance that was later dismissed by the GDC. He later referred the matter to the ELRC as an unfair labour practise (ULP) and indicated that the SGB illegitimate or not properly constituted and failed to follow procedures in that:
i. Mazibuko SV, treasurer of the SG, did not have a child at the school since Owami left Mtubatubatuba High school at the end of 2019.
ii. Mazibuko SV, did not have a child at Mtubatuba High School since he was not a true guardian of Sthembele Khoza.
iii. Mazibuko SV had various criminal convictions, he therefore did not qualify to be member of the SGB.
iv. Shandu was a member of the IC and later the GDC that considered the grievance, there was conflict of interest.
v. The IC that selected the principal of the school was appointed by an illegitimate SGB as in i – iv above and therefore its decision to appoint the principal was void.
68. The applicant in this dispute was not alleging that he was a better candidate than the 2nd respondent. The applicant was saying the way the respondent conducted itself in the recruitment process he was treated unfairly and the respondent failed to comply with various policy requirements and therefore the appointment was defective.
69. The respondent, as an employer has a duty to ensure that the selection was made fairly, reasonably and lawfully. It is almost trite that an employee who alleges a case of unfair labour practice relating to promotion does not necessarily need to prove that he has a right to promotion, he however has the onus to prove that the decision by the employer not to promote him was unfair (See LAC decision in Apollo Tyres South Africa (Pty) v CCMA and others (2013) 34 ILJ 1120)
70. In this hearing I heard evidence from three witnesses from the applicants. I found no reason not to believe the evidence tendered by the three witnesses that testified on behalf of the applicant. The evidence of Mabaso was factual and was hardly challenged. I found particularly Zulu and Ngcobo honest witnesses, their version of events from the start of the first interviews to the end to be more probable. They did not contradict themselves throughout their respective testimonies and they were consistent with the documents in the bundle and their explanation of how the SGB works. They answered each question earnestly without any contradictions.
71. I heard the evidence of five witnesses on behalf of the respondents: Shandu, Mazibuko PM, Mazibuko SV, Mdaka, Mathebula, Khoza. From the key witnesses of the respondent, I found Shandu a weak link between the school and the circuit. At the time of the hearing, he had not submitted a report on the investigation he should have done as requested by the GDC. He could have done more to prevent the collapse of this SGB.
72. Mazibuko MP was the chairperson of the SG and was a deputy principal at another school. Being an educator and a deputy principal, one had expected more from him since he had a good understanding of the legislative environment that the SGB was operating under. I found Mazibuko MP evasive on a number of issues including the documents that he had at his disposal to make him instruct the school to link Mazibuko SV with Khoza on the system. He was evasive when dealing with office bearers election in 2020 and when asked about proper keeping of records.
73. Mazibuko SV was not a good witness at all. His defence rested on blaming the school management team as if he was not part of the SGB. He could not explain the where about of the affidavit allegedly signed by Mathebula. He got emotional and was rude during cross examination particularly when he was required to explain his relationship with the Khoza and Mathebula. He continued to lie even when it was clear that his child, Owami, stopped being a learner at Mtubatuba High in 2019. He denied that he had any criminal record, whereas he had several cases that he had been convicted of. This witness was not honest and I found him unreliable.
74. Shandu was a departmental nominee who had been appointed to oversee the process on behalf of the department. He was supposed to be the custodian of departmental policies and procedure, instead all procedural flaws took place under his nose. For example, just to mention one, when he was asked why Young was shortlisted whereas Zulu had better qualifications, more senior, had more managerial experience and was the acting principal. Shandu indicated that it meant Young performed better than Zulu. How would Young performed better than Zulu before the interviews were conducted? Shortlisting is supposed to be a factual process of looking at relevant qualifications and experience, it cannot be an arbitrary process.
Mazibuko SV, treasurer of the SG, did not have a child at the school since Owami left Mtubatubatuba High school at the end of 2019
75. Zulu testified that Owami, the child of Mazibuko SV was last at Mtubatuba High School at the end of 2019 after doing grade 10. If he had been at the school he would have been at grade 11A, a science class taught by Mabaso. The class register in A12 & 13 shows all the learners in the science class 11A. There was no Owami in the two lists. Therefore, Owami was not a learner at Mtubatuba High in 2020.
76. Mazibuko SV testified that he had two kids at the school, Owami and Khoza. He did not substantiate this by either bringing Owami to testify or even bring one of his class books, test results or some class work.
77. It is my finding that Mazibuko SV was not telling the truth, Owami ended schooling at Mtubatuba High School at the end of 2019 and he was no longer a learner at Mtubatuba High School.
Mazibuko SV, did not have a child at Mtubatuba High School since he was not a true guardian of Sthembele Khoza.
78. There were several witnesses that testified on this matter including Zulu and Mabaso on the applicant’s side. From the respondent side was the Mazibuko’s, Khoza, Mdaka, Mathebula.
79. According to Zulu and Mabaso, an instruction was given by Mazibuko MP to the school management team through Ms Cele to put in Mazibuko SV as a guardian of Khoza. The message that was received by Mabaso from Cele was saying:
“Ngicelanifake uMazibubuko u Treasurer as I guardian yalomntwana ku SASSAM”
“What about parents of a child already on the system”
“Delete them”
The message was saying “Can you please make Mazibuko, the treasurer a guardian of this child on the SASSAM system.
80. Mazibuko PM did not deny giving this instruction. He however indicated that he did this after the workshop when they were informed to verify the details of the SGB members and their children. He did it for other SGB members. The change for this learner was done after he had seen the affidavit of Mathebula making Mazibuko SV a guardian of Khoza. Mazibuko MP never presented this affidavit. All the witnesses that testified about the existence of this affidavit did not present it to me at the arbitration. This includes the deponent of the affidavit, Mathebula, Mazibuko SV and Mdaka.
81. The reason advance why Mathebula decided to appoint Mazibuko SV as the guardian of Khoza were also weak. It was stated that Mathebula was worried that Khoza would need assistance from the National Student Financial Aid Scheme (NSFAS)the following year if she where to go tertiary education. The weakness about this reason is that Mathebula did not appear as a guardian of Khoza on SASSAM. Secondly, Mathebula had testified that he was a pensioner and a grandfather of Khoza. He was not a parent of Khoza and therefore the issue of her being excluded from NSFAS would not arise.
82. Khoza had testified that she wrote the statement on A11 under pressure from Zulu. She wrote the statement when Mdaka was waiting for her outside. It does not make sense why she did not call for the assistance of a parent who was outside.
83. Mdaka testified that when she was asked for the first time about Mazibuko SV she indicated that she did not know him and was not happy about what happened on the system. She indicated that she initially was not aware about the names Sabelo Vincent, but later realised that Zulu was referring to Mazibuko SV.
84. The explanation about the relationship between Mathebula and Mazibuko were confusing since each witness came with different explanation. Mazibuko SV indicated that Mathebula was a friend According to Mdaka they were related on both the mother and the father’s side. According to Mathebula, Mazibuko is a friend and relative from his wife’s side.
85. The initial lack of knowledge by Khoza and Mdaka on who Mazibuko SV was and their respective anger that this person has been imposed as a guardian, and the sudden change by both of them that the now knew him very well, was not the convincing part of their respective versions. It appeared something happened and they suddenly changed their original position about Mazibuko SV.
86. It is my finding that the instruction by Mazibuko PM that: Ngicelanifake uMazibubuko u Treasurer as I guardian yalomntwana ku SASSAM” was not sufficient information for the school management team to change the information on the system. A formal request should have been made to the school by the current guardians on the system or known parents and guardians or parents of the child in the system. This formal request should have been accompanied by an affidavit and all be kept by the school.
87. It is therefore my finding that changes that were made on the SASSAM appointing Mazibuko SV as guardian of Khoza should be reversed and Mazibuko SV removed as guardian of Khoza.
Mazibuko SV had several criminal convictions, he therefore did not qualify to be member of the SGB.
88. Mazibuko SV denied that he had previous criminal records. However, the detailed case numbers and convictions were put to Mathebula and Mazibuko PM that Mazibuko SV had several criminal convictions. Both Mathebula and Mazibuko denied any knowledge about his convictions. I am however of the view that if Mathebula was as close a friend as he was to Mazibuko SV as per his testimony, he should have known about these criminal convictions. Mathebula in particular since he is a recently retired officer of the SAPS and he had work for various police stations and retired being a Lieutenant Colonel, he should have known.
89. My concern is that the latest criminal conviction was around 2017 and Mazibuko might have joined the SGB in 2018 with a live criminal conviction.
90. It is therefore my finding that Mazibuko SV and several criminal convictions and therefore he was not eligible to be a member of the SGB.
The office bearers of the SGB where not elected for 2020 when their term came to an end at the end of 2019.
91. Mazibuko PM testified that the election of office bearers for 2020 might have taken place later due to covid-19. Mazibuko SV did not know that there were supposed to be elections of officials of the SGB on annual basis.
92. Both Zulu and Ngcobo testified that there were no elections for 2020. Ngcobo had asked for such minutes and none was forthcoming from the SGB.
93. It is therefore my finding that there were no elections for office bearers in 2020. The SGB was therefore acting outside the provisions of the SASA Act.
Shandu was a member of the IC and later the GDC that considered the grievance, there was conflict of interest.
94. It was never contested that Shandu was part of the IC that shortlisted the candidates and that he later was member of the GDC that heard the matter that he was part of. He denied any wrong doing on this matter. Both Ngcobo and Zulu testified that Shandu participated in both the IC and GDC regarding the same matter.
95. I am surprised that Shandu could not see any conflict of interest while it was glaring at him. You cannot be a player and a referee at the same time.
96. It is therefore my finding that, since Shandu participated in IC and later the GDC. The decisions made by the GDC were therefore invalid.
97. The above adverse findings I have made against the respondent make me conclude that the SGB of Mtubatuba High school was not properly constituted and there were procedural flaws in the process in that:
i. Mazibuko SV was a member of the SGB in 2020 whereas he did not have a child at Mtubatuba High in 2020.
ii. Mazibuko SV had several criminal convictions and was therefore not illegible to be a member of the SGB.
iii. The office bearers of the SGB in 2020 where not elected as such for that year.
iv. Mr Shadu, the chief education specialist (CES) of the Hlabisa Circuit participated in the IC that shortlisted candidates and was later a member of the GDC that turned down the grievance that was launched against the very same IC that he served in.
98. There were other procedural irregularities like poor record keeping, lack of accurate minutes taking (e.g. separation of SGB and IC meetings) and no records some scores and the scorers. But I did not use such administrative weaknesses when making my decision.
99. In light of the above I find that, the failure by the respondent to follow prescribed policies and procedures while conducting recruitment for Mtubatuba High School unfairly excluded the applicant and amounted to unfair labour practice in terms of section 186(2)(a) of the LRA.
AWARD
100. The decision by the 1st respondent to appoint the 2nd respondent as the principal of Mtubatuba High school was unfair and the appointment is set aside.
101. The 1st respondent is directed to restart the selection process of the principal from the shortlisting of suitable candidates from the 16 applicants that have already applied for the post.
102. Mazibuko MP, if still the chairperson of the SGB, or a member thereof should not be allowed to participate in the selection process (shortlisting and interviews)
103. The umkhanyakunde district of the Department of Education Kwazulu Natal, is directed to appoint a senior official, other than Shandu NG to:
i. Act as departmental nominee for the selection process;
ii. To ensure that the SGB of Mtubatubatuba High is compliant with the provisions of the SASA Act to the letter, including that there would be link on the SASSAM system between an SGB member and current learner/s at the school;
iii. Ensure that that all SGB members are eligible in terms of Guidelines relating to the elections of school governing bodies of public schools.
103 To avoid too much instability in the position of principal, the current principal shall remain acting until the principal is appointed, but not later 30 April 2022.
ELRC Panellist
LIVHU NENGOVHELA
Arbitrator: Livhu Nengovhela
Date of Award: 21 January 2021
In the MATTER between
Mandlenkosi Phowakhe Zulu
(Applicant)
and
Department of Education Kwazulu-Natal Provincial Government
(1st Respondent)
Langa M G
(2nd Respondent)
Applicant’s representative: Musawenkosi Mbambo
Union/Applicant’s address: T V Madela INC
Thuthuka Centre, Ground Floor
Lot 47, Jan Smuts Avenue
Mtubatuba
Telephone: 035 550 1207/8 03 079451 4609
Telefax:
E-mail: mbambo@tvmadelainc.co.za
1st Respondent’s representative: Mr Sthembiso Mkhwanazi
Respondent’s address: Provincial Department of Education: Kwazulu-Natal
Mkhuze, 3965
Telephone: 072 588 9948/ 035 573 9858
E-mail: sthembiso.mkhwanazi@kzndoe.gov.za/ Merisha.Naidoo@kzndoe.gov.za/ Indran.Pillay@kzndoe.gov.za
Merisha.Naidoo@kzndoe.gov.za/ Indran.Pillay@kzndoe.gov.za Indran.Pillay@kzndoe.gov.za
Indran.Pillay@kzndoe.gov.za
2nd t Respondent’s representative: Ms Lungile Zibane (NATU)
Respondent’s address: National Teachers Union
199 Anton Lembede Street, 14th Floor
Embassy Bld, Durban
Telephone: 066 023 4561 / 072 122 2074/ 0313321343
E-mail:
Lungile.legal@natu.org.za/mbhekenig51@gmail.com mbhekenig51@gmail.com Merisha.Naidoo@kzndoe.gov.za/ Indran.Pillay@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for Arbitration between Mr Zulu Mandlaenkosi Phowake, the applicant; the Department of Education Kwazulu-Natal Provincial Government, the 1st respondent and Mr M G Langa the 2nd respondent. The matter was set down for arbitration on 03 May 2021 at 09h00 via Microsoft Teams webinar, but cloud not proceed as scheduled. The arbitration was to be held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5) (a)(ii) of the Labour Relations Act (“the LRA”).
2. The applicant submitted a referral form to the ELRC alleging an unfair labour practice in terms of the Section 186(2)(a) of the Labour Relations Act (LRA) regarding appointment.
3. The applicant attended the hearing and he was represented by Mr Mbambo from TV Madela INC. The 1st respondent was also present and was represented by Mr Sthembiso Mkhwanazi, its Human Resources Manager. The 2nd respondent was present and was represented by Ms Lungile Zibane, an official from National Teachers Union(NATU).
4. The applicant submitted his bundle of documents which was subsequently marked bundle A. The 1st respondent also submitted its bundle of documents that we marked bundle R. The 2nd respondent did not submit any bundle of documents. The documents were admitted as they were.
5. The hearing was scheduled on 5 May and continued on the following days: 23 &24 June, 16 September, 1 & 28 October, 18 & 19 November and finally 22 November 2021. The parties initially agreed to submit written closing arguments on 3 December 2021 and I later granted extension on their request to 8 December 2021. I received the arguments from all the parties on time on or before the 8 December 2021.
6. Since the parties were represented by experienced officials, I informed them that I would be adversarial in my approach.
7. The proceedings were digitally recorded via Microsoft Teams arranged by the ELRC.
BACKGROUND TO THE DISPUTE
8. The applicant was employed by the respondent as an educator at Mtubatuba High School. He was appointed to acting principal when then principal was promoted and left the school. During his acting period, the principal post was advertised under HRM Circular No.13 of 2020, Post No:793.
9. The applicant applied for the position and he was shortlisted. The process was however stopped, a new panel was constituted, and the process was restarted from the shortlisting stage. During this second round of shortlisting, the applicant was not shortlisted. The respondent ultimately appointed Mr. MG Langa (2nd respondent) to the post.
10. The applicant subsequently challenged in the main, various procedural defects in the appointment process. After exhausting the internal dispute resolution process, the applicant referred the matter to the ELRC on the basis section 186 (2) (a)of the LRA.
ISSUE TO BE DECIDED
11. I am to determine whether the respondent’s recruitment process in the appointment of the principal of Mtubatuba High School amounted to an unfair labour practice contemplated in terms of section 186(2) (a) of the LRA.
12. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath and arguments:
APPLLICANT’S CASE
Mr Mandlenkosi Zulu
13. Mr Zulu testified under oath that he was acting principal of Mtubatuba High School when he applied for the principal position he was acting on in September 2020. He was shortlisted for the interviews to the process that was declared void since the SGB and the Interview Committee (IC) did not have minutes in their processes. When the selection process was restarted, he was not shortlisted.
14. The applicant was aggrieved by this since the same documents were used for his shortlisting that was successful the last time. He even later established that some of the candidates that were shortlisted were far less qualified than he was. He had been a departmental head for more than 16 years and had acted as a principal before. He was also concerned that the SGB at the school was not in compliance with the South African Schools Act 84 of 1996. The reason was that Mr Mazibuko SV (Treasurer of the SGB) was not a parent of a leaner at the school. The SGB did not form a quorum and there were no elections on annual basis to appoint the Chairperson and Treasury.
15. Zulu indicated he realised that Mazibuko SV was registered as the parent of one learner in the name of Sthembele Khoza. This was as per school management system called SASSAM. The summary of his version is as per the letter he sent to the circuit manager, Mr. Ngcobo WS dated 30 September 2021 on pages A9-10. He called the leaner (Khoza) to establish if Mazibuko SV was the parent. Khoza indicated that she did not know of Mazibuko SV and indicated that her registered parent was Mss. Nozipho Mdaka. Mdaka also appeared on the system as parent of the learner (A5-6). The witness could not meet with Mdaka due to different diary clashes, but through their telephone conversion, he established that Mdaka had no knowledge as to who Mazibuko SV was and was concerned that he had been registered as a grandparent for Khoza.
16. Khoza made a written statement in front of the witness that Mazibuko SV asked approached him to make him her guardian so that he could rejoin the SGB (A-5). He had asked the leaner to come and testify in this hearing to which she agreed. But the grandparent, Mr. Mathebula later withdrew the statement on her behalf.
17. Zulu further established that the instructions to add Mazibuko SV as guardian of Khoza was given by Mazibuko PM who was the chairperson of the SGB (A3-4). Mazibuko PM had sent a WhatsApp message to 073 724 8188 and instructed that the current parents on the system to be deleted.
18. The Interview Committee (IC), was nominated by the SGB that Mazibuko SV participated in. This was illegitimate since Mazibuko SV did not have a child in the school. The SGB itself, never conducted an election to appoint office-bearers: Chairperson, treasurer and a secretary when their term came to an end at the end of the year. The SGB was just badly managed, with no records and no attempt to fill vacancies as they arose. The IC recorded the applicants in numbers without names. Only the top four candidates had their names disclosed in the IC. The applicant did not know which number he was, and he also did not know how he performed.
19. When Zulu realised that he was not shortlisted he lodged a grievance and raised all the procedural issues that had been stated earlier on. The minutes of the District Grievance Committee held on 03 November 2020 reflect the discussions (R11-14) at the DGC. The weakness of the GDC was that Mr Shandu NG, who was part of the IC was also a member of the IC that shortlisted and appointed for the post. His participation in the GDC to review the decision of the IC that he was part of was therefore unfair to him as an applicant. Mazibuko SV, who was an illegitimate member of the SGB also represented the school in this meeting.
20. Under cross examination the witness indicated that he had overall responsibility of managing the school and reported to the circuit manager. He set in the SGB as acting principal and raised issues about the SGB administration including the fact that Mazibuko SV was not a legitimate member of the SGB directly with Mazibuko MP.
21. Zulu further indicated under cross examination that Ms. Nozipho Mdaka was the sister of the deceased mother of Khoza. He believed the record on SASSAM in regard with Mazibuko SV being a registered parent of Khoza, was only done after the instruction by Mazibuko MP. Zulu was shortlisted for the first round, but was not shortlisted for the second round of interviews. Shandu participated as a department representative on the second round and was not part of the first round of shortlisting.
22. Zulu was of the view that he should have at least be shortlisted to be interviewed since he has good qualifications, has been a Head of Department (HOD) and he was the acting principal of the school. He did not see the cv of the candidates, but was surprised that there was a Young AE who was also shortlisted. Young is only a PL, did not have management experience and he was surprised that Young was shortlisted ahead of him.
23. He concluded by stating that he believed the conduct of Mazibuko’s of arranging that the records be updated to include Mazibuko SV as guardian of Khoza was fraudulent. He believed that the SGB was not legitimate since Mazibuko SV was illegitimate member and the office bearers were never elected annually.
Mr Mduduzi Mabaso
24. Mabaso took oath and indicated that he was an educator at Mtubatuba High School. He assisted the school with capturing and updating information on the SASSAM system. He received a photo (screenshot) via WhatsApp from Mrs Cele who is the educator representative in the SGB (A3). The instruction on the message was saying that he should include Mazibuko SV as a guardian of Sthembile Khoza. Cele indicated that he must remove the parents that were already on the system (A4). The witness later captured Mazibuko SV (treasurer) on the system (A5) The messages that came from Cele were sent to her from Mr Mazibuko MP who was the chairperson of the SGB.
Mr Wiseman Ngcobo
25. Ngcobo took oath and indicated that he was the circuit manager for Mtubatuba high school. His responsibility was amongst others to monitor schools. The first process of recruiting the principal was stopped, when the unions lodged a grievance. The process was stopped and had to be restarted again. Zulu was shortlisted during the first process, but he was not during the second process. The witness supervised the first process and he appointed Mr Meyer to be the departmental nominee. The second process was supervised by Mr Shandu who was his immediate supervisor.
26. The witness confirmed that he received a letter of complaint from Zulu dated 30 September 2020 (A9). He subsequently investigated the matter by visiting the school met with Zulu and discuss the matter. He also interviewed Mdaka who was concerned that the child might be refused to write exams because of this issue of who the true guardian was. He compiled a report about the crisis that was at Mtubatuba High school regarding the SGB. He later submitted the report with Mr Shandu, the chief education specialist (CES) in person. He never heard from Mr Shandu on the matter again.
27. He was not aware that Shandu was a departmental nominee to the Interview Committee (IC) and later participated as a member of the DGC (A19 and 20). According to him, the participation of Shandu in the IC and again in the GDC it would be contradicting the rule a natural justice by being a referee and a player and he should have recused himself from participating in the GDC and adjudicating the matter.
28. The witness is aware that the South African Educators Act requires the office bearers of the SGB to be elected on annual basis. He was already a circuit manager when the post was advertised. He had asked for the minutes of or record of the SGB appointing the office bearers and that was never provided to him by the SGB. He was of the view that the elections of the office bearers did not take place for the year 2020.
29. Under cross-examination Ngcobo indicated that he was appointed a circuit manager for Mtubatuba High School from around January/ February 2019. He had supervisory role over Mtubatuba High School from the district. He conducted workshops with the SGB’s and principals to capacitate the SGB and ensure that they are always in full quarter.
THE RESPONDENT’S CASE
First Respondent
Mr Nobleman Shandu
30. Mr Nobleman Shandu took oath and stated that he was the chief education specialist (CES) for the circuit. The DGC had recommended that Ngcobo be removed from his role as a resource person for the recruitment of the principal at Mtubatuba High School. As the applicant, directly reported the witness, he (Shandu) ended up the resource person for this recruitment process.
31. During cross examination, he indicated that he participated in the shortlisting and the interviewing of candidates for the post. He was a member of the DGC that decided on the grievance that was lodged by Zulu. He did not see a need to recuse himself from being a member of the GDC.
32. The witness further indicated that the investigation was not done as yet as directed by the SGB. He said this while responding to the question regarding the whereabouts of the investigation report emanating from the GDC outcome stating that: “Subsequent to that the allegations raised by the aggrieved person during the grievance meeting that were outside the terms of reference, CES of Hlabisa CMC will co-ordinate the proper investigation.” (R14). It was further put to him that nothing had come out from his side including the report that was escalated to him by Ngcobo and letters from Zulu’s legal representative.
33. It was put to the witness that the SGB at Mtubatuba High School was not properly constituted in terms of the SASA Act to appoint the IC. The first reason being that Mazibuko SV did not have a child at Mtubatuba High. The witness indicated that he SGB investigated the matter and concluded that Mazibuko SV was a legitimate member of the SGB. Supporting documents were presented to that effect. He how ever did not respond to the question as to why the documents were not at the hearing.
34. The second reason was that Section 31 of the SASA Act requires the office bearers of the SGB to elected annually. The chairperson of the 2020 SGB (Mazibuko PM); the treasurer (Mazibuko SV) and the secretary were not elected and this was in transgression of the SASA Act. The witness indicated that the SGB did an investigation and decided that the departmental representative, Ngcobo be removed.
Second Respondent
Mr Mazibuko Sabelo Vincent
35. Mazibuko SV took oath and indicated that he was a father of two kids who were at Mtubatuba High, that was Owami Ngcobo and Sithembile Khoza. He became a treasurer of the SGB from 2018.
36. The witness indicated that he went to explain at the GDC of November 2020 that he was a guardian of Khoza (R11-13). He even submitted the affidavit confirming this, that was signed by Mathebula, the grandfather of Khoza. Mathebula was his friend, but they had some distant family relationship from his mother’s side. He further clarified that Mdaka was not the mother, but the sister to Khoza’s mom who is passed on.
37. Under cross-examination the witness indicated that he left the SGB meeting of 19 October 2020 when he was asked to do so by Zulu to avoid confrontation with Zulu. The witness even asked the matter be escalated to Mr Shandu.
38. It was put to the witness that Owami, his child, left Mtubatuba High at the end of 2019. It was not true that Owami was in grade 11 in 2020 since he would have been taught by Mabaso. The attendance register on A 12 & 13 did not have Owami’s name and therefore he was not telling the truth. The witness responded by saying that Owami’s details must have been omitted by the teachers.
39. The witness explained that Mathebula was a pensioner and had financial challenges. That was why they had agreed that he would be Owami’s guardian. Mathebula made an affidavit to that effect. No family advocate and social workers were consulted about this. When asked about a copy of the affidavit he indicated that he had it but did not bring it to the hearing.
40. He was elected to serve on the SGB from 2018, in 2019 there were by election to replace SGB members that have left the SGB. He was not aware that they were required to be elected every year as chairperson, treasurer and secretary. But he would think there were some elections in 2020.
41. He could not remember the number of SGB members who were there in 2020. What he could remember was that four of them seized to be members since their children finished school.
42. It was put to the witness that he was not eligible to be an SGB member since he was convicted of crime and he had to do time for the crime he was convicted of. He was asked if he ever informed the SGB members about his criminal record. The witness denied that he had a criminal record.
Ms Nozipho Mdaka
43. Ms Mdaka took oath and confirmed that Khoza was the daughter of her late sister. Mazibuko SV was a relative and was asked to be the guardian of Khoza by Mathebula.
44. She knew Ngcobo since he had a child with her sister. She never met with Ngcobo to discuss this matter, but they only had a telephone discussion and he asked her to open the case.
45. Under cross examination, the witness did not remember receiving a telephone call from Zulu’s lawyer (Mbambo) who wanted her to ask her to be a witness on the matter. She was asked by the family to register her at grade 8 at the time. She had indicated that she did not know Mazibuko SV when asked since she was not familiar with the names Sabelo Vincent. It was put to her that she did not know the names since Mazibuko SV was not their relative.
46. When the witness was asked how Mazibuko and Mathebula were related, she indicated that they were brothers. They were related from the mother and also father side. On the mother side they were related through their grannies.
47. The witness was aware that Mathebula made an affidavit, but was not sure at which police station it was made. She was told about the statement that Khoza was forced to make by Zulu, she did not do that on her free will.
Mr Mazibuko Mfanamcani Petros
48. Mazibuko MP took oath and confirmed that he was the chairperson of the SGB at Mtubatuba High since 2019. His child at the school is Lungile Mazibuko.
49. There was a dispute regarding the appointment of Langa as principal by the applicant assisted by Sadtu. One of the challenge against the process was that Mazibuko SV did not have a child at the school and that the SGB was not properly constituted.
50. Mazibuko MP was of the view that the SGB was legitimate and the parent, teacher and learner component was properly constituted. He was also of the view that Mazibuko SV still hand a child in the school in the name of Sithembele Khoza. When the district conducted training to the SGB’s and principals, it was emphasised that there should be verification of leaners and link to the parents who were in the SGB. That was why he amongst others sent WhatsApp message to a Ms. Cele to update Mazibuko SV’s details to be the guardian of Khoza since he had even seen the affidavit by Mathebula confirming guardianship.
51. The witness indicated that Zulu initially sent him his CV when the post was advertised. He later phoned and informed him that his CV was wrong should read PL2 educator and not ordinary PL2. Zulu later indicated to him that he will take the cv to Ngcobo after correcting it. It was illegal that Zulu was firstly sending the cv to Ngcobo before applying.
52. Under cross examination, it was put to the witness that Zulu was acting principal, his immediate boss was the circuit manager, Ncgobo and he had to take his application to his immediate supervisor to validate it. There was nothing illegal about Zulu seeking validation from Ngcobo.
53. It was also put to the witness that, SGB membership is subject to eligibility criterion spelled out in clause 2 of the “Guidelines Relating to Elections of School Governing Bodies of Public Schools”. In 2(c) persons with criminal record are exclude from being members of the SGB. It was further put to the witness that Mazibuko SV had a criminal record of which he indicated that he was not aware.
54. The following case numbers were put to the witness that they were previous convictions aginst Mazibuko SV and he was still allowed to be a member of the SGB:
i. 75/2/2008: convicted of theft and sentenced to 5 years’ imprisonment.
ii. 2777/1/2013: Burglary received as suspended sentence.
iii. 162/2/2014: Burglary and he was convicted to 3 years’ imprisonment.
iv. 7/5/2017: Common assault and was sentenced to 3 years’ imprisonment.
The witness denied knowing any criminal convictions of Mazibuko SV.
55. The witness further indicated that the last meeting that Mazibuko SV attended was around September when he had an altercation with Zulu. Mazibuko did not even attend the AGM to read the budget since he was admitted at hospital due to heart problems.
56. It was also put to the witness that the IC that he was part of, deliberately exclude Zulu since for example, one Young AE was shortlisted. This person had no school management experience, and was only a post level 1. Zulu on the other side was a post level 2, was acting principal, was a Head of Department. The witness indicated that it depends on how one perform.
Mr. Leonard Fikanae Mathebula
57. Mathebula took oath and stated that he was a pensioner, and a grandfather of Khoza and a daughter of his niece. Mazibuko SV is a friend and relative on his wife side. He gave guardianship of Khoza to Mazibuko SV.
58. Zulu dictated to khoza on what to write on the statement on A11. He asked for the letter and Zulu delivered it to his place.
59. Under cross examination, Mathebula indicated that he had worked for the South African Police Service (SAPS) for more than 38 years. He had worked at various police stations in the area held several positions. He retired a Lieutenant Colonel.
60. Mazibuko SV was his friend for more than 20 years. After the four criminal cases and convictions were presented to him, the witness indicated that he was not aware about the criminal convictions.
Ms. Sthembile Khoza
61. Khoza took oath and indicated that Mathebula is her grandfather. She wrote the statement on A11. Mr. Zulu told her what to write on the statement and she respected him as an adult and a teacher. What she wrote was not true. She immediately reported the matter to her grandfather when she arrived home.
62. She was registered under Mazibuko SV, but she did not know how they were related.
63. Under cross examination she indicated that she gave Mdaka’s cellphone instead of the once by Mazibuko SV because Mazibuko SV was always busy and she leaves with Mdaka. She has never been to Mazibuko SV’s place but has an idea where the village was. He sometimes bought her things when she had asked.
64. The day she wrote the statement, Mdaka was waiting in the car to pick her up.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
65. This matter started when the applicant, Zulu was shortlisted for the principal post he was acting on at Mtubatuba High School. This process was however stopped, and restarted again. During the second shortlisting, the IC did not shortlist the applicant from the 16 applications that were received. However, the following were shortlisted: Langa MG, Young AE, Thusi BC, Mabika BP and Mbatha SN. Langa MG was ultimately selected and appointed to the position of principal. I do not know what position of the candidate was out of the list of the 16 candidates since minutes of the IC did not convert the number to the name. It is important to disclose this information for the purpose of completeness and transparency.
66. Let me immediately also state what was also glaringly omitted is who scored how much to each candidate to come to the aggregate figure of for example 39 for Langa or 21 for candidate number 6. What was the breakdown of the aggregate figure.
67. In view of the fact that the respondent failed to shortlist him, the applicant lodged a grievance that was later dismissed by the GDC. He later referred the matter to the ELRC as an unfair labour practise (ULP) and indicated that the SGB illegitimate or not properly constituted and failed to follow procedures in that:
i. Mazibuko SV, treasurer of the SG, did not have a child at the school since Owami left Mtubatubatuba High school at the end of 2019.
ii. Mazibuko SV, did not have a child at Mtubatuba High School since he was not a true guardian of Sthembele Khoza.
iii. Mazibuko SV had various criminal convictions, he therefore did not qualify to be member of the SGB.
iv. Shandu was a member of the IC and later the GDC that considered the grievance, there was conflict of interest.
v. The IC that selected the principal of the school was appointed by an illegitimate SGB as in i – iv above and therefore its decision to appoint the principal was void.
68. The applicant in this dispute was not alleging that he was a better candidate than the 2nd respondent. The applicant was saying the way the respondent conducted itself in the recruitment process he was treated unfairly and the respondent failed to comply with various policy requirements and therefore the appointment was defective.
69. The respondent, as an employer has a duty to ensure that the selection was made fairly, reasonably and lawfully. It is almost trite that an employee who alleges a case of unfair labour practice relating to promotion does not necessarily need to prove that he has a right to promotion, he however has the onus to prove that the decision by the employer not to promote him was unfair (See LAC decision in Apollo Tyres South Africa (Pty) v CCMA and others (2013) 34 ILJ 1120)
70. In this hearing I heard evidence from three witnesses from the applicants. I found no reason not to believe the evidence tendered by the three witnesses that testified on behalf of the applicant. The evidence of Mabaso was factual and was hardly challenged. I found particularly Zulu and Ngcobo honest witnesses, their version of events from the start of the first interviews to the end to be more probable. They did not contradict themselves throughout their respective testimonies and they were consistent with the documents in the bundle and their explanation of how the SGB works. They answered each question earnestly without any contradictions.
71. I heard the evidence of five witnesses on behalf of the respondents: Shandu, Mazibuko PM, Mazibuko SV, Mdaka, Mathebula, Khoza. From the key witnesses of the respondent, I found Shandu a weak link between the school and the circuit. At the time of the hearing, he had not submitted a report on the investigation he should have done as requested by the GDC. He could have done more to prevent the collapse of this SGB.
72. Mazibuko MP was the chairperson of the SG and was a deputy principal at another school. Being an educator and a deputy principal, one had expected more from him since he had a good understanding of the legislative environment that the SGB was operating under. I found Mazibuko MP evasive on a number of issues including the documents that he had at his disposal to make him instruct the school to link Mazibuko SV with Khoza on the system. He was evasive when dealing with office bearers election in 2020 and when asked about proper keeping of records.
73. Mazibuko SV was not a good witness at all. His defence rested on blaming the school management team as if he was not part of the SGB. He could not explain the where about of the affidavit allegedly signed by Mathebula. He got emotional and was rude during cross examination particularly when he was required to explain his relationship with the Khoza and Mathebula. He continued to lie even when it was clear that his child, Owami, stopped being a learner at Mtubatuba High in 2019. He denied that he had any criminal record, whereas he had several cases that he had been convicted of. This witness was not honest and I found him unreliable.
74. Shandu was a departmental nominee who had been appointed to oversee the process on behalf of the department. He was supposed to be the custodian of departmental policies and procedure, instead all procedural flaws took place under his nose. For example, just to mention one, when he was asked why Young was shortlisted whereas Zulu had better qualifications, more senior, had more managerial experience and was the acting principal. Shandu indicated that it meant Young performed better than Zulu. How would Young performed better than Zulu before the interviews were conducted? Shortlisting is supposed to be a factual process of looking at relevant qualifications and experience, it cannot be an arbitrary process.
Mazibuko SV, treasurer of the SG, did not have a child at the school since Owami left Mtubatubatuba High school at the end of 2019
75. Zulu testified that Owami, the child of Mazibuko SV was last at Mtubatuba High School at the end of 2019 after doing grade 10. If he had been at the school he would have been at grade 11A, a science class taught by Mabaso. The class register in A12 & 13 shows all the learners in the science class 11A. There was no Owami in the two lists. Therefore, Owami was not a learner at Mtubatuba High in 2020.
76. Mazibuko SV testified that he had two kids at the school, Owami and Khoza. He did not substantiate this by either bringing Owami to testify or even bring one of his class books, test results or some class work.
77. It is my finding that Mazibuko SV was not telling the truth, Owami ended schooling at Mtubatuba High School at the end of 2019 and he was no longer a learner at Mtubatuba High School.
Mazibuko SV, did not have a child at Mtubatuba High School since he was not a true guardian of Sthembele Khoza.
78. There were several witnesses that testified on this matter including Zulu and Mabaso on the applicant’s side. From the respondent side was the Mazibuko’s, Khoza, Mdaka, Mathebula.
79. According to Zulu and Mabaso, an instruction was given by Mazibuko MP to the school management team through Ms Cele to put in Mazibuko SV as a guardian of Khoza. The message that was received by Mabaso from Cele was saying:
“Ngicelanifake uMazibubuko u Treasurer as I guardian yalomntwana ku SASSAM”
“What about parents of a child already on the system”
“Delete them”
The message was saying “Can you please make Mazibuko, the treasurer a guardian of this child on the SASSAM system.
80. Mazibuko PM did not deny giving this instruction. He however indicated that he did this after the workshop when they were informed to verify the details of the SGB members and their children. He did it for other SGB members. The change for this learner was done after he had seen the affidavit of Mathebula making Mazibuko SV a guardian of Khoza. Mazibuko MP never presented this affidavit. All the witnesses that testified about the existence of this affidavit did not present it to me at the arbitration. This includes the deponent of the affidavit, Mathebula, Mazibuko SV and Mdaka.
81. The reason advance why Mathebula decided to appoint Mazibuko SV as the guardian of Khoza were also weak. It was stated that Mathebula was worried that Khoza would need assistance from the National Student Financial Aid Scheme (NSFAS)the following year if she where to go tertiary education. The weakness about this reason is that Mathebula did not appear as a guardian of Khoza on SASSAM. Secondly, Mathebula had testified that he was a pensioner and a grandfather of Khoza. He was not a parent of Khoza and therefore the issue of her being excluded from NSFAS would not arise.
82. Khoza had testified that she wrote the statement on A11 under pressure from Zulu. She wrote the statement when Mdaka was waiting for her outside. It does not make sense why she did not call for the assistance of a parent who was outside.
83. Mdaka testified that when she was asked for the first time about Mazibuko SV she indicated that she did not know him and was not happy about what happened on the system. She indicated that she initially was not aware about the names Sabelo Vincent, but later realised that Zulu was referring to Mazibuko SV.
84. The explanation about the relationship between Mathebula and Mazibuko were confusing since each witness came with different explanation. Mazibuko SV indicated that Mathebula was a friend According to Mdaka they were related on both the mother and the father’s side. According to Mathebula, Mazibuko is a friend and relative from his wife’s side.
85. The initial lack of knowledge by Khoza and Mdaka on who Mazibuko SV was and their respective anger that this person has been imposed as a guardian, and the sudden change by both of them that the now knew him very well, was not the convincing part of their respective versions. It appeared something happened and they suddenly changed their original position about Mazibuko SV.
86. It is my finding that the instruction by Mazibuko PM that: Ngicelanifake uMazibubuko u Treasurer as I guardian yalomntwana ku SASSAM” was not sufficient information for the school management team to change the information on the system. A formal request should have been made to the school by the current guardians on the system or known parents and guardians or parents of the child in the system. This formal request should have been accompanied by an affidavit and all be kept by the school.
87. It is therefore my finding that changes that were made on the SASSAM appointing Mazibuko SV as guardian of Khoza should be reversed and Mazibuko SV removed as guardian of Khoza.
Mazibuko SV had several criminal convictions, he therefore did not qualify to be member of the SGB.
88. Mazibuko SV denied that he had previous criminal records. However, the detailed case numbers and convictions were put to Mathebula and Mazibuko PM that Mazibuko SV had several criminal convictions. Both Mathebula and Mazibuko denied any knowledge about his convictions. I am however of the view that if Mathebula was as close a friend as he was to Mazibuko SV as per his testimony, he should have known about these criminal convictions. Mathebula in particular since he is a recently retired officer of the SAPS and he had work for various police stations and retired being a Lieutenant Colonel, he should have known.
89. My concern is that the latest criminal conviction was around 2017 and Mazibuko might have joined the SGB in 2018 with a live criminal conviction.
90. It is therefore my finding that Mazibuko SV and several criminal convictions and therefore he was not eligible to be a member of the SGB.
The office bearers of the SGB where not elected for 2020 when their term came to an end at the end of 2019.
91. Mazibuko PM testified that the election of office bearers for 2020 might have taken place later due to covid-19. Mazibuko SV did not know that there were supposed to be elections of officials of the SGB on annual basis.
92. Both Zulu and Ngcobo testified that there were no elections for 2020. Ngcobo had asked for such minutes and none was forthcoming from the SGB.
93. It is therefore my finding that there were no elections for office bearers in 2020. The SGB was therefore acting outside the provisions of the SASA Act.
Shandu was a member of the IC and later the GDC that considered the grievance, there was conflict of interest.
94. It was never contested that Shandu was part of the IC that shortlisted the candidates and that he later was member of the GDC that heard the matter that he was part of. He denied any wrong doing on this matter. Both Ngcobo and Zulu testified that Shandu participated in both the IC and GDC regarding the same matter.
95. I am surprised that Shandu could not see any conflict of interest while it was glaring at him. You cannot be a player and a referee at the same time.
96. It is therefore my finding that, since Shandu participated in IC and later the GDC. The decisions made by the GDC were therefore invalid.
97. The above adverse findings I have made against the respondent make me conclude that the SGB of Mtubatuba High school was not properly constituted and there were procedural flaws in the process in that:
i. Mazibuko SV was a member of the SGB in 2020 whereas he did not have a child at Mtubatuba High in 2020.
ii. Mazibuko SV had several criminal convictions and was therefore not illegible to be a member of the SGB.
iii. The office bearers of the SGB in 2020 where not elected as such for that year.
iv. Mr Shadu, the chief education specialist (CES) of the Hlabisa Circuit participated in the IC that shortlisted candidates and was later a member of the GDC that turned down the grievance that was launched against the very same IC that he served in.
98. There were other procedural irregularities like poor record keeping, lack of accurate minutes taking (e.g. separation of SGB and IC meetings) and no records some scores and the scorers. But I did not use such administrative weaknesses when making my decision.
99. In light of the above I find that, the failure by the respondent to follow prescribed policies and procedures while conducting recruitment for Mtubatuba High School unfairly excluded the applicant and amounted to unfair labour practice in terms of section 186(2)(a) of the LRA.
AWARD
100. The decision by the 1st respondent to appoint the 2nd respondent as the principal of Mtubatuba High school was unfair and the appointment is set aside.
101. The 1st respondent is directed to restart the selection process of the principal from the shortlisting of suitable candidates from the 16 applicants that have already applied for the post.
102. Mazibuko MP, if still the chairperson of the SGB, or a member thereof should not be allowed to participate in the selection process (shortlisting and interviews)
103. The umkhanyakunde district of the Department of Education Kwazulu Natal, is directed to appoint a senior official, other than Shandu NG to:
i. Act as departmental nominee for the selection process;
ii. To ensure that the SGB of Mtubatubatuba High is compliant with the provisions of the SASA Act to the letter, including that there would be link on the SASSAM system between an SGB member and current learner/s at the school;
iii. Ensure that that all SGB members are eligible in terms of Guidelines relating to the elections of school governing bodies of public schools.
103 To avoid too much instability in the position of principal, the current principal shall remain acting until the principal is appointed, but not later 30 April 2022.
ELRC Panellist
LIVHU NENGOVHELA