ELRC136-20/21NW

Commissioner: D Smith
Case No.: ELRC136-20/21NW Date of Award: 14 October 2022

In the ARBITRATION between:

NATIONAL TEACHERS’ UNION OBO MOTHUTSANE, CHRISTOPHER (Union/ Applicant)

and

DEPARTMENT OF EDUCATION NORTH WEST (Respondent)

Applicant’s representative: Mr. Fred Paul of Morebodi – Paul Inc.

Tel: 0145940583
Telefax:
Email: tsatsinyanemmapaseka@gmail.com

Respondent’s representative: Mr. Maropene Viniel Seshibe

Tel:
Email: Maropene Viniel Seshibe

DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard on 18 January, 22, 29, 30 August 2022

2. The Applicant, Mr. Christopher Mothutsane (Mothutsane (“Tsatsinyane”) was represented by Mr. Fred Paul (Paul), an attorney of Morebodi – Paul Incorporated. The Respondent was represented Mr. Maropene Viniel Seshibe (Seshibe), its then SES: Disputes.

3. The process was digitally recorded, and I took handwritten notes.

4. Paul submitted a 104-page bundle of documents marked A and Seshibe submitted a 101-page bundle marked RA and RB.

5. The parties concluded a pre-arbitration minute which is contained in the file.

6. The parties agreed that closing argument would be submitted as follows:

6.1. Respondent 9 September 2022, revised to 14 September 2022.

6.2. Applicant 16 September 2022, revised to 26 September 2022; and

6.3. Reply, if necessary 21 September 2022, revised to 3 October 2022

ISSUE TO BE DECIDED:

7. Whether Mothutsane was unfairly dismissed or not, in terms of section 191(5)(a) of the LRA, and if so, determine the appropriate remedy.

BACKGROUND:

8. Mothutsane was employed in 1993. At the time of his dismissal on 19 June 2020 he was employed as a principal at Bosabosele primary school in the Rustenburg sub district, Bojanala District in the North West province, and earned R53345.00 per month.


9. The Respondent took disciplinary action against Mothutsane in respect of which ten charges were levelled, of which he was found not guilty of three:

9.1. CHARGE 1: Gross Negligence
“In your capacity as the School Manager and accounting officer in charge of the administration of the school, you failed to advise all stakeholders who participated in the 19 March 2015 election of the School Governing Body or soon thereafter, that Mr. O. Modise who eventually became its chairperson did not have a child and/or children at the school. Your conduct in failing to verify the records of each participant in the elections and the credentials of those who were elected to constitute the SGB contravened Section 23 of the South African Schools Act.

9.2. CHARGE 2: Gross dereliction of duties
“In your capacity as the School Manager, you failed to ensure that you kept records of evidence relating to the conducting of a by-election of the new members of the SGB which were involved in the investigation of the maladministration of the school during 2018”.

9.3. CHARGE 3: Gross dereliction of duties
“In your capacity as the School Manager, you contravened Section 16A (2) of the Schools Act by failing to assist the SGB with the management of the school’s funds by failing to give advice thereto on the financial implications of their decision amongst others, to paying certain service providers through an educator at your school, namely Ms. J. Dichabe”.

9.4. CHARGE 4: Bringing the school into disrepute
“Your conduct of failing to take reasonable steps to prevent and or report financial maladministration or mismanagement by any of your staff members, yourself and/or the SGB as demonstrated in Charge 3 above, including not ensuring that the said service providers stated in charge 3, Rivarashe, Mkhwezana and Sithole’s details were procedurally captured as service providers, brought the school’s financial administration and management into disrepute (RA15- 28).
You made and/or caused to be appointed the same service providers without adhering to the rotational basis procurement of goods and services by the school and failed to give reasons justifying such conduct, thereby actually or potentially brining the school into disrepute.
You allowed the lending and refund of money to a Mokgatlhe K.L without justifiable financial management procedures and as such brought the financial administration and management of the school into disrepute (RA30A-C).
Thus, you are therefore alleged to have committed misconduct in terms of Section 18(1) (a) of the Employment of Educators Act 76 of 1998 as amended, read with Section 16A (2) (a) (vi), 16A (2) (i), 16A (k) of the South African Schools Act 84 of 1996, alternatively you have failed to comply with the National Treasury Practice Note 8 of 2007/2008. Also, section 18(1) (f), 18(1) (g), 18(1) (q) of the Employment of Educators Act 76 of 1998”.

9.5. CHARGE 8: GROSS DISHONESTY AND/OR NEGLIGENCE
“In that you actively associated yourself with the misrepresentations of the Fundraising Committee relating to collections for the periods January and October to December 2016, which collections were deliberately omitted in the financial report and/or alternatively; acted grossly negligently by not identifying the discrepancies in the report and by not ensuring that such omission was corrected.
In this regard you are alleged to have committed misconduct in that you failed to comply with Section 18 1 (a) of the Employment of Educators Act 76 of 1998 read with Section 16A (2) (a) (vi), 16A (2) (i) of the South African Schools Act 84 of 1996”.

9.6. CHARGE 9: GROSS DISHONESTY AND/OR BRINGING THE SCHOOL INTO DISREPUTE
“In that on or about April 2018- October 2018 you fraudulently allowed or caused to be allowed non-members of the elected SGB to be signatories of school cheques when you had no authority to do so, thereby not only exposing the school funds to irregular expenditure but also bringing the school into disrepute by making it appear rudderless.
In this regard you are alleged to have committed misconduct in that you failed to comply with Section 18 1 (a), (f), (i) of the Employment of Educators Act 76 of 1998 read with Section 16A (2) (a) (vi), 16A (2) (i) of the South African Schools Act 84 of 1996”.

9.7. CHARGE 10: Irregular conduct
“During March to September 2018 you irregularly allowed payment or caused to be paid a former Treasurer of the SGB, Diale as well as Letebele, Mogotsi, Rammutlwa, Mnguni, Mmualefe and Botha, all educators, sums of money, which its reasons the sitting SGB was not aware of and/or did not authorize. Evidence is found in the cheque books of the said periods).
In this regard you are alleged to have committed misconduct in that you failed to comply with Section 18 1 (a), (f), (i) of the Employment of Educators Act 76 of 1998 read with Section 16A (2) (a) (vi), 16A (2) (i) of the South African Schools Act 84 of 1996.”

REMEDY

10. Mothutsane sought retrospective reinstatement.

PRELIMINARY ISSUE

11. Paul submitted:

FAILURE TO HOLD DISCIPLINARY INQUIRY WITHIN A REASONABLE TIME

11.1. The general rule is that a disciplinary inquiry must be held within a reasonable time from the date on which the alleged misconduct occurred.

11.2. In terms of Clause 2(a), (b) and (d)(ii) of Schedule 2 to the Educators Employment Act, 76 of 1998, (EEA), the employee is entitled, and the Department obliged, to institute disciplinary action promptly and timeously.

11.3. The principle of “justice delayed is justice denied” is that an unreasonable delay can cause serious prejudice for the employee concerned. It could also lead to the conclusion that the employer has abandoned its right to take disciplinary action against the employee.

11.4. In Toyota SA Motors (Pty) Limited v Commission for Conciliation, Mediation and Arbitration [2015] ZACC 40; 2015 JDR 2693 (CC); 2016 (3) BCLR 374 (CC) the Court held that “any delay in the resolution of labour disputes undermines the primary object of the Labour Relations Act (LRA)”.

11.5. The Constitutional Court of South Africa considered the issue of delay in Stokwe v MEC: Dept of Education, Eastern Cape & Others CCT 33/18 7 Feb 2019. It involved an appeal against a dismissal lodged in August 2011 which was decided only in February 2014. The Applicant advanced two arguments concerning the delay in finalizing her appeal: (a) that the delay, coupled with an insufficient explanation by the Department, is procedurally unfair according to the internal disciplinary procedure of the Department, as well as according to the general understanding of procedural fairness under the LRA; and (b) that the Department’s conduct amounted to a waiver of its right to discipline her, in other words that the employer had abandoned its right to discipline the applicant on account of the unexplained and lengthy delay.

11.6. In Sanderson v Attorney General, Eastern Cape 1998 (2) SA 38 (CC) the Constitutional Court outlined the factors to be considered in determining what constituted an unreasonable and unfair delay, in the context of disciplinary proceedings, as follows –

11.6.1. The delay has to be unreasonable. In this context, firstly the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.

11.6.2. The explanation for the delay must be considered. In this respect the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

11.6.3. Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice, includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.

11.6.4. The nature of the alleged offence must be taken into account. The offense may be such that there is a particular imperative to have a decision on the merits

UNREASONABLENESS OF THE DELAY

11.7. The charges relate to a SGB election which took place during March 2015 and other incidences which also took place around the same time, while the disciplinary proceedings against Mothutsane were instituted in 2020, more than 4 years after the alleged incidences took place. This was clearly unreasonable.

11.8. No explanation was provided for the delay in institute disciplinary action for a period of approximately 8 months, between December 2018, when the investigations were finalized and August/September 2019 when the disciplinary proceedings were instituted. Motswane, the only witness in this regard, did not know why there was such a delay.

11.9. The reason for the sanction of dismissal was based on the chairperson finding the employment relationship has irretrievably broken down. In Maepe supra the Court found that it was unfair to dismiss on this basis if an employer permitted an employee to work for five months before dismissing. Mothutsane continued to work for eight months after the report was finalized. The disciplinary process only happened four years after the alleged misconduct. As held in Sanderson supra, the longer the delay the more likely it is to be unreasonable.


THE EXPLANATION FOR THE DELAY

11.10. Although the explanation provided as to why investigations were only started in 2017, was due to an anonymous call the hotline received on 8 March 2017, no explanation was provided for the delay of approximately 8 months, between December 2018, when the investigations were finalized and August 2019 when the disciplinary proceedings were instituted. Motswane’s evidence in this regard was that he received instructions during August 2017 from the Respondent and that he completed his investigations on 6 December 2018 and that his report was also approved by the Department on 6 December 2018.

11.11. When questioned during cross examination whether he was able to tell why disciplinary proceedings were only instituted late 2019, while his report was finalized in 2018, he responded that he did not know as that would be the Respondent’s own internal processes.

11.12. Motswane, was the only witness who was called to testify about the issue of delay.

11.13. Since no explanation was given for the delay of approximately 8 months, it means that the explanation given is insufficient and it follows therefore that the requirement relating to an explanation for the delay, has not been complied with.

WHETHER THE DELAY CAUSED MATERIAL PREJUDICE TO THE EMPLOYEE

11.14. The delay caused Mothutsane considerable prejudice:

11.15. The inordinate delay resulted in Mothutsane being unable to obtain the required information to deal with the charge of financial mismanagement. The school’s accountants could not locate information such as issued cheques, bank statements and invoices so long after the event.

11.16 Mothutsane was unable to call material witnesses who had either died or relocated.

11.17 It would be unreasonable to expect Mothutsane to recall all the facts after such a long time.

11.18 In Sanderson (supra) the Court held that the question whether the delay caused material prejudice to the Applicant, must also be considered. The delay by the Respondent in instituting disciplinary proceedings against the Applicant, did cause material prejudice to Mothutsane, inter alia due to the following reasons:

11.19 The longer it takes for disciplinary proceedings to be instituted, the more difficult it will be for the Applicant to obtain all the necessary documents information, documents and even witnesses to prepare, present and prove his case.

11.20 The longer it takes for disciplinary proceedings to be instituted, the more difficult it is for the Applicant to properly recall all the facts necessary to successfully and effectively defend himself.

THE NATURE OF THE ALLEGED OFFENCE

11.21 In Sanderson (supra) the Court held that another factor must also be considered – the nature of the offence. The offense may be such that there is a particular imperative to have a decision on the merits. In this matter there is no particular imperative whatsoever to have a decision made on the merits:

11.21.1 The charges levelled against Mothutsane were not his responsibility.

11.21.2 There is no imperative, to have a decision on the merits not only because the Respondent had clearly waived its right, if any, to charge Mothutsane.

11.22 In terms of Clause 2(a), (b) and (d)(ii) of Schedule 2 of the EEA, the Employee is entitled, and the Department obliged, to institute disciplinary action promptly and timeously.

11.23 The principle of “justice delayed is justice denied” is that an unreasonable delay can cause serious prejudice for Mothutsane. It could also lead to the conclusion that the Respondent has abandoned its right to take disciplinary action against him.

11.24 In Stokwe (supra) the Court also considered delay. It considered an appeal that took three years to conclude, coupled with an insufficient explanation by the Department, to be procedurally unfair according to the internal disciplinary procedure of the Department, as well as according to the general understanding of procedural fairness under the LRA. The Department’s conduct amounted to a waiver of its right to discipline her, in other words that the Respondent had abandoned its right to discipline the applicant on account of the unexplained and lengthy delay.

12. Seshibe responded:

12.1. The Respondent led evidence of Motswane, the Chief Investigation Officer in the Office of the Premier, who investigated allegations of theft, maladministration and misappropriation of section 21 school funds against Mothutsane. Motswane testified that the allegations against Mothutsane were reported to the Public Service Commission (PSC) Hotline on 3 August 2017 (A150), and the PSC requested the Anti-Fraud and Corruption in the Office of the Premier to investigate these allegations. The Office of the Premier secured a mandate on from the Department of Education on 18 August 2017 (A149) to conduct the investigation. The final investigation report was approved by Mohlala, the then Administrator (section 100 (1) (b) of the Constitution of RSA) of the Department of Education, on 6 December 2018.

12.2. Inter alia, the report recommended that Mothutsane be charged for various acts of misconduct, and further that legally experienced personnel be appointed to initiate and chair the disciplinary hearing. Mothutsane could not be charged before the recommendations were approved and sanctioned by the Administrator. In February 2019, the Administrator handed the report over to Seshibe, Director Labour Relations for implementation. He engaged in consultation meetings with the Office of the Premier over the recommendations of the report.

12.3. Thereafter, Supply Chain Directorate was requested to procure the services of legally experienced personnel. A submission to formally approve the commencement of the disciplinary hearing of Mothutsane and the appointment letters of both the prosecutor and initiator were concluded in July 2019 after which Mothutsane was served with a notice and the charges.

12.4. In the notice and during the proceedings Mothutsane was afforded all his rights as prescribed in Schedule 2 of the Employment of Educators Act 76 of 1998, as amended (EEA). Mothutsane did not record any complaint in this regard.

12.5. The Respondent commenced the hearing within 10 days as stipulated in item 2 (g), 7(1)- (18) and 8 (1) of Schedule 2 of the EEA. The Respondent never took a decision or expressed an intention to abandon the disciplinary hearing against Mothutsane.

12.6. Mothutsane did not suffer any prejudice in that the disciplinary action was concluded within a reasonable time, from 12 August 2019 to March 2020, and Mothutsane participated from start to the end where he was found guilty and dismissed.

12.7. Mothutsane did not raise a point in limine before the chairperson of the disciplinary hearing and hence the hearing proceeded until its logical conclusion.

12.8. Mothutsane should have raised the waiver issue as a preliminary issue with the Chairperson to decide whether charges should be heard or not and to take the chairperson on review if not happy with his decision.
SURVEY OF EVIDENCE AND ARGUMENT:

13. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

RESPONDENT’S VERSION

14. Mothutsane was employed as principal/ school manager. He was charged with ten counts of misconduct in accordance with schedule 2 of the EEA and subjected to a disciplinary inquiry that commenced on 12 August 2019 and concluded on 13 March 2020. Mothutsane was found guilty of seven charges and was dismissed.

15. Ms. Eunice Kontledi (Kontledi) testified under oath that:

15.1. She had been the Respondent’s institutional governance and support coordinator since 2003. She provided support to SGBs and SMTs.

Charge 1

15.2. There was a process for the election of the SGB, RB19. Its composition is prescribed, RB22. Item 2.4 specified that its members must be parents of learners. A parent was defined, RB20. If a person is no longer a parent of a learner, they are not eligible to be on the SGB.

15.3. The principal and the SMT are required to prepare a roll for election. Only parents of learners were eligible. The School Election Team must ensure compliance.

15.4. The principal was required to ensure that learners’ details were updated, RB28, and must inform of any changes.

15.5. The School Electoral Officer (SEO) runs the election and checks the voters roll.

15.6. The failure to update the records resulted in a non-eligible parent being placed on the roll.

15.7. A list of learners who had left the school appeared at RB12. The learner Modise left the school on 12 January 2015. Mr. O Modise was the father or guardian of the learner, A6.

15.8. The school register appeared at A1. There was no mention of a Modise as a learner. There was, however, mention of an Onkabetse Senne (O Senne), learner number 14518. O Senne’s learner profile, A102 and 103, made no reference to Modise. O Senne’s mother, Mpho Annah Senne (M Senne), declared in an affidavit, A3, dated 18 July 2022, that Modise was the biological father of the learner.

Charge 2

15.9. When there is a parent vacancy on the SGB a member may be co-opted for a period of three months while by-elections are being conducted. The process for the filling of vacancies appeared at RB35. Modise’s name appeared on the nominations, RA6. The SGB chairperson’s report of the election appeared at RA10-14.

15.10. Appointments to SGB were for three years. Two people joined the SGB during this time. Mothutsane did not keep records.

15.11. Mothutsane’s role description appeared at RA1-4. Clause 3.1.1.5 provided for the safekeeping of all school records and events. Clause 3.6.1.1 required Mothutsane to serve on the SGB and to render any assistance in the performing of their duties.

16. In cross examination she testified that:

Charge 1

16.1. She did not know whether Modise had a child at the school in 2015. She did not know that Modise was the biological father of O Senne. She did not know if O Senne was a learner at the school in 2015.

16.2. The principal was regarded as the school manager and accounting officer.

16.3. RB12 was a list of learners who had left the school. Modise had left the school.

16.4. She acknowledged that the learner profile pages had different writing.

16.5. The principal of another school conducts the election.

Charge 2

16.6. She did not know whether by-elections had taken place.

16.7. It was put to her that the election records had to be submitted by the SEO to the area manager. She replied that they were kept for six months and then returned to the school and kept by the principal.

16.8. She did not know whether Mothutsane failed to keep the records.

17. Nkonwani testified under oath that:

17.1. She had been an educator at the school since 2012.

17.2. She knew Modise as the former chairperson of the SGB as was aware of the election in March 2015.

17.3. The SGB minutes appeared at RA 5-7. Modise was elected.

17.4. Modise had a child at the school in 2013 and 2014. The child transferred to another school in January 2015, A5. He did not have another child at the school.

17.5. M Senne was a former SGB member.

17.6. She had never seen Modise attending the school as a parent.

17.7. The learner profile reflected a B Phiri as O Senne’s father.

17.8. Modise was the principal of another school in the area.

18. In cross-examination she testified that:

18.1. The name of a learner’s father must appear of the administrative register.

18.2. She did not know whether Modise was O Senne’s biological father.

19. Mr. Cornelius Rathogora Tlhabane testified under oath:

19.1. He was an educator at the school and was on the SGB in 2018.

Charges 9 and 10

19.2. He was aware of an investigation in 2018.

19.3. The SGB met on 11 April 2018, chaired by Mothutsane, to elect an executive committee. The chairperson of the SGB at that time was Mahlabani.

19.4. The executive committee administers the school funds and ensures they are used for the purpose intended. They are the only cheque signatories. He was not on the executive committee.

19.5. The new executive committee only started signing cheques in August 2018. Mothutsane told them that the delay was that the signatories had to be approved by the bank.

19.6. The SGB had difficulties in holding meetings.

19.7. The hand over from the old SGB to the new took place on 20 July 2018, RA76. The date of meeting with the bank was agreed to.as 21 August 2018. The former executive committee continued to sign cheques.

Charge 4

19.8. An amount of R9600.00 was paid to an F Sithole for “fitting air conditioners, siren and maintaining toilets with own material”, RA70. The only air conditioner at the school was in the old computer room and did not work, RA104.

19.9. RA25 and 26 sets out the principal’s role in respect of the school finances. The SGB is responsible for how the money is used and the principal authorizes.

20. In cross-examination he testified that:

20.1. The role of the SGB was to administer school funds, generate funds, maintain buildings and ensure a safe environment. It ensures payments and that the service was provided.

20.2. He conceded that the financial management of the school rests with the SGB and not the principal.

21. Mr. B Seithamo testified under oath that:

21.1. He assisted institutions with budgets, allocating funds and their usage.

21.2. When a school wanted to procure services three quotations are required, and the quality of the service assessed. The SGB meets to take the decision and the successful service provider is advised.

21.3. When the standard of service is met and the SGB is satisfied that the service has been provided, the service provider can invoice. The SGB sign and the payment can be made. At that time cheques were still in use. The authorized signatories sign the voucher and then the cheque. Paperwork had to be kept.

21.4. The principal’s role starts with the preparation of the budget and ensuring it is followed. S16 of SASA sets out the responsibilities of the principal.

21.5. He was aware of the investigation conducted in 2018. There were three transactions: (a) R9634.00 on 6 May 2016; (b) R7000.00 on 11 May 2016; and (c) R9600.00 on 5 December 2016.

21.6. A payment to an educator would be irregular – it should have been direct to the service provider. The principal should have advised the SGB on how to do it properly.

Charge 3

21.7. RA15 was a claim form for a J M Dichabe (Dichabe) for waste removal on behalf of a E Rivarashe in the amount of R6634.00, RA17.

21.8. RA22 was a claim form for a J M Dichabe for “maintenance – cutting grass and trees, cleaning the school yard” on behalf of a Solly Mkwezana in the amount of R7000.00, RA23.

21.9. RA26 was a claim form for a J M Dichabe for “maintenance – fitting and (illegible) aircon at the lab, repairing school siren and maintaining school toilets, comes with material” on behalf of a Felicio Sithole in the amount of R9600.00, RA27.

21.10. Services were requisitioned by Dichabe, RA16, and a school cheque accepted, RA18. Both were signed by Mothutsane. He should have picked up the irregularity.

21.11. On RA15 Mothutsane signed as manager.

21.12. Signing off on irregular paperwork would constitute misconduct.

Charge 4

21.13. Mothutsane brought the school into disrepute. The school was not allowed to take a loan from an individual.

21.14. RA30A was a requisition from an E L Mokgatle in the amount of R20800.00 for “used the money trip so we have to refund the committee (sic)”. It was signed by Mothutsane. The claim for RA30B was signed by Mothutsane as manager. The payment voucher RA30C was signed by Mothutsane as principal.

22. In cross-examination he testified that:

22.1. A43 were the school’s audited financial statements. He conceded that the audit was unqualified.

22.2. When he was referred to A57 he identified it as a Certificate of Good Governance submitted by the SGB treasurer to the department to show how the finances were administered.

22.3. It was put to him that the SGB borrowed money from the sports committee and intended to refund it when the school’s grant came through. It was further put to him that each school has its own internal policies and that at the school the policy was that Mothutsane signed off on the SGB’s decision. He replied that it would have to be documented.

22.4. It was put to him that the service providers referred to were foreign nationals without bank accounts and that the SGB had decided to pay them through an educator, He replied that such a decision would have to be reflected in the SGB minutes. Had it been there would have been nothing wrong.

22.5. It was put to him that it had been recommended that he sign cheques for the SGB. He could not recall signing cheques for the SGB.

22.6. He conceded that the SGB were responsible for the financial management of the school but that the principal was required to advice.

23. Mr. Simon Enoch Motlhabane testified under oath that:

23.1. He was an SGB member in 2018. The other members were Mr. Diphoko, Ms. Ndlovu, Ms Ntasi and Ms. Searela, RA82.

23.2. The first meeting was held on 24 April 2018, chaired by Mothutsane. They were introduced and the executive committee nominated. Roles were not discussed.

Charges 9 and 10

23.3. Section 23.1, RB37, must convene a meeting of the newly elected SGB within fourteen days.

23.4. There was no induction.

23.5. The executive committee were required to perform their duties from the date of election, including signing cheques and approving payments.

23.6. Mothutsane did not conduct a handover on 24 April 2022. It was only done on 20 July 2018, RA76. There was no agreement on signing powers before then. The had been no report of the school’s finances. It was agreed at the meeting that the outgoing executive committee would continue to have signing powers, RA78. The principal and his PA were to arrange a date with the bank.

23.7. RA105, 113, 122 and 139 were requisition forms signed by Modise. None were authorized by the new SGB.

23.8. On RA114 Modise signed as SGB chairperson.

23.9. The was no agreement on signing or authorization between 24 April and 20 July2018.

23.10. Mothutsane frustrated the process.


24. In cross-examination he testified that:

24.1. The financial responsibility of the school vests with the SGB.

24.2. The reason for the delay was waiting for an appointment with the bank.

24.3. The induction should have been done at the first meeting. It was done later by the Department.

24.4. They could not get everything in place, and this was reported to the district manager who put in an intervention.

25. Mr. Moshe Moses Motswane testified under oath that:

25.1. He was the chief investigating officer in the Office of the Premier and was required to investigate mismanagement of State funds. He was requested to investigate the school because of report to the National Corruption Hotline on 3 August 2017, RA149. He was given the authority to investigate on 16 August 2017, RA149.
25.2. His investigation report appeared at RA51. It was completed on 6 December 2018. He recommended that there be a criminal investigation and that the principal, finance committee and an educator be charged. The Department usually took three months to implement recommendations, but it was under administration at the time.

Charges 2, 3, 4, and 8

25.3. He found many issues with the establishment of the SGB in 2015. No records had been kept by the school. The only document given to the investigation was RA151. The names of those elected on RA6 and 7 differed from RA151. He concluded that not all was in order.

25.4. Mothutsane did not participate in the investigation and nominated his PA to assist.

Charge 3

25.5. He referred to RA15-28. These were documents relating to service providers. The payments were made to an educator and not the service provider and were approved by Mothutsane. This was contrary to procedure and there could be no reason for an educator to be involved. If payment was to be made to a third party, it required agreement. There had been no approval of quotations. There was no record that the money went to the service provider. Mothutsane should never have approved.

25.6. He read section 16.2 h-k into the record. Mothutsane had not met these requirements.

Charge 4

25.7. It was unrealistic that a school could borrow money and refund an individual. The documents pertaining to a refund to Mokgatle appeared at RA30A, B and C. There were no records of what the R20800.00 was used for. Mothutsane should have advised all involved of the financial issues.

Charge 8

25.8. The document was issued by the finance committee. It did not cover some of the collections when the school was audited, RA31-37. Service books were used for fundraising. Each class had one. The report did not include collections for January, October, November and December 2016. Funds collected were submitted to the cashier and receipted.
25.9. RA41 was a letter about lost service books. There was not an adequate explanation. There was no record of anything being lost or stolen. Mothutsane should have kept records.

26. In cross-examination he testified that:

26.1. The investigation was completed on 16 November 2018. He was called to testify at the hearing in August 2019. He could not testify to the reasons for the delay.

26.2. He met with Mothutsane, but he did not want to explain himself.

26.3. It was put to him that Mothutsane, through his legal representative had communicated with him on 13 February 2018 requesting clarity on the interview process that was being conducted, A77, and that Mothutsane requested a meeting, A78., and that Mothutsane’s PA confirmed the dates.

26.4. It was put to him that Mothutsane was never consulted, and the communication was through his attorney. He replied that there was an attendance register but could not produce it. He could not comment on whether the investigation was selective.

26.5. It was put to him that Mothutsane was hospitalized when the service books were stolen, and that the Department was aware of this.

26.6. It was put to him that an invoice for transport, A57, was not included in the report. He replied that it was not part of his investigation.

26.7. He did not ask about the loan but rather the trip. He asked the executive committee and not the principal. There was no proof that the money was borrowed from Mokgatle warranting a refund of R20800.00

26.8. He conceded that the financial management of the school vests with the SGB. The SGB chairperson gave him a report.

27. M Senne testified under oath that:

Charge 1

27.1. O Senne was her daughter, A102, and been at the school since January 2015. The first page of the learner profile had been completed by her. She did not complete the second page, A103.

27.2. Modise was the father of O Senne. She did not know a B Phiri.

28. In cross-examination she testified that:

28.1. She had completed A102 at home but had not completed A103 as she did not understand it. She asked O Senne to take the profile to school.

28.2. Her affidavit appeared at A3. She was asked to do it by the Department.

29. Modise testified under oath that O Senne was his child.

30. In cross-examination he testified that he did not have DNA proof.

31. Seshibe submitted:

CHARGE 1: Gross Negligence

31.1. Mothutsane was a school principal whose duties in terms of Personnel Administrative Measures (PAM) is to advise the SGB on policy and legislation and to serve on the SGB to render all the necessary advice or assistance (PAM 3.6.1.3 and item 3.6.1.1). He was responsible for safe and proper keeping of school records including Learner Admission Register (LAR) in which the names of admitted learners and the details of their parents/ guardian are captured (PAM 3.1.1.5 and 3.1.3.). It was his responsibility to either advise the Electoral Officer (EO) on 19 March 2015 that Moside’s name was not in the LAR and therefore could not stand for election as a candidate. He did not bring it to the attention of the SGB as a member of the SGB and chair of the first SGB meeting (PAM 3.6.1.3 (a)). Modise did not have a child at the school at the time but was elected and became chairperson of the SGB.

31.2. Kotsedi testified that based on Regulations Relating to SGB Elections that only a parent of a learner at the school at the time of elections is eligible to be elected as SGB members. Further that SGB membership ceases when the child leaves the school. Also, that eligible voters during the elections are the parents whose details appear in the admission register or SA SAMS, or who can produce proof that they are parents.
31.3. Motswanyane, who knows Modise personally, confirmed that his child, Keokopile Modise, left the school in January 2015, before the elections took place on 20 March 2015 and that Modise never presented himself at the school as the father of any other child after the departure of Keokopile Modise.

31.4. Modise is a principal of a school next to Bosabosele P School.

31.5. Mothutsane claimed through witnesses, Senne and Modise, that Modise was elected to SGB because he is a father of the child O Senne. M Senne even signed an affidavit claiming that Modise is the biological father of O Senne. She was not a reliable witness. She claimed that she did not understand page 2 or did not know that she must complete page 2 of the Learner Profile Form (A86-87) which required the details of her child’s father, but she completed page 1. She instead submitted an affidavit claiming that Modise is the biological father of her child. However, she failed to write that information in the learner profile form. Under cross examination, she admitted that she is aware that DNA is required to proof that one is a biological father of a child and yet she did not bring any DNA results to prove that Modise is the father.

31.6. Modise himself did not bring any evidence, not even an affidavit, to attest that he is the biological father of O Senne as he claimed in his testimony.

31.7. Mothutsane, testified in chief that he updated the admission register and SA SAMS, as required by the section 9 (3) of the Regulations (page A28), which are used to compile the voter’s register to be used during the elections. However, reports drawn from the school and SA SAMS reflects only the details of M Senne as the only parent of O Senne.

31.8. Mothutsane is responsible for proper keeping and safe keeping of school records including admission register and SA SAMS in which details of admitted learners and their parents are captured. Therefore, it is his responsibility to advise either the EO officer on 19 March 2015 or the SGB or even the department soon thereafter that Modise does no longer have a child at the school and therefore is not eligible to be a member of the SGB.

31.9. Mothutsane failed to conduct routine instruction without valid reasons or just cause and therefore committed misconduct (PAM p1-4).

CHARGE 2: Gross dereliction of duties

31.10. It is common cause that the following parents Modise, Diale, Setshedi, Mabele, Lefine and Nabane were elected on 19 March 2015 for a three-year term of office to end in March 2018. However, Mogodiri and Molefe signed an undated chairperson’s report. There is also someone who signed on the 14 November 2017 whilst Modise was still the chairperson. Someone also signed a claim and payment voucher dated 26 January 2017 as SGB chairperson whilst Modise was still chairperson.

31.11. Mothutsane failed to produce any record, in terms of section 59(1-2) of the South African Schools Act 84 of 1996 SASA), to clarify and explain how non-elected SGB members became SGB members with signing rights (p 5-14).

31.12. There is evidence from records and signed cheques that Zwane amongst others had been signing when she was never elected in 2015 and records of her by-election were not provided as per section 59 of the SASA. The dereliction becomes so gross that Mothutsane allowed unelected parents such as Zwane to even pay and sign cheques relating to the public-school funds (RB14 A-C).

31.13. Motswane testified that during the investigation, he was given a list of names of SGB members (A151) for consultation. He realized that the list given has names of people who were not elected in March 2015. He then asked for records of evidence to show how the co-opted members become members of the SGB. No records of evidence were submitted to him during the investigation in 2018.

31.14. Kotsedi explained that SGB members who were not elected during the elections may become members of the SGB through co-option and by elections. That co-option of members is done by the SGB in an SGB meeting. The vacancy filled by co-opted members must be filled through by elections which must take place within 90 days. The election results records are submitted to the district office and are returned to the school for safe keeping.

31.15. In terms of PAM, Annexure A 7, section 3.1.1.5, and SASA 16A (2) (a) (v) the school principal is responsible for safekeeping of all school records. Mothutsane submitted a list (A65) as a record to evidence on how the SGB members were co-opted. However, he failed to submit minutes or report, as required in terms SASA section 59 (1-2), of the meeting where this people were co-opted or report of the by elections held within 90 days.

CHARGE 3: Gross dereliction of duties

31.16. Section 16A(2)(a)(v) of the SASA provides that the principal must in undertaking the professional management of a public school as contemplated in section 16(3), carry out duties which include, but are not limited to- the safekeeping of all school records, (h) assist the governing body with the management of the school’s funds, which assistance must include (ii) the giving of advice to the SGB on the financial implications of decisions relating to matters of the school, (i) take all reasonable steps to prevent any financial maladministration by any staff member or by the SGB (RB14D-14F).

31.17. Service providers were paid by Dichabe, an educator at the school. The details are (a) R9764.00 on 6 May 2016 on behalf of Mr. E. Rivarashe, for removing waste and dirt, including filling in of a hole in the school yard; (b) R7000.00 on 11 May 2016 on behalf of Mr. S Mkwenza, for cutting grass, trees and maintenance of the garden; and (c) R9600.00 on 5 December 2016 on behalf of F. Sithole for fitting air conditioners, siren and maintaining of toilets with own material.

31.18. Mothutsane approved the payments through Dichabe who was an official of the department and not the actual service provider (RB15-28). This constituted financial mismanagement and exposed the school and the Department to money-laundering or fraud. Mothutsane has committed misconduct in relation to failure to advice the SGB that paying service providers through a departmental official amounted to financial maladministration.

31.19. The Respondent led evidence through both Motswane and Seitlhamo that proper payment procedure is that the school must pay a service provider and it is an irregularity for the school to pay service providers through an educator at the school as it happened with the payments of Rivarashe, Mkwenza and Sithole (A16-28). Seitlhamo conceded under cross examination that where the situation dictates that an official be used to pay service providers, there must be a resolution of the SGB, and all the relevant documents should be attached to the transaction.

31.20. Mothutsane testified that a departmental workshop advised them that the SGB may decide to write out cheques in the name of officials and proper records and evidence records must be kept. Mothutsane submitted under cross examination that the procedure requires that the following documents be submitted; requisition, claim form, payment voucher, letter, acceptance letter, minutes, ID copy and quotations. However, only requisition form, claim form and request letter by Dichabe, Dichabe’s ID copy, were provided (RB10-21).

31.21. Mothutsane claimed that he has fulfilled his role of advising the SGB on financial matters, however, Section 16A of SASA and PAM obligates the principal to ensure that school records are kept safe. Mr Mothutsane failed to provide other outstanding documents as highlighted above. The payments are not compliant, because Mr Mothutsane failed to advice the SGB, as per section 16A (2) (h) (ii), that for their payment to be compliant, all documents mentioned above must be attached and filed.

CHARGE 4: Bringing the school into disrepute

31.22. Mothutsane’s conduct brought the school into disrepute as demonstrated in charge 3 regarding the issuing of the cheque to Dichabe to pay what he alleged to be service providers. His conduct of allowing unelected SGB members to issue such cheques accounts for his failure to prevent and or report financial maladministration envisaged in section 16A (2) of SASA. Mothutsane violated Section 18 1 (a) of the EEA, read together with Section 16A (2) (a) (vi), 16A (2) (i), 16A (k) of the SASA.

31.23. Motswane testified that the school paid F Sithole through Dichabe, an amount of R9 600 in December 2016 for fitting and fixing air conditioner, siren and maintaining toilets with own material (A70, A27). Tlhabane testified that there is only one old air conditioner, which he found at the school when he joined Bosabosele in June 2016 which is at the old “storage room” (A104). Mothutsane failed to take reasonable steps to prevent financial maladministration or mismanagement because he approved payment to F Sithole for fitting and fixing a non-existing air conditioner at the school lab.

31.24. Motswane and Seitlhamo testified that Mothutsane approved refund to Mokgatlhe in the amount of R20800.00. Logically, the refund is preceded by a loan or lending of money or something. A school is not permitted to make a loan from a private person. Mokgatlhe is a service provider and therefore this transection creates serious conflict of interest and potential collusion to siphon school funds. Mothutsane’s version was that school raised funds for a school trip, however, the money was used for urgent maintenance provided for by Mokgatlhe hence the cheque was written out in his name.

31.25. Mokgatlhe claimed R7000,00 (RB29) and R8000.00 (RB31).

31.26. Sikwane claimed R 2 200 (RB33, 34) for unblocking the toilet and breaking the wall.

31.27. S Makete Transport claimed R3600.00 for transporting learners to the music competitions on 3 May 2015.

31.28. Mothutsane submitted under cross examination that Mokgatlhe subcontracted Sikwane and S Makete. However, Sikwane and Makete submitted their claims directly to the school on different dates to that of Mr Mokgatlhe who submitted his claim dated 20 April 2016 and was approved for payment by SGB and Mr Mothutsane on 22 April 2016.

31.29. Sikwane’s claim was approved on 04 May 2016 and Makete’s claimed was approved on 03 May 2016. It would be highly irregular for the school to instruct a private service provider to pay other service providers who directly rendered service to the school. There is no evidence of such a decision by the SGB or instruction to Mokgatlhe to pay these service providers and proof that these service providers did receive their payment. Mothutsane had a duty to advise the SGB against and to prevent. However, he signed and approved this irregular payment.

CHARGE 8: GROSS DISHONESTY AND/OR NEGLIGENCE

31.30. Mothutsane failed to assist the SGB or staff members in managing the funds of the school in this regard. Available evidence shows that the monies were collected in September, October and November 2016 but not recorded in the formal Fundraising report and not accounted (RB31-37). Diale, Zwane and Ndlovu appeared in most of the cheque signed after their term of office ended in April 26018, despite some of them being unelected SGB members. Mothutsane failed in his duties to advice the new SGB of the risks involved in allowing such persons to act under the guise of being SGB members and signatories (RB38-47).

31.31. Motswane testified that he was provided with a fund-raising report which did not include funds collected during January and October to December 2016 (A31-32) and that during the investigation he discovered a record of monies collected for the unaccounted month of November 2016 (A 35). Mothutsane submitted during testimony that he was in hospital during the period when the service book went missing. He submitted a letter to the auditors stating that school account books, including civies were lost. The books got were at different times in the year (RB41), for example 2B book got lost during 3rd term. However, the annual report covers the period 15 February 2016 to 29 March 2017 in exclusion of the monthly report of January 2016 (first term) and October to December 2016 which (4th term) (A31-32). The monies were collected but not accounted for in the Fund-Raising report, consequently Mothutsane failed to prevent financial maladministration or mismanagement in relation to collection of monies as part of fund raising.

CHARGE 9: GROSS DISHONESTY AND/OR BRINGING THE SCHOOL INTO DISREPUTE

31.32. Diale, Zwane and Ndlovu appeared in most of the cheque signed after their term of office ended in April 2018, despite some of them being unelected SGB members. Mothutsane failed in his duties to advice the new SGB of the risks involved in allowing such persons to act under the guise of being SGB members and signatories (RA38-47).

31.33. Motlhabane, the chairperson of the SGB elected in March 2018, testified that the SGB did not authorize/ give permission to old SGB members to continue being signatories of the school cheque book during the period April 2018 to July 2018. The first meeting of the SGB was held on 24 April 2018 and it was chaired by the principal, Mothutsane. That the meeting substantively dealt only with the election of the executive committee and nothing else. In terms of the SGB election regulations, the SGB executive assumed office effectively and it was expected to perform its functions. However, the old SGB continued to perform SGB functions without permission or agreement of the new SGB, including the signing of cheques.


31.34. The new SGB did not get a report of the financial transactions that were undertaken between April 2018 and July 2018. It was only on 20 July 2018 (A78) during handover meeting that a decision was reached to permit the old SGB members to sign cheques until 22 August 2018 when signatures could be changed at the bank. Evidence was led (A113, A139, A 122) to show that payments were made through cheques and the cheque numbers appears on payment voucher and claim forms. Before cheques could be signed, supporting documents needs to be approved by the SGB and the principal, therefore Mr Mothutsane knew and allowed the old SGB members to sign cheques between April 2018 to July 2018 without authorization of the new SGB. Under cross examination, Mothutsane claimed that the old and new SGB agreed that the old would continue to sign cheques, however he could not produce such proof as the custodian of school records.

CHARGE 10: Irregular conduct

31.35. Only the principal had a duty to advise the SGB of the provincial law regulating governance including relevant legislation, his conduct of allowing the payment to such persons as listed was irregular (RA38,39,42).

31.35.1. Motlhabane, the chairperson of the SGB elected in March 2018, that the new SGB did not authorize/ give permission to the old SGB members to approve payments of Mguni (A113), Botha (A139) and Rammitlwa (A122). The first meeting of the SGB was held on the 24 April 2018 and it was chaired by the principal, Mothutsane. The meeting substantively dealt only with the election of the executive committee and nothing else. In terms of the SGB election regulations the SGB executive assumed office effectively and it was expected to perform its functions, however, the old SGB, together with Mothutsane signed and approved payments documents like requisition forms, claim forms, payment vouchers, acceptance of school cheques form, resolution letter in relation to the above-mentioned payments. The new SGB did not authorize these payments and did not even approve any financial report on payments made by the school. Mothutsane together with members of the old SGB signed the supporting documents related to the above-mentioned payments, which were not authorized by the new SGB. Therefore, these transactions constitute unauthorized expenditure, a financial misconduct which Mothutsane had a duty to prevent and or report.
APPLICANT’S VERSION

32. Mothutsane testified under oath that:

32.1. The actions referred in charges 1 and 2 were the responsibility of the electoral officer and not his.

32.2. In respect of the other charges, the SGB was responsible for the financial management of the school.

32.3. During the investigation Motswane never consulted him. He decided to consult his attorney, Paul. Had he been consulted he would have made the information available.

32.4. There were no financial irregularities at the school in the period 2007 to 2019. The school never received a qualified audit report during the period.

32.5. His responsibility was to manage academic issues, provide reports and advise the SGB, RB4, which he did.

32.6. He was a member of the SGB and finance committee.

32.7. He did not report the loss of the service books.

32.8. The admission system was updated, RB28.

32.9. He kept records, A1, 4 and 5.

32.10. He arranged the SGB elections and would have reported any issues. The SEO conducted the election. The outcome report appeared at A65 showing the newly elected SGB members.

32.11. At a workshop it was said that a cheque could be made out in the name of an educator if it was agreed by the SGB.

32.12. When services were required, it was necessary to consult the committee. They would seek a service provider and submit the paperwork. His signature confirmed the agreement between the committee and the SGB.

32.13. He never obtained a loan from Mokgatle. It was a refund to the committee, A23, who had raised funds. Fund raising was led by the SGB treasurer.

33. In cross-examination he testified that:

33.1. He would have provided the information if he was part of the investigation. He did not have it with him, but it had been presented at the hearing.

33.2. O Senne’s learner profile made no mention of Modise being the father.

33.3. The obligations of section 16 a-h applied to the school.

33.4. He had advised the SGB to use all the necessary documentation.

33.5. He signed to approve the three payments referred to.

33.6. In March 2018 there was an agreement between the old SGB and the new that cheques would be signed in the presence of both. He did not, however, have proof of this before 20 July 2018.

33.7. He was in hospital for three weeks, A41, and then was off for a further two weeks following the death of his mother. This was reported to the circuit manager.

33.8. He conceded that the election records were incomplete, A65.

33.9. Mokgatle was the service provider. The cheque was made out to her to pay the sub-contractors.

33.10. The funds for the school were loaded on 15 April 2017 but would only reflect in the school’s account in June 2017. At the time they did not have money in the account. RB31 was for a trip.

33.11. To pay a private person requisition, claim, payment voucher, claim letter, acceptance of payment, minute of the SGB, claimant identity number and quotation were required. I was put to him that he still did not comply.

34. Paul submitted that:

CHARGE 1 AND CHARGE 2

34.1. Charge 1 and Charge 2 relate to issues surrounding the election of the SGB. Charge 1 relates to the alleged failure by Mothutsane to inform stakeholders of the illegibility of potential candidates. In Charge 2, Mothutsane was charged with failing to keep records of evidence relating to the conducting of a by-election of the SGB. Neither were his responsibility. In terms of Regulation 6(3) of The Election of School Governing Bodies and Governance of Public Schools In The North West Province, Promulgated In Terms of Section 28 Of The South African Schools Act, 84 Of 1996, Provincial Gazettes (North West), No. 7407 of 25 February, 2015, (“the Regulations), all matters relating to the election of the SGB are the responsibility of the District Electoral Officer. Regulation 9(3) expressly forbids that the principal take part in the election process at his or her school: “the principal must not take part during the election process at his or her school and allow the School Electoral Officer to run elections”. Regulation 11(3)(ii) states: “after the expiry of the time for nomination, the electoral officer must consider the nominations and reject the nomination of any nominee who is not eligible to serve on the SGB”. It is the responsibility of the Electoral Officer to determine the eligibility of SGB candidates and not that of Mothutsane.

34.2. At Paragraph 7 of the Respondent’s Heads of Argument states that: “It was the responsibility of the Employee to either advise the Electoral Officer on the 19 March 2015 that Mr. Moside’s name is not in the LRA”. This was the responsibility of the SEO to determine the eligibility of SGB candidates and not Mothutsane.

34.3. In terms of Regulation 6(6)(h), the District Electoral Officer (DEO) must appoint a principal of another school to act as the School Electoral Officer (SEO) for the electoral procedures at a particular school. The duties of a SEO are, amongst others, to submit election results to the Area Office. It is the responsibility of the DEO to keep and submit the records of the SGB elections to the Area Office and not that of Mothutsane.

34.4. The actions related to Charges 1 and 2 are the responsibility of the DEO and not Mothutsane. The charges are also not supported by evidence. For example, the Respondent states in its Heads of Argument: “There is glaring evidence from records and signed cheques that Zwane amongst others had been signing when she was never elected in 2015 and records of her by-election were not provided as per section 59 of the Act.” No evidence supports this, and it should be disregarded in toto.

CHARGE 3 - 10

34.5. The charges all relate to alleged financial irregularities and alleged financial fraudulent acts by Mothutsane.

34.6. In terms of Chapter 4 of the SASA, the financial management of a public schools, vests with the SGB and not the principal. In terms of Section 16 of the Act, the principal is responsible for the professional management of a public school.

34.7. In Schoonbee and Others v MEC for Education, Mpumalanga and another Case No. 33750/01 (T) (unreported), the MEC alleged that the principal of a high school in Ermelo had misappropriated the school funds and was charged accordingly. The MEC for Education suspended the principal and the deputy principal and dissolved the SGB. The MEC chose the argument that the principal was the Chief Accounting Officer of the school and based on this argument suspended the principal without having regard to the fact that the SASA changed this. The Court found that the professional management of a school is vested in the principal and the overall governors of the school are vested in the SGB. The principal has a duty to facilitate, support and assist the SGB in the execution of its statuary functions relating to school’ s assets, liabilities and property and financial management. The employer was not entitled to hold the principal liable for the SGB’s obligations and as such the suspension of the principal was set aside. The principal could not be accused of financial irregularities, because the responsibility of the school’s financial management rest with the SGB. “The principal is an educator who manages the school professionally… managing the finances is something that you cannot expect from him (the principal). The contention that the principal should be held accountable for the finances is an absurd proposition.” The suspension of the deputy principal was also set aside, and the Court also found that it was not necessary to dissolve the SGB to deal with concerns raised in an audit report and the dissolution of the SGB was also set aside.

34.8. All charges relating to alleged financial irregularities and alleged financial fraud, levelled at the Mothutsane, are outside the ambit of his responsibility as he is responsible for the professional management of the school, and not its financial management.

34.9. The financial management of the school vests with the SGB. Section 16 of the SASA clearly provides that “the governance of every public school is vested in its governing body”, which governance includes the financial management of the school, as set out in Sections 20, 21, 30, 37 and 38 of the SASA.

34.10. SASA, specifically provides that one of the functions of the SGB is “to pay for services to the school.”

34.11. The Respondent’ s Heads of Argument relating to Charges 3 until 10, is once again littered with various allegations which are not supported by any evidence whatsoever, as the Respondent did not lead any evidence to prove such allegations.

34.12. Reference will be made to a few of these allegations inter alia that the Respondent allegedly: “approved payments of the above service providers through Ms Dichabe who is an official of the department and not the actual service provider” and “failure to advice the SGB,” as alleged under Charge 3 of the Respondent’ s Heads of Argument; “allowing unelected SGB members to issue such cheques,” as alleged under Charge 4 of the Respondent’ s Heads of Argument; ”the employee failed to assist the SGB or staff members in managing the funds of the school in this regard.” and that “ Available evidence shows that the monies were collected in September, October and November 2016” as alleged under Charge 8 of the Employer’s Heads of Argument; and that “the employee failed in his duties to advice the new SGB” as alleged under Charge 9 of the Employer’s Heads of Argument.

34.13. All the above allegations are without any basis as the said allegations are not supported by any evidence, as the Respondent did not lead any evidence to prove such allegations.

34.14. All allegations therefore made in the Respondent’ s Heads of Argument, which are not supported by evidence, and as such amounts to evidence from the Bar must disregarded in toto.

ANALYSIS OF EVIDENCE AND ARGUMENT:

Preliminary Issue

35. Paul made a sound argument that the inordinate delay in disciplining Mothutsane amounted to a waiver of the Respondent’ s right to act.

36. I am guided by In Sanderson (supra) where the Constitutional Court outlined the factors to be considered in determining what constituted an unreasonable and unfair delay, in the context of disciplinary proceedings, as follows –

36.1. The delay has to be unreasonable. In this context, firstly the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable. The period from the alleged misconduct to the outcome exceeded four years. The investigation itself took a year and a half. The delay between finalization of the report and the taking of disciplinary action took eight months.

36.2. The explanation for the delay must be considered. In this respect the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness. The matter only came to light when it was raised on the hotline and Motswane investigated. The delay prior to this is acceptable. There was no evidence led to explain why there was a delay of eight months between the finalization of Motswane’s report and its recommendation and the instituting of disciplinary action.

37. With no explanation for the delay in evidence the only conclusion that can be reached is that the delay was unreasonable and that the Respondent waived its right to take disciplinary action.

38. The preliminary point succeeds. However, for the sake of completeness I will deal with the evidence.


Evidence

39. It is common cause that Mothutsane was employed as a principal. The roles of principal and manager appear to be used interchangeably by the Respondent. It is also common cause that he was dismissed for two allegations relating to the SGB elections and five relating to financial mismanagement.

Charges 1 and 2

40. Modise’s child of record, Keokopile Modise, was transferred from the school on 12 January 2015. This is reflected on the list of learners who had left the school between 11 January 2015 and 31 January 2015, A4. The electoral role is compiled by the EO based on the records of the school. How Modise came to be on it is a mystery.

41. . The learner O Senne’s abridged birth certificate makes no mention of Modise, only the mother – M Senne, A2. Regardless of who completed page two of the learner profile it reflects the father to be Phiri B and makes no mention of Modise, A102 and 103. Even if Modise is the biological father the school would have had no way of knowing this in March of 2015 and, consequently, this of no relevance to the charge.

42. Paul argued that in terms of Regulation 6(3) of The Election of School Governing Bodies and Governance of Public Schools and in the North West Province, Promulgated In Terms Of Section 28 of the South African Schools Act, 84 Of 1996, Provincial Gazettes (North West), No. 7407 of 25 February, 2015, (the Regulations), all matters relating to the election of the SGB are the responsibility of the District Electoral Officer. Regulation 9(3) expressly forbids that the principal take part in the election process at his or her school: “the principal must not take part during the election process at his or her school and allow the School Electoral Officer to run elections”. Regulation 11(3)(ii) states: “after the expiry of the time for nomination, the electoral officer must consider the nominations and reject the nomination of any nominee who is not eligible to serve on the SGB”. Even if Modise’s name appeared on the list of nominees it is the responsibility of the SEO to determine the eligibility of SGB candidates and not that of Mothutsane.

43. Seshibe argued that it was Mothutsane’ s responsibility to either advise the EO on 19 March 2015 that Modise’ s name is not in the LAR.

44. In terms of Regulation 6(6)(h), the District Electoral Officer (DEO) must appoint a principal of another school to act as the School Electoral Officer (SEO) for the electoral procedures at a particular school. The duties of a SEO are, amongst others, to submit election results to the Area Office. It is the responsibility of the DEO to keep and submit the records of the SGB elections to the Area Office and not that of Mothutsane.

45. Consequently, Mothutsane could not be guilty of charges 1 and 2.

Charges 3, 4, 8, 9, 10.

46. Paul referred to Schoonbee (supra), where the Court, in similar circumstances, held that that the professional management of a school is vested in the principal and the overall governance of the school with the SGB. The principal has a duty to facilitate, support and assist the SGB in the execution of its statuary functions relating to school’ s assets, liabilities and property and financial management. The Respondent was not entitled to hold the principal liable for the SGB’s obligations. The principal could not be accused of financial irregularities, because the responsibility of the school’s financial management rests with the SGB. “The principal is an educator who manages the school professionally… managing the finances is something that you cannot expect from him (the principal). The contention that the principal should be held accountable for the finances is an absurd proposition.”

47. Consequently, Mothutsane could not be guilty of charges 3,4, 8, 9 and 10.

FINDING

48. Mothutsane was unfairly dismissed.

REMEDY

49. Section 193 of the LRA requires that where an arbitrator finds that a dismissal is unfair, the arbitrator may

(a) Order the employer to reinstate the employee from any date not earlier than the date of the dismissal.

(b) Order the employer to re-employ the employee, either in the work which the employee was employed in before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of the dismissal; or

(c) Order the employer to pay compensation to the employee.

50. Reinstatement is the primary remedy envisaged by section 193 (2) of the LRA and an arbitrator must require the employer to reinstate or re-employ the employee, unless –

(a) The employee does not wish to be reinstated or re-employed.

(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.

(c) It is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) The dismissal is only unfair because the employer did not follow a fair procedure

51. Mothutsane sought retrospective re-instatement. I can see no reason reinstatement should not be appropriate. He was dismissed on 19 June 2020. He is entitled to backpay for the period between his last payment and reinstatement. This amounts to R1113000.00 (R53000.00 x 21 months).

AWARD

52. The Applicant, Christopher Mothutsane, was unfairly dismissed.

53. The Respondent, Education Department of North West, is ordered to reinstate the Applicant with effect from 1 November 2022.

54. The Respondent is further ordered to pay the Applicant back pay in the amount of R1 113 000 (one million one hundred and thirteen thousand Rand) by 1 November 2022.

55. There is no order as to costs as the Respondent was not legally represented.

56. Interest accrues on the amount at the prescribed rate.


D H Smith

ELRC PANELIST
14 October 2022.