ELRC539-21/22GP

Panellist: Asnath Sedibane
Case No: ELRC539-21/22GP
Date of Award: 22 November 2022


In the ARBITRATION between:

LETTIE HAZEL NGOBENI
(Union / Applicant)
And

EDUCATION DEPARTMENT OF GAUTENG
(Respondent)

Union/Applicant’s representative: Mr.Thesigan Pillay (Legal Representative)
Union/Applicant’s address: Telephone:
Telefax:
Email:

Respondent’s representative: Ms. Minah Ralioma (Employee Relations)
Respondent’s address:

Telephone:
Telefax:
Email:


DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between Lettie Hazel Ngobeni and the Department of Education of Gauteng was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration on 20 January 2022, 15 and 16 March 2022; 09 and 10 May 2022, 07 and 08 July 2022, 02 and 03 August 2022, 07 and 08 September 2022, 10 and 11 October 2022 and 31 October 2022.
2. The leading of oral evidence was concluded on the 31st of October 2022 and it was agreed between the parties and the Panellist that the parties would submit their written closing arguments by no later than the 9th November 2022. I have received the closing arguments from both parties and I have taken these into consideration when making this award. The proceedings were conducted in English and were manually and digitally recorded.
3. The applicant was present and was represented by Mr. Thesigan Pillay, an Attorney from Pillay Inc. The Respondent was represented by Ms. Minah Ralioma, an official from the Employee Relations section of the Department of Education of Gauteng.
4. The Respondent submitted a bundle of documents which was marked bundle “B” and the Applicant submitted bundles of documents marked as “ A” , “ A1”, “A2” , “A3”, “A4”, “A5”, “A6” and “A7” respectively.
5. Mr. Musa Myeza and Ms. Mpotseng Moloi assisted with interpretation on different dates of the arbitration.
PRELIMINARY ISSUES
Application for Legal Representation

6. The applicant made an application for legal representation. The submissions by the applicant were briefly as follows:
6.1 The nature of the questions raised by the dispute necessitates legal representation. The charges of theft and dishonesty require legal understanding. The applicant suffered severe prejudice in the disciplinary hearing when she was represented by a union representative.
6.2 The respondent’s representative is an HR Specialist with vast experience. There is therefore an imbalance between her and the applicant.
6.3 It is in the public interest to allow representation.
6.4 The dispute also relates to contemporaneous delay which require legal expertise.

7. The respondent opposed the application for legal representation and their submission were briefly as
follows:
7.1 It is not true that the applicant was failed by the union in the disciplinary hearing. The applicant was aware of the charges against her and she lost the case on the merits.
7.2 There is no imbalance, the applicant is aware of the charges against here and these are clear.
7.3 There is no public interest. The dispute is between an employer and an employee.

Ruling

8. After considered both parties’ submissions on the application for legal representation for the applicant, I ruled in favour of allowing legal representation, based briefly on the following:
8.1 The matter may be complex when considering the elements of the charges of misconduct preferred against the applicant in this matter.
8.2 The Respondent’s Representative is an Employee Relations Specialist with vast experience in labour relations as compared to the applicant who has no knowledge or experience in the labour relations field or the processes of the ELRC.

Undue delay in bringing charges

9. The applicant raised as a point in limine that the respondent unduly delayed to bring charges against the
applicant. The summary of the applicant’s submissions on this point were as follows: The incident
occurred on 31/10/2019 and the disciplinary hearing commenced on 11/05/2021. There was a lapse of
15 months between the incident and the commencement of the disciplinary process. The delay goes
against the LRA and is prejudicial to the applicant in that the relevant evidence and witnesses may no
longer be available. The applicant must therefore be reinstated.

10. The Respondent opposed the application for dismissal of the disciplinary process based on undue delay
in bringing the charges. The summary of the respondent’s submissions were that: Arbitration is a
hearing de novo, new witnesses may therefore be brought. The delay was due to an investigation being
conducted. The arbitration must continue and an award be issued.

Ruling

11. My ruling on this point was that I am not vested with the powers to nullify the disciplinary process without having considered evidence on the issues in dispute. The issue of delay will be dealt with through the leading of evidence in the arbitration hearing. The arbitration will therefore proceed.

ISSUES TO BE DECIDED
12. I was required to determine whether the dismissal of the applicant by the respondent was both procedurally and substantively fair.
BACKGROUND TO THE DISPUTE
13. The applicant, Ms. Ngobeni was employed as a Deputy Principal at Lethamaga Secondary School. She was dismissed after an internal disciplinary process was concluded.
14. It was agreed by the parties that the following was common cause between them:
14.1 The applicant’s date of appointment is 01 November 2011. She was dismissed by the respondent on 15 September 2021.
14.2 The applicant was first appointed as Head of Department (HOD) and at the time of dismissal she was a Deputy Principal at Lethamaga Secondary School.
14.3 The date of the alleged incident on which the misconduct charges against the applicant were based is the 31st of October 2019.
14.4 The applicant has received some of the items for which she was charged and dismissed.
15. The parties agreed that the following were issues in dispute:
15.1 Whether the respondent followed the correct procedure when dismissing the applicant.
15.2 Whether or not the applicant had authority to receive the food items and if she had the appropriate permission to take the food items.
15.3 Whether or not the respondent has a policy that is known to the applicant and that prevented her from receiving the food items.
15.4 Whether or not there was a delay in bringing the charges.
15.5 Whether or not there was contemporaneous inconsistency in the dismissal of the applicant.

SURVEY OF EVIDENCE AND ARGUMENTS
THE RESPONDENT’S CASE:
The first witness for the respondent, Ms. Mantwa Lekgwati, testified under oath as follows:
16. She stays next to Lethamaga Secondary School and she was at some point a vendor at the school. She knew the applicant, Ms Ngobeni as she was one of the teachers at the school. She could not recall the date of the incident that had led to the applicant’s dismissal but she could recall that matric students had been writing exams on the day. She had observed the Principal leaving the school and Mr Johannes Selemela opening the kitchen and taking food items and loading them in some cars, including his own car. The other cars belonged to Ms Ngobeni and Mr Moloto. She had whistled to make Mr Selemela aware that she saw what he had done.
17. Mr Selemela had come to her house and gave her milk. He had told her not to say anything. When the Principal and the Police questioned her about the incident she told them what she had seen and she also told them about the milk she had received from Mr Selemela. The applicant had also come to her house about the incident. She was in the company of two gentlemen and they had asked her about the incident and even took her contact number.
18. It was put to Ms Lekgwati by the applicant’s representative that he confirmed that they had visited her house and he does not dispute what she said about that day. Under cross- examination, Ms Lekgwati said that she had witnessed Mr Selemela loading the cars at around 15h45 or 15h50 on the day in question. She confirmed that it was the first time she was testifying about the incident. She also confirmed that Mr Tshabalala, Mr Moloto and Mr Selemela are still working at the school. He did not see what Mr Randima had received but he saw Selemela load fish, milk and maize meal in Moloto’s car.
19. She disputed that her house was a bit far from the school and that she could not see everything that is happening at the school. She said that she could see everything happening at the school except if it was next to the cell phone tower. She also disputed the version of the applicant that when she arrived home on that day she had only found milk and fish.


The applicant’s second witness, Mr Moloa Sophania Mputle, testified under oath as follows:
20. He was the Principal at Lethamaga Secondary School until he went on retirement on 31 December 2019. He is the author of the document on pages 1 to 2 of bundle B and he had written it due to the incident that happened on 31 October 2019. Ms. Maswanganye had reported to him that there had been theft of food items from the School Nutrition Programme. He had questioned all the people involved, including food handlers, the Deputy Principals and Mr. Selemela. They had all denied any knowledge of the incident. He had then opened a criminal case at the Police station.
21. The following Monday, the kitchen staff had reported to him that they had a rumour about the stolen food items. They accompanied him to Ms Lekgwati’s house. She had showed him the pack of milk that had been given to her as a bribe. The Police had come on the next day. They had questioned Ms Ngobeni, Mr Selemela and Mr Tshabalala about the disappearance of the food items and they had all denied any knowledge of the incident. Ms Maswanganye was asked if she had given food items to Selemela and she denied it.
22. He had always cautioned teachers against taking learners’ food. He disputed the applicant’s version that Ms Maswanganye had given permission to staff members to take the food as it was going to expire. He also said that the applicant had not told him that she had received two packs of milk.
23. He did not know about the journal entry on bundle A3. As the accounting officer, he should have known about the decision by the School Management Committee (SMT) to distribute food to staff. This was never discussed in a meeting. He had received the keys to the school from Mr Selemela on the day the incident was reported. The keys were supposed to have been in the custody of the Deputy Principal, Ms Ngobeni.
24. Under cross-examination, Mr Mputle confirmed that it was not always possible for all SMT members to be available at the school at the same time. He did not dispute that Selemela, Tshabalala and Moloto were still working at Lethamaga. He did not testify in any disciplinary proceedings against them. He did not dispute that only the applicant had faced disciplinary action for the incident. He could not comment on this since he did not have a legal background.
25. He confirmed that on the day of the incident, he had left Mr Zambuka, the second Deputy Principal in charge of the school. He had received the keys to the school from Mr Selemela on the next day and he had said that he had been given the school keys by Ms Ngobeni. He confirmed that the quantity of food items he had reported stolen was different from the items mentioned by Selemela in his letter. He disputed that the items he reported stolen would have required a truck or bakkie to transport. These had been loaded in more than one car.
26. He disputed that the applicant had been given an opportunity to take food items that were about to expire. He said that this was not allowed and the food items that were taken had been delivered on that day. He confirmed that his investigation was based on the food that had been delivered on that day and that this was what Ms Maswanganye had reported missing. He disputed that he had taken rotten soup from the school to feed his cattle. When it was put to him that Mr Tshepo Marokane and Mr Sipho Baloyi would testify that there was a Policy at the school allowing staff to receive food items he said that he was hearing this for the first time.
27. He said if the applicant had accepted food about to expire she had broken the law. If Ms Maswanganye had given an instruction for food to be taken by staff, she had also broken the law. The Policy states clearly that no member of staff is allowed to take food whether rotten or not. Surplus food was distributed to learners only. He did not dispute that the signatures on A3 were those of his colleagues, Phulusi, Maswanganyi, Ngobeni Mabika and Kedumetse. He had however not been aware of this entry. The decision was wrong and it should have been communicated to the district office.
The applicant’s third witness, Mr Nehamiah Zambuka, testified under oath as follows:
28. He is the Deputy Principal at Lethamaga Secondary School. He had joined the school in August 2019. He is aware of the incident of 31 October 2019. Mr Mputle had left him in charge of the school on that day. He had left the school at around 15h30 and had left the keys with the applicant, Ms Ngobeni. He had not received the message from Ms Maswanganye on that day about food that could be shared by the staff. This call could only be made by the Principal. It was not allowed for staff to take learners’ food. The Principal used to tell the staff that the food in the School Nutrition Programme was not meant for the staff. When there is an oversupply of food, food parcels were given to learners. This was done even during the lockdown.
29. He had heard from Selemela that he had been arrested for the incident and that he had been given the keys to the school by Ms Ngobeni on that day. Selemela had told him this because he was attending a disciplinary hearing and a court case.
30. Under cross-examination, Mr Zambuka confirmed that Selemela, Moloto and Tshabalala were still his colleagues at Lethamaga Secondary School. He had heard from them that they had attended disciplinary hearings based on the incident of 31 October 2019. He had only testified in the disciplinary hearing of the applicant.

31. He confirmed that the Log book is used to record what happens at the school but not minutes because there is a minute book for that. He confirmed that if the Principal was away, he should on his return to the school appraise himself with what has happened in his absence by reading the Log book. He could not dispute the applicant’s version regarding the food items she had received because he was not there when the incident happened. He however knows that in staff meetings and during the induction, the Principal had emphasised that staff members should stay away from the kitchen and learners’ food.
32. He said that Ms Maswanganye was the co-ordinator of the school nutrition programme but she could under no circumstances make a decision regarding the distribution of food and announce it, without the approval of the Principal. During the lockdown when food ran the risk of expiry they had received a memorandum from the HOD that all SMTs must report for duty and continue cooking food for learners. Food had been distributed to the needy, in consultation with the Nutrition Programme. He disputed that some teachers had also received food parcels. He disputed that he was also receiving cooked food from the kitchen.
33. He confirmed that the signatures on A3 were that of his colleagues, Ms Maswanganye, Mr Phulusi, Ms Ngobeni, Mr Mabika and Mr Kedumetse. If he had been the Principal or Deputy Principal when the decision was made he would not have agreed to it as it was not allowed. It was the first time for him to see the minutes on A5. As far as he knew, a roll call was typed and given to the secretary, each member would sign next to their name. He does not know why this was not brought to his attention as he was acting Principal at the time. He disputed that the last signature on A5 was his. He was not aware of A7, he knew of typed class lists if learners were receiving food parcels.
The applicant’s fourth witness, Mr Oupa Tshabalala, testified under oath as follows:
34. He is the Admin Clerk at Lethamaga Secondary School. He started at the school in 2007 or 2008. When the Principal was not at the school, it was the responsibility of the Deputy Principals to run the school. In 2019, Mr Mputle was the Principal and his Deputies were Mr Masuku and Ms Ngobeni. He did not get the information from Ms Maswanganye on 31 October 2019, that staff could come and get food from the kitchen. What he knows is that the food is for learners and the staff was not supposed to take it. He disputes the version of the applicant that Ms Maswanganye had given permission for the food to be take. This was not allowed and the Principal had always told them not to take learners’ food.


35. On 19 October 2019 late in the afternoon, he had found Mr Selemela loading food in Ms Ngobeni and Mr Moloto’s cars. He had asked him where his portion was and Selemela had referred him to the applicant. When he approached the applicant, she had told him to tell Selemela to load some items for him as well. When he and Selemela were loading the food items, they were seen by the lady who sells kotas (bunny chows). The applicant had told Selemela to give the lady some milk.
36. He had heard the Principal the next morning saying that there had been theft at the school. The applicant said that they should not admit anything. Police came and asked them to go to the Police Station. He went with the applicant whilst Selemela travelled alone to the Police Station. On their way to the Police Station, the applicant had told him to call Selemela and remind him that they should not admit anything. They had told the Police that they had left the school in order. They had received charges of misconduct and the applicant had said that they should go to SADTU. SADTU had assisted them with responses to the Department. They had always been cautioned by the Principal against taking learners’ food.
37. Under cross-examination, Mr Tshabalala said that the applicant had been in charge of the school on the day of the incident in question. A truck had come to deliver foodstuff on the day. He does not know who had received the stock. Selemela had given him milk, fish, maize meal and rice. Selemela had taken the same food items and quantity as him. He did not know if the items had come from the old or from the new stock. He had left with Selemela in his car. When Mr Randima came back to the school, the applicant had told Selemela to give Randima a box of milk cartons. The applicant had been next to the kitchen at the time. He and Selemela had stopped at the kota lady’s house and given her milk. They had also stopped by Randima’s place and also gave him milk.
38. He disputed that he was changing his version to implicate the applicant. He said he was not good at memorising things. He knew that Ms Ngobeni had been in charge of the school when the incident happened on the day in question. Mr Zambuka was not at the school when the incident happened. It was wrong of them to have taken the food items, he knew that he had committed a crime but he had been given permission by his supervisor, the Deputy Principal to take the food. He regretted having taken the food.
39. When it was put to him that the applicant would dispute that she had given him permission to take food and that she told him to lie to the Police, Mr Tshabalala said that the applicant would be lying if she denied this. The applicant’s version that the permission to take food was given by Ms Maswanganye was also a lie. He said that even if Ms Maswanganye would come and testify that she had given permission for food to be taken, she would be lying.
40. The Principal must have been present when the decision on A3 was taken. He did not want to comment on A5 and A6 since the documents were written in 2020, in 2019 the Principal always told them not to take learners’ food. He disputed that he and Selemela had gone back to the school after everybody had left and they had stolen the food.
The applicant’s fifth witness, Mr Johannes Malesela Selemela, testified under oath as follows:
41. He is working at Lethamaga Secondary School as a General Assistant. He started at the school in 2007. There are two Deputy Principals at the school. Pages 3 to 4 of bundle “B” was a document written by him in response to allegations of stolen food items at the school. He had on the day in question approached Ms Maswanganye at around 9h00 or 10h00 in the morning and requested for milk and maize meal. Ms Maswanganye had told him to wait and after 15 minutes she had called him and told him to load 4 packs of milk and a bag of maize meal in her car. She had said he could also take four packs of milk and half a bag of maize meal. He had loaded the items in Ms Maswanganye’s car.
42. At around 4h00pm he had been called by Ms Ngobeni and requested to lock the Principal’s office. She had given him the keys. She asked him to load two packs of milk in her car. She told him to fetch the kitchen keys from the 3rd drawer in the Principal’s office. He had asked that she be present when he was loading the foodstuff in her car. She asked Moloto if he wanted anything from the kitchen and he said anything wold be fine.
43. The applicant had stood next to her car when he was loading the food items. When he loaded the milk, the applicant had instructed him to also load 1 pack of fish, 10kg of rice, 10 kg of beans and 25 kg of maize meal. She had also said he should load food items for Moloto and Tshabalala. The neighbour saw him loading and Mr Randima had also come back to the school and saw him loading. Randima had requested for 2 packs of milk and he referred him to the applicant. Randima had come back to say it looked like the applicant did not want him to get anything. The applicant had given him her car keys to reverse her car so he could load the maize meal. She had said that he should load Moloto’s maize meal in her car and she would pass by his place on her way home and drop it off. He had done so.
44. The applicant had told him to give the neighbour milk so she could not snitch. She had also given him permission to take 4 packs of milk and half a bag of maize meal for himself. She said he should give Randima some milk. The applicant had refused to take back the keys to the Principal’s office. She had said that the Principal had said that he should take the keys with him. Mr Phulusi had witnessed them arguing about the keys and had called the Principal and gave him (Selemela) the phone. The Principal had told him to take the keys with him and he would pass by his home to collect them in the next 30 minutes. The Principal had not collected the keys and he had only given him the keys the next morning.
45. He had later received a call from Moloto asking him about the maize meal. Shortly thereafter he had received a call from the applicant and he had asked her about Moloto’s maize meal and she said that she would give Moloto maize meal the next day. He had loaded Tshabalala’s food staff in his car and had given him a lift home. They had stopped by the neighbour’s house and given her two packs of milk and told her not to say anything about what she saw. They had also passed by Randima’s place and gave him two packs of milk.
46. The next morning he had heard the Principal saying there had been theft in the kitchen. Mr David Moses from the district office had come to the school and had questioned him about the theft and he had told him that he did not know anything. The applicant had said that they should not say anything about the incident. When Police came, he, Tshabalala and the applicant were asked to go to the Police Station. On the way there he had received a call from Tshabalala saying that the applicant said they should deny everything. When it was his turn to be questioned at the Police Station, he had told the Police that he had requested for milk from Ms Maswanganye. The Police had called Ms Maswanganye and asked her if she had given him milk and she said that she had not. He was then taken to the holding cells and was released on bail the next day.
47. After his release from jail, Ms Maswanganye had called him and asked him if the incident he had been arrested for was the one of 31 October 2019 and he had confirmed that it was. Ms Maswanganye had then gone with him to Ms Ngobeni’s office where the two of them had agreed to make an entry in the Log book that the SMT had agreed that foodstuff should be given away before it gets rotten. They had then said they would ask Mr Mabika as secretary of the teachers, to write minutes for them. Ms Maswanganye had then made the entry in the Log Book, she had looked for an empty space and wrote there. Ngobeni and Maswanganye had signed and when he asked if he should not sign as well they had said that he should not sign because he was a suspect.
48. The court case had been withdrawn as witnesses were not coming to court. When they received letters of intention to charge them, the applicant said they should go to SADTU and speak in one voice. She also said he should say he was given the keys by Mr Zambuka. When he asked the applicant to club together and get a lawyer she had said that she had a family member who worked at the court and this family member had told her that there was no case. She had said it was therefore not necessary to get a lawyer. He had also turned against her and not gone to SADTU but went to the PSA where he was assisted to write his statement. The applicant had called him after he wrote his statement and said that he should say he got the keys from Mr Phulusi. The applicant had also offered him fish which he had refused.
49. He disputed the version of the applicant that Ms Maswanganye had given her food about to expire. He questioned how the applicant would have known that the food was about to expire as she had stood at a distance when he was loading the items into the cars. He said that the applicant did not tell the Principal, Mr Moses and the Police that Ms Maswanganye had given her permission to take food items about to expire.
50. It was not allowed for staff to take learners’ food. The food was meant for the underprivileged learners. Mr Mputle had told them not to take learner’s food as they had salaries. The food he had loaded in the applicant’s car was fresh as it had been delivered that morning. He, Moloto and Tshabalala had gone through a disciplinary hearing and were suspended.
51. Under cross-examination, Mr Selemela said that the applicant had been in charge of the school when the incident in question happened. He had been given the milk that he put in Ms Maswanganye’s car by Lizzy who worked in the kitchen.
52. He reiterated that the entry on A3 about the decision by the SMT to give food to learners and staff was fraudulent. Mr Mputle and Mr Zambuka were part of the SMT and their signatures were not on A3. He disputed that it was a common practice at the school to distribute food that was about to expire to staff. He confirmed that he did not mention Ms Maswanganye’s permission to him to take food items, he said this was because when Ms Maswanganye gave him permission he did not take the items but when Ms Ngobeni gave him permission he had taken the items. He disputed that he was fabricating his evidence in order to implicate only Ms Ngobeni in wrong doing.
53. He agreed that when new stock was delivered that meant that there was also old stock that would expire. He however disputed that if learners did not want to take food the staff would then have the option of taking the food. He reiterated that food was meant for learners and not staff. He disputed that the applicant was in the exam room when he was loading food items in her car. He said she had been standing underneath the car port.
54. He disputed that he had animosity towards the applicant and that he was happy when she did not become the Principal. He said that he liked her but disliked her behaviour. He disputed that he and Tshabalala and possibly Randima had decided to steal the food items after everyone else had left the school. He disputed that his evidence was riddled with inconsistencies. He said he had told the truth. He disputed that he had previously been found guilty of having stolen money from the school.


The applicant’s sixth witness, Ms Maphokoana Vivian Ngwako, testified under oath as follows:
55. She works for the Gauteng Department of Education as co-ordinator for the School Nutrition Programme and learner transport in Tshwane North. She started in the position in 2013. The School Nutrition Programme was started in 1994 by the late President Nelson Mandela. The main purpose of the programme was to introduce a nutrition system to provide meals to learners from poor communities. There is a policy that gives guidance on the programme. Staff members were not entitled to receive food from the programme.
56. School co-ordinators and voluntary food handlers were trained on the programme. The co-ordinators’ were responsible to manage the programme and supervise the food handlers. If there was surplus food, food parcels would be provided to needy learners. Each school had a list of the needy learners. These learners also receive school uniform and one list would be used for the uniform and food parcels. If a learner could not collect the food parcel, the school could contact the parent to collect as long as there was a register and this was recorded.
57. In response to the allegation that Ms Maswanganye had given permission to Ms Ngobeni to take food from the school, she said that Ms Maswanganye did not have the power to give such permission. The policy was clear that educators are not allowed to eat learners’ food. The co-ordinators were only allowed to taste the food. There was even a memorandum that was issued in 2016 that said that tempering with learners’ food is not allowed. A7 was just a list but it did not say who had received what. The nutrition documents must show the items that the learners received and the learners must sign on the document. A6 where minutes provided that vegetables were to be shared was also not allowed. In terms of A3, SGB was also supposed to be part of such a meeting but the decision to distribute food to staff was still wrong.
58. Under cross-examination, Ms Ngwako said she could not remember when training on the programme was done in 2019. She said one monitor from her office had visited Lethamaga not that long ago. Co-ordinators were taught how to constitute the nutrition committee and they needed to share the information with other stakeholders. It was not allowed for staff to take food even if it was about to expire. The policy provided that schools were supposed to check expiry dates on food items when receiving stock so that they did not receive expired food or food about to expire.
59. The applicant as part of the SMT should have known that Ms Maswanganye was misleading her when she told her she could take food that was about to expire.

The applicant’s seventh and last witness, Mr Moleseng Mashile, testified under oath as follows:
60. He works as an investigator at the detective section at Themba Police Station. He joined SAPS in 1990. He had gone to Lethamaga High School on 06 November 2019 after the allegations of theft as outlined in pages 1 to 2 of bundle “B”. He had met with witnesses and they had said that they had seen Selemela loading food items into Ms Ngobeni’s car. Ngobeni, Selemela and Tshabalala were asked to go to the Police Station. The applicant when questioned about the food that had been loaded in her car had denied this. He had taken her statement. He had been advised by the Prosecutor to obtain a warning statement from the applicant. The applicant had signed the statement after it was taken.
61. The neighbour to the school had said that he had seen Mr Selemela put groceries in the applicant’s car, Mr Selemela had been detained when the applicant was questioned. The applicant said that matric students were writing exams on the day and she had taken the scripts to the resource centre and when she came back to the school, she had taken her car and left. She said that there was nothing in her car that she did not know about. The applicant had not mentioned anything about Ms Maswanganye. It was Mr Selemela who had mentioned that Ms Maswanganye had given him permission to take food items. When Ms Maswanganye was called and asked about this, she had said that she had not given anyone permission to take food from the school.
62. The applicant was not a suspect because when Mr Mputle opened a case he had only mentioned the name of Selemela. The applicant’s name only came up when witnesses said they had seen Selemela load food in her car. The applicant had made the statement voluntarily. The case against Selemela had been withdrawn in court because of lack of evidence. If new evidence can emerge, the case could be reopened.
63. No one had said anything about being offered a bribe. He confirmed that the Principal in his statement was referring to stock that had been received by Ms Maswanganye. He could not dispute the applicant’s version on the events of the day in question but she had not mentioned to him that she had received food items.

THE APPLICANT’S CASE:
The applicant, Ms Lettie Hazel Ngobeni testified under oath as follows:
64. She is currently unemployed. She was the Deputy Principal at Lethamaga Secondary School before her dismissal on 15 September 2021. Prior to her dismissal, she was transferred to the District Office in February 2021. The transfer letter had stated that she must not communicate with witnesses.
65. She started her career at Khomotso as a temporary teacher in 2007. In 2009 she worked at Soshanguve High School for 9 months and in 2010 she worked at Amohelang in a temporary post. She was then transferred to a new Secondary School in Hammanskraal where she worked until 2011. In November 2011 she started at Lethamaga Secondary School as HOD and was promoted to Deputy Principal in 2018. She is single with three biological children and two adopted children.
66. She had applied for the Principal’s post at Lethamaga in 2018 but she had not been shortlisted for the post. Whilst still at Lethamaga, she was the first Deputy Principal and Mr Zambuka was the second Deputy Principal. In the absence of the Principal the first Deputy would act in the position if the first Deputy was not available then the second Deputy would act. The Principal would appoint the acting Principal by recording it in the Log book. The Log book was use to record incidents at the school, including SMT decisions. There were minute books for the SMT and for staff meetings.
67. The journal entry on A3 that was made on 02 April 2019 was written by Ms Maswanganye, the then co-ordinator for the School Nutrition Programme at Lethamaga. The signatures that under this entry were those of Mr Phulusi, Ms Ngobeni, Ms Maswanganye, Mr Mabika and Mr Kedumetse. Ms Maswanganye had told the SMT that she had a meeting with the Nutrition Committee where it was decided that there was a lot of stock that ended up with black ants and it was therefore decided that the food be given to learners and also to teachers. The SGB and the Nutrition Committee had the power to take such a decision. The Principal was aware of the decision and he had never objected to it and neither did he make the staff aware that such a decision was wrong.
68. She was not aware of anything that would prevent the school from dispensing with food items that were about to expire. She has never seen any minutes where the Principal had said that the food items should not be dispensed with. The version by Mr Selemela that the entry on A3 was fraudulent, was incorrect. There could not have been an empty space in the Log Book big enough for the entry as well as signatures. Mr Mabika and Ms Maswanganye will testify that the entry on A3 was legitimate.

69. Mr Zambuka had been the acting Principal on 15 September 2020 when the decision on A5 and A6 was taken. Mr Zambuka’s submission that he was not aware of the decision was not true. The SGB and Management at Lethamaga had agreed to prepare food parcels for learners. She herself had adopted two HIV positive learners at the school and she would take food parcels to their homes. The SGB had agreed to the decision that food that was about to expire could be given to learners and teachers. Mr Baloyi who was a member of the SGB would come to testify in this regard.
70. On 31 October 2019 she had arrived at the school late as she had started at SARS. Mr Zambuka had been in charge of the school as the Principal had gone to the District Office. It is not true that she became in charge of the school the minute she arrived, she must have been appointed in writing. She was the Chief Invigilator and her role included getting learners seated accordingly, collecting empty scripts from the safe and so forth. On her arrival at the school on 31 October 2019, she went straight to her office where there were other educators including Ms Maswanganye. Ms Maswanganye told her that there was stock that was delivered that morning and there was excess, stock that was about to expire was shared by the staff and she was interested she could have some. She had said that if there was still food available she would have some. On her way to the exam centre, she had met Mr Selemela who also told her that there was food that was about to expire that was shared that morning. He asked for her car key so he could load some of the food in her car. She had told him to fetch the key from her office.
71. The exam started at 14h00, she had only left the centre at around 15h00 when the monitor came. She had not spoken to Selemela during the exam, she had only spoken to him before 13h00. When the learners were done with the exam and she was wrapping the exam papers, Zambuka had come to tell her that he was leaving and she had said to him he could not leave as he was the acting Principal. He had however left. She had found her car keys in the drawer where she had left them. She then left the school to the resource centre and Mr Moloto had followed her in his car. She had received a call from Selemela, asking her if she had seen what he had put in her car and she answered in the negative. Selemela had said that he had put something for Moloto in her car. She disputed that she had told Selemela to bribe Ms Lekgwati with milk.
72. When she arrived home, what she found in her car was milk, maize meal, rice and loose tins of fish. She had given the milk to her puppies because it had a smell and two of her children are allergic to dairy products. She remembers taking out black ants from the maize meal but she could not remember if they had used the rice or not. They had sifted the maize meal and used it in her house.

73. She disputed that she had told Selemela not to implicate anyone when questioned by the Police. She also disputed having given Selemela permission to take food items. She does not work in the kitchen and she could not have known there was half a bag of maize meal available. She did not instruct Selemela to load food items for Moloto and Tshabalala. According to Ms Maswanganye the reason she had reported to the Principal that there was theft of food items is that there was a large quantity of items missing from the new stock.
74. Under cross-examination, Ms Ngobeni confirmed that the items listed on page 38 of bundle A2 are those on which the charges of misconduct against her were based. She confirmed that she did not lodge a dispute after she was not shortlisted for the Principal’s post. She agreed that allegations of misconduct had to be investigated. She however disputed that the matter against her was under investigation until the employer knew that she had a case to answer to. According to her the investigation was only done after she was suspended.
75. She confirmed that Voluntary Food Handlers were employed by the SGB and it was the responsibility of the SGB to discipline them. She had gone to Mr Mputle after she had been called to the Police Station. She had told him that what he had done was not fair and he was supposed to have done an investigation. Mputle had also received food from the school nutrition programme, he did not go to testify against Selemela in the criminal case because he knew that he had also received food.
76. She confirmed that Mr Moloto had also attended a disciplinary hearing. She was aware that Ms Maswanganye had retired from the Department and that Mr Randima had resigned. She had heard at his wedding recently that he had resigned. She disputed that after she, Selemela and Tshabalala had received audi letters she had advised them to go to SADTU and that their responses should not differ.
77. Page 31 of bundle B was written when she was called to the Police Station. The question that was put to her was if she had stolen learner’s food. She denies that she had stolen learners’ food as the food had been given to her. She had signed the statement on page 31 to attest that what was written on the statement was correct.
78. She confirmed that the NSNP grant did not cover educators and educators were therefore not supposed to receive food parcels. She was not aware that staff was not supposed to eat food at the school, the staff used to go to the kitchen and eat if there was surplus food. She had not been inducted as Deputy Principal. She is therefore not aware of certain policies. When A3 was signed, the Principal was not there but Ms Maswanganye had discussed the decision with him. She did not know at the time that Ms Maswanganye did not have powers to give staff the learners’ food but she was now seeing this from the Policy.
79. She disputed that Mr Mputle had said in staff meetings that staff was not supposed to take learners’ food. If he had said that he should have led by example and not taken the learners’ food. Selemela and Tshabalala had not attended staff meetings. It was practice in the school for staff to take learners food if it was about to expire. She agreed that in terms of the Nutrition Policy, the meeting where A5 and A6 were compiled was not properly constituted. She also agreed that SGB members were not part of this meeting.
80. She disputed that Zambuka had left the school in her care on 31 October 2019, if he had left it in her care this would have been captured in the Log book. The reason she had gone to Ms Lekgwati’s house with her Attorney was for Mr Pillay to see the view from Ms Lekgwati’ s house. From Ms Lekgwati’s house only the back of the kitchen was visible.
81. She disputed that she had deprived poor learners of food by giving the milk to her puppies, she could not give smelly milk to learners. She used to buy uniform for some learners with her own money. She disputed that some of the staff never received anything from the school, all the staff used to get food about to expire from the school. She disagreed with the quantity and items of food that Selemela said he had loaded in her car, she had only found 1 pack of milk, a few tins of fish, maize meal and rice. She agreed that it was not written anywhere if the food that was taken on the day in question was from the old or new stock but she contended that if it was new stock she could not have found smelly milk in her car. She had not told Warrant Officer Mashile that she had given Selemela her car keys to load food in her car because she had not given him the car keys. She disputed that she had abused her position as Deputy Principal by instructing Selemela to load food in her car and other staff members’ vehicles.
The second witness for the applicant, Mr Nduduzo Mthetheleni Mabika, testified under oath as follows:
82. He is working at Lethamaga Secondary School as a Head of Department (HOD). He started at the school in 2016. He is one of the SMT members at the school. He recognised the signatures on A3, they are signatures of Mr Phulusi, Ms Ngobeni, Ms Maswanganye, Mr Kedumetse and his own signature. He refutes the version by the respondent’s witnesses that the entry on A3 is fraudulent. The entry is authentic and it was made on 02 April 2019. It had been agreed by the SMT that food about to expire be distributed to learners and then to teachers, especially perishables like vegetables and if it was towards the end of the year. This has always been the practice at the school.


83. Normally the co-ordinator who worked in the kitchen would announce to teachers that there was food about to expire and those who were interested could have a share. It is not true that the Principal used to tell the staff that they were not allowed to share the learners’ food, the Principal himself used to get a share of the food. Selemela and Tshabalala never used to attend staff meetings. The staff was told not to communicate with the applicant. He has no reason to lie on behalf of the applicant, they were not friends. The staff was only told after the dismissal of the applicant that the staff was told not to eat or take learners food. Before then the staff would when having their own braai, ask for pap from the kitchen.
84. It is only recently that SADTU and the officials from the district office came to the school and cautioned the staff against eating learners’ food. The former Principal, Mr Mputle and the Deputy Principal Mr Zambuka also used to take food from the school nutrition programme.
85. Under cross-examination, Mr Mabika said that he had once or twice taken half a butternut whenever it was announced that there was food about to expire. Learners were given first preference but some of them would refuse to take the food. The Principal, the SGB and the Nutrition Committee took decisions on the NSNP programme. When A3 was signed the chances are that there was an acting Principal but he could not remember who was acting at the time.
86. He was not at school on 31 October 2019 as he had left early to go to SARS. He could not dispute Selemela’s version regarding what happened on the day since he was not there. He had not taken any food before he left the school to go to SARS.
The third witness for the applicant, Ms Dorothy Boitumelo Maswanganye, testified under oath as follows:
87. She is currently a pensioner. She had worked as a teacher at Lethamaga Secondary School before her retirement on 31 March 2020. She was co-ordinator of the School Nutrition Programme for about five years.
88. Towards the month end of October 2019 new stock of food was delivered at the school. Stock that was about to expire was taken out of the cupboards and put on the floor in the kitchen. This was according to the policy or culture agreed upon at the school. Learners were given first preference to take the food and teachers could thereafter also take the food, the kitchen staff needed to record those that took the food and the items they took. The decision to dispense the food on 31 October 2019 was taken by her with the kitchen staff. Mr Zambuka was the acting Principal on the day as per the Log book entry by the Principal. She had announced to the staff that they could take the food since it was towards the end of the term and learners were not attending school regularly.
89. She did not know about the conversation Mr Selemela had with the applicant on that day but she had seen Selemela take food items from the kitchen and load in the applicant’s car. She did not see the items he had loaded. She disputed that the Principal had told staff not to take food meant for learners. She was not aware of any rule or notification that said that staff was not supposed to take food about to expire.
90. When the stock was delivered on 31 October 2019 she and the kitchen staff had checked it. The staff had locked the kitchen and put the keys in the Principal’s office but the next day when they opened the kitchen, they had found that there was stock missing from the stock that was delivered the previous day. That is when she had gone to the Principal to report that there were food items missing from the kitchen. She had told the Police that she had not given Selemela permission to take food, she had thought that Selemela had referred to the new stock.
91. She confirmed that she had made the entry of 02 April 2019 on A3. She disputed Selemela’s version that the entry was fraudulent and that it was made after the date reflected on the Log book. The staff including Mr Mputle had shared in the food. She was not aware that this was not allowed.
92. Under cross-examination, Ms Maswanganye confirmed that she was are of the Gauteng Department of Education (GDE) Policy that stated that food that had expired was not supposed to be given to learners. She also confirmed that the NSNP grant did not cover staff members.
93. The Nutrition Committee comprised of her as co-ordinator, the Principal, the SGB and the kitchen staff. The decision to distribute food was taken by her with the kitchen staff and she had taken the decision to the SMT. She had informed the Principal of this decision. She agreed that the entry on A3 referred to the food of March 2019 but they had however thought that the practice would continue. She confirmed that she did not liaise with the district office regarding surplus food as provided by the policy.
94. She had left the school after 15h00 on 31 October 2019. She could not dispute that Zambuka had left the applicant in charge of the school when he left that afternoon. She disputed the version of Selemela and Tshabalala that when Selemela was loading food items in the applicant’s car she was not at the school. Food items loaded in the applicant’s car was food about to expire because when they locked the kitchen everything was in order. She could not dispute Selemela’s version that he had fetched the keys to the kitchen from the Principal’s office on the applicant’s instruction that afternoon. She confirmed that there was no formal communication regarding the availability of food to be shared on 31 October 2019. The information had been disseminated by the kitchen staff. She confirmed that it was possible that Selemela, Zambuka and Tshabalala had not received the information on that day.
95. She had told Warrant Officer Mashile that she had not given Selemela permission to take food, she was not aware that the Police was investigating the incident. If she knew she could have elaborated. She disputed that she was covering for the applicant. She noted the submission by the respondent’s representative that if she had not resigned she would also have faced charges relating to the incident.
The fourth witness for the applicant, Mr Sipho Baloyi, testified under oath as follows:
96. He was secretary of the School Governing Body (SGB) at Lethamaga Secondary School in 2019. He had been elected to the position in 2015. It was practice at the school to dispense food that was about to expire to learners and the staff. Everyone including the Principal was at liberty to take the food. There was nothing wrong with the applicant having received food that was about to expire.
97. As the SGB they were not informed of the incident of 31 October 2019 that led to the applicant’s dismissal. They were supposed to have been informed.
98. Under cross-examination, Mr Baloyi reiterated that the SGB was supposed to be appraised with everything happening at the school. He said this was in terms of the South African Schools Act (SASA).
99. Food about to expire was first offered to learners then to the staff. The food that was distributed on 31 October 2019 was distributed during exam time and there was no time to communicate this to learners. It was normal practice that food about to expire was given to anyone. He could not dispute Maswanganye’s evidence that the decision was taken by her, the kitchen staff and the SMT.
ANALYSIS OF EVIDENCE AND ARGUMENTS
100. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
101. The applicant has referred an unfair dismissal dispute to the ELRC. The applicant has alleged in the referral to the ERLC that her dismissal was both procedurally and substantively unfair.
102. The applicant was charged with misconduct in terms of section 17 (1) (a) of the Employment of Educators Act 76 of 1998 as amended, which provides as follows:
Section 17 (1) An educator shall be guilty of misconduct if the educator –
(a) Contravenes or fails to comply with a provision of this Act or any law relating to education.

103. The allegation of misconduct that was preferred against the applicant was as follows:
It is alleged that on or around October 2019, while on duty at Lethamaga Secondary School, you committed an act of misconduct in that you stole learners’ nutrition food, as per the list below:
• Two packs of milk
• One pack of fish
• 25kg of maize meal
• 10kg of rice
• 10kg of beans

104. Since there was no dispute on whether or not the applicant had been dismissed, the onus was on the respondent to prove, on a balance of probabilities that the dismissal was procedurally and substantively fair.
105. The respondent led evidence through seven witnesses. It must be noted at this point that all of the employer’s witnesses testified on the substantive fairness of the dismissal and no witness was called to testify on the procedural fairness aspect.
SUBSTNTIVE FAIRNESS

106. The Code of Good Practice in schedule 8 item 7 of the LRA requires the court or arbitrator determining the fairness of the dismissal for misconduct to consider:

[a] Whether or not the employee contravened a rule or standard regulating conduct in, or relevance to the work place, and
[b] If a rule or standard was contravened, whether or not-
[i] The rule was valid or reasonable rule or standard.
[ii] The employee was aware, or could reasonably be expected to have been aware, of the rule or
standard.
[iii] The rule or standard has been consistently applied by the employer, and
[iv] Dismissal was an appropriate sanction for the contravention of the rule or standard.



107. The respondent’s witness, Mr Mputle who was the School Principal at Lethamaga Secondary School in 2019, testified that the Policy of the respondent on NSNP stated that the food was for learners and that staff members were not allowed to eat the food. According to Mr Mputle, he had always emphasised the rule against staff members taking food meant for the learners. The evidence of Mr Mputle in this regard was corroborated by Mr Zambuka, Mr Selemela and Mr Tshabalala.
108. Ms Ngwako who is a co-ordinator for National School Nutrition Programme (NSNP) at district level testified that the co-ordinator at school level, in this case Ms Maswanganye was responsible to oversee the programme and to supervise the food handlers. The co-ordinator could taste the food that has been prepared for learners but was not supposed to eat the food. According to Ms Ngwako, the co-ordinator at school level did not have the powers to dispense with the food or to give permission to staff members to share food from NSNP. In the case of surplus food, the co-ordinator is supposed to liaise with the district office regarding the effective utilization of the food. She further said that schools had lists of needy learners who could receive food parcels whenever there was surplus stock but this had to be recorded accordingly and the learners were required to sign for the food items they had received.
109. According to Ms Ngwako the Policy on NSNP was supposed to be known by the School Management Team that included Deputy Principals and in addition to the Policy, training was provided to co-ordinators who in turn had to cascade the necessary information to all stakeholders. The evidence and submissions by the applicant was that she did not know the NSNP Policy and was therefore not aware that the co-ordinator could not give permission for staff members to receive food from the programme.
110. The applicant however acknowledged that the purpose of NSNP was to provide nutrition to learners from poor communities and that learners at Lethamaga Secondary School were from one of the poorest communities. The applicant denied that she had deprived these poor learners of food that could have benefited them. The evidence of the applicant was that she was offered food that was about to expire and she accepted the offer. The offer came from Ms Maswanganye who was the NSNP co-ordinator at the school. She also received an offer from Mr Selemela for food items from the stock about to expire to be loaded into her car and she had also accepted the offer. She did not know what was loaded in her car until she arrived at her home where she found milk, a few tins of fish, rice and maize meal.

111. Mr Selemela disputed having made any offer to the applicant. His evidence was that he had requested for milk and maize meal from Ms Maswanganye who gave him permission to take the items and had also requested that he load milk and maize meal in her car, which he did. He was later on the same day requested by the applicant to load food items in her car, he was also requested by the applicant to load food items into Mr Moloto’s car and to take the items he had requested first for himself and to also load some items for Mr Tshabalala in his (Selemela’s car). He disputes that Ms Maswanganye had gone around the school, offering staff members to help themselves to food that was about to expire.
112. Ms Maswanganye corroborated the evidence of the applicant with regards to having offered food about to expire to staff members. According to Ms Maswanganye she does not know what each staff member had taken from the food items about to expire. She did not see what Mr Selemela had loaded in the applicant’s car. Ms Maswanganye was not at the school when food items were loaded in the applicant’s car and according to her version, the food handlers had locked the kitchen and put the key in the Principal’s office before they left for the day.
113. Ms Maswanganye reported to the Principal on the next day that food items had been stolen from the kitchen. Firstly if Ms Maswanganye had given permission to staff members to take food from the kitchen, as co-ordinator she would have monitored the process to ensure that only food that was about to expire was taken and that all fresh items remained in the kitchen. Secondly if Ms Maswanganye had given staff members permission to take what they wanted from the food that was about to expire, on realising that new stock was taken , before reporting that there was theft, she would have tried to establish from the staff members and the food handlers what items each person had taken. More strange is the fact that Ms Maswanganye did not disclose to the Principal that she had given permission that food stock about to expire be shared amongst staff members. The version of Ms Maswanganye in respect of the allegations of theft is therefore improbable.
114. Ms Ngobeni, the applicant testified that it was practice at the school that food about to expire be offered to learners and staff members. This version was corroborated by Ms Maswanganye, Mr Mabika and Mr Baloyi. On the other hand, Mr Mputle, Mr Tshabalala, Mr Selemela and Mr Zambuka disputed that such a practice existed at the school. Witnesses for the respondent all testified that it was known that it was not allowed for staff members to take NSNP food. Even if the practice existed as per the applicant’s witnesses’ version, this was against the NSNP Policy which staff members were expected to be aware of. Besides the Policy, the Principal always cautioned staff members against this practice.
115. Ms Lekgwati who stays next to the school testified that she had been given two packs of milk after she had witnessed Selemela loading food items into cars belonging to Selemela, Ngobeni and Moloto. Her version corroborates the testimonies of Selemela and Tshabalala that she had been given the milk as a bribe so that she would not tell anyone about what she saw on that day. She further corroborated Selemela’s evidence in respect of the whereabouts of the applicant when Selemela was loading the car. I do not see any reason why Ms Lekgwati would lie about what she had witnessed on the day in question, especially after she suffered the embarrassments of having to confess to the Principal and the Police that she had been bribed with milk.
116. If indeed it was practice at the school to dispense with food to learners and teachers, why would the applicant go to great lengths to dispute that the food was loaded in her car and the other colleagues’ cars on her request? As first Deputy Principal, the applicant was more senior in rank to Selemela and Maswanganye. It is therefore unlikely that her juniors would be the ones making an offer to her to take a share of food items from the NSNP. It is also improbable that she would have after accepting the offer and allowing Selemela to access her car, be it that she personally handed her car keys to him or she allowed him to fetch the car keys from the office, not check what items had been loaded in her car before leaving the school. As someone in management, it would be expected of her to act in a responsible manner and ensure that she does not receive food that she was not supposed to.
117. After Ms Maswanganye reported the theft of food items, the Principal according to him questioned the staff members about the items and no one disclosed that they had taken some items. Suppose it was normal for food about to expire to be shared by learners and the staff, the individuals who had taken the opportunity that was offered to them to take the food items would surely have mentioned to the Principal that they had taken some items from the old stock but not from the new stock. Even when the Police came to the school after the Principal opened a criminal case, none of the staff members volunteered the information with regards to items they had taken on the day of the alleged theft. It took Selemela to confess to the Police after it was put to him once at the Police Station that a witness had seen him load food items in some cars. It’s quite interesting that the applicant who was at the Police Station with Selemela and Tshabalala did not provide the Police with information relating to the offer to take food and to have the food loaded in her car and neither did she clarify to the Police about the practice at the school of dispensing with food about to expire by offering it first to learners and then to staff members. Ms Maswanganye was called in the presence of Selemela and the applicant and she denied having given Selemela permission to take any food items. She even went as far as saying she had not given anyone permission to take food.
118. The applicant presented a document (A3) which is a page from the school journal with an entry by Ms Maswanganye on 02 April 2019, recording the decision of the SMT to dispense with food about to expire by offering the food to learners and staff members. The applicant, Maswanganye and Mabika were amongst the signatories that formed part of the SMT that allegedly took the decision. According to Selemela the entry was fraudulently and that it was made in his presence by Maswanganye after her agreement with Ngobeni to make such entry. This version was disputed by the applicant, Maswanganye and Mabika. It is however interesting to note that none of them could explain why the Principal was not part of the meeting when the decision was taken and whether or not somebody else had been acting as Principal on that day. It was however accepted by all the applicant and her witnesses that the decision was flawed in that it was not taken by the Nutrition Committee which would have comprised of at least one member of the SGB. It is also clear that the Policy prohibited such a decision that would include employees of the Department of Education benefitting from the NSNP.
119. The Principal at the time, Mr Mputle had not had sight of this entry before the testifying on the issue. He had retired at the end of 2019 and was still the Principal on the purported day of the entry. It only makes sense that indeed this entry was done post the incident and with the purpose of covering up for the applicant. The version of Selemela in this regard is more probable than the version of the applicant’s witnesses. It is clear that Mabika and Maswanganye were part of the plan to help the applicant with a defence.
120. The Applicant has also submitted minutes of the nutrition committee where a decision was taken to distribute left over vegetables to teachers. This decision was however taken in 2020, after the incident of 31 October 2019. This decision is also flawed, based on the NSNP Policy. It is also clear based on the evidence of Ms Ngwako, Mr Mputle and Mr Zambuka that any surplus food would be offered to disadvantaged learners who will sign for them and that in some cases, the parents of those learners would be called to collect the food and sign for it.
121. The applicant has denied any wrong doing on her part with regards to what happened on 31 October 2019. Her version was that she was offered food about to expire, she accepted the offer. She did not know what was loaded in her car and she only discovered a few items when she arrived home, the milk had a smell so she did not use it but gave it to her puppies. She used the maize meal after sifting it as it had black insects. She could not remember whether or not she had used the rice. She also could not remember if she had received anything else. She did not steal the food and had accepted it as it was practice for such food to be distributed to the staff after the offer was made to learners and there was still food available.
122. The version of Selemela was that the he had loaded the following items in the applicant’s car: Two packs of milk(each pack consisting of six 1 litre cartons), one pack of fish(consisting of 12 tins), 10 kg bag of rice, 10kg bag of beans, 2 x 25kg bags of maize meal. He had loaded these items after he was requested to do so by the applicant. One 25kg bag of maize meal was for Moloto since it could not fit into Moloto’s car, the applicant had undertaken to drop it off at Moloto’s place on her way home. Tshabalala’s evidence in this regard was that he had witnesses Selemela loading the applicant’s and Moloto’s cars, he had asked for a share of the food from Selemela and was referred to the applicant. The applicant had told him to tell Selemela to give him a share and he did.
123. Both Selemela and Tshabalala testified that it was after school hours when Selemela loaded the car, most of the staff including Maswanganye and Zambuka had left the school. Zambuka confirmed that he had left after 15h00, leaving the applicant in charge of the school. He therefore did not witness the incident. Maswanganye also confirmed that she had left after 15h00 and that the kitchen had been locked by the time she left the school. She however also testified that she had witnessed Selemela load food items in the applicant’s car but she had not seen what items were loaded. This evidence by Maswanganye in improbable, it is unlikely that as coordinator she would concern herself with the food items and the quantity thereof being loaded in a colleague’s car. A reasonable person in her position would also not rush to report a theft when she had witnessed food items being removed from the kitchen after she had authorised food about to expire to be shared by her colleagues. She could at least started by inquiring with the colleagues regarding what they had taken the previous day before reporting to the Principal that a theft had occurred. I therefore find that the version of Selemela with regards to the request by the applicant and him carrying out the request is more probable than that of the applicant.
124. Ms Maswanganye as a witness was not reliable, she was evasive and contradicted herself. She first said that the decision on A3 was taken by her and the kitchen staff, she then changed to say it was a decision of the SMT and later also implied that it was a decision of the Nutrition Committee. As someone who had co-ordinated the NSNP at the school for over five years, she did not sound confident that she knew what she was doing as co-ordinator of the programme. She did not dispute that she had been trained and she knew that staff members were not allowed to benefit from the programme. She contended that when the Police called her and inquired if she had given permission to Selemela to take food, she had thought that Selemela was referring to new stock. She had however not made any distinction between old stock and new stock when she reported to the Principal, Mputle that food had been stolen from the kitchen.
She admitted that the alleged message she had sent out to staff about food that could be shared only reached a few people. Interestingly it was only the applicant and Mr Mabika who could confirm having received the communication. Maswanganye could not explain why the communication had not been formal. The only inference I could draw from this was that there was never such communication. The evidence with regards to the communication was fabricated by the applicant, Maswanganye and Mabika.
125. Mr Mabika was not at the school in the afternoon of 31 October 2019 and did not receive any of the food that was distributed on that day. His evidence regarding A3 is improbable, more so since he could not explain who the Principal was and why the entry had been made by Maswanganye. He also conceded that the decision was not in line with the Policy and that it was not taken by the relevant Committee which is the Nutrition Committee. As for Mr Baloyi, his evidence was not helpful at all. He seemed to be more interested with the fact that the SGB had not been informed when the applicant was disciplined than with the reason for the applicant’s dismissal. He corroborated the evidence of the applicant, Maswanganye and Mabika on the evidence of the practice at the school to give food to learners and staff members. He could however not dispute that the alleged practice was in contravention of the Policy on nutrition.
126. Selemela and Tshabalala confirmed that they had also faced disciplinary action for their role on the incident of 31 October 2019. The applicant did not dispute that Selemela and Tshabalala had been disciplined for the incident. The applicant however bemoaned the fact that she was the only one that was dismissed for the incident. It is common cause that Ms Maswanganye retired in early 2020 and was no longer an employee of the respondent when the internal disciplinary action against the applicant unfolded. The applicant also did not dispute that Moloto had also faced disciplinary action for the same incident. She also confirmed that Randima had resigned from the Department but according to her it was only recently and he had not been disciplined for the incident.
127. The applicant’s legal representative submitted at the beginning of the arbitration that the dispute was amongst other things based on contemporaneous inconsistency in that the applicant was the only person that was dismissed for the alleged misconduct whilst her colleagues were either not disciplined or were treated differently from the applicant. It was apparent during the cross-examination of the respondent’s witnesses that the applicant contended that Selemela, Moloto, Tshabalala, Maswanganyi and Randima were not disciplined for the same misconduct that the applicant was dismissed for.
128. Selemela and Tshabalala testified that they went through a disciplinary process and they were suspended as a sanction. They also confirmed that Moloto was also disciplined for the incident of 31 October 2022. Zambuka confirmed that he was made aware of Moloto, Selemela and Tshabalala having attended a disciplinary process.
129. The applicant was the first Deputy Principal when she committed the misconduct. Thee evidence by Selemela and Tshabalala indicate that she is the one who gave permission to them to take food items on the day in question and for Selemela to give milk to Lekgwati and Randima as a bribe. Selemela is a General Assistant whilst Tshabalala is an Admin clerk, both positions more junior to the position of the applicant. They both knew that it was wrong for staff members to benefit from the NSNP but the nonetheless took the food items after being permitted to do so by the applicant. Selemela gave uncontested evidence that he only received 2 packs of milk and half a bag of maize meal. Tshabalala received two packs of milk, one pack of fish, one 10kg bag of rice and one 25kg bag of maize meal.
130. The Honourable Judge Van Niekerk in Labour Court in Southern Sun International Interests (Pty) Ltd v CCMA and others [2009]11BLLR 1128(LC) when dealing with the parity principle held that: “Similarity of circumstances is the inevitably most controversial component of this test. An inconsistent challenge will fail where the Respondent is able to differentiate between employees who committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors.”
131. Ms Ngobeni was the more senior than her other colleagues. She requested Selemela to load food items for her and gave him permission to take what he had requested. Tshabalala was also allowed by the applicant to receive food items. Their case is therefore different from that of the applicant. No evidence was led with regards to full details of their disciplinary hearings. I am therefore not aware of the specific charges that were preferred against them, whether they pleaded guilty or not guilty and the specific sanctions that were pronounced against them. I am however satisfied that in comparison to the applicant, the two employees’ transgressions were lesser than that of the applicant. They were also subordinates to the applicant and could not have taken the food items if the applicant had not permitted them. I therefore find in this regard that the parity principle was inapplicable in this case. The same was held in Minister of Department of Correctional Services v Mpiko NO and others (JA65/2017) [2018] where the difference in the duties and responsibilities of two employees was taken into account when considering whether the parity principle was applicable.
132. As for Maswanganye, her case is different in that she retired before the respondent could institute any disciplinary proceedings against her. It is common cause that Moloto was disciplined, even though the details of his disciplinary process were not disclosed. Randima’s case is also distinguishable from that of the applicant as he had received milk, to silence him according to the evidence of Selemela and Tshabalala.
133. With regards to the quantity of items that were stolen, it is common cause that the Principal had opened a criminal case and reported that the following items were stolen:
• 50 x 6 packs of milk
• 12 x 17 packs of fish
• 4 x 10kg of rice
• 8 x 25kg maize

134. Ms Maswanganye has confirmed that these items are those she has reported to have been
stolen. The applicant has suggested that these items were stolen by Selemela and Tshabalala and possibly Moloto when everybody else had left the school. This was disputed by Selemela and Tshabalala. The applicant was charged and dismissed for items I have mentioned in paragraph 122 above. I have therefore confined my decision on whether the dismissal of the applicant was procedurally and substantively fair to the evidence relating to the items for which the applicant was dismissed.

135. The applicant has throughout her testimony maintained that she is innocent and she did not commit any misconduct. Despite her admission that employees of the respondent were prohibited by the Nutrition Policy from taking NSNP food, she has insisted that it was practice at the school for staff members to take food that was about to expire. From the evidence presented by the respondent, I am satisfied that the applicant was aware or should have been aware of the rule that prohibited staff members from taking NSNP food. She had breached the rule and was sanctioned to dismissal which was an appropriate sanction for the transgression.

136. After considering the overall evidence on the substantive fairness of the applicant’s dismissal, I am satisfied that the respondent has succeeded in proving, on a balance of probabilities that the applicant was guilty of the misconduct with which she was charged and that the sanction of dismissal was appropriate under the circumstances.


PROCEDURAL FAIRNESS

137. The applicant has raised the issue of delay in bringing charges as a procedural irregularity. The applicant’s legal representative submitted that the respondent commenced the disciplinary process against the applicant fifteen months after the commission of the alleged offence and only brought charges 18 months after the commission of the alleged offence.


138. This delay according to the applicant was unreasonable and not only prejudicial to the applicant but was against public policy and the entrenched legal requirement of expedition. The respondent did not lead any evidence to dispute the delay but only submitted and also put to the applicant that the delay was as a result of an ongoing investigation.

139. The Constitutional Court in Sanderson v Attorney General Eastern Cape 1998(2) SA CC laid down the factors to be considered when dealing with the issue of delay in instituting or finalising the disciplinary proceedings. The same factors were again endorsed by the same court in Stokwe v MEC: Department of Education, Eastern Cape and others (CCT 33/18) [2019] ZACC 3. These factors are:
(a) The length of the delay;
(b) The explanation of the delay;
(c) The steps that the employee has taken in the course of the proceedings to assert his or her right to a speedy process.
(d) Any material prejudice to the employee that might have been caused by the delay.
(e) The nature of the alleged offence.

140. These factors must be applied holistically and not individually. In the current case, the response
of the respondent to the issue of delay was that it was due to an ongoing investigation. Labour
Legislation is underpinned by the principle of fairness and expedition in dealing with labour
matters. A delay of 18 months cannot be reasonable if the Department became aware of the
alleged transgression immediately and in this case, Mr Mputle had reported the incident to the
Department on 01 November 2019 which was the date he was made aware of the allegations of
theft of NSNP food. The respondent has failed to adduce evidence on the explanation for the
delay in instituting disciplinary proceedings against the applicant.

141. The applicant on the other hand has not averred to having taken any steps in the proceedings to
assert her right to a speedy process. There is no evidence that the delay has caused any material
prejudice to the applicant and in particular if the delay has impacted on her ability to conduct a
proper case. The alleged offence by the applicant is of a very serious nature and on the face of it
would justify a proper investigation that could take longer to complete. Taking all these factors
into consideration, it is my finding that the delay though unreasonable is not unjustified and
therefore does not render the procedure in this case unfair.

Award
1. The dismissal of the applicant, Ms Lettie Hazel Ngobeni by the respondent, Department of Education of Gauteng was procedurally and substantively fair.
2. The application is therefore dismissed.

Asnath Sedibane
ELRC Dispute Resolution Panellist