ELRC142-20/21KZN

BETWEEN:

NATU OBO NDWANDWE AK “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC142-20/21KZN
Last date of arbitration: 30 May 2023
Date of award: 04 July 2023
Closing Arguments: 9 June 2023

NOZIPHO B KHUMALO
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act (LRA) at the KZN Department of Education offices in Vryheid on 14 November 2022, 14 March 2023 and 30 May 2023. Ms Jabu Dumisa appeared for the First Respondent, Department of Education: KwaZulu Natal and Mr Nathi Mseleku represented the Second Respondent, Mr Sithembiso Nkosi. The Applicant, Azaria Kenny Ndwandwe was represented by Mr Siphesihle Buthelezi an official of NATU.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2. The Applicant is employed by the Respondent as a Deputy Principal at Ophuzane Primary. In February 2019 he acted as Principal until May 2020.

3. In 2019 a post of Principal was advertised by the Respondent at Ophuzane Primary School. The Applicant applied for the post and he was not recommended.

4. The Second Respondent, Nkosi, was appointed as the Principal at Ophuzane Primary School.

5. The Applicant testified and called one witness by the name of Mkhombiseni Elmon Mtshali, “Mtshali”. The Respondent called five (5) witnesses by the names of Langalibalele Moses Mavuso, “Mavuso”, Melusi Duncan Mdlalose, “Mdlalose”, Mbhekiseni Vincent Zulu, “Zulu”, Hlengiwe Happiness Vilakazi, “Vilakazi” and Nomusa Duduzile Hlatshwayo, “Hlatshwayo”,


6. The parties used a combine bundle.

7. I have to decide whether the SGB was properly instituted or not. I also have to decide whether the IC was eligible to make recommendations or not.

PRELIMINARY ISSUES

8. There were no pre-liminary issued raised by the parties.

SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s case

9. The Applicant’s evidence is summarised as follows. Some of the SGB members who were part of the IC were not eligible members because they did not have children in the school. The requirement is that one must be a parent of a pupil in the school. Hlatshwayo ND, Zulu MV, Zulu MR and Vilakazi HH did not have children in the school and were therefore not eligible members of the SGB.

10. The Applicant did not have control or authority to question or challenge the status of the SGB but there was a concern that was raised before by some of the parents in relation to the status of some SGB members. This at some point caused the unrest at Ophuzane. The circuit manager, Mavuso came to the school to resolve the issue and conducted an investigation but the Applicant did not receive a report of that investigation.

11. “A”1-46 is a register of the learners in the school and their parents which is dated 13 January 2020. The register is for the learners that were accepted in 2019. According to the register, there is no Hlatshwayo ND which therefore means that Hlatshwayo ND did not have a child at the school. This is the same for Zulu MV. There is Zulu MR who is a parent to Slindokuhle Shabalala and Vilakazi HH is a parent to Asanda Vilakazi.

12. The HRM36 which provides guidelines for the recruitment process states that election must be done by someone with expertise who will be able to identify the suitable candidate. The person must have knowledge of the post and not be of a lower level than the candidates. The expectation was that someone who was in a higher post in the department would be co-opted since the post was for a principal. The IC members in this regard lacked expertise.

The Respondent’s case

13. The Respondent’s evidence is summarised as follows. The SGB of Ophuzane consisted of a parent component, a school component and an educator component.

14. There was an incident which took place at the school where a certain group of people were protesting outside the school complaining about the school’s financial report. Mavuso who is the circuit manager requested admin to bring the register to confirm that whoever was part of the protest and will be allowed into the school is a parent. The people that were at the gate however were not parents but were from a certain political group. Only one of them was a parent and was allowed to speak with Mavuso.

15. Mavuso appointed Gule to be part of the IC as a departmental nominee during the interview for the principal post at Ophuzane. Ms Ngema who was a NATU representative was asked to recuse herself as she was a one of the candidates of the post. NATU was therefore not represented.

16. The Applicant lodged a grievance regarding the legitimacy of the SGB members. Mavuso went to Ophuzane to conduct a verification of the SGB members. He visited the parents at their homes as part of his audit. His findings were that some of the SGB members were biological parents and some were guardians. The outcome of the grievance was that all the members were born fide parents in terms of the South African Schools Act, “A”74.

17. “A”1 is the register which reflects on SASAMS which contains information about learners and their parents. The document however is dated 2020 and not 2019 as it should be. It is for 2020 admission and not 2019 when the post was advertised.

18. In 2021, Mdlalose was instructed by the director to conduct an investigation on the parenthood of HH Vilakazi, ND Hlatshwayo, NR Zulu and NV Zulu, at Ophuzane Primary School. The findings of the investigation were that HH Vilakazi was responsibe for Asanda Fakude who is a learner at Ophuzane. ND Hlathswayo was respondible for Smangele Hlatshwayo who is her grandchild. MV Zulu was responsible for Nomcebo Zulu, his gaughter and Nonhlanhla Shabalala who is his granddaughter. MR Zulu was responsible for Slindokuhle Shabalala., “A”88-90.

19. Mdlalose also found that there were no records of the election of the SGB kept by the school because they wanted to see if there was an admission book and voters roll. They could only gather information about SGB members from some of the minutes of the SGB meetings, “A”54. Although “A”1 looks like the voters roll but cannot be accepted as such because during the investigation conducted by Mdlalose there was no voters roll in existence. Furthermore, the date on the document is 2020 which is the year after the post was advertised.

20. Zulu MV is one of the SGB members who served for two (2) consecutive terms. Buthelezi was the principal during his first term and part of the second term. The Applicant was appointed as acting principal during Zulu’s second term as an SGB member. Mavuso has never visited him at his home for an interview.

21. Vilakazi was elected as a SGB member at a meeting that was held at the school. She is a guardian to Asanda Fakude. At the meeting the parents signed a certain document and there was also a voter’s roll. At every parents meeting, the SGB members were required to mention the name of the learner/s which they were responsible for, “A”54.

22. Hlatshwayo had five (5) children at the school which she was responsible for. The children are Nonhlanhla Sphesihle Hlatshwayo, Sinenhlanhla Sphelele Hlatshwayo, Smangele Gugu Hlatshwayo, Wisa Hlatshwayo and Mavezamahle Hlatshwayo. She was the chairperson of the SGB. She was visited by Mavuso at her home for an interview. Mavuso wanted to know her relationship with Nomagugu. Hlatshwayo also mentioned the other children which she had at the school.

SUMMARY OF ARGUMENTS

23. The Applicant argued that the document, “A”1-46, which the Respondent is disputing as the admission register proves that the parents in question are not listed in the system as parents. The Respondent failed to provide any authentic document from the system that they used in their investigation or validation except the reports that were compiled by the Respondent’s impartial witnesses.

24. The Applicant’s case is supported by this document and which resulted in the Applicant disputing the process. The Respondent only raised the issue about the authenticity of the document only when it failed to use the document to its favor.

25. The Respondent argued that the lack of knowledge of the SASA 84 of 1996 and the (c) of gazette 2251 in defining a parent, illustrates that the Applicant was not the best candidate for the post of principal of Ophuzane Primary at the first place as there is an expectation that department must identify the best suitable candidate.
26. The Applicant’s inability to illustrate the clause in the procedure manual and or any other Act or Prescripts which were infringed by the Respondent clearly shows that the application was just a result of his unhappiness for not being recommended for the post.
27. The Head of Department acted reasonably in making an appointment following a recommendation by a legitimate SGB of Ophuzane Primary School.

ANALYSIS OF EVIDENCE AND ARGUMENT

28. In this case the following fact are common cause. The Applicant acted as a Principal at Ophuzane Primary School in 2019 prior to the filling of the post. Vilakazi, Hlatshwayo, Zulu MV and Zulu M were members of the SGB in 2019.

29. The Applicant’s averment is that the SGB was not properly instituted because Vilakazi, Hlatshwayo, Zulu MV and Zulu M were not parents of Ophuzane Primary School in 2019 as depicted in the South African Schools Act 84 of 1996. The Applicant based this argument on a document which purports to be an admission register of 2019, “A”1-46. The Respondent’s argument in this regard is that the document is unknown to it and can therefore not be accepted as an admission register. The Respondent relied on “A”54 – 59 Minutes of the SGB meeting, “A”47 which is an outcome of a grievance that was lodged in January 2020 and “A”88-90 which is a report by Mdlalose regarding the afore mentioned parents and their status as parents of Ophuzane Primary School.

30. The South African Schools Act 84 of 1996 defines parent as; a) the parent or guardian of a leaner; b) the person legally entitled to custody of a Iearner; or c) the person who undertakes to fulfil the obligations of a person referred to in (a) and (b) towards the learner's education at school. I therefore find in this regard that Vilakazi, Hlatshwayo, Zulu MV and Zulu M were parents of Ophuzane Primary School in 2019 as depicted by the Act.

31. Furthermore, the oral evidence of the Respondent in relation to the status of Vilakazi, Hlatshwayo, Zulu MV and Zulu M was not disputed by the Applicant. I therefore find that the Applicant failed to prove that the SGB of Ophuzane was not well instituted in 2019.

32. In IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) it was held that the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the matter. I find in this case that the Applicant failed to show existence of the conduct or decision complained of.

FINDING

33. I therefore find that the conduct of the Respondent did not constitute any unfairness.

AWARD

34. The Respondent, Department of Education: Kwazulu Natal did not commit an unfair labour practice when they did not appoint the Applicant, Ndwandwe A k. The Applicant is not entitled to any relief.


Commissioner: Nozipho B Khumalo
Date : 04/07/2023