ELRC620-20/21KZN

IN THE ELRC ARBITRATION BETWEEN:

HUMPHREY MANDLA MAZIBUKO THE APPLICANT
And
THE HEAD OF THE KWAZULU-NATAL
DEPARTMENT OF EDUCATION THE FIRST RESPONDENT
DENCKY MUZIKAYIFANI NKABINDE THE SECOND RESPONDENT

Award

Case Number: ELRC620-20/21 KZN

Dates of arbitration: 22 August 2022, 8 & 15 November 2022, 18 & 19 January 2023; 15 & 16 March 2023; 18 & 19 May 2023; 7 & 8 August 2023 and 19 February 2024

Date of submission of written closing statements: 26 February 2024

Date of award: 7 March 2024

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was held over a number of days. On the 22 August 2022 it was held at the Durban Teachers’ Centre and following that on the 8 and 15 November 2022, 18 and 19 January 2023, 15 and 16 March 2023, 18 and 19 May 2023, 7 and 8 August 2023 and 19 February 2024 it continued at the Ladysmith office of the Respondent. The parties then requested and were granted an opportunity to submit written closing arguments by the 26 February 2024.

2. The Applicant was represented by Mr Kulati, instructed by MHS Attorneys Inc. The Applicant and two other witnesses gave oral evidence.

3. The First Respondent was represented by its employee, Mr Pillay. Two witnesses gave oral evidence on behalf of the First Respondent.

4. On 22 August 2022 the Second Respondent appeared in person. At the commencement of proceedings on that day I was informed by Mr Pillay that he had been informed by the trade union official SADTU, who was to represent the Second Respondent, that he could not attend the hearing as he also had another hearing in Vryheid. No application for a postponement or any correspondence had been received by the Council and I ruled that the arbitration would proceed in his absence. On the subsequent days Mr Nxumalo, an official of SADTU, represented the Second Respondent, who testified.

5. At the commencement of proceedings two bundles of documents marked exhibits A and B respectively were submitted on behalf of the Applicant whereas a bundle marked exhibit C was submitted on behalf of the First Respondent. During the course of proceedings additional documentation was submitted and this documentation has been marked as exhibits D to J.

6. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. I am required to determine whether the Respondent committed an unfair labour practice as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (as amended) (LRA) relating to the failure to promote the Applicant.

BACKGROUND
8. The parties had commenced but not finalized a pre-arbitration meeting before the commencement of the arbitration. As such this meeting was finalized in my presence prior to the commencement of the arbitration and the agreed minutes were read into the record of these proceedings. As such I do not intend to record the minutes in full in this award but summarize certain of the minutes as follows:
8.1. The post in dispute is that of Chief Education Specialist: District Planning & School Infrastructure (CES: District Planning;)
8.2. The Applicant was shortlisted and interviewed for the post, 0B/02/2020 advertised in circular HRM 38/2020.
8.3. The Applicant is and at the time of the interviews was, a Deputy Chief Education Specialist: Infrastructure with a monthly remuneration of R58 069.23.
8.4. It is disputed that the Applicant was the best candidate for the post.
8.5. It is disputed that the Applicant could have had an apprehension of bias against him by the chairperson of the interview panel.
8.6. It is disputed that the Second Respondent did not apply for and submit his application prior to the closing date for the submission of applications.
8.7. It is disputed that a certain Mr Khanyi, a panel member, had been excluded from the process by having been provided with the wrong date and times for the interviews. The incumbent in the post would report to Khanyi.
8.8. It is disputed that the curriculum vitae of the Second Respondent is not a true reflection of his experience.

9. The interview panel had scored the shortlisted applicants as follows:
9.1. The Second Respondent-42.
9.2. The Applicant-35.
9.3. M M Ntuli-29,5.
9.4. N G Khuzwayo-27,5; and
9.5. C S Hlatshwayo-24.

SUMMARY OF EVIDENCE
THE APPLICANT
10. The Applicant is based at the Uthukela District of the First Respondent and has been a Deputy Chief Education Specialist: Infrastructure (Deputy CES: Infrastructure) since July 2004. Since 2010 he acted as CES: District Planning (being the post in dispute) whilst continuing to carry out the functions of Deputy CES: Infrastructure.

11. As the Deputy CES: Infrastructure, the Applicant has been based at the District Office. Below the District Office are the Circuit Offices, which in turn are responsible for a number of schools. The Deputy CES: Infrastructure has chief works inspectors reporting to him. Should a school principal have any infrastructure related requests, the request would be submitted to the relevant circuit office and from where it would be escalated to the District Office. This is the process that is followed for all building requirements such as new buildings, specialist classrooms, toilets, building repairs, fencing and the like. The District Office gets approached in respect of these requirements in the event of a particular school governing body’s budget being insufficient to meet the needs of the school. If the costs exceed the budget of the District Office, the issue is escalated to Head Office. Within this framework the Applicant has been responsible for 400 schools whereas the Second Respondent would only have been responsible for the school at which he was principal.

12. As the acting CES: District Planning he reported to the District Director and to Head Office. He also had two other Deputy Chief Education Specialists reporting to him. During or about 2013/14 he had additional departmental initiatives added to his responsibilities. These included learner transport program; school rationalization and realignment program; expanded public works program. He was initially responsible for a budget of R3 million, and this was subsequently increased to R5 million.

13. Prior to the Applicant having been appointed as acting CES: District Planning he and others had been interviewed. The interview panel had included the District Director at the time.

14. Prior to having been appointed Deputy CES: Infrastructure he had lectured at three colleges of education. He lectured aspiring senior primary and secondary school educators. On his transfer to the District Office, he was responsible for quality assurance.

15. The requirements for the post are set out in the advertisement on page 2 of exhibit A as being “9 years’ experience in the educational field, coupled with appropriate school management experience equivalent to the requirements of the post is taken into account for purposes of appointment.” Whilst at the District Office he had capacitated school principals in respect of governance issues and what was expected of them in terms of the Department’s policies.

16. The Applicant possesses two degrees including a Bachelor of Education. Whilst SACE registration was not required when he lectured, he had subsequently registered with SACE when he became Deputy CES: Infrastructure.

17. The applications for the post of CES: District Planning were received by Chairman Naidoo (Naidoo) of the HR section of the District Office. He had submitted his application to her. Pages 48-77 of exhibit A are copies of all pages of the register used by her to record the receipt of applications. He submitted his application to Naidoo on the 3 September 2020 and its receipt is recorded on page 53 of exhibit A at number 153. She caused him to sign the register after his details had been entered. The other shortlisted candidates other than the Second Applicant are recorded in the register as having submitted their applications. The record of receipt of the applications for C S Hlatshwayo, N G Khuzwayo and M M Ntuli, are at numbers 333, 472 and 580 on pages 59, 60 and 67 respectively of exhibit A.

18. The curriculum vitae submitted by the Applicant is at pages 80-92 of exhibit A.

19. At page 92 of exhibit A the Applicant summarizes his leadership, administrative, management and related experience. This experience was read into the record. His experience matches the key performance areas of the post as set out in the job advertisement which is at page 13 of exhibit A. The core functions performed by the Applicant matched the advertisement’s requirements. A person who had only been in the post of principal would not have acquired the necessary experience in respect of district planning and school infrastructure. The involvement of a school principal in respect of these needs does not go beyond supplying the circuit office with a school’s number of learners and classrooms. It is only at district level that issues of budgeting and the grading of schools are determined.

20. The curriculum vitae submitted by the Second Respondent is at pages 109-118 of exhibit B. The Applicant disputed that the Second Respondent had the experience claimed by him in that such experience would not be gained as a principal.

21. For ease of reference, I shall summarize the advertised job requirements, the alleged experience of the Second Respondent as detailed in his curriculum vitae and the Applicant’s comments in respect thereof in the table below.
The advertised job requirement Ensure that policies relating to management of schools' infrastructure is understood and implemented accordingly.
The alleged experience of the Second Respondent at page 109 of exhibit B • Assisted infrastructure management to meet its strategic objectives of addressing the greatest infrastructure needs in optimum cost-effective way.
• In liaison with education circuits, I collated an infrastructure needs list and conducted needs analysis.
• Participated in infrastructure management service to draw the district infrastructure development improvement plan for the needs analysis.
• Participated to draw and manage the infrastructure management plan for the district.
• Manage timeous submission of infrastructure plans as per infrastructure development management system.
• Made input for completion of the medium-term user assets management plan (UAMP) and submit input to update.
• Coordinate project identification and scope determination.
• Manage budget for both planned maintenance and reactive maintenance.
• Attended project briefings.
• Resolve conflict emanating from infrastructure planning and delivery.
• Led infrastructure management service staff encompassing senior education specialists and works inspectors.
• Mentored, delegated, monitored and assessed all IMS staff.
The Applicant’s evidence in chief Generally, the Second Respondent would not have done any of the above as a principal. He would not have monitored other schools’ needs. He would only have been concerned with his own school. Of all the claimed experience the Applicant concedes that the Second Respondent might have experience of the Public Finance Management Act and drawing of a budget and cash flow sheet for projects. In particular:
• He would not have liaised with circuit offices as this is done at district office level. As a principal he does not operate at the district level and thus he would not have any experience of drawing and managing an infrastructure plan at district office level where these tasks are done by the Deputy Chief Educational Specialist or the Chief Educational Specialist.
• He would not have any experience in the timeous submission of infrastructure plans as per infrastructure development management system as the submissions are done at district office level and not at school level.
• Not even the district office is responsible for inputs to the medium-term user asset management plan as this is done by the head office so the Second Respondent definitely did not have this alleged experience.
• Project identification and scope determination is not done by a principal.
• The maintenance budget is managed by the district office or head office
• A principal is not involved with project briefings.
• The resolution of infrastructure planning and delivery conflict is not done by the school or its school governing body. It is only done at district or heal office level and so the Second Respondent could not have acquired this experience as a school principal.
• In his position as school principal, he would not have supervised works inspectors or senior education specialists.
• The Second Respondent could not have mentored, delegated, monitored and assessed all IMS staff as they are based at district office level and not even at circuit office level. These staff fall under the supervision of the DCES.
The Applicant’s evidence in chief in respect of the alleged experience of the Second Respondent at page 110 of exhibit B The Applicant testified that as a principal, the Second Respondent would not have acquired any of the experience claimed on this page except for:
• Managing people: delegating, monitoring, assessing, affirming and disciplining them.
• Inducted and orientated newly appointed staff.
• Accounted for infrastructure planning and delivery in school.
As a principal, his role in respect of infrastructure matters was limited to determining what needs to be attended to at his particular school and informing the circuit manager. The circuit manager would then take the issue further with the district office. He would have played no role beyond any matter not concerning his particular school. Any claims to have performed tasks at a level other than that of a principal of a school, would be false. The Applicant does not know of any principal who may have operated at District Office level. The only involvement that the Second Respondent would have had with the District Office would have been in his capacity as a trade union official.
With regards to his alleged experience detailed at page 110 of exhibit B, he would not have:
• Reported to the district or circuit management meetings in respect of infrastructure challenges and progress.
• Resolved infrastructure related delivery conflict as this is generally done by the implementing agents. Prior to the involvement of implementing agents, the works inspectors and educational specialists would be involved in conflict resolution.
• Liaised on behalf of the District Office with other government departments.
• Forwarded the cluster’s infrastructure input to the district infrastructure plan.
• Annually checked and made input in respect of the infrastructure program implementation plan.
• Monitored service delivery by implementing agents. Implementing agents are the concern of the National Office, Provincial Head Office or the District Office.
• Drew list for urgent, emergency and normal infrastructure projects.
• Mentored built industry mentors as principals have no relevant experience to do so.
• Conducted performance measurement of Infrastructure Management Services (IMS;)
• Participated in internal audit preparation including checking project files with Public Works. An implementing agent’s work is not checked by the principal.
• Anything to do with planning or implementing the South African School Administration and Management System (SASAMS;)
• Been involved with the use of the Data Driven Dashboard (DDB.) This is done by the Education Management Information Service (EMIS;)
• Been involved with the facilitation and capturing of Global Positioning System.
• Facilitated the provision of the emergency provision of mobile classrooms.
• Been involved in any way with infrastructure provisioning. He would only have been concerned with repairs and maintenance.
• Conducted feasibility studies.
• Facilitated emergency intervention in respect of mobile classrooms.
• Made informed decisions regarding infrastructure provisioning. As a principal he was only concerned with maintenance.
The alleged experience of the Second Respondent at page 111 of exhibit B The Second Respondent would have had nothing to do with the physical facilities committee.

Under the heading of “Planning and Procurement” the Second Respondent details his experience in respect of “successfully handled the building of new schools.”
In general, the Applicant disputed this alleged experience in its entirety as a school principal would only be concerned at most with his own school and not the building of a number of schools.

It was put to the Applicant that perhaps the Second Respondent will claim that he acquired this experience in his capacity as a trade union representative. The response of the Applicant was that he has been responsible for the construction of almost 30 new schools, and he had never had any experience of the chairperson of a trade union getting involved with the building of new schools.
The Applicant’s evidence in chief in respect of the alleged experience of the Second Respondent at page 112 of exhibit B The Applicant disputed that the Second Respondent would be accountable for finance management as the SGB and its sub-committee, the Finance Committee, would have been responsible. School finances are managed in terms of the South African Schools Act and SGBs received training in its requirements.
The Applicant’s evidence under cross examination The Applicant accepted that even though a finance committee of the SGB may be in place, a principal remains responsible for finances as the head of a school.
The Applicant’s evidence in respect of the alleged experience of the Second Respondent at page 113 of exhibit B Under the requirement “Organizational experience and ability” the Applicant conceded that the Second Respondent might have the claimed experience of:
• Providing a management program for his staff.
• Managing, delegating, monitoring and appraising staff.
• Compiled a register of infrastructure needs of his school.
• Managed the cash flow of the maintenance budget of his school.
The balance of the alleged experience was disputed. in particular it was disputed that he could have acquired any of the experience as the “infrastructure cluster committee head” as there was no such structure. All the alleged work claimed to have been done is not done by school principals.
The Applicant’s evidence under cross-examination the Applicant maintained that as a school principal the Second Respondent would not have gained any of the infrastructure related experience claimed by him. None of the claimed experience is included under the duties of a school principal. The Second Respondent, for instance, would never be responsible for liaising with an implementing agent.
The Applicant’s evidence in respect of the Second Respondent’s alleged experience - at page 115 of exhibit B Under the heading “Legislative framework applied in the performance of the duties” the Applicant conceded that the Second Respondent could have experience of being responsible for disciplinary committees and have established learning area committees at school level.
In particular, he disputed whether the Second Respondent would have facilitated project prioritization as at school level the only concern is maintenance and repairs which are dealt with in terms of the norms and standards allocation. He would not draw the budget as this was done at the District Office. He would not have been responsible for budgeting in terms of the medium-term expenditure framework as this is not even done at District Office level. It is done at National and Provincial Government levels.
The Applicant’s evidence under cross-examination The Applicant maintained that in respect of infrastructure matters, the Second Respondent would not have been responsible for drawing the budget for planned and reactive maintenance; for budgeting in in respect of medium-term expenditure framework (MTEF,) which was done at Head Office level. He conceded that as principal, the Second Respondent would have been involved with utilization of the school’s allocation within the school’s norms and standards but stated that this formed a small part of a school’s overall allocation.
The Applicant’s evidence in respect of the Second Respondent’s alleged experience of the Second Respondent at page 116 of exhibit B At paragraph 4.2 the Second Respondent details his experience as SADTU branch deputy chairperson, regional deputy chairperson and regional chairperson. The Applicant concedes that officials hold what are known as “bilateral” meetings with union officials, but it is the responsible official executes the work of the Department and not the union officials who attend these meetings.
The Applicant’s evidence under cross examination The Applicant could not identify a meeting at which it was decided to deploy the Second Respondent.

22. The Applicant knew the references put up by the Second Respondent and they would have known that he had embellished his curriculum vitae. Similarly, those sitting on the interview would have known that he embellished his curriculum vitae. All this was overlooked as this is a clear case of cadre deployment.

23. A member of the interview committee who had been given incorrect details of the meeting so that he could not attend the meeting, will testify on behalf of the Applicant.

24. The Applicant’s curriculum vitae is at page 80 of exhibit A. He had been appointed as acting Chief Educational Specialist in 2010 and he had continued to act until the appointment of the Second Respondent. He was in charge of District Planning, which comprises of three components; Infrastructure Management Services; Education Information Services and Strategic Management, Monitoring and Evaluation. His experience with regards to these functions is set out on pages 85-87 of exhibit A. As the acting Chief Education Specialist, he would supervise the other two deputies. He has experience, inter alia, of determining the infrastructure needs of the district; manage 13 programs related to infrastructure within the district; chaired the District Transversal Task Team responsible for the School Rationalization and Re-alignment Program; he liaised with provincial and local political office bearers, and he raised substantial donations from various entities including ESKOM, Rainbow Minerals, SAPPI, Blue Rock Quarry (a local business) and others.

25. Whilst he was acting Chief Education Specialist, he was also given responsibility for learner transport, the Expanded Public Works Program and Sukuma Sakhe. His experience in this regard is detailed on page 86 of exhibit A.

26. As the acting Chief Education Specialist responsible for planning, he was three levels above principal level insofar as infrastructure planning is concerned. There are works inspectors, first education officials, another Deputy Chief Education Specialist at Circuit Office level between himself and a principal.

27. His experience as Deputy Chief Education Specialist: School Governance, Financial Management, Learner Affairs, Independent Schooling, Home Education, Discipline, Safety and Security is detailed on page 87 of exhibit A.

28. Under cross-examination the Applicant conceded that:
28.1. The Second Respondent met with the advertised requirements for the post.
28.2. In terms of Personnel Administrative Measures (PAM,) an extract of which is at pages 37-41 of exhibit C, a principal could move to a Deputy Chief Education Specialist or Chief Education Specialist.
28.3. A principal holds a management post.
28.4. He stopped being paid the acting allowance for being the acting Chief Education Specialist in 2012 (but he maintained that he continued to perform those functions until the appointment of the Second Respondent;)
28.5. He did not have school management experience in the sense of having occupied a post at a school. His experience was from the District Office perspective.
28.6. The applications for the post were to be marked for the attention of S A Zulu.
28.7. Both he and the Second Respondent had been shortlisted.

29. The following versions were put to the Applicant, who responded thereto as follows:
29.1. The District Office director, Mokoena, will testify that when she arrived at the District Office the Applicant was simply one of three Deputy Education Specialists and that he was not acting as Chief Education Specialist. The Applicant disputed this version and stated that Mokoena knew that he was the acting Chief Education Specialist as he had attended MANCO meetings in that capacity.
29.2. S A Zulu will state that the Second Respondent hand delivered his application to him. He then gave it and others to Charmaine Naidoo. Those applications received directly by Charmaine Naidoo were entered into the book, an extract of which is at pages 48-77 of exhibit A. The typed schedules of the applications as listed on exhibit F, I and pages 42-51 of exhibit C are the official records of received applications. The Applicant had no comment.
29.3. The Second Respondent will testify that the experience detailed in his curriculum vitae was gained by him as a principal and in other portfolios held by him on various platforms. The response of the Applicant was that this would be tested when he gave evidence.

30. Under cross-examination the Applicant stated that although his acting allowance had stopped in 2013, he had continued to act as CES at the request of the then director and when the current director took over, she knew that he was acting in that post.

31. The Applicant accepted that as a principal the Second Respondent would have some experience of a number of issues dealt with at the level of the district office. It was the level of this experience that was disputed by him.

32. Under cross-examination by the Second Respondent, the Applicant conceded that the post of a CES is included in the career path of a principal and that it was not irregular for the Second Respondent to have applied for the post.

33. He accepted that the Second Respondent would have had the generic leadership skills for the post as stipulated in the job advertisement at page 9 of exhibit C.

34. The Applicant had personally handed his application to Naidoo. It was common knowledge that she was responsible for receiving applications. He had signed her register in handing in his application.

35. At his interview he had not noticed anything untoward except that there were only three and not four panel members and that the head office was not represented on the panel. Head office had been represented on the other interview panels for similar posts.

36. Parvathee (Charmaine) Naidoo (Naidoo) commenced her employment with the Department in 1985 as a switchboard operator and she started working in the promotions’ section at Ladysmith on the 1 August 2020. She had been instructed to receive applications.

37. At first, she had not recorded in her register (a copy of which is at page 48 of exhibit A) applications being received by her but shortly afterwards she started the register so as to protect herself. She would get those applicants who brought their applications to her, to sign the register.

38. She had received a subpoena (a copy of which is at pages 46-47 of exhibit A) to produce “the original submissions’ register reflecting the dates and signatures of all applications handed in or posted for the post OBE/02/2020.” Pursuant to the subpoena she had provided a copy of the register, which is at pages 48-77 of exhibit A. She had not handed over exhibit F. She had not done so as the information in her register had been transferred to exhibit F. She also testified, contrary to this submission, however, that certain applications were entered by her straight on to the electronic record (of which exhibits F, and I are printouts) without receipt of the applications for the post having been recorded in the register.

39. She testified that exhibit F is the official record of applications received but also stated that it was her decision to compile exhibit F as she wanted to present a neat record.

40. Naidoo recorded in the register applications that what had been posted to her district was posted in error (at page 76 of exhibit A for example) and at page 74 of exhibit A she had recorded which applications had been received late by post.

41. In response to a question by me she stated that she had compiled exhibit F in August 2020, after the closing date. (The closing date was 4 September 2020.) The list was compiled as a record of all applications put in the box for the relevant post. Similar lists were compiled for other posts. These boxes were then given to Zulu, her deputy director. She subsequently repeated that exhibit F was compiled by her when she was getting all the applications ready to be taken to Zulu.

42. Naidoo confirmed that the Second Respondent is listed at number 22 in exhibit F but that his application is not listed in her register. His application was not recorded in the register as it had not been handed in by him and thus, he could not sign the register.

43. The “preference list” form of the Second Respondent is date stamped “5 September 2020” which was a Saturday after the closing date of 4 September 2020. Under cross-examination it emerged that the Applicant’s form was also date stamped with the date 5 September 2020.

44. Under cross-examination by the First Respondent, she agreed that Zulu had brought certain applications to her. She could not say how many.

45. Naidoo denied having told the Applicant that if an application was not recorded in her register, it had not been received.

46. The subpoena served upon her had not required her to produce exhibit F.

47. It is evident from the manuscript register that 42 applications, including that of F S Gasa were received in respect of the post. Gasa’s application is recorded as having been received by way of post. The printout records that 42 valid applications, including that of the Second Respondent but not that of Gasa were received for the post. Gasa is recorded on exhibit H (being a printout prepared by Naidoo recording late submissions) as having submitted his application late. Naidoo denied having been instructed to add the name of the Second Respondent and remove that of Gasa from the list.

48. Under cross-examination by the Second Respondent, Naidoo stated that applications were hand delivered to her, received in the post, put under her door or handed to her by other officials. In respect of those applications placed under her door or received from Zulu or other officials, she would capture these electronically (exhibit F) without recording them in her register.

49. Under questioning by me she stated that exhibit F had been compiled by her after the closing date but in contradiction thereof she stated that she would update exhibit F with applications handed to her or placed under her door as and when she had time to do so, without entering these applications in her register.

50. As exhibit F is only a printout in respect of the post relevant to this hearing and not all the posts being dealt with by Naidoo at the time, I requested her to produce printouts of all the records compiled by her. These printouts are now included under exhibits H and I. She was unable to produce the schedule allegedly prepared in respect of those applications received through the post. I also asked the parties to accompany an IT expert employed by the First Respondent to the computer of Naidoo for them to observe the expert determine the date on which exhibit F had been created. I was subsequently advised that the parties agree that the electronic records indicate that exhibit F was created on 16 September 2020. A printout of this record is at exhibit J1.

51. Prior to his retirement Sibusiso Khanyi (Khanyi) was the director of Education Management Information Systems (EMIS) at the provincial head office of the Respondent. He had been appointed as panel member of the selection committees for the posts of CES: District Planning and School Infrastructure at the Uthukela, Harry Gwala and Mgungundlovu District Offices. His letter of appointment in respect of the Uthukela District Office is at page 133 of exhibit B. He subsequently received written notification from ME Mokoena, the nominated chairperson of the panel, that the shortlisting and interviews would take place at 13h00 on 13 and 23 November 2020 respectively. The said letter is at page 134 of exhibit B.

52. Whilst he participated in the selection processes at Harry Gwala and Mgungundlovu District Offices, he had not done so at the Uthukela District Office.

53. On the 13 November 2020 whilst driving from Pietermaritzburg to Ladysmith to attend the shortlisting meeting, he had received a call from Mokoena advising him that a member of the panel could not meet as he had suffered a mishap and as the meeting would not be quorate, it would be postponed. He was informed that the shortlisting meeting would now take place on the 23 November 2020, and he subsequently received an email (at page 135 of exhibit B) to this effect. The meeting was again postponed to 13h00 on 3 December 2020 by way of a letter from Mokoena (at page 136 of exhibit B.)

54. When he had arrived at the venue for the meeting at approximately 12-12:30 he was, however, informed that the shortlisting had already taken place earlier in the morning. He did not question why this had happened. By way of reference to the minutes of the meeting at page 137 of exhibit B he learnt that the meeting had been held at 8:00. The minutes record that Khanyi had tendered his apology for not attending. He denied having done so. If he had been unable to attend the meeting, he would have recorded this and the reasons therefor in writing.

55. He had subsequently been invited to attend the interview meeting to be held on 14 December 2020 at 14:30. At approximately 8:30 on that day he had received a call from Mokoena. He advised her that he was still at his office and that he intended to leave for Ladysmith at approximately 10:00. Mokoena had advised him she would be busy with interviews for other posts and that on his arrival he should go to her office and wait to be called to the interviews. On arrival in Ladysmith, he had had lunch at the local Wimpy and then proceeded to the venue at approximately 14:00. As requested, he had gone to wait in Mokoena’s office. After he had not been called to the meeting and at approximately 15:30, he had left the office and proceeded outside to make a call. He saw candidates standing outside and assumed that the interviews were running late. At approximately 16:00 he had then proceeded to the gents. Whilst doing so he had initially come across Nzama, a panel member, and the other panel members as they emerged from the boardroom. They invited him to join them for lunch, but he declined as he had already eaten. He was then called aside by Mokoena who had a lady with her who was introduced to him as the SADTU representative. He was then informed that the meetings had been held earlier at 9:30 at the request of a candidate. His response had been to ask them whether they had done justice to the process. On their response having been that they had he had responded “fine” and left. The minutes of the meeting (at page 139 of exhibit B) record that the meeting was held at 14:30 and that he and another member, Hadebe, had tendered their apologies. Khanyi maintained that at that time he was waiting at the office of Mokoena and that he had not tendered his apologies.

56. Khanyi stated that someone who was a principal could not conduct EMIS training. Training could only have been done by information technology officers at District or Head Office level as such training was done in accordance with the SA Schools Management System devised at National level and in respect of which the information technology officers received training before imparting that knowledge to their district officers.

57. As a principal or trade union official the Second Respondent would not “handle” the building of new schools. This is done at District and Head Office level. He similarly would not have “ensured facilitation and correct capturing of Global Positioning System to get the school and cluster coordinated.” This is done by the Geographic Information System section at Head Office.

58. Under cross-examination by the representative of the First Respondent Khanyi acknowledged that he was only a member of the panel considering applications for the post OBE/02/2020 and not the other two posts mentioned in the correspondence at page 135 of exhibit B: namely, OBE/01/2020 and OBE/03/2020.

59. He had not asked Mokoena the reason for the interviews having been conducted earlier in the day without him having been present.

60. It was put to Khanyi that the shortlisting for the post which is the subject matter of this hearing was done at approximately 13:00 on 3 December 2020 and that the shortlisting for other posts had commenced at 8:00. Khanyi disputed this.

61. It was put to Khanyi that Mokoena’s version in respect of the shortlisting was that:
61.1. On the 3 December 2020 he had arrived whilst the panel considering applications for the governance and management post was still busy.
61.2. He did not appear to be in the right frame of mind.
61.3. The panel members had told him that he was early and should wait for his meeting to start.
61.4. He was disruptive.
61.5. The panel had finished the governance and management meeting and had tried to commence the shortlisting for the planning and infrastructure post.
61.6. He continued to be disruptive. The members pleaded with him to leave; and
61.7. A panel member, Kheswa, had spoken to him outside the boardroom and he had left.

62. Khanyi denied this version of events.

63. He had not reported to anyone that he had been denied the opportunity to participate in the shortlisting process.

64. With regards to the events on the day of the interviews, the version of Mokoena is that:
64.1. Khanyi had arrived late, in a similar state as for the shortlisting but not as disruptive.
64.2. The interview times had been moved slightly earlier than initially scheduled. The candidates and Khanyi had been informed of this by the secretariat.
64.3. She denies having called Khanyi on the day of the interviews and having told him to wait at her office.
64.4. She denies having approached Khanyi in the company of a trade union official.

65. The version of Mokoena was disputed by Khanyi.

66. Under cross-examination by the representative of the Second Respondent, Khanyi stated that the incumbent of the planning and infrastructure post would have reported to him. He believed that he had been included in the panel due to his knowledge of the post’s requirements. He had been an EMIS director since 2001 and Kheswa, a panel member, had reported to him at one stage.

67. When he had participated in the selection process at Harry Gwala and Umgungundlovu District Offices the panels had asked him to set questions relevant to the core business requirements for the post.

68. Khanyi agreed that all the members of the selection panel at Uthukela District Office had been directors.

69. Under re-examination, Khanyi submitted that he had been appointed as a member of the panel in terms of clause 5.1.4 of Collective Agreement 1 of 2010 that provides that it must be ensured that “at least one member of the interview committee is fully familiar with the nature of the duties attached to the advertised post.”

THE FIRST RESPONDENT
70. Mapaseka Eunice Mokoena (Mokoena) is the Uthukela District Director, and she was the chairperson of the shortlisting and interview committees.

71. Both office-based educators and school principals could apply for the post. Both the Applicant and Second Respondent were shortlisted. Although the CV of the Applicant did not necessarily disclose school management experience, the shortlisting committee was aware that he had acted in the post for some time, and he was accordingly shortlisted and given an opportunity to present his case to the interview committee.

72. The shortlisting committee relied upon the CVs of the applicants as presented by them to determine whether they met the requirements for the post. The veracity of the content of the CVs was not verified.

73. The interview committee consisted of three panel members. It ought to have consisted of five members but the panellist, Hadebe who was the acting Director of the Pinetown District excused herself and Khanyi was also not present. As the three present panelists constituted a quorum, they had decided to proceed. Khanyi subsequently arrived after the interviews had been held. Before doing so she had checked with her secretary to ensure that all panelists had been sent their invitations.

74. In addition to not participating in the interview committee, Khanyi had also not participated in the shortlisting process. He had arrived for the shortlisting meeting whilst a meeting was still in progress for another post. On him entering the interview room Mokoena noticed that he was not sober. He was loud and acting in a disruptive manner. Kheswa, a panel member who knew Khanyi, then left the room with Khanyi and on his return Kheswa advised that the meeting that Khanyi had agreed not to participate in the meeting. The panel members and union representatives all agreed not to report that Khanyi had not participated as he was under the influence of alcohol as this would have exposed him to disciplinary action for misconduct. She did not speak to Khanyi.

75. Khanyi had not communicated to her about his so-called exclusion from the shortlisting and interview committees. With regards to his version that he had waited in her secretary’s office to be called to the meeting, she stated that she had only learnt of that version after this dispute had commenced.

76. Each of the shortlisted candidates were asked the same five questions. The questions were each formulated so as to cover each of the key responsibilities of the post. The panelists scored each of the candidates individually, after which their scores were tallied and the average score for each candidate was then allocated to each candidate. The Second Respondent scored the highest score and the Applicant the second highest.

77. With regards to the submission of applications by the candidates, Mokoena stated that the advertisement had directed candidates to direct their applications to SA Zulu. She was, however, not involved with the receipting of applications but had been informed by Zulu that he had worked together with Naidoo in this regard. She had received the applications from Zulu a few days after the closing date. The applications were received together with a table listing them. The typed list tallied with the number of applications handed to her.

78. No undue pressure had been placed upon her during the shortlisting and interview processes. The allegation by the Applicant that the Second Respondent was appointed as a result of cadre deployment was simply an allegation made by him. With regards to his performance in the post, Mokoena stated that the Second Respondent was “trying his best” and is “effective to an extent.”

79. Under cross-examination by the Applicant’s representative Mokoena stated that she could not comment on the assertion by the Applicant that the Second Respondent had missed the deadline by which applications were to be submitted, as she had not been part of the process of receiving applications.

80. It was put to Mokoena that Khanyi was the member of the interview committee referred to in paragraph 5.1.4 of Collective Agreement 1 of 2010-Procedures and Practices for the Filling of Office Based Promotion Posts (at page 30 of exhibit A) who was required to be “fully familiar with the nature of the duties attached to the advertised post. Mokoena’s response was that she could not comment on that. She did not know whether he had been appointed on the basis of his expertise. She agreed that for other chief educational specialist posts in the district, an employee based at Head Office had sat on the interview committees.

81. She submitted that the initial shortlisting meeting had been postponed as Nzama had had a family bereavement and she had a clash of dates with another committee meeting. She confirmed that on the day of the rescheduled shortlisting meeting Khanyi had barged into the meeting room in which another meeting was in progress. He was loud and disruptive. He appeared to be under the influence of something. She could not say whether it was alcohol. Another committee member, Kheswa had gone outside with him and on his return, Kheswa had informed the meeting that Khanyi had agreed to leave. All those present, including the trade union observers, had agreed that were they to report Khanyi’s behaviour, he would be subjected to disciplinary procedures. The minutes had accordingly reflected that Khanyi had tendered his apologies and had not attended the meeting. This was a misrepresentation. Mokoena conceded that she had not informed the Respondent’s representative that Kheswa had accompanied Khanyi to his vehicle before he had decided not to participate in the meeting.

82. She and Zulu had done the initial sifting of the applications. She could not say how many had been sifted out. Mokoena agreed that the criteria listed in the minutes of the shortlisting committee minutes contained a number of errors that rendered them nonsensical.

83. In their shortlisting of the applicants’ the committee had agreed to read submissions in respect of “Leadership, Administration and Management Experience” and “Professional Development, Education Experience and Insight” together and to allocate these two criteria 14 points each and then allocate half of the applicants’ scores for each of these criteria to the submissions in respect of “Organizational Experience and Ability” and “Leadership and Community Involvement” respectively.

84. Minutes had not been kept of the sifting process, but sifting had been done by Zulu and herself as reflected on exhibit K. Forty-two applications had been received in time, of which four had been sifted out. The 42 applicants included duplicate applications that had been submitted by 2 applicants. These duplicate applications were not sifted out.

85. The applications handed over to her tallied with those listed on exhibit K. She could not comment on the application of Gasa, listed in the handwritten register of Naidoo but not listed on exhibit K.

86. With regards to the interview committee meeting Mokoena testified that:
86.1. She had not seen Khanyi on that day.
86.2. She could not recall having told him to wait in her office until called to the interview meeting.
86.3. She had not tried to contact him as the other panel members were present and she had assumed that he would arrive.
86.4. She disputed that Khanyi had spoken to her and the SADTU representative at approximately 4:30 pm on the day of the interviews.
87. She testified that the following experience, listed in the curriculum vitae of the Respondent, would not ordinarily be gained from having been a principal of a school:
87.1. Liaison with education circuits and collation of infrastructure needs list.
87.2. Analysis of infrastructure data to determine infrastructure needs of a district.
87.3. Leading infrastructure management staff including education specialists and works inspectors.
87.4. Mentoring, monitoring of IMS staff.
87.5. Mentoring of interns for professions in the built environment.
87.6. Participating in the interns’ audit preparation.
87.7. Ensuring the correct capture of the Global Positioning System of the school and those of the circuit are correctly coordinated.
87.8. Overseeing the building of new schools (but a principal would oversee the construction of buildings at a school;)
87.9. Verification of numbers and head-counts of learners.
87.10. Participation in IDP meetings.
87.11. Conducting feasibility studies in respect of applications for new classrooms.
87.12. Liaising with implementing agents in respect of compilation of a meetings’ schedule, attending meetings in respect of construction and reporting of problematic projects to the relevant office.

88. Under cross-examination by the representative of the Second Respondent Mokoena testified that she did not have personal knowledge of when he had delivered his application.

89. Mokoena had not received any instructions to ensure the appointment of the Second Respondent and she had not taken steps to deliberately exclude Khanyi from the shortlisting and interviewing processes.

90. Under re-examination Mokoena submitted that the applicant, Gasa, whom the Applicant alleges was removed from the printed list of applications (exhibit F) to make room for the Second Respondent, was not listed on exhibit F as his application was late and recorded as such on-exhibit H.

91. The interview panel even without Khanyi’s presence, was properly constituted as it included a member with the same expertise as Khanyi except at district office level.

92. Sifiso Alpheus Zulu (Zulu) is a deputy director at the District Office responsible for recruitment and appointments amongst other responsibilities.

93. He had delegated to Naidoo the task of receiving applications. He had only become aware of the manuscript register kept by her after this case had commenced. Exhibit I is the template used by the District Office to record applications received.

94. Some applicants had pushed their applications under his door and certain of them had handed their applications to him. In these cases, he took the applications to Naidoo. He could not recall how many applications had been received in each of these ways.

95. Under cross-examination by the Applicant’s representative, he stated that:
95.1. Although he was named on the job advertisement as the person responsible for receiving the applications, he had delegated this task to Naidoo. As he was named in the advertisement, he did not chase away those applicants who brought their applications to him.
95.2. Naidoo was responsible for recording all applications received.
95.3. Naidoo had been told how to do her work and there had been a handover period from her predecessor to her.
95.4. If Naidoo had testified that she had not been told how to do her work and that she had made use of the manuscript register as her predecessor had, she was not being truthful.
95.5. The Second Respondent is known to him, and he recalled him delivering his application. He had taken it to Naidoo almost immediately thereafter. He could not recall how long before the closing date this had been.
95.6. Applications that are received late are separated by the person receiving them, however, all applications are forwarded to the panel; and
95.7. The First Respondent had not complied with clause 2.3.1. of annexure A to Collective Agreement in that it had not acknowledged receipt of the applications in writing.

96. Prior to closure of the First Respondent’s case, I was informed by the First Respondent and Applicant’s representatives that the First Respondent did not dispute that Khanyi had been at the District Office on 14 December 2023. In other words, it is accepted that he had arrived for but did not attend the interviews.

The Second Respondent
97. The Second Respondent:
97.1. Obtained a Secondary Teacher’s Diploma in 1987.
97.2. Obtained a Batchelor of Arts Degree in 1996.
97.3. Began teaching in 1998.
97.4. Was a departmental head.
97.5. Was the principal of a school with approximately 1 000 learners.
97.6. Had been a principal since 2008 until his appointment in the post in dispute.
97.7. Is registered with SACE.
97.8. Has a driver’s license.
97.9. Has a certificate of computer literacy.
97.10. As a school principal, had acquired knowledge of the PFMA and PSA.
97.11. Held a leadership position as branch chairman of his trade union, SADTU, and which branch had approximately 10 000 members.
97.12. Interpreted and applied Departmental policies and devised and implemented policies at school level.

98. He had delivered his application to Zulu in his office between one and two weeks prior to the closing date.

99. He had not spoken to any of the panel members prior to his interview.

100. With regards to his curriculum vitae:
100.1. He had made a grammatical error in not making use of an apostrophe at page 109 of exhibit B and the subheading ought to read “… that policies relating to management of school’s infrastructure…” and not “… policies relating to management of schools' infrastructure …;”
100.2. He has all of the experience set out in his curriculum vitae. This experience was gained either in his capacity as a school principal or through his participation in structures consisting of various government departments through which government is able to provide integrated solutions impacting society.
101. Under cross-examination the Second Respondent:
101.1. Agreed that he knew Molefe, the SADTU representative present at the panel meeting. She is the Regional Secretary of the Siphiwe Gwamanda Region of which he had been Chairman.
101.2. Agreed that his name was not recorded in the manuscript register maintained by Naidoo.
101.3. Could not recall the date on which he had submitted his application to Zulu.
101.4. Maintained that he was the author of his curriculum vitae and, in particular, disputed that it had been compiled by SADTU without his input.
101.5. Disputed that only the signature page of his curriculum vitae had been sent to him to sign.
101.6. Disputed that Molefe had had his documents certified as true copies in Colenso on his behalf. He had done so himself.
101.7. Maintained that the experience detailed in his curriculum vitae had been acquired by him in executing his duties as a school principal. In this regard he disputed the evidence of Mokoena who had testified that certain of the listed duties would not be associated with the duties of a school principal. In this regard too, it was put to him that her evidence had not been disputed.
101.8. Disputed that much that he had included in his curriculum vitae was not done at school level and thus that he could not have the experience claimed. He had acquired this experience in executing his duties as a principal or otherwise in interacting with role players.
101.9. Disputed that he would have no experience of applying the Public Finance Management Act (PFMA) as a school principal. In this regard he submitted that both the South African Schools Act and the PFMA applied to school finances.
101.10. Agreed that he had not been involved in the construction of “schools” as stated in his curriculum vitae but had rather been involved in the construction of “buildings;”
101.11. Agreed that the selection panel would not have had the benefit of such an explanation in respect of claims made by him in his curriculum vitae.

CLOSING ARGUMENTS
102. Closing arguments were only received on behalf of the Applicant.

The Applicant
103. The Applicant submitted comprehensive closing arguments, which are summarized as follows:
103.1. The Applicant was the best candidate.
103.2. The Second Respondent was parachuted into the post as a cadre deployee. His application had been submitted late and his curriculum vitae had been concocted to give the false impression that he had possessed the necessary experience.
103.3. In short, as a school principal, the Second Respondent would not have acquired the experience set out in his application.
103.4. Khanyi who would have provided the interview panel with the necessary expertise on the requirements for the post, was deliberately excluded from the panel.
103.5. The responsibility of receiving applications was delegated to Naidoo.
103.6. Naidoo had kept a record of all applications received by her and there is no record of her having received the Second Respondent’s application. The Second Respondent and Zulu cannot indicate when the application had been submitted.
103.7. Reference was made to a number of cases including that of the Labour Court case of Ntombeziphelele Dorcas Cynthia Hlophe V Head of Department: Department of Education KZN D755/2019. The facts in this case are a mirror image of the facts in this arbitration except they occurred at a different district.

ANALYSIS OF EVIDENCE AND SUBMISSIONS
104. The Applicant bears the onus of establishing that the First Respondent committed an unfair labour practice by engaging in unfair conduct relating to its appointment of the Second Respondent and its failure to appoint him.

105. The Applicant is and was at the relevant time employed by the First Respondent as Deputy Chief Education Specialist: Infrastructure. The post for which he applied was that of Chief Education Specialist: District Planning and School Infrastructure and were he to have been appointed, this would have been a promotion. I need to determine whether the First Respondent’s appointment of the Second Respondent and its failure to promote and appoint the Applicant is unfair.

106. The Applicant maintains that he met all the requirements for the post; had acted in the position for a number of years and was the best candidate.

107. He submits that in such circumstances, the failure of the First Respondent to appoint him was unfair. The gist of the Applicant’s complaint in this regard is that the procedures followed by the First Respondent were a sham and that the appointment of the Second Respondent was as a result of the hidden hand of cadre deployment operating in the shadows. No direct evidence of this undermining of the lawful procedures was submitted but the Applicant relied upon a number of elements of the Second Respondent’s application for the post and the procedures adopted by First Respondent from which he sought to draw the inference that the appointment of the Second Respondent was predetermined and unfair to him.

108. The challenge of the Applicant is essentially threefold. Firstly, it is submitted that the Second Respondent did not submit his application for the post prior to the closing date of 4 September 2020. Secondly, it is the Applicant’s case that the curriculum vitae submitted on behalf of the Second Respondent is a fabrication designed to assign experience to the Second Respondent that he simply could not have acquired as a school principal and thirdly it is alleged that a member of the interview panel who possessed the necessary expertise knowledge in respect of the requirements for the post, was intentionally blocked from attending the shortlisting and interview meetings.

109. Were I to find that the Second Respondent did not submit his application prior to the closing date, this would be the end of my enquiry and I shall thus deal first with this aspect of the challenge of the Applicant.

The alleged late submission of the Second Respondent’s application
110. In this regard, the Applicant primarily relies upon the content of a register kept by Naidoo. She had been appointed by Zulu to manage the appointment process insofar as it related to the receiving of applications. This was the first appointment process in which Naidoo had been involved. She had received some mentoring from her predecessor but apart from that, she had no other experience of managing an appointment process.

111. It is common cause that the name of the Second Respondent is not recorded in the manuscript register maintained by Naidoo. It is apparent that it was when the Applicant learnt that the Second Respondent’s name did not appear in the register that he came to believe that the Second Respondent had not submitted his application on time.

112. The oral evidence of the Applicant in respect of the manuscript register maintained by Naidoo is that at some stage he had approached Naidoo. She had told him that she had kept a register of all applications and if an application did not appear in the register, it had not been received. She had handed the register to the Applicant to peruse and he had noticed that there was no record of the Second Respondent having submitted an application. Naidoo did not say to him that there were supplementary records; namely the printouts of the data captured by her on to the electronic system of the First Respondent and which should be read in conjunction with her register.

113. Naidoo, who was called as a witness by the Applicant, denied having told the Applicant that if an application is not recorded in her register, it had not been received. She had started the register shortly after applications began to be received. She had entered all applications in the register. She had started the register as a means to protect herself. She also started to get applicants to sign alongside the relevant entry in the register. She recorded those applications received late and applications that he been sent in error to the District Office.

114. Naidoo initially stated that she had started to capture the applications on to the electronic database of the First Respondent after the closing date. She subsequently contradicted this evidence by stating that she would capture the data as and when she received applications. She testified that the application of the Second Respondent was not included in her register as its receipt had been captured directly on to the electronic database.

115. Under cross-examination she confirmed that all applications were brought to her, including those received by Zulu.

116. The Second Respondent and Zulu, who testified on behalf of the First Respondent, testified that the Second Respondent had hand delivered his application to Zulu. They could not state when this had been save to aver that it was prior to the closing date.

117. The key witness is Naidoo, but she gave contradictory evidence. For instance, she states that she decided to keep a record (the register) of all applications received to protect herself (by having proof of applications received) but then states that she did not record the Second Respondent’s application in her register as it was not hand delivered by him. Further, for instance, she states that she started the electronic record after the closing date, but she also stated that she would update the electronic record as and when she could on receipt of applications. As the Applicant has no direct knowledge of the date on which the Second Respondent had submitted his application, the contradictory nature of Naidoo’s evidence might ordinarily mean that he would fail to establish on a balance of probabilities that the application of the Second Respondent was received late. There is, however, evidence other than oral testimony on which I may rely.

118. In this regard, I shall deal firstly with the electronic properties of the printout on which the application of the Second Respondent is recorded and which is relied upon by the Respondents to establish that the Second Respondent’s application was received before the closing date. As indicated above, an information technology practitioner in the employ of the First Respondent determined the electronic properties of the original electronic record of which exhibit F is a printout. This was done in the presence of all parties, who agreed that his findings could be entered as evidence. He found that the electronic document was created by Naidoo on 16 September 2020. This is 12 days after the closing date of 4 September 2020. As such, the evidence of Naidoo that she would electronically capture applications as an when received cannot be true and, in particular, it cannot be true that the reason for the Second Respondent’s application having not been recorded in the manuscript register, was because Naidoo had captured receipt of his application electronically and thus there had been no need to include it in the register. Her initial evidence that the electronic records had been created after the closing date is the correct version.

119. The principal documentary evidence relied upon by the Applicant is the manuscript register compiled by Naidoo. A review of the register indicates that:
119.1. Naidoo recorded in the same register applications received for the post in dispute and other posts that had been advertised at the same time.
119.2. The surname, initials and identity number of the applicants are recorded together with the description of the relevant post.
119.3. She recorded the date of receipt and whether the applications had been hand delivered or received by post.
119.4. Initially she did not require individuals to sign the register in respect of those applications that were hand delivered. By 2 September 2020 she, however, required those applicants to sign her register alongside the relevant entries.
119.5. 628 applications (plus an additional 3 applications that had erroneously posted to the wrong district office) are recorded as having been received in respect of all posts advertised in HRM 38 of 2020.

120. It is evident from a review of the register that Naidoo had made every effort to keep an accurate and comprehensive record of all applications received. The only application across all posts advertised in respect of the Uthukela District Office, shown not to have been recorded in the register but listed on the electronic records (created after the closing date) is that of the Second Respondent.

121. As indicated above, the reason advanced by Naidoo for the Second Respondent’s application having not been recorded in the manuscript register; namely, that she recorded receipt directly on to the electronic document, is rejected by me as such record was only created 12 days after the closing date. Zulu for the First Respondent testified that all applications handed in at his office were given to Naidoo. In light of all the evidence, I find that there is no other probable explanation for the Second Respondent’s application having not been recorded in the manuscript register of Naidoo, other than the one advanced on behalf of the Applicant; namely, that his application was not received. In this regard the reasoning of the learned acting judge at paragraph 26 of the above mentioned Hlophe case is equally applicable to the facts in this case:
“In my view the absence of the Fifth Respondent’s (the appointee) name on the register in which candidates were made to sign on submission of the applications as proof thereof, constituted enough evidence that the Fifth Respondent did not apply for post number OBE/13/2020. There was clearly no proof whatsoever that she indeed submitted the application by closing date of 4 September 2020.”

122. I accordingly find that the Applicant has established that the Second Respondent did not submit his application prior to the closing date. As such, his appointment must be set aside.

123. Having reached this conclusion, I do not need to consider the other challenges to the appointment of the Second Respondent; namely that the shortlisting and interview panels’ meetings were manipulated to exclude the attendance of the subject specialist, Khanyi and that the curriculum vita of the Second Respondent was a fabrication.

124. I do, however, need to consider what relief should be granted to the Applicant, who seeks to have the appointment of the Second Respondent set aside ab initio from January 2021 and for him to be appointed retrospectively to the post of Chief Education Specialist: District Planning and School Infrastructure with effect from January 2021.

125. In order for the Applicant to be appointed to the post he needs to have established that he was the best candidate.

126. The interview panel had scored the shortlisted applicants as follows:
126.1. The Second Respondent-42.
126.2. The Applicant-35.
126.3. M M Ntuli-29,5.
126.4. N G Khuzwayo-27,5; and
126.5. C S Hlatshwayo-24.

127. It is thus evident that the Applicant was rated the next best candidate after the Second Respondent. I do not know anything about the other candidates, but it is evident that the interview panel rated the Applicant superior to the other candidates by some margin. I do not believe, however, that I can rely on this to come to the conclusion that the Applicant has established that he was the best candidate. It has been his assertion throughout the proceedings that the members of the interview panel besides Khanyi, were not qualified to assess the suitability of the candidates for the post. It would be somewhat irrational for me to now rely upon those members’ scoring to conclude that the Applicant is the best candidate for the post. I accordingly intend to order that the First Respondent recommence the appointment process from the interview phase.

128. Lastly, the Applicant has requested that he be awarded costs against both the First and Second Respondents jointly and severally. The Applicant was represented throughout the proceedings by counsel, Mr Kulati duly instructed by MHS Attorneys Inc. The recovery of legal costs is governed by section 54.3 of the Council’s Dispute Resolution Procedures which states that:
“A commissioner/panellist may make an award of costs in respect of the legal fees of a party that is represented in an arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner.”

129. As the First and Second Respondents were not represented by legal practitioners, I am precluded from making an order in respect of the Applicant’s legal fees.

AWARD
130. The Applicant, Humphrey M Mazibuko, has established that the First Respondent, the Head of the KwaZulu-Natal Department of Education, committed an unfair labour practice involving unfair conduct relating to his application to be promoted to the post of Chief Education Specialist: District Planning and School Infrastructure.

131. The First Respondent is ordered to:
131.1. Set aside the appointment of the Second Respondent, Muzikayifani D Nkabinde ab initio.
131.2. Within 90 days of the Council having issued this award, recommence the appointment process with effect from the interview phase.
132. No order is made in respect of costs.

J Kirby
Arbitrator 6 March 2024
ELRC620-20/21KwaZulu-Natal