Award  Date:

25 March 2021

ARBITRATION AWARD


Case Number: PSES 753-17/18GP
Commissioner: Trevor Wilkes
Date of Award: 25 March 2021

In the MATTER between

Thandi Nobutle Mabasa
(Applicant)

and

Department of Education-Gauteng
(respondent)


Union/Applicant’s representative: Mr Zebidiela

Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

respondent’s representative: Mr Tsebe
respondent’s address:


Telephone:
Telefax:
E-mail

DETAILS OF HEARING AND REPRESENTATION


1. The matter was set down for arbitration on 11 September 2018 at 9h00 at the Ekhurhuleni South District, Meyersdal. Issues were narrowed, after which the matter was postponed twice for the applicant to have full access to documentation and prepare her bundle.

2. The applicant was represented by Mr Zebidiela an attorney. Mr Tsebe a labour relations officer appeared for the respondent.

3. I explained that an adversarial approach would be taken because the applicant and respondent were represented by lawyers and seasoned representatives. Evidence in chief was explained, including documentary evidence as was the onus of proof and rights of cross examination.

4. Evidence was heard on 30 October 2018 , 24 January 2019 and 18 & 22 January 2021 and 19 February 2021. The proceedings were digitally recorded.

5. The parties by agreement submitted written closing arguments on 2 March 2021 which was done.

ISSUE TO BE DECIDED

6. When issues were narrowed the applicant placed only breach and sanction regarding all charges in dispute and alleged two grounds of procedural unfairness. I must decide whether the applicant’s dismissal was substantively and procedurally fair.

BACKGROUND

7. The applicant had been appointed by the respondent as educator on 2 January 1987 and had been in the post of Principal of the Leondale High School at the date of her dismissal after an unsuccessful appeal on 25 July 2018 at which time she earned a salary of R53264,50 per month.

8. The applicant has referred an unfair dismissal dispute relating to misconduct and has requested retrospective re-instatement.

SURVEY AND EVALUATION OF EVIDENCE

THE RESPONDENT’S CASE

9 Mokgoba Matlou stated that he had been the chairperson at the internal hearing. The matter had been postponed for the applicant twice and on 30 November 2016 while represented by a colleague the applicant applied to be legally represented in writing. At the same time her representative Mr. Lebenya had requested documents He ruled that there be no legal representation and that documents be provided.

10 After this the applicant appeared on her own and did not want to remain present at the hearing on 20 April 2017 on the basis that a High Court process involving interdict was on the motion Court roll.

11 Later she returned and informed him there had been an interdict stopping the process. She did not present any interdict, did not ask for a postponement for her representative nor mention that she had not received documents.

12 After she had left altogether, he had checked with the initiator that she had received documents which she affirmed, and the matter proceeded in the applicant’s absence because he had informed her that it would.

13 In cross examination he said that he did not ask where her erstwhile representative was because she did not remain long enough to do so and had focused attention mainly on the alleged interdict.

14 He also conceded that he was not aware of whether the date agreed on in her absence was ever communicated to her.

15 Raulani Makhuvele who was the initiator confirmed the evidence of the chairperson. She added that she had made up 3 lever arch files which she personally took to the school and handed to the applicant who signed only for the notice but not the documents.

16 She also stated that Lebenya had told her that he was not representing the applicant but was there to apply for legal representation and on one later occasion to have the decision revisited.

17 She conceded that the applicant was not present when the parties agreed on a date for the hearing to proceed. She said this was done because at that stage the applicant had been assumed to have waived her right to be present.

18 Marthinus Albertus Koen stated that he was the owner of Guardian Forensic Services who had provided forensic audit services to the Department of Education during 2015 at the Leondale High School where he met the applicant who was at the time the principal.

19 His evidence was that the respondent had received allegations from two sources.

20 The key purpose of his forensic assignment focused on an investigation of all allegations specifically in regard to financially related mismanagement and irregular management practices at the school; Ascertaining whether all income received by the school had been accounted for in respect of the period which was from 2012 through to 2015; Determining whether expenditure which had been incurred in particular those transactions relating to the allegations that had been made, had been in accordance with procurement processes and were valid; To identify any irregular transactions and management practices at the school as well as any other irregular related aspects.

21 He had been tasked to obtain evidence in support of any irregularities identifying those persons who were responsible and to provide the respondent with the detailed forensic investigation report with substantiated findings and recommendations.

22 He had followed the process to gain insight into the legal and procedural framework relevant to the school financial and other management processes. He had obtained and gone through analytically the documentation, including minutes of meetings, receipts, quotations, bank statements, cheques, requisition claim forms, invoices and any other payment related documents relevant to the scope of his assignment.

23 In order to do so he had provided the school, in the person of the applicant, with a list of the required other documents on 2 September 2015 and had taken possession of these documents as were given to him by the applicant to his offices for scrutiny.

24 As a result of his investigation, he had identified and reviewed transactions relevant to the income received with reference to the bank account of the school in order to ascertain whether all such income had been accounted for in the books and records of the school. He had verified whether spending incurred by the school had taken place in accordance with the prescribed legislative and policy frameworks.

25 He had assessed the legitimacy of those transactions and ascertained whether all expenditure had been accounted for in the books and records kept by the school.

26 He had verified whether goods and services paid for by the school had in fact been delivered and had conducted interviews with the applicant and other role players identified from the documentation including teachers and members of the school governing body and also two individuals whose services had been engaged when larger projects including classrooms and a school hall had been built.

27 In regard to the first charge from the documentation explored and analyzed, he had ascertained that there had been transactions contrary to the requirements of the legal and policy framework. The essence of his evidence in this charge was that transactions had been entered into with a list of individuals for the supply of services and goods without obtaining the required three competitive quotes. He referred to the documentation and identified 10 such transactions which he detailed as follows:

28 On 24 April 2014, R50,000 had been paid to a supplier on a claim form and invoice but there was no evidence that comparative quotations had been obtained prior to engaging the services of the said supplier to install electrical equipment in the new classrooms.

29 In the interview with the applicant, she had told him that she had met this supplier whilst he was on site at school busy with electrical repairs at the instance of Eskom and had requested his assistance as a result.

30 She stated that there had been three quotations and that the least expensive of these was employed, but was not able to explain why the other two quotes were not available.

31 On 15 July 2013, R25,318, 90 had been paid by cheque signed by the applicant and the chairman for maintenance work as a result of the claim form on the same day in respect of which they were no comparative quotations.

32 On 16 July an amount of R23,692,72 was paid to a supplier for electrical repairs on a claim form of the same date by cheque signed by the applicant. There were no quotes at all on record.

33 On 8 October 2013 and 28 October 2013 two payments totaling R42,074, 55 were paid to a supplier for steel window frames based on two claim forms approved by the applicant and payment was made by a cheque signed by the applicant and the chairman. There had been no invoices provided by the service provider nor comparative quotes.

34 The applicant in regard to this transaction had stated that quotations had been obtained prior to engagement and that invoices had been submitted but was not able to explain where they were.

35 Three payments had been made to a certain supplier, the first on 20 February 2014 in the amount of R20,000 by electronic transfer without any supporting documentation such as invoices or claim forms. Another payment of R46,000 was made on 3 July 2014 by way of a cheque based on a claim form dated the same date which had been approved by the applicant and the cheque used had been signed by both the applicant and the chairman but there was no proof in the form of an invoice.

36 A third payment of R46,000 was made on 5 December 2014 by electronic transfer to the same service provider based on an invoice in respect of these three transactions there had been no comparative quotations apart from the one from this supplier.

37 On 12 December 2014 payment of R51,000 was made by electronic funds transfer in favour of a supplier for the supply of plastic chairs. The only document in respect of this transaction was an invoice and no claim form and there had been no comparative quotes, all quote from the supplier.

38 On 11 February 2014, a payment of R100,000 and a further payment of R79,000 on 8 May 2014 had been approved by the applicant and paid by way of a cheque signed by the applicant and the chairman. There were no comparative quotations but only one from the said service provider.

39 On 15 January 2013, an amount of R26,400 and on 20 March 2013 an amount of R2540,00 had been made after approval by the applicant. During an interview with the applicant, she stated that no comparative quotations had been obtained because on her understanding the supplier in question had been the sole supplier of the goods in question to the school for some time already.

40 The negative impact to the respondent was that without competitive quotations it would not be possible for the respondent to determine whether the market had been tested in order to ensure the best possible value for money when resources at the school was spent.

Charge 2

41 During the period 14 June 2013 to 12 December 2014, Contrary to Circular 13 of 2000 and the financial policy of the school, 18 payments totaling R348,924,00 had been affected by the school in favour of Mr. Muleba who had been the chairperson of the school governing body.

42 This had taken place without any proof of expenditure for any of these except for partial proof of payment in respect of one transaction on 8 December 2014 where proof of expenditure had been limited to R14,300,00 leaving R5700,00 unaccounted for. Payments had been made described as being in respect of labourers, building material, camp, catering, builders’ salaries, exam and transport, builders wages, donations, part payment for a roof, and educational excursion, the balance of payment in respect of the roof, and the educator’s end of year party.

43 Five of these transactions did not bear any description of what they were in respect of. These cheques had been cashed by the chairman. All payments were made on the basis of only a claim form by the chairman approved by the applicant and the cheques had been signed by the applicant.

44 The treasurer of the school governing body had stated during an interview that she was not aware that such cheques had been issued without any proof of expenditure. She said that minutes of a school governing body executive committee meeting reflecting that the treasurer had been present were not accurate and the applicant and chairman had managed these payments and would only inform the full constituency of the school governing body after-the-fact.

45 The applicant during an interview with her, stated that the cheques had been issued to the chairman in order to effect certain payments which had been legitimate, but she could not explain why there had been no invoices in respect of this expenditure.

Charge 3

46 Arising from the financial records of the school he had ascertained that on 11 December 2012 a total of R215 500,00 had been paid to staff members as incentives and that several such incentives had been paid.

47 The school governing body executive committee meeting held on 10 December 2012 reflects only the presence of the applicant , the chairman and treasurer. Some being educators and that those three persons had agreed on how the incentives would be paid.

48 The minutes of a school governing body executive committee meeting held almost one year after the incentives had been paid reflects the presence of the applicant , the chairman and the treasurer of the school governing body only. At this meeting, a decision was taken to pay the said incentives.

49 On 7 January 2014, the school effected payments totaling R243,002,00 to staff members as incentives. There had been 46 such payments including one of R60,000,00 to the applicant. The minutes of the school governing body executive committee held on 5 December 2013 had been attended by only the applicant , the treasurer and chairman. At this meeting, the committee had approved a submission made by the school to the school governing body for the payment of these incentives.

50 At the same meeting the minutes indicated that the treasurer had stated that an application had been made during the previous year in terms of Section 38A. She stated that in response a letter had been received contrary to the requirements of the Circular, that a withdrawal of Section 38A had taken place and that as a result uncertainty existed whether it was relevant to the school or not but that the committee had decided notwithstanding this, to proceed with an approval of such incentives being paid from donations and fundraising efforts.

51 The same committee constituted by the same parties had on 29 January 2014 taken a further decision with the knowledge of the applicant to pay her an additional R50,000,00 on 30 January 2015 by way of another cashed cheque.

52 On 28 January 2015, the school had made further incentive payments totaling R240,202 to staff members comprising of 53 such transactions including a payment of R67,200 to the applicant.

53 The minutes of the meeting of the school governing body executive committee held on 10 December 2014 attended by the applicant, the chairman and the treasurer reflected approval by that committee of these payments.

54 At an interview with the chairman, he had stated that the requests for payment of these incentives had been approved by the school governing body executive committee and not by the full School governing body which included educators that had been beneficiaries of such incentives.

55 Ms. James, the treasurer in her interview, contrary to the minutes of the relevant executive committee meeting on 5 December 2013 stated that she had been unaware of any requirements of Section 38A of the South African Schools Act 84 of 1996.

56 She stated that she had not attended meetings of the school governing body executive committee meetings all the time although the minutes reflected her presence and that only the applicant and chairperson had managed the payment processes and had informed the full school governing body of those payments since the full school governing body had entrusted this to them.

57 The applicant during her interview stated that in respect of 2013, the school governing body had submitted an application as required by Section 38A, but that during this time due to a court case between another school governing body and the respondent, the respondent had terminated all incentive payments and therefore that the school governing body had been of the view, due to this withdrawal that they no longer were required to obtain the permission of the respondent to pay incentives.

58 The applicant had further confirmed that the school had not made any deductions in respect of tax from these incentives since no one had told them to do so.

59 His investigations had uncovered correspondence between the applicant and district director on 10 and 12 September 2012 as well as from the Minister of Basic Education on 19 August 2012 which indicated that the Regulations issued by the Minister which prohibited payment of additional remuneration as contemplated in terms of Section 38A, had been withdrawn and that Section 38A application for additional remuneration would again be considered.

60 He had found no evidence that the school had applied for approval as required by Section 38A.

61 In respect of 2012 the applicant had received 28% of the amount paid as incentives that year; in respect of 2013 she had received 37% of the total payment and in respect of 2014 she had received 28% of the total amount paid.


Charge 4

62 He had discovered that during the period 28 March 2013 to 8 December 2014, contrary to the requirements of Circular 13 of 2000 and the financial policy of the school five payments totaling R125,500 had been made by the school in favour of the applicant without any proof of expenditure.

63 The description in respect of these transactions included only a few namely wages of a tiler, an exam, grade 12 tutors, work schedules, IT. There was no supporting documentation that funds so paid were not accounted for, the cheques issued to the applicant , had been signed by the applicant and the chairman and were cashed by the applicant.

64 The applicant during her interview stated that the cheques were issued in her name to enable her to cash the cheques to make the necessary payments and that all of the payments were legitimate, but she could not explain where the invoices or proof of expenditure were.

65 According to his evidence the negative impact to the respondent was that there was no paper trail or audit trail accounting for expenditure creating a perception of mismanagement of funds and also the possibility of misappropriation of funds undetected.

Charge 5

66 One of the concerns, or allegations raised which led to the investigation raised on 24 August 2015 had been that learners had been required to purchase their own stationery whereas funding for this purpose had been provided by the respondent.

67 This had been confirmed by the circuit manager for the school who indicated that any further funds required for this purpose should be raised by way of fund raising and that learners could not be forced to purchase their own stationery without a discussion in an open meeting.

68 During the period 14 November 2014 to 5 February 2015 there had been receipts totaling R7606,00, received by the school from grade 8 learners in respect of such stationary. There had been 37 such receipts. There was no evidence from the school's bank statements that any of this money had been deposited.

69 One of the deputy principals in an interview with him had stated that during 2014, the senior management team had decided, due to a lack of funds for textbooks to require students to purchase their own stationery and that this decision ought to have been conveyed to the relevant educators but that no complaints had been received from parents in this regard.

70 The applicant in her interview had stated that the senior management team had decided because of insufficient funding from the respondent, that learners would as of 2015 be required to purchase stationary, thereby making more funds available to purchase textbooks.

71 However, those students who could not afford to pay were still provided with stationary. The school had made an arrangement according to the applicant with the supplier that the school sell the stationary packs on behalf of the supplier to parents and to pay the funds received directly to the supplier.

Charge 6

72 On 25 August 2014, a cheque in the amount of R17,000 had been issued in the name of the applicant purportedly for payment of an exam practical, transport for interviews and catering expenses. This cheque had been cashed by the applicant. The claim form in respect of this cheque had not been authorized but the cheque had been signed by the applicant and the chairman. No records other than expenditure aggregating R3744, 60 was evident to verify the legitimacy of the expenditure of the remaining R13,224, 40.

Charge 7

73 His investigations uncovered that the school had arranged a camp for all grade 12 learners who were required to pay R1200 each to attend this camp. During 2 June 2014 and 28 October 2014, there had been receipts issued for such funds received totaling R175,500 from 137 grade 12 learners. The bank statements of the school for 2014 when these receipts were issued indicates no deposit of the funds.

74 The Departmental Head who had been responsible for collecting the funds stated during an interview that she had purchased receipt books in order to provide them to leaners. She had added that all the money collected by her was handed to the applicant who was responsible for arranging the camp.

Charge 8

75 In respect of the grade 12 camp for 2013, only two deposits had been made totaling R7200 but there had been no receipts to verify how and when money had been collected from the applicable grade 12 learners.

76 The minutes of the executive meeting held on 28 August 2013 reflected that those present who comprised of the chairman, the treasurer and the applicant had met and discussed the camp scheduled for 14 October 2013 - 24 October 2013, the cost of accommodation was R132,300 and that the cheque had been issued for half of that cost in order to secure the venue and that the funds would be recovered from learners as a result of which it was decided to affect payment of 80,000. The deposits were made on 16 August 2013 and later in 2013.

77 This payment was made on 28 August 2013 by the school without any supporting documentation.



Charge 9

78 His investigation brought to light that 10 electronic transfers had been made to various beneficiaries ranging from suppliers of bricks to steel and tiles during the period March 2013 to April 2014 totaling R262,853,08. There had been no invoices, payment requests or any other form of supporting documentation in respect of these payments.

79 There were two cheque payments totaling R67,010 by way of cheques which were no longer available and in respect of which there were no supporting documents including invoices to verify the legitimacy of these payments, although the description of the cheque stubs indicated that they had been made in respect of wages to builders and for plumbing and the installation of burglar bars and a walkway corridor.

80 There had been 37 transactions totaling an aggregate amount of R527,597, two in respect of which they had been no proof of expenditure specifically no invoices to verify the legitimacy thereof. These payments had been made between 20 March 2013 and 18 November 2014. Most of these payments were made to the chairperson and some later to the applicant and four other beneficiaries. He stated that the purpose of these payments could be reconstructed from a summary of schedules in respect of cheques which had been prepared for 2013 and 2014. He conceded that some of these transactions had been reflected in earlier charges already discussed.

81 The applicant in an interview in respect of this charge stated that the contractor who had been engaged by her and the chairman for the construction of the classrooms was a contractor from Mozambique or Zimbabwe who had been referred to them.

82 This contractor had not been a registered builder and his affairs had been arranged through third parties. She stated that a further contractor had been appointed after he had come to the school and offered his services.

83 The workmen who had been employed by the school for the construction of the school hall had stated during an interview with him that he had invoiced the school in the name of his company.

84 In an interview with one of the contractors, he had stated that he had been contracted by the applicant after being approached by her to build the classrooms and that he had not submitted any quotations or invoices for that purpose although he had received two payments of R50,000 as well as a weekly amount of R6200 of which he had used some to pay five labourers.

85 He stated that the school had provided all the materials required and that they had provided him with an approved building plan.

86 He stated that he had known the applicant because he had completed work at another school where she had been employed.

87 He stated that all of these payments had been made in contravention of Circular 13 of 2000 because of the lack of records in order to verify the legitimacy thereof.

88 He conceded inaccuracy regarding supporting documents in respect of counts 14 and 22 .

89 During cross examination, he conceded that when the applicant's disciplinary hearing had proceeded, she was not present during his evidence which was a critical aspect in determining the final outcome of the hearing.

90 He denied that his mandate had been to target the applicant because as an objective person he only looked at all of the transactions and was not limited to the allegations that had been tabled by students and separately by educators. He stated that he had, where difficulties had arisen from the documents at his disposal, consulted with the applicant to include her version before finalizing his report to the respondent.

91 After having gone through these documents his evidence was that they had been returned to the respondent. He conceded that at the point when documents were uplifted by him, he would not have any knowledge whether those documents were complete but in a question from the arbitrator pointed out that the applicant had signed for the delivery of the documents. This receipt made a reference to "all" of the supporting documents.

92 He conceded readily that there was no allegation of theft or misappropriation or corruption or that any of the transactions contained any indication that the respondent had lost any money due to inflated or exorbitant charges by any of the suppliers in question.

93 In this regard his evidence was in regard to the potential impact or prejudice to the respondent. This was due to the lack of comparative and the full competitive quoting although he had not compared the costs or prices to the market due to the lapse of time since the supply of goods and services in question.

94 He did not dispute that invoices were not always possible such as for example where wages were paid to builders or goods purchased from ordinary retailers. His evidence was however the till slips were in fact a form of invoice and ought to have been kept on file by the applicant in support of her expenditure and the expenditure incurred by the chairman.

95 When it was put to him that transactions involving the chairman, this would imply that the chairman was responsible for obtaining invoices are not the applicant, he was adamant that the applicant in her position as principal was the respondent's representative to ensure compliance with the legal and policy requirements and therefore that she remained responsible for the obtaining of invoices and quotations where relevant even where the chairperson had been involved.

96 When it was put to him that they had been no irregularities detected in several years prior to the allegations raised by the students and educators, he asserted that bank statements in themselves would not bring to light any irregularities without an audit of supporting documents at the same time.

97 He did not dispute that the forensics audit had occurred as a result of the complaints by COSAS and SADTU, but was firm in his evidence that the allegations were not the focus of the audit. Rather it was based on the objective documentation in the files and in some respects wider and in other respects did not consider all of the allegations which are outside the scope of the audit itself.

98 For this reason, his evidence was that the fact that some of the allegations were unsubstantiated did vitiate that there had been irregularities discovered as a result of the audit which formed part of his recommendations.

99 He conceded readily that he had not been party to the drawing of the charges but merely left this to the respondent following his recommendations or not.

100 He conceded readily that the applicant had provided an explanation during the consultation held with her in regard to the absence of documentation and the indications that some of cash received by the school had not been banked. He was adamant that Circular 13 required that all monies received by the school had to be banked within 5 days.

101 That the Public Funds Management Act was not applicable but stated that Section 217 of the constitution required that transactions involving public funding, which was applicable to the school, could only be entered into based on competitive tenders or quotes as the case may be.

102 He conceded in this regard that the charges did not refer to the constitution and that Circular 13 did not refer to other supporting documents but only invoices.

103 He conceded that the applicant had not signed the minutes of the consultations held with her although not every page had been initialed by her.

104 His evidence was that although his recommendation after investigations had included the removal of the chairman of the school governing body he had no idea whether this had taken place but indicated that the removal of the said chairperson did not involve an employment relationship and therefore any form of discipline but merely that the steps available to the respondent were only to place the school under Administration and appoint management from the district and to dissolve the school governing body.

105 As a result of his findings, he had recommended disciplinary action against the applicant which had taken place.

106 William Makgabo stated that he was director in the compliance unit and had held this position for the past 10 years.

107 He said that he did not know the applicant but knew of her as the former principal of Leondale high school.

108 He stated that the investigator had been appointed by the Head of Department after various allegations about mismanagement of school funds and maladministration at the school had been made.

109 He stated that there were various channels through which these complaints were received and that the complaint which led to the investigation in this case had been received via the written complaint to the Executive Committee .

110 He stated therefore that the investigation was not a witch-hunt spearheaded by a complaint received in the ordinary course.

111 He conceded that there was a mistaken reference to the Public Funds Management Act because that legislation did not apply but that the obtaining of competitive quotations was a requirement of procurement wherever public funds such as in the case of a public school were involved. This prescription arose from Section 217 of the Constitution which requires competitiveness transparency and cost effectiveness.

112 He stated that the spirit of the charge as it stood notwithstanding its reference to the Public Funds Management Act and was nonetheless breached by the applicant because she had not obtained competitive quotations for any of the transactions mentioned in the first allegation.

113 He outlined the risks involved in non-sourcing of competitive quotations because it would lead to manipulation in the procurement processes and non-market related prices that were potentially artificially inflated.

114 He referred to the South African Schools Act, Section 16 A which provides that governance of every public school is vested in the governing body and the professional management of the school must be undertaken by the principal under the authority of the Head of the Department.

115 He confirmed that in respect of all of the transactions referred to in the first allegation amongst the documentation there had been no competitive quotations no quotations at all and in some instances only a single quotation.

116 He also stated that there were other difficulties in regard to the documentation which were inter alia non-VAT compliant with respect to relegation to estate similarly that he had perused the documentation and that all of these transactions had taken place in contradiction of Circular 13 of 2000 because payments had been made to individuals without presentation of invoices reflecting accurately the service provider who had in fact provide the services. In some instances, individuals were paid rather than institutions or corporations who had rendered the services.

117 In this regard we referred to paragraph 3.2.16 which requires strictly that payment only be made in respect of properly obtained invoices.

118 He referred to several of the transactions in allegation to where there was no description of which services had been paid for.

119 The risk in respect of allegation 2, 3, 4 and 5 was a possibility of theft or fraud and the lack of accountability.

120 He said that donations were not the type of expenditure that could be reflected at the same time as catering because they were two separate transactions and therefore the records did not provide a sufficient paper trail.

121 In regard to allegation 3 he stated that while a letter received from the district director stated that there had been withdrawal of Regulations passed under Section 38A as listed not mean that Section 38A was not applicable. He outlined that Section 38A required approval of a budget in the year preceding payments for additional remuneration to educators.

122 This implied that the budget should be presented to the parents at a School Governing Body meeting and after approval by the parents it was required to be approved by the director or head of Department before being paid in the following financial year. Evidence was that the payments made in respect of bonuses to the applicant occurred in the year 2014 in respect of a lack of approval from the head of Department or approval by the parents for the allocation of these budgeted amounts.

123 He stated that incentive bonuses were strictly regulated in terms of employment conditions of educators and not something which the executive committee and any authority had to approve at all.

124 Therefore, these payments were highly irregular, and he referred to the disparity which existed between the payment of R60,000 to the applicant and the lowest bonus of R1500 paid to another educator.

125 He stated that the risks of such expenditure without approval was that bonuses could be paid out of school funds without a proper moderation process which normally would require scoring as a criteria in respect of performance bonuses.

126 For this reason, he stated that these payments were a very high form of maladministration that had occurred at the Leondale High School.

127 He stated that it was not the correct assumption that had been made by the executive committee constituted by the applicant the chairman of the School Governing Body and the Treasurer when making the decision to make payment of bonuses even if this had occurred out of donations and fundraising efforts because every part of any money received by a school constituted part of the school funds in terms of Circular 13 of 2000.

128 In regard to allegation 8 he stated that there had been mismanagement in contravention of the Circular 13 because payments had been approved and made by the principal and applicant without valid invoices to herself without approval by the Department and without supporting documentation.

129 In regard to allegation 5 he stated that all amounts received from whatever source are required in terms of Section 13 to be processed and banked at the earliest opportunity with a maximum of five days.

130 To the intended defense of the applicant that the monies had been collected on behalf of the service provider he stated that this would be in contravention of Circular 13 and that there was no supporting evidence in the form of documents as a paper trail in proof of the defense that such an agreement existed with the third party service provider.

131 He pointed out that the risks in contravention of Circular 13 were that an agreement by the school to act as an agent of a third party, the stationer supplier, is a serious risk in the event that those funds could be lost or stolen.

132 In addition, he stated that good governance principles of transparency and accountability had not been subscribed to by the school in regard to these transactions.

133 He stated that Circular 13 paragraph 2.3.9 specifies that all receipts of any moneys of whatever source were regarded as school funds and had to be processed in the manner set out in the Circular and that these principles were also prescribed by the SASA at Section 37 which describes what is included in school funds namely all money received by a public school.

134 He stated that in respect of all of the allegations the person responsible at the school level for the compliance of Circular 13 Section 38A Section 37 was the principal as custodian of these principles of due diligence and good governance in regard to funds received by the school.

135 In regard to allegations 6 he stated that they were was a significant payment by way of cash cheques drawn by the applicant herself in respect of which there were only partially supporting documents and that some of the items which were mentioned by the applicant when requesting this cheque be paid to her were not supported by supporting documents and appear to be for no valid reason.

136 He stated that if the R17,000 was, as the applicant avers utilization of petty cash this would be in contravention of the legal requirement which set a maximum of R1000 trained at any one time to be used after proper approval as a petty cash fund.

137 In regard to allegation 7 he stated that from the documentation it was clear that monies had been received in respect of a grade 12 camp. These finds had not been banked when received. This was in contravention of the Circular 13.

138 In respect of allegation 8 he stated that the documentation consisting of bank statements indicated that money had been paid out to a service provider of an unknown identity without any invoice or account or supporting documentation for the sixpence which was in contravention of Circular 13 paragraph 2.3.60.

139 In respect of allegation 9 he stated that all of these payments which occurred during the period January 2013 to December 2014 were paid without the necessary invoices required by Circular 13 and that several of these were paid directly to an individual who could not have been the service provider.

140 It stated that such payments were not accountable and transparent as required by the governing legislation already referred to because there was no source documentation to prove that lump sums which had been paid to the chairman of the School Governing Body had in fact found their way to the individual service providers.

THE APPLICANTS’ CASE

141 As background the applicant stated that she had been appointed as principal at Leondale High School on 1 April 2009 and that previously she had been a deputy principal at the Voslorus high school where she had been for six months before being appointed as acting principal for the balance of three years thereafter. In total she had 32 years’ experience as an educator and was 56 years old.

142 She had been a teacher of Afrikaans and geography and taught mainly Afrikaans and had never had a failure in that subject for grade 12 learners. She had also been a moderator for these exams before exams were discontinued in township schools in 2004.
143 For this reason, she had approached the respondent to continue on the basis of a formal former model C school where Afrikaans and English could be taught as a first language thereby enhancing the curriculum's chances of university entrants.

144 She stated that she had a senior teacher's diploma from the East Rand College Certificate from the University of Johannesburg and that she had been enrolled as a teacher since 1986. She stated that she had been appointed as principal of the Leondale high school which at that point did not have a full contingency of teachers and only learners of grade 8.

145 After the school had been registered, she was allocated more and more teachers in post, she had built up the school from having originally had 189 grade 8 learners to over 1000 learners in 2013 including matriculants.

146 She stated that the results at her school were 100% pass rate including 62% Bachelors exemption. She gave more detail regarding that the number of learners had increased and included grade 12 learners for the first time in 2013.
148 As a result of the growth in learners the school required additional classrooms and because the respondent had informed her that the temporary prefabricated classrooms were not immediately available due to funding, she and the School Governing Body had decided to raise the funds themselves to build additional classrooms and eventually a school hall.

149 She had also with the help of the School Governing Body and the fundraising effort been able to eliminate debt which had been inherited from the previous occupiers of the property.
150 In 2014 she had a 96% pass rate and had always achieved results in the top 10 former model C schools in that area.

151 She stated that the political situation at school had developed because she was initially unwilling to allow the launching of the SADTU and student body called COSAS and that she had experienced considerable increase in pressure from these groups.

152 She described that the relationship between herself and the teacher’s union and students association had gradually become sour until she had agreed to accept some redeployed teachers from other dysfunctional schools because had refused to agree to appoint such teachers, the situation would dhave become worse.

153 As a result, some students from a nearby high school had in concert with the students Association began to disrupt activities and teaching at her school after which she had been called in by the respondent and her then superior and assured that she would be protected.

154 During the 2015 period there had been some further unrest when a march which had been organised by the teacher’s union and students Association on the school. Certain demands were handed over by the learners who included learners from an adjacent High School although all her own pupils were in their classes.

155 During this process she had left the school to avoid any further violent altercation but had returned the next day in her own vehicle and continued with classes as usual until one of her own learning grade 12 learners who had been associated with the student’s association appeared at the school with a knife and after he had agreed to leave, he had stabbed holes in her own vehicle's tyres.

156 She was thereafter taken home and her vehicle was towed and repaired in the amount of R25,000 rand. She had reported this to the police and also to the respondent but had received no response from the respondent.

157 The first word she had received from the respondent thereafter was after three weeks of staying at home when her director Mr. Bagaloo asked her to come to work or resign.

158 She agreed to come in and on arrival she found him with the forensics auditor and while seated speaking to the director the auditor had taken some boxes and taken the files from her offices to inspect them. She was asked to sign a list of the documents and told that it was a merely a preliminary investigation and that she should not be concerned.

159 She did not actually take note of which files had been taken she stated that sometime late on 7 December 2015 the same investigator returned to fetch files and that at some point she had been interviewed by another man from the same forensic investigators.

160 She stated that at some point the student’s association and teacher’s union and all became politically involved and she had been told that if she produced an ANC card the matter could be settled politically. She was a member of the Democratic Alliance.

161 In regard to the procedures, she stated that the outcome of the forensic investigation was issued on 29 June 2017 with the date of the charges officially laid against were dated 25 July 2016 and therefore that there had been a delay of one year.

162 She stated that the hearing sat between the dates of 7 September 2017 and the final setting had taken place on 4 May 2017.

163 At the hearing of 20 April, she had informed the chairperson that she wanted a lawyer to represent her because her representative, Mr Lebenya, who had been a colleague was not available because he was still or in Durban.

164 She requested a postponement which was refused. She had then asked to leave the meeting, but after a call to her attorney, had returned to tell the disciplinary chairman not to continue without a representative.

165 She was never informed of the next sitting which took place on 4 May 2017 and also had not been informed officially of sitting on 7 September although she had attended without notice which she was informed that been placed in her post box which he had not received.

166 She received official notification of her dismissal on 25 January 2018. During the entire period she had never been placed on suspension.

167 In regard to substantive fairness, of allegation 1, her evidence was that she was not directly involved in the building of classes and maintenance aspects. This was left to the School Governing Body. There was a separate file regarding the construction activities and that there had been a file of quotations which had not been accepted and those that had been approved. She stated that the files were maintained by a certain Tumi.

168 She stated that she had made some cash disbursements to day labourers when the chairman of the School Governing Body was not available to pay them and, in this regard, had cashed a cheque to do so.

169 She insisted that there had been competitive quotations and that she was not sure during the three weeks of her absence who had removed them from her offices.

170 She said that she had signed the cheques in question together with the chairman of the School Governing Body.

171 Her evidence was that the person assigned to deal with electrical installations had done work at the school for the town council and she and the labour had requested him to provide a quotation because other quotations thus far had been very expensive.

172 She stated that the quotations from other suppliers were on file and that her utterances during the interview with the forensic investigator were signed flippantly because she did not consider it to be a serious document.

173 She stated that she had not received extensive training in regard to the obtaining of quotations. She stated that she had always been advised to stay away from the finances of the school.

174 She stated that she had received several quotations which had been left on her desk to be forwarded to the School Governing Body.

175 She referred in particular to a quotation of between R300000 and R400000 and they had therefore appointed another supplier for R100000,00.

176 She referred throughout to minutes of the School Governing Body regarding these transactions.

177 In regard to allegation 2 she stated that cheques had been written to be cashed by the chairperson of the School Governing Body because he required the monies to pay labourers who did not supply invoices because they were day labourers.

178 In regard to allegation 3, she stated that initially when she had become the principal, she had rewarded teachers who had gone the extra mile. Therefore she had from her our own pocket made awards to the deputy principal and also the top 10 learners every year. Another donation was received from the metro police that she applied in this way.

179 She stated that she had not received any training on payment of incentives and that the School Governing Body had taken over payment of bonuses to herself and other teachers. She pointed out that this was consistent with the minutes of the meetings of the School Governing Body as well as what she had said in the interview held with the forensic interviewer. The misundestaning arose from correspondence of the respondent.

180 In regard to charge 4 she stated that in respect of each cheque that had been issued at school there were minutes of the School Governing Body relating to each expense as well as requisition forms.

181 At the same time she stated that there were other payments in respect of tutors. There were no invoices involved although there was a list of names and record-keeping in respect of which sessions had been taught by the respective.

182 In regard to allegation 5 she stated that the supply of stationery by a service provider was direct from the service provider to learners in exchange for payment from the parents. However, some parents did not pay immediately which resulted in that the service provider had to revisit the school at various points and as a result one of her teachers had agreed with the service provider to collect the money on the service providers behalf to be paid over to the service provider when the stationery was delivered.

183 For this reason, she stated that funds never became the property of the school and was never banked.

184 On Allegation 6 she stated that there were missing documents which would have explained more precisely how the money was spent. Instead the only document available was the back of a loose page indicating some of the disbursements only.

185 She stated that several disbursements or claims were paid to teachers and other involved a practical rehearsal in anticipation of a consumer sciences exam to enhance the learners opportunity to excel during the practical exam.

186 In regard to a donation that had been received, was made towards the opening of the classrooms to feed learners and not as alleged by the respondent. This was also provided to tutors during the weekend and at night.

187 In regard to allegation 7, the matric camp, she stated that the matric camp had being an institution brought to the school by her after observing the success achieved at other schools in other areas and that the camp and focus on intensive teaching of or with regulars who had been taken on this two-week camp which had a very good result regarding the pass rate of the learners involved during 2015 she also had 100% pass rate including the learner who had stabbed her tyres.

188 She stated that the School Governing Body and herself had decided to arrange their own Matric camp because the other alternative, was more expensive although it use of the same premises belonging to the Assemblies of God Church.

189 She had therefore negotiated a reduced amount per learner and supplied her own teachers which she had handpicked and recruited from various sources.

190 As a result of the collection of the learner’s contribution to attend the matric camp which was not fully recovered on time for the camp, the monies had been kept aside and paid over directly to the Assemblies of God Church and teachers involved, without banking the money.

191 In regard to allegation 8 the evidence was that this amount was paid to a known furniture supplier and she referred to documentation in the respondent’s bundle indicating who the supplier had been. She stated that the quotations had been there but had been removed.

192 In regard to allegation 9 several were duplicated form other charges. She stated again that these transactions were purchases from retailers that were well-known who would not supplying goods without receipts and invoices which were easy enough to obtain.

193 She stated that the invoices had been in the files before they were removed from office.

194 In cross examination she was asked in the context of the arbitration why she did not prepare her bundle including invoices and quotes. She again explained that she was not given an opportunity not having the files.

195 Thabo Lebenya said he was connected to this case having been asked by the applicant and as co-principal she wanted a lawyer as her case had been investigated by forensics. At a meeting prior to the hearing the initiator had objected and because the applicant had difficulties with her union, she approached him.

196 He had at a later sitting, applied for legal representation unsuccessfully. He was unaware that the applicant’s legal team had applied for an interdict to force legal representation.

197 There had been a second sitting where he had tried to renew the application unsuccessfully but his application for documents to be delivered had been granted.

198 He said the files were never given to him or the applicant thereafter. Because the charges were serious, they needed the files.

199 At that point he was the applicant’s representative, having confirmed on record he would represent her. He had requested documents and there was an order to do so.

200 He then received short notice of the next hearing date on 20 April 2017 and was not available and he had not received the documents applied for. He therefore advised the applicant to seek a postponement on her own. He later discovered that the hearing had proceeded without her or himself and she was dismissed.

201 An appeal followed because there had been no opportunity to file mitigating factors These included that the applicant had been an educator for 30 years, had been through a lot at work, was nearing retirement and had a clean record.

202 He had never formed any intent to withdraw as representative.

203 He insisted that there should have been a fair process not impacted on by political issues. He pointed out that COSAS had also withdrawn the memorandum.

204 Sidwell Mofokeng laid the foundation to testify as accounting and auditing expert. His curriculum vitae was impressive, is on record and is not repeated here.

205 He became involved when his child was admitted in Grade 11. After the election he was elected to the School Governing Body as parent component.

206 There had been a handover from old to new School Governing Body and he was elected as chairperson. When this happens, it is required to hand over financial records and audit reports for the past 3 years and the policies and School Governing Body Constitution. All records including key commitments that are being inherited were required to be spelt out in detail. Also it was required to ascertain whether there were findings in any Audit. Had there been, there had to be a plan to overcome fruitless or irregular and wasteful expenditure. This inspection had been done and according to him, there had been no issues aside from the issue of school evaluation.

208 School Governing Body includes parents with learners enrolled. The key component is parents, then educators and learners and ground staff also appointed in terms of the Public Service Act.

209 He had not known the applicant but knew of her which is why he sent the children because of good matric results. And the discipline. Their first interaction with the applicant was when he as part of a local ANC group together with members of parliament paid a random visit to the school.

210 The applicant did not know of the delegation and after lengthy discussion she allowed them in. At first she did not want them to enter as parents during schooling as we had arrived with no appointment. They had been impressed and 4 of them sent children to that school. They did so as a public statement leaving Model C schools. He therefore knew the applicant as principal of the school. In terms of the Act, she is an automatic member ex offficio of School Governing Body

211 Before there were charges, they had issues of COSAS disrupting the school in August 2015.

212 He had been called to engage with COSAS and he reached agreement on a process to follow to establish a local structure and afford time to elect the local COSAS structure for the first time. After this there was another COSAS disruption in November 2015.

213 He detailed a lengthy history involving various role players such as the Member of the Executive Committee whom he had called a upon to intervene but there had been no response.

214 His evidence confirmed that of the applicant that there had been damage to the applicant’s car and that in the process of escorting her home someone also tried to assault him. He called the police and opened a case. The applicant was very traumatised and the respondent did not protect her against the attack and head office never actually responded.

215 After the case was opened, COSAS wanted to apologise in order to have the SAPS case withdrawn but wanted to hand over a memo with grievances to respondent. He allowed this. A week later the memo dealt with what were concerns of learners. Uniforms, hair, teachers who sold textbooks and did not give leaners receipts.

216 They had a copy and sent the memo on to respondent. After this they became aware of another memo with other allegations, by SADTU which he never saw until later. He was told COSAS had been given money to disrupt. COSAS were later told to repay the money of R15000 but they had spent R2000 and returned R13000 of it.

217 He knew there were political overtones and according to him the Member of the Executive Committee had a relationship with COSAS. He wrote many letters between 2015 and 2018 to The Head of the Department around this interference.

218 After expelling Hector, a COSAS member just after this incident, the respondent began the investigation process. He received a call saying people had come to uplift files. They said they were sent by the District Director and had done so without consent of the applicant.

219 The District Director said he had spoken to the chairman but this witness stated that it should have been on notice and they should have informed the school that they were going to Audit. The respondent was required to follow the protocol and due process. It was not authorised to just come to school. The process was irregular.

220 No letter came to the School Governing Body. The Principal ought to have been copied and the records belonged to the School Governing Body. Mr, Bagaloo’s later email apologised.

221 He then received a letter to the principal and School Governing Body and said the respondent had asked for information and they had appointed Guardian. He said it was not in terms of S41 but S43(6) that any party was entitled to see the records.

222 There was a letter of appointment and notice to the person being investigated, scope and authority. According to this witness Mr. Bagaloo’s letter was that it was not forensic investigation as cited by the Koen report but was an audit inspection.

223 He described the various steps which required the respondent to give notice first of an audit inspection on the premises, where documents were not available a request for these was required and in the event that irregular transactions were discovered, on further notice a forensic audit could proceed once again on the premises.

224 He cited various legislative provisions that applied. The gist of his evidence was that none of these had been complied with.

225 Thereafter several meetings including a summit involving all role players and later political interventions by himself and parents had followed culminating in a political agreement reached in 2018. This was after the dismissal of the applicant and another series of events where she was removed from the school premises, with the intent of replacing her, without informing the School Governing Body.

226 On demand of the School Governing Body they came to apologise that they had been overzealous.

227 The School Governing Body demanded a reversal of the dismissal as there it had been unlawful processes involving the files and forensic audit and demanded that the files be returned.

228 The Member of the Executive Committee refused to do so but advised applicant to lodge an appeal. The appeal was unsuccessful.

229 Thereafter there had been more political engagement. His view was that the dismissal was politically motivated and unfair because of the lack of procedure during the forensic audit.
230 The ultimate agreement with the Member of the Executive Committee was reached at the Premier’s meeting which followed. The parents had demanded reversal by amending the appeal which had been refused. Secondly that the district director, Mr. Bagaloo should be removed.

231 The Member of the Executive Committee admitted that Mr. Bagaloo had brought respondent into disrepute deferred to The Head of the Department the decision in respect of the dismissal.

232 The respondent agreed not to fill the position of principal although they did not agree to review the appeal but to abide by the outcome of the arbitration.

233 According to him the respondent had acceded that they had not been compliant with the investigation because they were under political pressure. The role players seemed to be SADTU who wanted to ‘capture’ the school.

234 During cross examination concerning Section 38A , he conceded that there had to be approval from respondent.

235 He was asked about the implications of S16(1) and conceded that the principal was responsible to advise.

236 He was asked and conceded that all monies had to be deposited into the school account even fund raising. He said all monies are school funds including camp monies for 6 months, had to be deposited within the prescribed period where practically possible.

237 He conceded that it was not likely that the documents were removed by Koen but gave an indication that Bagaloo may have been involved.

238 The arbitrator asked why the School Governing Body did not bring the duplicates of supporting documents from service providers. He said it was because of the period of time that had passed. Some were individuals and they did not have source documents.

239 Mofokeng, was during the time the investigation took place, involved and at some point, thereafter, was appointed as chairman of the same School Governing Body. Although the bulk of his evidence spoke to the investigation which proceeded the charges, I found him to be completely evasive of direct questions which were important for him to answer frankly. Overall, I could not rely on his evidence in relation to the charges although his evidence relating to the process before the charges were proffered was never challenged and has been accepted.


ANALYSIS OF EVIDENCE AND ARGUMENT

WERE THE RULES BREACHED?

240 All charges arise from the transactions occurring during the period January 2013 to February 2015.

241 Charges 1,2,4,6,8,9 have been grouped and the breach discussed in the light of the applicant’s defense. Her defense has been recorded in detail in the survey and not repeated here. The gist being that the supporting documents alleged to be unaccounted for were in the files removed from the school by the respondent.:

a. Charges 1 avers procurement without obtaining competitive quotes.
b. Charge 2 alleges payments to the chairman of the School Governing Body without invoices.
c. Charge 4 avers a large aggregate of miscellaneous expenditure without invoices.
d. Charge 6 alleges issuance of a cheque in the name of the applicant for R17000,00 in respect of which the bulk is not accounted for.
e. Charge 8 alleges a large payment to a beneficiary without invoices.
f. Charge 9 alleges several payments to the chairman and several suppliers without invoices.

242 Charge 3 alleges payment of incentives to the applicant and other teachers and role players without consent from the respondent, in contravention of Section 38A of the South African Schools Act 84 of 1996. The applicant denied accountability on the basis that she had paid incentives initially from her own pocket and in regard to the more recent incentives because she was mistaken regarding the requirements to obtain consent as a result of a confusing Circular of the respondent.

243 Charge 5 alleges failure to bank income in respect of stationery received. The applicant denied culpability on the basis that the monies were received on behalf of the stationery supplier and according to her this did not involve the school itself.

244 Charge 7 avers failure to bank income in respect of a Grade 12 camping event. The defense raised by the applicant in this regard was that the bulk of the funds had been received very late and close to the event so that the monies were taken directly and paid over to the beneficiary who had provided the camping facility.

HAS THE APPLICANT REBUTTED THE INFERENCE RELIED ON BY THE RESPONDENT THAT NO COMPARATIVE QUOTATIONS, INVOICES , REQUISITIONS OR SUPPORTING DOCUMENTS HAD BEEN OBTAINED?

245 Charge 1 contained a reference to the National Treasury Note 8 of 2007/2008 issued in terms of Section 76 (4) (c) of the Public Finance Management Act 1 of 1999.

246 A witness of the respondent testified that the reference was defective since there had been recent jurisprudence which had the effect that this note was no longer applicable.

247 Because of the de novo nature of an arbitration and because this element of the charge was not relied on, I was satisfied, that the applicant was not at any disadvantage to answer the charge where the reference to the said note was severed from the charge.

248 This aspect did not affect charges 2,4,6,8 and 9.

249 The charges alleged failure to obtain competitive quotations and the applicant did not raise the defense that there was no rule and the main thrust of her primary defense, which is more fully discussed below is indicative thereof that she was aware of the requirement.

250 The respondent has tendered evidence that in the files which were taken from the school by the forensics investigator, there was a large absence of the required supporting documents for numerous transaction.

251 The applicant has given somewhat divergent versions first that a building of classrooms and technical hardware aspects were not something she participated actively in because she had relegated that to the School Governing Body whereas she remained focused on teaching.

252 This was however contradicted by herself when she indicated that certain people had been recruited by her personally such as a carpenter who was ultimately appointed.

253 This implies that she could not have been completely uninvolved. Moreover, her involvement is implied by her primary defense that all of these documents had been obtained and kept on record.

254 It is very unlikely that the documents were in the relevant files as she has told me. I cannot accept that Koen as objective investigator would have removed them and even the applicant’s last witness, Mr Sidwell Mofokeng expressed the view that this was unlikely.

255 The suggestion that it could have been Mr. Bagaloo insinuates that Koen would have to have cooperated which for the same reasons is unlikely.

256 Given that the applicant’s legal representatives had in terms of my ruling been granted access to the original files, the applicant could very easily have assessed whether they were in the file. It must be borne in mind that the report of Koen was the basis of the charges and so what happened to the files after his hand over to the respondent is not relevant.

257 Another aspect tested directly with Mr Mofokeng by the arbitrator was, given that the charges were since the initiation of the internal hearing known very specifically to the applicant’s various representatives, why were the supporting invoices and even quotes never duplicated by approaching at least some of the relevant suppliers. He was not of assistance.

258 When questioned on the motive of the auditor he did not put forward any motive to be selective in what he found. The implication is that the documents were not in the files as she has testified.

259 All indications were that they were not on file when Koen removed them and did the investigation.

260 I considered whether the documents could have been removed during the period of disruption at the school. The implication of this explanation offered obliquely by the applicant is that the persons who had removed these quotations and other documents prior to the investigation of an auditor and therefore they would have to know what they were looking for which is very unlikely.

261 The applicant did not indicate that supporting documents were not filed separately but attached to cheques and requisitions.

262 The applicant’s response to the arbitrators’ question was that the documents were kept safely in cabinets behind security doors with strong security and a safe. This by implication renders it completely unlikely that before Koen removed anything from the school the documents had been removed by others. She stated clearly that there was no such opportunity.

263 There were amongst the cheques large amounts cashed by herself for amounts which she was unable to give a proper account. The explanations she offered were not convincing. She relied on a handwritten note which does not provide her with any material support. While she has not overall onus, she has been called to rebut the case of the respondent who has framed charges on the nonexistence of supporting documents.

264 In regard to the minutes to which she referred many times when cross examined on the lack of documents, stating that they recorded how the transactions were conducted.

265 Although she had no onus overall, no such minutes have materialised, notwithstanding that the arbitrator had ruled that the respondent provide the files for the applicant to go though.

266 Finally, a defense was raised in regard to wages paid to labourers who would not provide invoices. I considered Mofokeng’s contention that some suppliers would not have invoicing capability, being labourers.

267 The explanation that wages cannot be paid on invoices seems plausible. However, the respondent’s forensic auditor ‘s evidence that a journal keeping a record of how the wages were distributed is clearly not unfeasible. Moreover, it does not at all adequately explain the bigger bulk of transactions which have been proffered.

268 The applicant also tendered the defense that there had been a lack of training as to how exactly to deal with procurement. the evidence of the respondent was that training was provided regularly on this aspect.

269 The respondent did not provide any documentary evidence of the training, but it follows from the defense tendered by the applicant that she was aware of the requirement to obtain and file supporting documents.

HAS THE APPLICANT REBUTTED BY PROVIDING AN EXPLANATION FOR THE EVIDENCE OF THE RESPONDENT THAT MONIES WHICH WERE REQUIRED TO BE BANKED WERE NEVER BANKED WITHIN THE PRESCRIBED TIME PERIOD OR AS REASONABLY SOON THEREAFTER?

270 The applicant did not deny that several amounts were not banked. She has provided reasons why this was the case.

271 The banking of a lot of money for the Matric camp was not kept up to date and this aspect she is very likely to have been aware of. To say that most of the monies came in at the last moment cannot explain that none of it over a period of more than 6 months was ever banked. Her own witness Mr. Mofokeng, has conceded that this money formed part of the school fees and should have been banked as soon as reasonably possible. There has been no explanation why over a period of 6 months why some of the money was never banked.

WAS THE PAYMENT OF INCENTIVES TO THE APPLICANT AND OTHER STAFF A CONTRAVENTION OF SECTION 38A OF THE SCHOOLS ACT?

272 The applicant has not disputed that several such payments were made. Her defense places in dispute whether the rule existed and to what extent she was aware of it.

KNOWLEDGE OF THE RULES WAS NOT FORMALLY PLACED IN DISPUTE BUT DURING CROSS EXAMINATION AN ISSUE TOUCHING ON THIS AROSE

273 The upshot of this charge was that it was a requirement to apply to the district office of the respondent before additional remuneration could be paid.

274 According to correspondence relied on and unchallenged, there had been Ministerial Regulations in 2011, prohibiting unauthorized payment of remuneration without peremptory requirements. Any applications for approval of such remuneration, before the Regulations, had taken place in terms of Section 38A of the South African Schools Act 84 of 1996.

275 These Regulations had been withdrawn by the Minister on 17 August 2012. This was communicated to all schools including Leondale High. The applicant’s defense was that this had created confusion.

276 However, none of the correspondence makes any reference to a complete relaxation of the requirements of Section 38A which required prior approval.

277 Even if there was confusion, as a Section 18A representative of the respondent at the school, the applicant ought reasonably to have made enquiries to determine whether Section 38A still required an application. Moreover, the plain language in none of the correspondence expressly overrides the Section itself, even if educators are not aware that this is not in any event possible given the precedence that the Section takes over regulation.

278 There was also evidence that the applicant had made similar applications in the period prior to the charges.

279 The applicant was a principal and had been an educator for more than 32 years. At the time and it is unlikely that she was not able ensure compliance with Section 38A, before making payments including more than to herself. In particular the two bonuses which she had arranged for herself within a space of two months.

280 In this regard the applicant has throughout the arbitration stated that she was merely an ex office member of the School Governing Body.

281 However according to the evidence available to me which I have accepted the authorization of these incentives had been made by herself in conjunction with the chairman of the school governing body and treasurer during a minuted meeting in which she was particularly vocal.

282 This meeting did not involve the greater membership of the school governing body.

283 I found it more than likely that the applicant realized that the that the payments could not have passed scrutiny of the fully constituted School Governing Body and the district office.

284 The amounts paid to the applicant were particularly larger in comparison with the amounts paid to other educators comprising in the region of 30% of the total amount paid to all of between 35 and 40 educators. I find that taking all of these facts into consideration the applicant was or ought reasonably to have been aware of this rule.

285 She has not denied that no application was made during the period relevant to the charge.

286 The respondent has proved that she was party to the decision to go ahead and pay from the school fees whether they were funds raised directly from school fees or otherwise because the respondent, through its expert has shown that these monies were indeed school fees.

287 Her alternative submission that she had on the years when the school was still fledgling, she had made personal disbursements to deserving teachers is not relevant to the period that the charges have alleged misconduct.

288 The respondent has discharged the onus of proving breach of the rule.


SANCTION

289 The applicant when the issues were narrowed placed the appropriateness of the sanction in dispute.

290 Without deferring to the respondent’s disciplinary code, which the applicant did not challenge, a sanction of dismissal for this misconduct is provided for.

291 I have applied the approach which has become the norm regarding a consideration of sanction at arbitration laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC).
‘In approaching the dismissal dispute impartially, a commissioner will consider the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
To sum up. In terms of the LRA, a commissioner must determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’

292 The applicant Mrs. Mabasa has convinced me beyond a shadow of a doubt that she was a brilliant teacher who had virtually founded and built up a school to a level where community members were deliberately transferring their children to her school which had very high standards.

293 What is the most striking aspect of this case is that the events leading to her dismissal took place amidst a whirlpool of political wrangle, some aimed at the removal of her for what I have become persuaded also initially involved ulterior motives.

294 But more so pertinently this was a case of the School Governing Body in whom she trusted to run the finance and it is only because the proverbial buck stopped with her as principal to ensure compliance that she has become the scapegoat of the School Governing Body.

295 I had asked the applicant about her approach should she be reinstated, and she assured me that she had not been aware of the importance of her role and that she was ultimately responsible. Given the answers of the applicant she was open to training on her role as representative of the respondent on the School Governing Body and she had told me she would take a stronger approach to ensuring compliance.

296 This could form the basis to recommend that the sanction be revisited. The question being whether the applicant was likely to respond to progressive discipline.

297 Had the charges related merely to the non-keeping on file of supporting documents the matte could have been decided that way.

298 I have however on the available evidence found that the documents are unlikely to have been on file. This implies that the applicant’s insistence that they were on file has not been shown to be completely transparent.

299 Moreover, some charges extend beyond filing of supporting documents and shed a different complexion on the matter.

300 The applicant stated that she had trusted the School Governing Body with financial aspects. However, several of the cheques written to herself in her very senior role indicate direct involvement. Her role comes with added responsibility and a measure of responsibility which she as a senior educator and ex officio member of the School Governing Body was not entitled to defer to the parents serving on the School Governing Body.

301 Even with the applicant’s defence now known, a dismissal for the charges, in the light of the applicant’s decision to insist that the documents were on file, when they are unlikely to have been, leads me to the conclusion that the decision of the respondent to dismiss was not that of an unreasonable decision maker.

PROCEDURAL FAIRNESS

302 The applicant raised more than one aspect of unfairness.

SHOULD THERE HAVE BEEN A POSTPONEMENT ON 20 April 2017?

303 The applicant did not stay present when the hearing proceeded in her absence on 20 April 2017. This was not unfair because she has not persuaded me that a valid reason was given to the chairman on that date. The respondent through both its witnesses and the transcript of the hearing has shown that the applicant merely gave what in retrospect has turned out to be a not so honest indication on that day there had been an interdict.

304 She has therefore not rebutted the evidence that there was no reason to postpone the matter any further because objectively it has surfaced that no high Court interdict eventuated.

305 Objectively the intended interdict has not been provided and therefore that it is unlikely that such an interdict ever materialised.

306 The transcript does not reflect that she had at any point requested a postponement for representation or even lack of documents.

WERE THE DOCUMENTS PROVIDED TO THE APPLICANT?

307 The chairperson had on an earlier sitting, ruled that documents be provided and he did on 20 April 2017 ask the respondent’s representative if this had been done. Whether the documents were given has been hotly disputed by the applicant’s representative, Miss Raulani Makhuvele, the initiator at the time had given the chairperson the assurance that documents had been given to the applicant.

308 She has given evidence that with a witness the documents were taken to the applicant and left on her desk but that applicant did not want to sign for these, only accepting the notice of the hearing.

309 I have no reason to doubt the initiator’s evidence that 3 lever arch files were given to the applicant. That being so the applicant has at least to rebut this by producing the files and showing that they did not comply with the ruling of the internal chairperson because they were not comprehensive enough for her to defend herself.

310 If they were not sufficient she could have raised this at the hearing on 20 April 2021 but elected not to do so.

311 It was only at arbitration that the request was expanded for all the removed documents in 19 files which ruling was made at arbitration and complied with. Given the outcome on the merits of the matter I find that the applicant had suffered no prejudice in regard to the documents available.

SHOULD THERE HAVE BEEN NOTICE OF THE LAST SITTING?

312 However the record is clear that a further date was agreed on to finalise the bulk and most important part of the hearing. This included the evidence of the forensic investigator. No efforts were made by the respondent to ensure the applicant was informed of the date when it was intended that the case be presented.

313 The record carries no indication that on 4 November 2017 the chairman explored at all why the applicant was not present.

314 Another aspect of procedural unfairness arises because the chairperson did not adequately explore what had happened to the applicant’s fellow employee representative. Even if the applicant was uncooperative Lebenya was on record and the respondent was obliged to ensure either the applicant or her representative were informed that the matter would proceed on 4 November 2017. I have accepted the evidence of Lebenya that he was on record as representative. He had brought the application to be legally represented and for the documents to be delivered.

315 Where an employee has elected to be represented by another person, it is incumbent on the employer through its appointed chairman to ensure that this right is afforded. Part and parcel of this would be to inform the representative of the new dates.

316 I was absolutely convinced that the applicant was never told when she was at the penultimate hearing and there is no evidence that notice was eventually given of the new date so that the hearing proceeded in absentia.

317 I have considered the argument put to forward by the respondent that the employee had waived her right to participate when she left the hearing on 20 April 2017.

318 However, an employee can only waive a right that she is aware of. The respondent has not established that the applicant was aware of the sitting on 4 May 2017.

319 Therefore, it follows that it is not likely that she could have waived her right to attend or be represented by Mr Lebenya because by then she would have been aware of the outcome of the purported interdict.


IS THE PRECEDING BACKGROUND RELEVANT?

320 The applicant has been able to persuade me because it was not directly challenged, that the manner in which the respondent approached the initial investigation was fraught with political pressure and bullying which the respondent did not adequately address. It is not within the scope of this award, but the comment is fair and reasonable that the respondent completely failed to provide a safe and orderly working environment during which the investigation proceeded.

321 The forensic investigation was equally saturated with a complete lack of procedural fairness., removal of documents where the initial claims of mismanagement had been withdrawn and it had become apparent that the pressure group responsible for the initial allegation of misconduct, had paid COSAS to disrupt the school. In this process the applicant was almost assaulted her car damaged and she had to flee the school.

322 During the disruption there was no notice, no initial audit inspection. It has therefore been established that in a sort of ambush, the files were removed irregularly before either an audit inspection where there was no need to remove them, not call was made if documents were not found for further information and no ordinary audit was carried out at the school as is required by the relevant processes enabling the process.

323 This background probably played a significant role in the mind of the applicant who approached the internal hearing with a reasonable apprehension of unfairness. She tried to stop the hearing unsuccessfully and did not participate which does not assist her case.

324 However, it was not until the arbitrator enforced a ruling that all the original files be made available to her legal team that these files were made available.

325 The question that arises is whether this has affected the applicant’s ability to defend herself substantively. The applicant has not rebutted the respondent’s averment that the files and therefore the documents within them were at risk when the files were removed at any point until the files were in possession of Koen.

326 The applicant’s own evidence was that the files were kept behind lock and key and there was very good security.

327 Even considering that she had been attacked and her vehicle vandalized after which she was escorted home, where she stayed for some time before Koen removed the files it seems unlikely that the files were tampered with.

328 It would also be necessary for anyone who did so to have anticipated the findings of Koen to know what to remove and what to leave in the files. More so because the memorandums of COSAS and even the less obvious underlying SADTU accusations were not aimed at the nonexistence of supporting documents as had become the subject matter of most of the charges.

329 It follows that even were the procedure to have been compliant, leading up to the forensic report the findings are more than likely to have been the same.

330 However, because of the failure to inform the applicant or her representative of the last sitting, the respondent has not established that the dismissal was procedurally fair.


REMEDY

331 The dismissal was substantively fair. However, the procedural unfairness was particularly unfair.

332 Given the character of the applicant, her role in the misconduct in the sense that she was directly involved in decisions to pay her own incentives, her clear record and role as educator and community leader and the impact of the unfairness, I find that the appropriate award would be two month’s compensation. It has been calculated as follows: R106 529,00 (R53264,50 x 2 Months).

AWARD
333 The dismissal of the applicant, Thandi Nobutle Mabasa, was substantively fair but procedurally unfair.
334 The Department of Education-Gauteng is ordered to pay to Thandi Nobutle Mabasa the amount of R106529,00, subject to any lawful deductions for RSA Tax, by 1 April 2021.


Trevor Wilkes
Panelist Commissioner

ELRC639-19/20EC