ELRC70-23/24WC

Commissioner: Lanthis Taylor
Case No.: ELRC70-23/24WC
Date of Award: 9 November 2023

In the Arbitration between:

SADTU obo Pauline Metembo
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr. John de Laan and Ms. P Metembo
Telephone:
Telefax:
Email:

First Respondent’s representative: Mr. Kaizer Mbobo (WCED Representative)
Telephone:
Telefax:
Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council over the period 20 July 2023 to 23 October 2023 by way of Zoom, a virtual platform. On 20 July 2023, the applicant applied to be legally represented by Advocate Jerome van der Schyff who was instructed by Advocate Benito Metembo. Having heard the parties’ arguments in this regard, I declined the applicant’s request for legal representation and provided the reasons for this on the record. The applicant then requested a postponement as she needed to approach the union SADTU for assistance. She conceded that she had not prepared any bundles of documents and it appeared that the applicant and her representative were of the misguided view that only the aspect of legal representation was going to be dealt with on the day. However, given the circumstances, I postponed the matter until 31 July 2023.

2. Mr. Mbobo, the respondent’s representative, took ill and was hospitalized prior to the next sitting. When the matter resumed on 31 July 2023, Mr. Mbobo’s line manager, Ms. Abigail Blankner made a submission in this regard. A medical certificate was provided to substantiate his absence. The matter was postponed until 30 August 2023.

3. When the matter resumed on 30 August 2023, the applicant, Ms. Pauline Destiny Metembo was represented by Mr. John de Laan of SADTU. Mr. Kaizer Mbobo represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and Afrikaans; an interpreter was present and the proceedings were digitally recorded.

THE ISSUE IN DISPUTE
4. I must determine whether the applicant’s dismissal was substantively fair.

BACKGROUND TO THE ISSUE
5. It is common cause that the applicant was employed as Acting Principal at Grootkraal Primary School since March 2021 until her dismissal on 4 April 2023. She earned a gross monthly remuneration of R34185.50 at the time of her dismissal. The applicant was charged with two allegations viz.

Charge 1 – It is alleged that you’re guilty of misconduct in terms of section 18 (1) (a) of the Employment of Educators Act, 76 of 1998 (hereinafter referred as the Act), in that on/or about 3 November 2021 you failed to comply with section 16A (2)(i) and 16A(3) of the South African Schools Act 84 of 1996 (SASA) read together with WCED policy on Learner Transport Schemes of 2015 by not taking reasonable steps to prevent any financial Maladministration or mismanagement, by any staff member or by the school governing body when you:
a) failed to adhere to an instruction from the WCED to terminate the services of Metembo Transport services and further to cancel the debit order for said services for November and December 2021 respectively , which resulted in an authorised expenditure of R212180.00.
Charge 2 - It is alleged that you are guilty of misconduct in terms of section 18 (1)(i) of the act, in that on/or about January 2022 until March 2022, you failed to carry out a lawful order or routine instruction without just or reasonable cause by not ensuring that the operation of the school buses to transport learners are stopped and to allow the WCED’s contacted buses to operate, which led to further irregular payment of R78415, 30 for the operation of the said buses.

6. The applicant indicated that her dismissal was substantively unfair and she seeks retrospective reinstatement as a remedy.

SUMMARY OF THE EVIDENCE & ARGUMENTS:
5. Both parties presented bundles of documents in support of their versions. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.

OPENING STATEMENTS
6. The respondent bore the burden of proof and as such commenced with presenting its version. Mr. Mbobo stated that the applicant’s dismissal was substantively fair. He stated that she had failed to follow lawful and reasonable instructions which had been given to her in three or four different forums in writing and orally. He indicated that he would be relying on three witnesses’ testimony.

7. The applicant’s representative, Mr. de Laan stated that the applicant acknowledged the existence of a rule but would show that the rule was broken by the line manager, the rule was not clear and it was inconsistently applied by the leadership of the WCED. Accordingly, the applicant’s dismissal was not appropriate. He indicated that he would be calling five witnesses to testify.

THE RESPONDENT’S CASE
8. The respondent’s first witness, Thembekile Cosmore Bango indicated that he was the circuit manager managing Grootkraal primary school and was the applicant’s supervisor when she was appointed as acting principal after her husband took an early retirement. She was the most senior staff member and Head of Department at the school at the time. He testified that the applicant had received financial training and referred to various attendance registers in the respondent’s bundle for training interventions that the applicant attended in 2021 when she was acting principal. Bango explained the role of a principal as set out in the PAM document and section 16A of the South African Schools Act. He stated that the principal is to guide the SGB in accordance to legislation, circulars and policies.

9. Bango testified that the former principal, Mr. Metembo, was charged with various irregularities including the appointment of Metembo Transport for the transporting of learners. He opted for early retirement and his wife was appointed as acting principal. Metembo Transport continued to transport learners after Mr. Metembo’s retirement and was paid R106000.00 per month. In October 2021, the District Director gave an instruction that Metembo Transport be stopped from providing transport services and that a new provider be appointed. The applicant was informed of this in writing and in follow up meetings to dispel any misunderstanding. Bango stated that he had spoken to the applicant both formally and informally and invited her to his office to discuss that she keep herself away from the transport issue.

10. Bango referred to correspondence from Andre Lakay (Acting Director Institutional resource support) addressed to the District Director and the principal wherein an instruction was given for the termination of the devolvement of two transport routes. This correspondence was dated 29 October 2021. He arranged a meeting with the applicant and the SGB and referred to the minutes of the meeting which took place on the 4th of November 2021. Bango testified that the district director was executing the instruction received from Lakay and had communicated the interim transport proposal to the school. Steven’s transport was the service provider procured. Metembo Transport was supposed to stop but this did not happen. Steven’s transport was supposed to transport the learners between November and December 2021.

11. Bango explained that the purpose of the Director meeting with the SGB was to explain the transport arrangements going forward and that Metembo transport was to stop transporting learners. The school was never instructed to transport learners or facilitate a provider during this period. He indicated that he was at the meeting of 4 November 2021 and summarized the minutes provided. He stated that the applicant was unhappy and stated that it was unfair that Metembo Transport was not allowed to transport the learners. He stated that Metembo Transport was paid a fixed amount of R106000.00 per month and stop orders had been paid from the school’s banking account on 23 November 2021 and 23 December 2021 despite the applicant being instructed to stop the transport arrangement on 2 November 2021. These payments were in contrast to the formula that is in the Learner Transport Schemes Policy. Bango stated that there was sufficient time to cancel the stop order as it was only a phone call away to the school’s personal banker.

12. Bango explained the role of the principal in relation to the SGB. He indicated that the applicant had defied an instruction from Head Office, instructions emanating out of the meeting and his email instruction. His view is that the trust relationship has been broken in respect of the applicant not accepting the WCED policies.

13. During cross examination Bango indicated that he could not remember the applicant calling him on 2 November 2021 to inform him that the new contractor was not at the school to collect the children. He denied telling her that the children must go back with the transport that they arrived in. Bango confirmed that he had gone to the school on 3 November 2021 to ensure that the principal stopped the contract. This was not the last meeting and he confirmed that he had relayed the Department’s sentiments. He stated that parents confronted him and the situation became volatile. He was threatened with assault and when Mr. Metembo arrived, the situation worsened. Bango confirmed that plans had been put in place for transport; no learner walked to school and the new contractor’s buses were pelted with stones by the parents.

14. Bango testified that he was part of the meeting on 4 November 2021 where the District Director reiterated which transport provider was to be used and that the principal was to ensure that the Department’s decision be executed. He confirmed that Mr. Metembo arrived in the middle of the meeting and addressed the parents who were heckling the District Director.

15. The respondent called its second witness, Jewel Jonker, the District Director for the Central, Eden and Karoo district. Jonker testified that the former principal of Grootkraal Primary school, Mr. Metembo had been accused of irregular transportation of learners. He was associated with the transport company. When he was charged, Mr. Metembo opted for early retirement and his wife was appointed to act as principal. Jonker stated that the directorate of school transport had informed him to terminate the services of Metembo Transport and appoint another service provider towards the end of 2021. The acting principal has also been directly informed of the same by the directorate of school transport. He informed the school to discontinue the services of Metembo Transport and to ensure that this happened, he went to the school along with the circuit manager, Mr. Bango where the acting principal was informed to stop using Metembo Transport. He referred to the documents directing him to terminate the devolvement to the school and that his office was to re-advertise the routes. The correspondence to the school did not indicate that the school should source a service provider.

16. Jonker referred to the minutes of the meeting held on 4 November 2021 and indicated that the purpose of the meeting was to inform the SGB of the decision regarding the transporting of the learners. He indicated that the circuit manager, the applicant, the SGB and parents along with himself were present. The email instructing that Metembo Transport not be utilized was sent on 2 November 2021 but payments to the value of R106000.00 were still made to Metembo Transport on 23 November and 23 December 2021. Jonker explained the formula to be used in calculating the amounts for transporting learners and indicated that the amounts are not correct as the number of learners would differ based on the exam timetable and the time of the year. The payment of a fixed amount indicates that the policy had not been followed. No permission for the use of school buses had been given after the interaction of 4 November 2021. Following the meeting of 4 November 2021, where the minutes reflect the applicant indicating that the termination of Metembo Transport was unfair, there was no representation from her despite given an opportunity to do so. She also did not lodge any grievance in this regard. He stated that not following the financial policies would result in fruitless and wasteful expenditure.

17. During cross examination, he confirmed that there were two meetings on 4 November 2021. Mr. Metembo was not initially part of the 2nd meeting at the service point but came in towards the end. He confirmed that he and Mr. Metembo had gone into a private meeting where they discussed what was in the best interest of the learners and the school. The parents and the SGB were unruly and getting out of hand. Earlier in the day, Mr. Metembo had arranged a march by the parents to his office and he asked Mr. Metembo to calm them down as the parents were at the meeting on Mr. Metembo’s instruction. He denied telling Mr. Metembo that he could drive the children as this was against the Department’s instructions. He confirmed that the WCED had paid the new contractor. He further stated that Mrs. Metembo writing to the parents about the transport was not enough as she could have also stopped the payments to Metembo Transport. He indicated that it was fair for her to deal with the parents as they were not rude to her. She refused to carry out instructions.

18. The respondent called its third witness, Abdurrahmaan Davids, the Deputy Director Corporate Services in the Eden and Karoo district. His role is to oversee financial management, supply chain management compliance at schools and evaluate the schools’ transfer payments bi-annually. He confirmed that the applicant had been trained in financial management on at least four occasions. He explained the role of the principal as defined in the PAM document and the financial management role as set out in section 16 of the Schools Act of South Africa. Principals are expected to know this legislation as they are informed via circulars and training interventions. Davids explained the instruction from the Director Institutional Resource Support, A Lakay and also described the process of devolvement. A devolvement is where the school applies to operate approved transport routes. The school can put in place its own processes where a service provider is allocated but this has to be cost effective and in line with procurement policies and practices.

19. He confirmed that the department had terminated the devolvement of two routes by way of a letter to the district director and the principal. The district and not the school, procures any interim services. He referred to correspondence to the Director Financial Accounting where it was requested that the transfer payments no longer be made to Grootkraal primary school for the routes that were cancelled. Davids referred to receipts for fuel for the school buses when theses buses were not supposed to be in use. He also referred to the bank statements which showed stop orders for R106090.00 on 23 November 2021 and 23 December 2021 despite Metembo Transport Services being stopped from transporting learners.

20. During cross examination, Davids confirmed that the school financial policy makes provision for SGB approval but that this was subject to parental decision. He confirmed that the applicant had been trained in BMFS, financial policy and budget training. Procurement elements were also addressed but he could not confirm if Learner Transport Services is addressed as not all schools have a transport requirement. He confirmed that the district had been given an instruction to ensure that the devolved route of the primary school was terminated and that the district director was to ensure that this happened. Davids stated that the SGB is not a part of the decision-making process when it comes to termination of devolved route. It was pointed out to him that the contractor had a valid contract in a devolved route. His response was that the devolvement was revoked. He stated that when a route is devolved, the Head of Department had no involvement and any such contract must adhere to the principles of BMFS and the school’s financial policy. He stated that the instruction given to Mrs. Metembo was reasonable and that a principal has the authority to stop a debit order or stop order.

21. The WCED closed its case.

APPLICANT’S CASE:
22. The applicant, called her first witness, Gert Julies who testified under oath in the absence of the applicant. He stated that he had been an educator at the school since 2010 until 2019 and had been co-opted to serve as a member of the SGBB in 2019. He served until the director disbanded the SGB. He did not have any ties with the school at present. Julies confirmed that he was present at the meeting at the district offices on 4 November 2021 where the director wanted to speak to the SGB about the transportation of the learners. When the director explained the purpose of the meeting to the SGB, the parents of the school came into the meeting. These were the same parents who had gone to hand over a petition to the Director in George that morning. The parents became unruly and accused the director, Jonker of lying. Jonker then said he wanted to speak to Mr. Metembo who was outside. Someone fetched Metembo and Jonker and Metembo went to the kitchen. He did not know what transpired there.

23. After 5 minutes they emerged and Metembo asked the parents to calm down and allow the proceedings to continue. Metembo told the parents that Jonker wanted him to transport the learners and asked Jonker to confirm this. The meeting continued. Metembo said a prayer, the meeting adjourned and the parents left peacefully. The parents were happy that Metembo would transport the children. They did not want to put their children on the Steven’s Transport busses.

24. During cross examination Julies confirmed that he did not see it being recorded in the minutes of the meeting that Metembo could transport the learners. He also confirmed that he did not see anything in the minutes saying that parents could file an appeal if they were unhappy. Julies confirmed that a mob of parents arrived and that they were the same parents who had been in George earlier that day. He did not initially see who had transported them but later found out when some of the parents told him, that Mr. Metembo had done so with his buses. He confirmed that he was not in George. He stated that after the private meeting between Metembo and Jonker, Metembo told the meeting that they decided that he should transport the learners.

25. The applicant’s second witness, Llewellyn John Metembo testified under oath that on 4 November 2021, he was at the offices in George and then later at the service point in Oudtshoorn at 3pm. He stated that Jonker asked him to bring the diary which Jonker had forgotten in George. He stated that he waited outside of the meeting and Jonker asked him to come into the meeting. Jonker called him to the kitchen when Jonker told him that he did not want Mrs. Metembo to get into trouble. Jonker told him that he should drive the learners but he stated that he was not the contractor. He indicated that he would ask his son who was the contractor.

26. Metembo stated that when he came out from the kitchen, the parents were behaving in an unruly manner and he stopped them from misbehaving by putting his hand up. He told them that Metembo Transport had been given an opportunity to transport the children. Jonker sat with his head in his hands and Metembo stated that he asked Jonker to confirm that Metembo Transport could drive the children. Jonker confirmed this to be so. Metembo Transport transported the learners from 5 November 2021 to 15 December 2021. He stated that he sent Jonker a Whatsapp message to advise him that Steven’s busses were at the school and asked him to explain. Jonker responded by stating that the Department was in contact with the school. He stated that both Steven’s Transport and his son’s transport were at the school. Steven’s transport was withdrawn and he stated that Jonker gave him permission to transport the learners.

27. During cross examination Metembo confirmed he was not employed by the department or privy to the emails sent to the principal regarding the termination of the devolvement. He maintained that Jonker gave permission in their private meeting for the transportation of the learners and that he had told the parents that Jonker had asked him to transport the learners. When it was put to him that there was no written permission for Metembo Transport to transport the learners, he stated that he would not have asked Jonker to explain if there was no permission. He indicated that he had sent the Whatsapp to Jonker because Jonker had asked him to speak to the subcontractor, his son. He was the messenger and contact person. He confirmed that he was with the parents at George on 4 November 2021. The parents contacted him because he was the former principal. He stated that if he did not have to bring Jonker’s diary, he would not have been at the meeting in Oudtshoorn.

28. When it was put to Metembo that his version of bringing the diary was not put to Jonker, he stated that Jonker is a liar. It was put to Metembo that his version was inconsistent with that of Julies who had not testified that Jonker was sitting with his head in his hands looking down. It was further put to him that his version of him having to drive the learners was not put to Jonker when he was on the stand. Metembo stated that he and Jonker had a private conversation.

29. When questioned about the diary, he stated that Jonker’s secretary asked him to take the diary to Oudtshoorn. He stated that Jonker’s secretary phoned him to take the diary and then stated that he went to deliver the diary and then went out of the meeting. He then got a message that Jonker was looking for him. It was then that he went back into the meeting. Metembo admitted that the minutes do not reflect that permission was granted for the transportation of learners. He stated that the first time that he met Jonker was in George when the petition was handed over. Jonker was a new appointee and was not the Director when Metembo was the principal.

30. The next witness to testify was the applicant, Pauline Destiny Metembo who testified under oath that she received the email terminating the devolvement on 2 November 2021. She phoned Bango but he was busy and she could not speak to them. Later Mr. Volkwyn phoned her and told her a new contractor would transport the learners home. Learners that come to school with the school transport and Metembo Transport. She stated that she had called the drivers of the school transport and had told them of the stopping of the devolvement. She also called the SGB members that she could get hold of and informed them of the letter.

31. On 2 November 2021, the new contractor failed to come to the school. She called Bango who told her that the children must go home with the buses that they came to school with. The children went home with the contractor’s buses. She stated that no children attended school on 3 and 4 November 2021. The parents refused to allow Steven’s Transport to transport the children. She stated that the parents arrived at the school on the 3 November 2021 asking what was going on regarding the transport. At that point Bango and Volkwyn had come to the school to speak to her about the letter. Before they could speak to her, the parents forcibly removed them from her office. The parents were rude to Bango and Volkwyn and told them that they did not want their children on the new buses. She stated that Bango and Volkwyn tried to speak to the parents but they would not listen. She had never seen the parents behave this way and even she got worried.

32. Mrs. Metembo stated that she and the SGB had been called to a meeting with the director at the service point in Oudtshoorn. The meeting was called in relation to the letter that she had received on the 2 November 2021 regarding the termination of the devolved route with immediate effect. Some parents stormed into the meeting and told the director to tell the SGB what he had told them in George. Jonker got upset, panicked and told the parents that he would only speak to Mr Metembo but not in the meeting. Jonker asked someone to call Mr. Metembo and then Jonker went into a private meeting with him. When they came back, Metembo raised his hand and the parents quietened down. Mr. Metembo then said that Jonker had asked him to ask the subcontractor to transport the learners until things are worked out. Mr. Metembo said a prayer and all the parties left with the understanding that Metembo transport would transport the learners.

33. She claimed that the minutes do not reflect what she was saying because the minutes were not correct. She had told Mr. Biljon about this and he indicated that he would rectify the minutes. She was on family leave from 16 November 2021 until 18 November 2021 and could not follow up on this. She stated that she did not cancel the stop order for Metembo Transport as Jonker had asked Mr. Metembo to ask the subcontractor to drive the kids. Jonker did not come back to her in this regard. The subcontractor was asked to deliver a service and this was never cancelled by Jonker. She stated that the attendance improved with all the kids being at school when Metembo Transport started transporting them. Stevens transport came from the 5th to the 10th of November and then did not come anymore. Metembo Transport buses transported the learners until the 15 December 2021.

34. Mrs. Metembo stated that Bango called her into a meeting on the 30 November 2021 to tell her that head office was asking her to step down as principal. On 1 December 2021 she got sick and her psychologist booked her off from 1 to 15 December 2021. She stated that the debit order was not stopped in December because the subcontractor was still transporting learners from the school from 5 November 2021 until 15 December 2021. She stated that she was sick during December 2021 and could not go and cancel the stop order. In relation to Charge 2 – spending of money on transport, Mrs. Metembo stated that Jonker had called her in on 14 January 2022 and asked her to end the services of the subcontractor and she could then stay on as principal. She responded by telling him that it was the SGB who had appointed the subcontractor and that she would ask them if they would stop the subcontractor’s services. They stated that they would end the subcontractors contract as they had appointed the subcontractor.

35. She stated that the parents did not put the children on the school buses from 18 to the 20 January 2022. Only the kids within walking distance from the school attended. She was informed of a meeting between the SGB and the parents and they decided that they were going to use the school buses to transport the children. They excluded her because she was considered to be the WCED representative. They told her that, as a legal body, they could make their own decisions. The transport had been budgeted for. She stated that she was only an acting principal and unfortunately did not know any better. She indicated that she was a little afraid of the parents as she had seen their behaviour when it came to their children.

36. During cross examination, Mrs. Metembo disagreed that she was given the instruction in November 2021 and in total the instruction was given to her four times. She then confirmed that she had received the instruction four times when it was elaborated and the instances were shown to her. It was put to her that a 5th instruction was given to her in an email where it was stated on 9 November 2021 “the arrangements for emergency transport by the department must be adhered to. You are requested to allow the contractor to execute the terms of his contract.” and that this referred to Steven’s Transport. She stated that she did not understand it to be so. Her view was that the cancellation of the devolved route meant that the school buses could not transport the learners.

37. Mrs. Metembo stated that she could not present proof that Metembo Transport had been granted permission to transport the learners but that Mr. Metembo had said so. She was not present when they had their private meeting. She was asked to interpret a sentence in the minutes of the meeting regarding Metembo buses not being allowed to transport the learners and stated that this was clear. She stated that she had said that cancelling Metembo Transport from transporting the learners was unfair because of the sudden stoppage. She agreed that if the parents were unhappy, they could appeal.

38. It was put to her that she alluded to not being the principal in December 2021 but she confirmed that she had received an acting allowance for the period. She reiterated that she had not stopped the debit/stop order because Jonker had asked Metembo to transport the learners. She did not have any written proof but she was in the meeting when Mr. Metembo told then this. She confirmed that the minutes do not reflect any permission being granted. She confirmed that the minutes had not been disputed during the arbitration process.

39. Both parties submitted closing arguments in writing on the agreed date which I have considered as part of the overall submissions.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
40. I do not deem it necessary to regurgitate the arguments presented in the same vein as I have encapsulated the testimonies presented above. I will deal with the evidence as I see fit in relation to the overall dispute. The respondent bears the burden of proving that the applicant’s dismissal is substantively fair. The procedure was not challenged and accordingly I find the applicant’s dismissal to be procedurally fair on her own version.

41. It must be noted that the matter was dealt with on the virtual platform of Zoom. On 30 August 2023, midway through the testimony of Mr. Bango, when the proceedings were adjourned for a break, the applicant and her representative failed to turn off the microphone. Certain disparaging remarks were made about the Commissioner (albeit that the recording had stopped) and there appeared to have been unauthorised people in the venue with the applicant and her representative while evidence was being led. It was later acknowledged that Mr. Llewellyn Metembo was present in the room along with one Mr. Esau (a purported union official) who was told to “lie on the floor, they won’t see you”. It was directed that these two people would be testifying on behalf of the applicant. Mr. Metembo testified on behalf of his wife but Esau was not called to the stand.

42. Mr. De Laan, the representative for the applicant was taken to task and was given an opportunity to explain himself regarding this situation. The contempt process was also explained to him and between him and the applicant they begged that the matter not be stood down for contempt proceedings to be invoked. It was agreed that in the interest of social justice and expediency for the applicant, that the matter continue to finality but Mr. de Laan was warned that further representations would be made to the union via the ELRC regarding this indiscretion. He was also told that people’s credibility, including his and that of the applicant would be questioned. Mr. Bango concluded his testimony on the day and it was agreed that upon reconvening the applicant and her representative would connect from a neutral venue.

43. It must be mentioned upfront that Mr. Metembo’s credibility became questionable by his actions in this first instance. It was evident that he was attempting to gain an unfair advantage by listening to Bango’s testimony and then he could adjust his own testimony accordingly. Apart from this instance, when Mr. Metembo came to testify, he also had to be called to order for the manner in which he spoke to the Commissioner and his general antagonistic and condescending demeanour. Once again, the issue of possible contempt proceedings was raised. Despite this, Mr Metembo was afforded the opportunity to present his testimony which was flawed with inconsistencies and contradictions. Examples thereof would be where he indicated that he was not going to the meeting at the service point but it was he who had transported the parents to George with a petition. His version (which was never put to Jonker) was that he was taking Jonker’s diary to him after being asked to do so by Jonker. He then stated that Jonker’s secretary called him and asked him to do so, yet he in the same breath claims that he did not know either of them. Why would someone ask a random stranger to take something as personal as a diary from one point to another? In cross examination, Mr. Metembo testified that he went into the meeting at Oudtshoorn with the diary and then went to wait outside until he was called to meet with Jonker. This is contradictory to Julies’ version and his own version where in his evidence in chief, he stated that waited outside of the meeting and did not enter the meeting until he was called by Jonker.

44. In this instance I am guided by the principles outlined in Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others [2003] (1) SA 11 (SCA) where the court held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case. Under the given circumstances, Mr Metembo’s testimony has very little probative value. His credibility is more than questionable and has not passed muster. I will only consider what I deem to be relevant in relation to this dispute and where the testimony appears to be common cause.

45. The gist of this dispute is whether the applicant is guilty of the allegations levelled against her and whether the sanction of dismissal is appropriate. The applicant was charged with
a) failure to adhere to an instruction from the WCED to terminate the services of Metembo Transport services and further to cancel the debit order for said services for November and December 2021 respectively….
b) failure to carry out a lawful order or routine instruction without just or reasonable cause by not ensuring that the operation of the school buses to transport learners are stopped and to allow the WCED’s contracted buses to operate …

46. While much emphasis was placed on the charge of failure to terminate the services of Metembo transport, the respondent also referred to various receipts for fuel for the school’s own buses which relates to the second charge. Both Bango and Jonker testified that there was no permission granted for either Metembo Transport or the school buses to be used for the transporting of learners after 4 November 2021. Davids identified the school buses for which there were receipts for fuel after the instruction that the devolved routes were terminated. The testimony was not refuted. With the primary focus being on the termination of the Metembo Transport, the applicant admitted that she did not terminate the Metembo Transport services and also did not cancel the stop order despite the written instruction to do so. Her view was that Mr. Metembo had told the meeting of 4 November 2021 that Metembo Transport had been given authority by Jonker to transport the children. She accepted this despite there being no written permission to confirm this.

47. If one looks at the situation on 4 November 2021 objectively as testified to by all the witnesses excluding the testimony of Mr Metembo, it was Mr. Metembo who led parents to present a petition to the District Director’s office in George. When the Director went to his scheduled meeting with the SGB and the applicant, these same uninvited parents stormed the meeting putting Jonker in spot of bother to the extent that he sought the assistance of Mr. Metembo to calm the parents down. In my view he only did so because he viewed Mr. Metembo as a leader of the group who had earlier presented the petition to him. Julies and Mrs. Metembo testified that Mr. Metembo had asked Jonker to confirm Mr. Metembo telling the parents that Metembo Transport had been given the right to transport the learners. In my view, if I was in a such a volatile situation, I too would appear to agree with whatever is said to the unruly mass in order to ensure my own safety. This version was also not put to Jonker when he testified about the meeting of 4 November 2021.

48. There is no doubt that the applicant is guilty of failure to follow the instructions to terminate the services of Metembo Transport Services and not to use the school buses on the balance of probabilities. During the proceedings, it was testified by Bango and Jonker that Mr. Metembo was under investigation for learner transport irregularities while he was the principal. He opted for early retirement in the face of these allegations. This was not refuted or challenged. It also became clear that Metembo Transport had been transporting learners while Mr. Metembo was the principal of the school. Mr. Metembo stated that he transported the parents to deliver the petition in George. The parents had approached him as the former principal. He also stated that he is the messenger and spokesperson for Metembo Transport which is registered as Llewellyn and Son Pty Ltd and which he indicated is owned by his son. What is interesting is that there was no interaction from Metembo junior in this whole matter considering that he was the “Subcontractor”.

49. Mr. Metembo clearly has an extraordinary influence over the community. It would make perfect sense that both Mr. and Mrs. Metembo would do whatever they could to protect their vested interest in the transporting of the learners. After all, at a fixed monthly amount payable, this is a lucrative cash cow. Hence the reaction from Mrs. Metembo that the termination of the devolvement where Metembo Transport was to cease transporting learners, was unfair and as a consequence she failed to follow the instruction to terminate Metembo Transport’s services.

50. Neither Mr. nor Mrs. Metembo see any conflict of interest in the situation described above. What makes this worse is that both Mr. and Mrs. Metembo are educators who were giving instruction and guidance to young and impressionable people and are looked up to by a community.

51. In consideration of the given circumstances, I cannot but find the applicant, Pauline Destiny Metembo guilty of the allegations levelled against her.

52. Is dismissal appropriate? I have considered the totality of circumstances in this matter including the principles outlined in Sidumo & another v Rustenburg Platinum Mine Ltd & Others (2007) 28 ILJ 2405 (CC) and Schedule 8 of the Labour Relations Act. The applicant is of the view that dismissal was not appropriate. She attempted to avoid all liability or responsibility even to the extent of claiming that she was removed as the acting principal when in fact she received and accepted payment of an acting allowance over the very period she claims not to have been the acting principal. She also corresponded with Bango in the capacity of acting principal in 2022.

53. I am not of the same view as the applicant that dismissal was not appropriate. The applicant’s actions or lack thereof has impacted on the trust relationship between the parties. Bango’s testimony in this regard went unchallenged. In Woolworths (Pty) Ltd v Mabija and others [2016] ZALAC 5; [2016] 6bllr 568 (LAC); (2016) 37 ILJ 1380 (LAC), the Labour Appeal Court accepted that it is not necessary to lead evidence to prove a breakdown of the trust. The gravity of the misconduct would determine this breakdown in trust. The applicant’s conduct falls well within this ambit to the extent that she sees no wrong in her actions and has not displayed any remorse whatsoever. She also appeared to be totally supportive of her husband’s drive to ensure that Metembo Transport remain the transport contractor at all costs. (my emphasis)

54. I am of the view that the applicant’s dismissal is warranted in relation to the misconduct. I thus cannot agree that the applicant’s dismissal was inappropriate as a sanction and as such I find the applicant’s dismissal to be substantively fair. Therefore, having found the applicant guilty of the allegations and in consideration of all of the above, I make the following award:

AWARD:
55. The respondent has discharged the burden of proving that the applicant’s dismissal was substantively fair. The applicant is not entitled to any relief.





L M Taylor
Commissioner