Panellist: Asnath Sedibane
Case No: ELRC377-25/26MP
Date of Award: 01 July 2026

In the ARBITRATION between:

Mhlanga, Willie Donald
(Union / Applicant)
and

Education Department of Mpumalanga
(1st Respondent)

Union/Applicant’s representative: Ms Daleen Frey
Union/Applicant’s address:
1st Respondent’s representative: Mr Bongane Malaza
1st Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between Mhlanga, Willie Donald (the Applicant) and Education Department of Mpumalanga (the Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), on 28 April 2026 and 10 June 2026, via Microsoft Teams. The matter was set down for arbitration as a dispute relating to non-payment of salary. It, however, became apparent that the real issue in dispute was the alleged unfair labour practice relating to benefits for alleged non-payment of acting allowance.
2. The Applicant was present throughout the arbitration and was represented by an Attorney, Ms Daleen Frey. The Respondent was represented by Mr Bongane Malaza, an official of the Education Department of Mpumalanga.
3. The parties submitted bundles of documents, the Applicant’s bundles were labelled as bundles A, A1 and E, the Respondent’s bundles were labelled as bundles R and D. The parties concluded and signed minutes of the pre-arbitration hearing which was labelled as bundle “C”.
4. At the conclusion of the leading of oral evidence, it was agreed between the parties and the Panellist, that the parties would submit closing arguments in writing, by no later than 17 June 2026. I have received the closing arguments from both parties, and I have taken these into consideration when making this award.

ISSUES TO BE DECIDED

5. I was required to determine whether the Respondent committed an unfair labour practice relating to benefits against the Applicant, by not paying him acting allowance for the period 2019 until 2025.
6. The relief sought by the Applicant is that he be paid acting allowance in the total amount of R354 349-38.
7. After the narrowing down of issues, it was agreed that the following issues were common cause between the parties:
   7.1 The Applicant is a Principal, earning a basic salary of R60, 565-00 per month. He was previously a Deputy Principal earning a basic salary of R49, 063-25 per month.
   7.2 The Applicant has been employed by the Respondent since 1994, first as an educator and he was promoted to a Deputy Principal in 2013.
   7.3 The applicant was instructed to act as Principal on 04 May 2019, and he acted in the position until September 2025.
   7.4 The Applicant was not paid the acting allowance.
   7.5 The Principal of Lamlelani High School, Mr Malekane has been displaced since 04 May 2019.
   7.6 The Applicant was appointed Principal at Sibukosethu High School in September 2025.
8. The parties agreed that the following were the issues in dispute:
   8.1 Whether the Applicant was entitled to acting allowance for having performed duties of the Principal at Lamlelani High School from May 2019 to September 2025, and if the Respondent owes the Applicant acting allowance in the amount of R354 349-38.
   8.2 Whether the Circuit Manager had the authority to appoint the Applicant as acting Principal at Lamlelani High School.

SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT’ S CASE
The Applicant, Mr Willie Donald Mlhanga testified under oath briefly as follows:

9. He has been employed by the Respondent since 1994, and he was appointed as Deputy Principal at Lamlelani High School in 2013. On 03 May 2019 he witnessed the Principal of Lamlelani High School, Mr Eric Malekane pack his belongings and leave the school in the middle of a meeting that was called by community members who were disgruntled with the previous year’s matric results. The Principal had wanted to hand over files to him, but he had refused. He was later instructed by the then Circuit Manager, Mr Bogotsi, to take control of the school, and he did so. He later learned that the Circuit Manager retired at the end of June 2019 and he was requested by the caretaker Circuit Manager to continue executing the functions of Principal. In 2020 the school attained 100% matric pass rate, and he was invited to a celebration ceremony. Meanwhile , he was requested to continue acting as Principal.
10. In August 2020, on his request, the then Circuit Manager, Mr Machimane issued him with an acting appointment which stated that the acting would be without compensation. The Circuit Manager had the authority to appoint him to act in the position of the Principal as the Principal is an accounting officer reporting to the Circuit Manager. He referred to a letter on page 20 of bundle “A” where he was addressed as “Principal” and letters on pages 21 to 25 of bundle “A” where he was appointed as Chief Invigilator, a position reserved for the Principal of a school.
11. He made several requests to the Respondent for payment of acting allowance to him, but this was in vain. The Principal of Lamelani High School was relocated to Makombane Primary School after the letter from the SGB releasing him. The Respondent benefited from his hard work which resulted in improvement in the matric pass rate. He knew of other Deputy Principals who are acting as Principals in their schools and are being paid acting allowances. The schools include Chayaza, Bhekhizwayo and Mathipe High Schools.
12. Under cross-examination Mr Mhlanga confirmed that the appointment of educators is regulated by the Employment of Educators Act, 1998(EEA) and the Personnel Administrative Measures (PAM). He maintained that he had acted in the position of Principal since May 2019. He confirmed that he had accepted the acting appointment letter of 2020, but he had been told that the issue of his acting allowance would be sorted out. He reiterated that the SGB had requested that the Principal be released from the school and this was done. He did not dispute that according to the personnel records, Mr Malekane was still the Principal of Lamlelani High School. He was referred to the PAM provisions on acting appointment, and he confirmed that he did not know if Mr Malekane was on any of the kinds of leave stated in the PAM. He reiterated that he is entitled to acting allowance as he had acted in the position of Principal, as instructed by the Circuit Manager.
    THE RESPONDENT`S CASE
    The Respondent’s only witness, Ms Adelaide Rebotile Chiloane, Assistant Director-HR Staffing, testified under oath briefly as follows:
13. Her duties include co-ordinating, managing , monitoring of HR staffing. She reports to the HR Director. The Employment of Educators Act is the legislation in terms of which educators are appointed. The Head of the Department and the District Director have the authority to appoint educators in terms of the Act. The PAM also regulates the appointment of educators. The Deputy Principal assists the Principal to manage the school, in the absence of the Principal. The Circuit Manager does not have the authority to make appointments.
14. The Principal of Lamlelani High School is still earning his salary as the Principal of the school and the post is not vacant. No two people can be appointed in the same position, and if the Applicant was appointed to act as a Principal then such appointment was irregular. Mr Malekane was not on leave at the time of the purported appointment of the Applicant in an acting capacity. Displacement is not on the list of reasons for an acting appointment. She was referred to bundle “D”, and she stated that if indeed the employees referred to were remunerated to act in the positions and were remunerated for such acting then this was irregular.
15. Under cross-examination, Ms Chiloane did not dispute that if one receives an instruction from the Circuit Manager to act in a Principal’s post they would do so, she however contended that such an instruction must be in writing. She testified that the purported appointment letter issued by the Circuit Manager is not the normal letter that would be issued by HR. She however did not dispute that the letterhead on page 19 of bundle “A” was the same letterhead used by HR in their correspondences. She further did not dispute that the Applicant was appointed as Chief Invigilator by the same department. She disputed that the deviation referred to in the Collective Agreement would include circumstances where the Principal has been displaced.
    Closing arguments by the Applicant
16. In closing, the Applicant submitted that he was requested by the Circuit manager on 04 May 2019 to take over the duties of the Principal of Lamlelani High School. He made several requests to the Circuit Manager and to the department for assistance with the payment of his acting allowance and this was in vain. It was not disputed that the Applicant received numerous appointments as Chief Invigilator. The Applicant testified that the Principal, Mr Malekane was seconded to Makoropye Primary School, he could therefore not be a Principal of two schools. The Applicant raised the issue of inconsistency and referred to Mr Dludlu, Mr SS Mabuza and Mr VP Mabuza who were paid acting allowance for acting as Principals at their respective schools.
17. Fairness dictates that we look at who performed the functions of the Principal and not who was the Principal on paper, and it was not disputed that the Applicant had performed those functions. Operationally, the position of the Principal was vacant when the Applicant performed the functions of that position. The Respondent committed an unfair labour practice by not paying the Applicant acting allowance when he had performed the duties of the Principal.
    Closing arguments by the Respondent
18. The Respondent submitted that section 4 of the Employment of Educators Act 76 of 1998(EEA) grants the Minister of Basic Education the authority to determine and consolidate the terms and conditions of employment under the Personnel Administrative Measures (PAM). The legal framework for educators acting allowances is codified in Chapter C of PAM in terms of which the ELRC Collective Agreement 8 of 2001 and ELRC Collective Agreement 8 of 2002 are integrated. In terms of Clause 5.1 of Resolution 8 of 2002, acting allowance for an absent incumbent is strictly restricted to five statutory conditions- i.e Maternity leave, sick leave, suspension, secondment, or approved special leave. Only District Directors hold the delegated authority to appoint school-based educators, and any appointment made by a Circuit Manager is legally invalid.
19. The Applicant has failed to prove that he has a statutory right to the acting allowance claimed. The principle of inconsistency cannot be used to legitimise or validate an unlawful administrative decision. The Applicant cannot rely on a previous illegality to justify that he must be paid acting allowance as that would be contrary to the ELRC Resolutions and the PAM. The Applicant is not entitled to acting allowance and his claim must be dismissed. ANALYSIS OF EVIDENCE AND ARGUMENTS
20. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
21. The Applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the
    Labour Relations Act 66 of 1995, which provides as follows: 186 Meaning of dismissal and unfair labour practice (2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
    employee involving-
    (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
22. The Applicant testified as the only witness in his case and stated that he had acted as the School Principal of Lamlelani High School from May 2019 when the Principal was displaced, until September 2025 when he was appointed as Principal of a different School. According to Mr Mhlanga, he was requested to act as Principal by the then Circuit Manager and he was promised that the issue of acting allowance would be addressed at a later stage, but he was never paid the acting allowance, and his appointment was never formalised accordingly. He was appointed by the Circuit Manager in writing, in 2020 to act as Principal and that acting was valid.
23. It was established as common cause that the Applicant did perform the duties of the Principal from 2019 until 2025 and that he was not appointed by the Head of the Department (HoD) or by the District Director who has delegated authority to make such appointments. The Respondent has disputed that the Applicant is entitled to receive acting allowance for the period that he performed the Principal’s duties.
24. The Respondent led evidence through one witness, Ms Adelaide Chiloane, Assistant director-HR Staffing. Ms Chiloane explained that appointments of educators are vested with the District Director, with delegated powers by the HoD and that the Circuit Manager does not have such delegated powers. She disputed that the Applicant was at any stage appointed as acting Principal of Lamlelani High School. According to Ms Chiloane an acting appointment could only be legitimate if it was done in compliance with applicable prescripts and by the person with the relevant authority.
25. The Respondent’s evidence that Mr Malekane, the Principal of Lamlelani High School is still in his appointed salary and is still being remunerated in that position could not be disputed by the Applicant. The Respondent demonstrated through Persal records that Mr Malekane is still the Principal of the school. It was further demonstrated through applicable prescripts that an acting appointment could only be made where the incumbent of the position is absent due to either one of the five reasons stipulated in clause 5.1 of Resolution 8 of 2002, being maternity leave, sick leave, suspension, secondment, or approved special leave. It was not in dispute that Mr Malekane was displaced and was not on any one of the stipulated kinds of leave.
26. The Applicant raised the issue of inconsistency and referred to three Deputy Principals who according to disputed HR records acted in Principals positions and were paid acting allowance whilst the incumbents of the posts were displaced and not on leave. The Applicant could not lead credible evidence on the alleged inconsistency claim but merely submitted a document purportedly from HR, showing that the comparators were paid acting allowance. Even if the inconsistency was successfully proven, it would be unjustifiable to expect the Respondent to pay the Applicant acting allowance when his acting appointment was improper, solely because others were paid such acting allowance. The Labour Appeal Court in Cape Town City Council v Masitho and others (2000) 21 ILJ 1957 (LAC) held that an employer cannot be expected to continue to repeat a wrong decision in the name of inconsistency.
27. Both parties submitted arbitration awards made in the same Bargaining Council, in support of their respective cases. It is trite that Commissioners are only bound by decisions of the courts and are not bound by arbitration awards of their fellow Commissioners. I have noted the decisions in the specific awards, but I am inclined to make an independent decision, based on the evidence in this specific matter.
28. The Applicant has failed to prove that the Respondent has committed an unfair labour practice relating to benefits by not paying him acting allowance. By his own admission, the Applicant was not appointed to act in the position of Principal, by either the HoD or the District Director and that even the purported appointment to act by the Circuit Manager states that the appointment would be without remuneration.
29. It is not in dispute that the Applicant did perform the duties of the Principal since the Principal was displaced and that he continued to perform such functions until he was appointed in the promotional post in a different school. It is unfortunate that the Applicant accepted the responsibilities of the higher post, without receiving a proper appointment and continued to perform such functions for several years, without compensation or even a formal commitment by the Respondent that such compensation would be made.
30. It is clear from the evidence that was led that the only way the Applicant could be compensated for performing the duties of the higher post was if his acting was in line with the ELRC , the EEA and the PAM. As held by the Labour Court in Babolaeng v Sol Platjie Local Municipality and Others (C534/23) [2025] ZALCCT 106, where a collective agreement provides that an acting appointment must be in writing, failure to prove that such appointment was done in line with the prescripts, the employee’s claim to acting allowance must fail.
31. Having considered the relevant evidence in this matter, I find that the Applicant failed to prove the alleged unfair labour practice relating to benefits. The Applicant’s claim for the payment of acting allowance stands to fail.

AWARD

32. The Applicant, Willie Donald Mhlanga has failed to prove, on a balance of probabilities, that the Respondent, Education Department of Mpumalanga has committed unfair labour practice relating to benefits against him.
33. The Applicant’s application is dismissed, and the Applicant is not entitled to any relief.

Asnath Sedibane

Asnath Sedibane
ELRC Dispute Resolution Panellist