01 November 2024 – ELRC938-22/23KZN

IN THE ELRC ARBITRATION

BETWEEN:

NATU obo SITHOLE ” the Applicant”

and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st “Respondent”

VUYISILE R XABA 2^nd “Respondent”

_____________________________________________________________________________________

ARBITRATION AWARD

Case Number: ELRC938-22/23KZN

Last date of arbitration: 02 October 2024

Date of submission of closing arguments: 28 October 2024

Date of award: 01 November 2024

NTOMBIZONKE MBILI

ELRC Arbitrator

DETAILS OF HEARING AND REPRESENTATION

The arbitration commenced on 18 September 2023, proceeded on 01 November 2023, 05 February 2024, 18 July 2024, 29 August 2024 and the presentation of evidence was finalized on 02 October 2024. The arbitration was held at the Pietermaritzburg offices of the KwaZulu-Natal Department of Education.

NATU a trade union, referred this dispute on behalf of its member, Nobuhle E Sithole (hereinafter referred to as the Applicant.). The Applicant was represented by Mr Njabulo Mtolo, a Union Official from NATU. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr ST Daniso employed by the Department as an Assistant Director for Labour Relations.

Bundles of documents were submitted on behalf of the Respondent and the Applicant respectively. The proceedings were digitally and manually recorded. The services of an interpreter were utilized and Bheki Hadebe provided interpreting services.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) related to Appointment/Promotion.

I am required to decide whether the conduct of the Head of Department in dissolving the School Governing Body, appointing an independent committee and appointment of second Respondent was lawful. If I find that the conduct was unlawful, whether it amounts an unfair labour practice.

BACKGROUND

The parties resolved to have the matter decided as a stated case. Timelines for the filing of the submissions were agreed upon. The Applicant was to make their initial submissions on 09 October 2024 the Respondent(s) were to respond by 16 October 2024 and the replying submission were to be filed on 21 October 2024. The Respondent filed its response on 21 October 2024 due to ill health and the Applicant requested and was granted to submit its replying submissions on 28 October 2024.

The parties agreed that the common cause factors are as follows:

The Applicant and the Incumbent were both candidates to the post of Principalship at Nobanda Primary School. At the time of Application the Applicant held the post of Deputy Principal and the Incumbent held the post of Departmental Head at the same school. Post Number 685.
The Applicant had been acting as Principal of the school for two consecutive years prior to interviews.
The School Governing Body of Nobanda Primary School wrote to the Department of Education motivating for the Department of Education to take over the process.
The Head of Department approved the takeover of the process.
The Department of Education took over the process from shortlisting till ratification stage.
The Applicant was the highest scored candidate by the interview committee and was ranked number 1 according to scores.
The second Respondent was ranked number 2 according to scores by the interview committee.

The only disputed issue was whether the Department acted lawfully when it decided to intervene in the proceedings.

SUMMARY OF ARGUMENTS

The Applicant’s case

The Applicant made submissions which I will set out to include the most salient given the limited issue I am set to determine.

The Applicant contests the lawfulness of the Department of Education’s takeover of the principalship appointment process at Nobanda Primary School.

According to the Applicant, the SGB’s power to recommend appointments cannot be delegated to the Department (Section 20(i) of the South African Schools Act).

The Applicant submitted that the Department’s takeover was unlawful, citing the School Governing Body of Ntilini J.S.S and Others v Makhitshi and Others (615/2008) [2010] ZAECMHC 4 [25 March 2010] judgment, which states that the SGB’s recommendation is an objective jurisdictional fact required for appointments.

It was argued that The SGB’s decision to change the rank order was irrational, lacking in any basis, and made without participating in the interview process.

The Applicant stated that the Department had alternative options, such as co-opting members onto the SGB panel (Guidelines for School Governing Bodies).
It was argued that ignorance of the law is no excuse, and the Department’s failure to amend policies after the Ntilini judgment has harmed the Applicant.

The Applicant seeks relief, including:

16.1 Setting aside the incumbent’s appointment.

16.2 Re-advertising the post.

16.3 Compensation of six months’ salary for unfair treatment,

The Applicant cited public humiliation, threats, and forced displacement due to false allegations by the SGB.

The Applicant emphasized the importance of upholding the SGB’s statutory powers and ensuring fairness in appointment processes.

The Respondent’s case

The Respondent’s, represented by the 1st Respondent (the Employer), presented the arguments summarised herein below.

The Respondent submitted that the Applicant does not challenge procedural and substantive issues in the process, nor does she claim to be the best candidate or assert that the process denied her a fair opportunity.

The Respondent further submitted that the dispute before the Council was presented as a Section 186(2)(a) promotion issue, but actually constitutes a review of the decision of the School Governing Body (SGB) and the Department of Education.

It was further submitted that according to Section 186(2)(a) of the Labour Relations Act, an arbitrator can only determine Unfair Labour Practice (ULP) disputes related to appointment, promotion, training, or benefits. It was argued that since the Applicant did not challenge the conduct of the Interview Committee or the SGB, this matter does not constitute a ULP dispute.

It was further argued that that the only issue in dispute is the lawfulness of the Department of Education’s takeover of the process, which can only be reviewed by the High Court.

It was submitted that arbitrators lack the power to review decisions made by structures created by law, such as the SGB and Department of Education.

It was further submitted that the SGB exercised its powers by recommending the 2^nd Respondent for appointment, and the Head of Department assessed and approved this recommendation.

The Respondent argued that internal conflicts within the SGB justified the Departments takeover of the process.

It was further submitted that the Department followed proper procedures, conducting shortlisting and interviews, and presenting the outcome to the SGB for ratification.

The Respondent prayed for the matter to be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

This case concerns itself with a promotional dispute related to Post number 685 as advertised in HRM 05 OF 2022. The post description was for the principal position at Nobanda Primary School.

The Applicant is claiming that she has been subjected to an unfair labour practice. The Applicant bears the onus to demonstrate that she has been subjected to an unfair labour practice by being overlooked for promotion in circumstances where she was the best candidate for appointment.

Proper regard had to the summary of the issues that the parties have agreed forms the basis of what I am to determine, raises the question whether I have the powers to consider what the parties are calling on me to determine. The powers of delegation are entrenched in the Constitution. To understand the scope of delegation, it is essential to examine the relevant provisions of the Constitution, specifically Section 238, which states:

“An executive organ of state in any sphere of government may:

(a) delegate any power or function that is to be exercised or performed in terms of legislation to any other executive organ of state, provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; or

(b) exercise a power or perform any function for any other executive organ of state on an agency or delegation basis.” The primary purpose of delegation is to facilitate the division of labor, as administrators and administrative bodies often struggle to manage all their administrative functions”

Discretionary powers may not be delegated in the absence of express or implied statutory authority (Promotion of Administrative Justice Act (PAJA). See in this regard the case of School Governing Body of Ntilini J.S.S. and Others v Makhitshi and Others (615/2008) [2010] ZAECMHC 4 (25 March 2010)

The above case was relied upon by the Applicant to assert that the Department acted unlawfully. This argument, though sustainable, it has unfortunately been brought at an incorrect forum.

In the case of Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) thecourt defined administrative action in the following light: “… there must be (a) a decision of an administrative nature; (b) by an organ of State or a natural or juristic person; (c) exercising a public power or performing a public function; (d) in terms of legislation or an empowering provision; (e) that adversely affects rights; (f) that has direct, external legal effects; and (g) that does not fall under any of the listed exclusions.”

In the case of Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 case supra the SCA further held:

“This Court has already held that if an administrative act has been performed irregularly – be it as a result of an administrative error, fraud or other circumstance – then, depending upon the legislation involved and the nature and functions of the public body, it may not only be entitled but also bound to raise the matter in a court of law, if prejudiced…”

Where a party seeks to challenge administrative action in line with the decision of Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 supra, the appropriate forum is the High Court. The Labour Court can also be approached in terms of section 158(1)(h) of the LRA, which also makes provision for review of a decision where a decision is made by the State as an employer. These are the appropriate forums where the decision may be challenged.

In the case of Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1 (SCA); 2004 (6) SA 222 (SCA) (28 May 2004) the SCA held:

“Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.”

In the case of Gcaba v Minister for Safety and Security and Others (CCT64/08) [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) (7 October 2009), the following was held:

“[75] Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa,116 and not the substantive merits of the case. If Mr Gcaba’s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.”

It follows from what is stated above that I am unable to consider the issues giving rise to the allegations of an unfair labour practice claim as they stand before me. The only disputed issue is whether the Department exercised its powers lawfully. It is clear in the language used on the only issue that I am invited to decide. What comes our clear from the submissions of the parties is that I have to decide whether an organ of State exercised its powers lawfully. The Council does not have the power to determine whether an organ of state exercised its powers lawfully. This much is clear from the various authorities already discussed above.

My interference with the appointment would give rise to being held to be acting more than my powers allow. Those powers are set out in section 138 (9) of the LRA as follows:

“(9) The commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award—

(a) that gives effect to any collective agreement;

(b) that gives effect to the provisions and primary objects of this Act;

(c) that includes, or is in the form of, a declaratory order.”

The issues that I am called upon to entertain go beyond what the LRA allows me to consider and decide, it is for this reason that I am constrained from dealing with the dispute before me.

The decision of the Department in the appointment of the recommended candidate cannot be interfered with, except through a Court by way of a review. I am accordingly not clothed with powers to interfere with the determination that was made by the HOD.