Panelist: Jonathan Gruss
Case No.: ELRC1362-25/26EC
Date of Award: 30 September 2026

In the ARBITRATION between:

Nozuko Jennifer Xalipi & 1 Others
(Applicant)

and

Department of Education : Eastern Cape

(Respondent)

Applicant’s representative: Mr Mbewana

Respondent’s representative: Ms Mbebe

Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, payment of salary.

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held on 28 May 2026, 10 July 2026 and 11 September 2026 at the District Office in Gqeberha. The proceedings were electronically recorded. The applicants, Nozuko Jennifer Xalipi and Tembela Edith Mtalana represented themselves on 28 May 2026 and by Mr Mbewana an attorney on 10 July 2026 and 11 September 2026. The respondent, Department of Education: Eastern Cape was represented by Ms Mbebe, a labour relations officer. The parties agreed to submit written closing by 18 September 2026 and they submitted written closing arguments.
2. At the completion of proceedings on 28 May 2026 I advised the applicants to engage the services of a legal practitioner to ensure that the proceedings could continue without disruption.

ISSUE TO BE DECIDED
3. This dispute concerns the alleged none-payment of wages during the period 14 August 2025 up to 3 October 2025.

BACKGROUND TO THE ISSUES

4. The following is common cause.
   4.1 Both applicants were previously employed by the respondent, Ms Xalipi resigned on 31 August 2007 and Ms Mtalana resigned on 30 September 2020.
   4.2 Both applicants were instructed by the principal in early April 2025 to commence teaching as a temporary educator.
   4.3 Both applicants commence teaching on 14 April 2025 and taught in May 2025; June 2025; July 2025; August 2025; September 2025 and they stop teaching on 3 October 2025.
   4.4 Ms Xalipi taught Mathematics, English, Natural Science and Social Science and Ms Mtalana taught IsiXhosa; Life Orientation
   4.5 Ms Xalipi applied for a post of temporary educator on 3 April 2025 pending the recruitment of a candidate to fill said post permanently. She applied for the post previously held by Ms Ruselo who retired on 31 March 2025.
   4.6 Ms Ntalana applied for the post of temporary educator on 3 April 2025 pending the recruitment of a candidate to fill said post permanently. She applied for the post previously held by Ms Nguntana who retired on 31 March 2025.
   4.7 The applicants were paid by the SGB of Gertrude Shope Primary School on the following dates amounts: on 30 May 2025 they each were paid R1500.00; on 9 June 2025 they each were paid R3000.00; on 24 June 2025 they each were paid R3000.00; on 30 July 2025 there each were paid R3000.00; on 28 August 2025 they each were paid R3000.00 and on 26 September 2025 each were paid R5000.00.
   4.8 The applicants were informed of the rejection letter received on 4 June 2025.
   4.9 In terms of the motivation letter in seeking approval for the applicants to be employed on a temporary basis as a post level I educators at this level employed on a temporary basis would have earned R333 723 plus 37% allowance for benefits.
   4.10 The resumption of duty form was only signed by the Principal and not by the District Director nor the Circuit Manager.
5. The respondent argued that they are not liable in that the applicants were not appointed by the District Director and therefore they were not employees. Moreover, in terms of HRM Circular 4 of 2023 previous resigned educators appointments were subject to the approval by the Head of Department (Superintendent General) with the exception of appointment of substitute educators. The Head of Department never approved the appointment of the applicants.

SURVEY OF EVIDENCE

6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

Applicants’ Case

7. Ms Thembela Mtalana testified under oath. She was appointed by the respondent and she was phoned by the principal and informed by the SGB that she had passed the interviews. The district director informed her and the principal and the chairperson of the SGB as it relates to her and Ms Xalipi’s non-appointment that he did not realise that the posts were temporary posts. They were told to engage with HR for an appointment letter.
8. The motivation letter (A4-5) was drafted by the deputy director: HRP and addressed to the district director. The heading of the letter “Request for approval to appoint Ms Mtalana as a temporary educator against the vacant deputy principal post at Gertrude Shope Primary School”. In the motivation portion of the letter the following was recorded therein “The Deputy Principal post is currently vacant, and the school will struggle to manage the learners without an educator for Technology and IsiXhosa (Gr 7) All additional Deputy principal educators had been placed and there is currently no additional deputy principal who fits the profile of the school. Ms Mtalana T should be appointed as a temporary educator from date of assumption, 14 April 2025 until the post is permanently filled.”
9. Thereafter, she was informed that the district director on 3 October 2025 called Ms Nape the principal and told her that he did not want to appoint them (those temporary teachers) in that they had previously resigned and that they must appoint new educators. A memorandum letter (A1) dated 12 August 2025 from the district director was addressed to all school principals. The letter’s heading “extension of appointment for temporary educators against vacant promotion post for PPN2025”. The letter records that the contracts of temporary educators which expired on 31 August 2025 was thereby extended to 30 September 2025 to ensure further stability at the schools with substantive vacant post. The letter further instructed that principals must therefore inform temporary educators to report for duty until 30 September 2025. This letter included her and Ms Xalipi.
10. The reason they continued without an appointment letters in that it was the norm of the Department in delaying the issue of appointment letters. This was not new to them. She was appointed on 8 April 2008 in the vacant post as a temporary teacher. The signed appointment letter she only received in August 2008 and her engagement ceased in October 2008 when the post of temporary educator was converted to a permanent posts. She received a letter (A2-3) from one of her colleagues that was addressed to the principal of Gertrude Shope Primary School. This letter records that “due to the non-availability of a suitable qualified additional Departmental Head post that matches the post profile, the post will be advertised in the next bulletin. School Governing Body is allowed as an interim arrangement, to submit an application for the appointment of a temporary educator against the said post.” The motivation letter signed by the principal and the chairperson of the SGB sent for her appointment (A10) recorded that the school had lost on retirement 3 educators on school management team. One a deputy principal, departmental head and a senior teacher who also served in the school’s SMT. The motivation further recorded that “These points on employment will be substituted by experience educators. It does not make sense to replace them with new inexperienced temporary teachers especially since all of them are in one phase i.e. intersen”
11. The letter (A12) declining her appointment addressed to the principal although dated 15 May 2025 was only received by the school on 4 June 2025. A letter (A13) was addressed to the district director dated 3 June 2025 this was signed by the principal. The letter reads that had it not been for the principal’s proactive approach learners would have been without an educator from 8 April till to date, in violation of the rights to education is regulated by section 29 of the SA constitution. The letter further urged the district director’s office to kindly facilitate her and Mrs Xalipi’s temporary appointment and reference was made to a court order that sets present to this effect. (Robertson vs Department of Education Eastern Cape)
12. An undated letter (A17-18) addressed to the Head of Department under the subject heading “Urgent request for payment of temporary educators appointed in substantive vacant promotion post at Gertrude Shope Primary School”. The letter referred to Section 6(1), which allows the head of Department to make temporary appointment in case of vacant posts. Reference was also made to the Personnel Administration Measures (PAM) to provide for the payment of educators appointed in vacant promotion post to ensure continuity for teaching and adherence to the SA Schools Act, 1996 requirements. The letter further highlights that despite the submission of the necessary documentation for payment, the educators having not yet received enumeration. This constituted a violation of the contractual right and the employer’s obligation as provided under the EEA and the PAM. The letter concluded requesting that the outstanding payments be processed and made no later than 3 October 2025. Should payment not be affected by this date, the SGB will have no alternative but to initiate legal action, including but not limited to referring the matter to the CCMA and pursuing any other remedies available under the law to protect the rights of the affected educators.
13. Under cross examination, the applicant agreed that there was no appointment letter, the principal and the SGB chairperson told them to come and work. The applicant was asked whether she was informed of the risk of commencing employment without an appointment, she responded that they were not informed.
14. Under re-examination, in explaining what happened between the 4 June 2025 and 3 October 2025 the applicant explained that they were told that the principal and the SGB would appeal to the district director.
15. Ms Nozuko Xalipi testified under oath as follows. She confirmed the evidence of Ms Mtalane as it refers to her. She commenced her employment with the respondent after an “assumption of duty” form (A7) was completed and signed by the principal. The form was not signed by the district director and she commenced her employment on 14 April 2025. As it relates to the letter addressed to the principal dated 15 May 2025 (A12) that dealt with her application for appointment, this letter informs that on verification of the service record of the recommended candidate, namely her it was found that she was previously employed in a permanent capacity and resign. The recommendation to appoint her was therefore declined. The correspondence further emphasised that no educator may not assume duties without being in possession of such appointment letter. In the event of educated been allowed to assume duties without prior approval, the Department would not be responsible for any enumeration to the educator for any service rendered on any date before the date as prescribed by the letter. This letter as confirmed by the school stamp was received on 4 June 2025.
16. Previously she worked as a temporary educator, she started working without appointment letter, the appointment letter arrived after she had commenced working and she was thereafter paid for the entire time that she had taught. The district director had said to the principal and the SGB that they would be paid and they were sent to HR so that she could do the paperwork and issue an appointment letter.
17. Under cross-examination, with reference to correspondence (A12-13) as relates to appointments, the witness indicated that she was not aware of the delegation of powers. This referred to the Head of Department delegating powers to appoint educators at her salary level.
18. Ms Thembeka Ngcape testified under oath as follows. She is a principal of Gertrude Shope Primary School and knows the applicants. They were teachers who used to work at the school. The applicant were called when the school had a problem, the school did not have a deputy principal and the departmental head and both posts were vacant. Subsequent to that, they received correspondence from the respondent to fill the posts. They got the go-ahead to continue with the appointment. At that time it was approximately week after opening of the school. The learners did not have educators. She addressed a letter (A13) dated 3 June 2025 to the district director when she urged the district director’s office to facilitate the temporary appointment of the applicants and she highlighted that there is a court order that sets present to this effect. She referred the case of Robertson vs Department of education: Eastern Cape that set a precedent. They held meeting and called the educators. At that time there was a list that guided them as to which list they should choose from. This came from the Department. They then called the names from the list. The list of unemployed educators from a database held by the department. From the list of educators they managed to get 3 names but these educators had already been employed by other schools. She also phoned teachers on the list unfortunately they did not have the experience needed. She then drafted the motivation letter (A10) for Ms Mtalana to be appointed as a temporary educator. This document was signed by both her and the SGB chairperson. In this motivation letter she mentioned that their school had lost on retirement 3 educators on school management team. One a deputy principal, department head and a senior teacher who also served in the SMT. She indicated there was a void on leadership. These points on employment will be substituted by experience educators. It does not make sense to replace them with now inexperienced temporary educators especially since all of them are in one phase. She also completed a motivation document for Ms Xalipi (B9) that was identical to the document she prepared for Ms Mtalana.
19. After the interviews the schools SGB made a recommendation to the Department who to appoint. They were looking for qualified educators and was given the go-ahead from the Department. After the completed with the process of motivating, she approached Mr Sinuka her circuit manager who had a problem with her recommendations. The recommendation was for only a temporary appointment. This led to Mr Sinuka accompanying her to the HR section. This was April 2025 by then. She informed the HR what they needed.
20. She herself started working for the respondent in 1992 and when she was appointed she did not have an appointment letter in hand. It was not something unheard of that after commencing work a month later an appointment letter would arrive. The appointment letters for the applicant should have been issued. No appointment letters were issued to the applicants. On 3 June 2025 she addressed a letter to the district director (A13) wherein she urged the district director’s office to kindly facilitate the temporary appointment of the applicants. The letter declining the appointment of the applicants although dated 15 May 2025 only reached the school on 4 June 2025. They then requested an appointment with the district director to appeal the decision declining the applicants’ appointments. A few days went by and they could not meet with the district director and therefore they had to reschedule the meeting. They, included her and the SGB met with the district director on 17 June 2025. Before they got an appointment she approached Mr Hlekani the Chief Education Specialist for Labour Relations in seeking advice. He advised them to approach the district director who has the powers to make appointments. When she explained the problem to the district director, he was shocked and indicated that he did not know that the applicants would be temporary appointed. The district director was under the impression that were being put into vacant post and indicated that the HR did not clearly explain this to him. They then approached the HR and the Circuit Manager, Mr Sinuka accompanied her. The response they got from HR was that the district director had to correspond with him. This did not happen. The SGB then escalated the concerns with the MEC and the Head of Department. When they made follow-ups with the Head of Department the response they got was that the district director was attending to their enquiries. She even received a letter from the office of the MEC. For period of 7 months the applicant worked without been paid. The district director promised that the applicant will be paid and he must stick to his promises.
21. Under cross examination, the witness confirmed that their complaint did not reach the Head of Department. She confirmed that she is aware that the delegation of powers in making appointments was on the district director. It was suggested to the witness that the applicant started working without an appointment letter, the witness responded that it was justifiable on a question as to whether a person has the powers to appoint. The witness responded that the principal represents the Head of Department and therefore she had the powers to appoint when considering the needs of the learners of the school. As it relates to periodic payments made by the SGB to the applicants, she explained that these were loan payments advanced to the applicants whilst the applicant were awaiting payment.

Respondent’s Case

22. Mr Zamile Heckter Sinuka testified under oath as follows. Before April 2026 he was the circuit manager and was a supervisor of principals for the management and administrative area that fell under his supervision. The line of communication is through the circuit manager. He was not aware of the appointment of the applicants. The principal did indicate to him that they had to vacant post and he advised her on the procedures to be followed. Should you have resigned as an educator your reappointment had to be approved by the Head of Department. The applications of the applicants never reached his office for him to sign and he never received the route forms to sign. It was the responsibility of the principal to bring the route forms to his attention. The principal did not have the authority to appoint teachers, unless they are SGB teachers. This is when the SGB makes the decision to appoint. He discovered that the applicants had assumed duties when they demanded remuneration latest during November 2025. The principal acted without a mandate from the Department to instruct the applicants to commence teaching. The district director only signs appointment letters after receiving supporting recommendation. The well established procedures is a person gets employed when they get an appointment letter. However, a SGB may consider appointing an educator themselves. It is not the first time that they had appointed resigned educators and principal was well aware of the procedures how to do so.
23. Under cross-examination, as relates to post level I teachers whose names appearing on the database, principles go to HR and should they meet the criteria, more than 5 candidates, interviews would be conducted and the principal would be the resource person. Considering the correspondence (A2) addressed to the principal of Gertrude Shope Primary School dated 3 April 2025 the correspondence highlighted that “Due to the non-availability of a suitable qualified additional Departmental Head post that matches the post profile, the post will be advertised in the next bulletin. School Governing Body is allowed as an interim arrangement, to submit an application for the appointment of a temporary educator against the said post.” Considering correspondence (A14-15) by the Head of Department dated 21 June 2023 that dealt with the guidelines on appointment of post level I educators in the Department. It was recorded in the correspondence “most often than not, the number of qualified educators surpasses the number of available post in the Department. Before new appointments are done, the department places additional educators, whose profile match the available post. Thereafter, preference is given to the newly qualified educators followed by the previous resigned educators. PAM Chapter B3.4.2.1 corroborates this by stating that appointment of young entrants to the profession must be given preference over persons who have already had the opportunity of an extensive career in education.” The correspondence further indicated that it should be noted that if a school recommends a previously resigned educator the submission must be approved by the Head of Department with the exception of appointment of substitute educators. Schools are not permitted to give out loans.
24. He addressed Ms Ngcape conduct by instructing the applicants to commence teaching without an appointment letter and without the express approval of the district director and he issued her with a cautionary letter of reprimand.
25. Ms Nosopho Mduma testified under oath as follows. She is employed by the respondent as an assistant director HR Planning and Administration. Recruitment in terms of Employment of Educators Act and the Public Service Act fall under her district. SGB’s can be allowed to employ their own educators. The correspondence (A2) that deals with the implementation of post provisioning norms 2025. Schools will ask for educators and they will then be sent a form to complete. The principal will send and submit documentation for candidates to be considered. They have around 800 educators that are unemployed and names would be sent to their office so they may put names in the database. They can never be only 5 candidates in the database. In terms of the delegation of powers, the appointment of post level I educators are delegated to the district director who has the powers to make such appointments. Although the deputy director HRP sent through a motivation recommending that the district director approves the appointment of the applicants, this was not recommended by the circuit manager as well as by the chief education specialist. In terms of circular 7 of 2015 subject heading “re-appointment of teachers resigning and re-entering the system” the head of Department provided for specific guidelines that is underpinned by the following principles, namely the employer’s operational requirements should be taken into account; the application to comply with the requirements of the post should be given preference over persons who have already had an opportunity of an extensive career in education. These include educators in addition to the staff establishment, Funza Lushaka graduates and other qualified PEM bursaries and educators employed in a temporary capacity. In the absence of sound reasons, the reappointment of a person who have resigned in order to access pension benefits shall not be deemed to be in the interests of the state. The correspondence concludes that in the event that you appoint a teacher who had resigned and who has accessed his or her pension and wants to now re-enter the system, you are required advised to submit a detailed motivation for the HOD’s consideration and final approval irrespective whether this is a temporary or permanent appointment.
26. The applicants were never appointed by the Department of Education Eastern Cape and therefore they were never employees of the respondent. You cannot start teaching without an appointment letter from the respondent unless appointed by the SGB.
27. Under cross-examination, the witness was asked as relates to the applicants who would do the duties of the deputy principal and the departmental head. The response given was that the school could have appointed somebody to act in those positions.

ANALYSIS OF EVIDENCE AND ARGUMENT

28. Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act; the Employment of Educators Act; the Personnel Administration Measures (PAM), or any regulation or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in respective Province where an educator is employed as a relates to conditions of service, a collective agreement and the contract of employment.
29. The onus is on the applicants to prove that an employment relationship came into existence and then prove that they are entitled to remuneration. Should I find that no employment relationship came into existence I would lack jurisdiction in that the ELRC may only arbitrate disputes between an employer and its employee as at the date of cause of action.
30. Section 7(2) of Employment of Educators Act, 1998 as amended provides that a person may be appointed under this Chapter- (a) in a permanent capacity, whether on probation or not; (b) in a temporary capacity for a fixed period, whether in a full-time, in a part-time or in a shared capacity; or (c) on special contract for a fixed period or for a particular assignment, whether in a full-time or in a part-time capacity.
31. In terms of the delegation of powers dated 9 May 2019 in terms of section 7 (2)(c) of the Employment of Educators Act, 998 as amended the appointment and filling of the post of a person in a temporary/substitute capacity for fixed, whether in a full-time , part-time or the shared capacity (including therefore growth posts) school-based as it relates to a post level I educator approval in appointing rests with the district director. Therefore, in terms of regulatory instruments the principal of Gertrude Shope Primary School Ms Ngcape lacked the necessary powers to appoint the applicants. The appointment would therefore be unlawful and would have amount to irregular expenditure.
32. Irregular expenditure in terms of the Public Management Finance Act means expenditure, other than unauthorised expenditure, incurred in contravention of or that is not in accordance with a requirement of any applicable legislation. The applicable legislation would in my view include the Employment of Educators Act.
33. Unfortunately, the doctrine of vicarious liability as it relates to the conduct of Ms Thembeka Ngcape the principal who instructed and allowed the applicants to commence teaching from the Labour Relations Act perspective offers no protection to the applicants. This does not mean that the applicants in terms of common law do not have a delictual claim of unjust enrichment that can be pursue in a civil court.
34. Accordingly I must conclude that no employment relationship came into existence between the applicants and the respondent. The ELRC lacks jurisdiction to entertain the referral.
35. I therefore make the following award. .

AWARD

36. The respondent in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures is not indebted to the applicants for the none-payment of wages during the period 14 August 2025 up to 3 October 2025.

Name: Jonathan Gruss
(ELRC) Arbitrator