01 September 2026 – ELRC786-25/26NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
CASE NO.: ELRC 786-25/26 NW

In the matter between:-

KGOMOTSO MOTAUNG APPLICANT AND DEPARTMENT OF EDUCATION- NW RESPONDENT Arbitrator: Mmamahlola Gloria Rabyanyana Heard: 19 May 2026, and 07 August 2026 Closing Argument: 14 August 2026 Date of Award:31 August 2026 SUMMARY: Unfair Dismissal. AWARD

DETAILS OF HEARING AND REPRESENTATION

A virtual arbitration was held on 19 May 2026 and 07 August 2026. Mr.Joel Monesi, SADTU Union Official, represented the applicant. Ms Masaele Cindi, a Labour Relations Practitioner, represented the respondent.
The proceedings were recorded digitally. The respondent’s bundle is marked R, the applicant did not present any documentary evidence. The parties duly submitted the closing arguments.
BACKGROUND
The applicant referred the unfair dismissal dispute to the Council for conciliation. When the dispute could not be resolved at conciliation, she requested an arbitration.
ISSUES TO BE DECIDED

4. The issues to be decided are:

4.1 Whether the applicant’s dismissal is substantively fair,i.e, if she had committed the offence in the following.
• if the applicant prevented the learners from writing the Grade 12 mathematics examination;
• if the applicant informed the learners that they did not qualify to write the examination;
• if the learners were at school to write the examination.

4.2 The appropriate remedy, should I find in favour of the applicant. The applicant seeks retrospective reinstatement.

    SUMMARY OF EVIDENCE

                 Agreed facts
               5.   The parties agreed to the following facts:
           5.1	The Applicant commenced service with the Respondent on 01 April 2006.         
                 At the time of the dismissal, she was a Principal at St Theresa Secondary 
                 School.



          5.2     She was dismissed on 03 October 2025 for:

• contravening the examination regulations by refusing five Grade 12 learners named (Pesa Amania, Mlangeni Odirile, Molalasi Sophy, Mpopotse Keamogetswe and Zweni Ntombivelile) to write Mathematics Paper 1 and Paper 2 final examination during November 2023;
• Providing them with false information that the Department had issued a circular that those who obtained Level 1 and 2 do not qualify to write the 2023 examination.
5.3 The five learners did not write the examination. These learners were
performing poorly in mathematics. The applicant addressed the learners and
parents before the examination
5.4 Procedure was followed fairly.
5.5 The Applicant was aware of the rule. The rule was reasonable and applied consistently.
Respondent’s case
6 . Kgabo Thomas Semenya testified that he is the Circuit Manager responsible for
the school and a member of the Circuit Examination Irregularity Committee. On
06 November 2023, Amania Pesa and her guardian came to his office. She
complained that the principal prohibited her and 4 other learners from writing
Mathematics Paper 1 and Paper 2 because they obtained low marks in the
preparatory exam. She said the applicant told them to write the June 2024
exam as they would have ample time to learn Mathematics.

    7.   He made an appointment to meet with the learners at the school the following 
         day to investigate the veracity of the allegations. He asked the Deputy Principal 
         to call the 5 learners and sought permission from their parents to interview them. 
         He informed the learners to write statements.

      8.  He noticed from the learners’ written statements that they were made to believe                  
           that  their low marks in Mathematics disqualified them from writing Mathematics 
          in 2023,but could only write in 2024. 

       9.  The procedure when learners are absent from the examination is :-

• The Principal will provide a floor plan diagram of the examination venue to the invigilators to establish which learners are absent. This enables the invigilators to locate the learners;
• At the end of the exam session, the chief invigilator would provide a reason for the absence if known. They could have been allowed to write within 1 hour of the exam commencement.

      10.  These learners were at school but were not located. Mr Mokoena, an 
              educator and a relieving invigilator, indicated that he saw the learners 
              concealed in another classroom at the time of the exam. 

      11. The applicant was teaching Grade 12 Maths and was not allowed to be 
             involved with that exam and enter the exam room. If these five learners had 
             written the exam and failed it would have negatively affected the subject 
             educator and the school, even more if they failed other subjects. He detailed 
             the mathematical adverse effects if they had written and failed.
     
       12.  He referred to the principal’s statement R1, Learners’ report R2, and R4, the 
              Department Exam Irregularities Committee's report made after the 
             investigation. He was present during  Matome’s interview, who confirmed that 
             he was with the two learners in the classroom. Matome indicated that 
             Mokoena found him with the learners. During the investigation, the  
             Principal admitted that she told the learners that they were barred from writing 
             the exam as a motivational tactic.

       13. During cross-examination, he denied that Pesa came to his office with a 
             ready-made statement. The applicant, as the Principal, was responsible for 
             ensuring that all learners registered for the exam. Pesa was emotional when 
             she reported the incident. She indicated that she wanted to write the exam.

       14. He admitted that the applicant was a chief invigilator for Maths Literature on 
             the day.  However, accountability rested with her even when she delegated 
            the duties. 

   15.  The Principal instructed the Departmental Head to take the learners to a 
         certain room. Mokoena happened to see the learners with Matome. 
          Mokoena asked them why they were not writing as they ought to have been 
         writing. Matome indicated that he had to take them to another room as 
         Mokoena had seen them.

   16. He was not aware that some learner withdrew from the matter because he 
           was forced to incriminate the applicant. He still has the five statements. He 
        would not have known the exam irregularities had the learners not reported to 
        him. Principals have no legal authority to stop registered learners from sitting for 
        exams based on attendance at optional extra classes, low preliminary marks, 
        or fee disputes.

Pesa Amania that she was a Grade 12 learner in 2023. Her statement is on
R12. The Principal and the Deputy Principal called her and her aunt to the office.
She informed her that the department barred all students who obtained level 2
from writing Paper 1 and 2 Mathematics. She insisted on writing, nonetheless.
They told her to go think about it.
On the day of the Mathematics Paper 2 exam, she went to school in full
school uniform, prepared to write. The principal called her and Mpopote to her
office. The principal instructed them to hide in Ms. Modiba ‘s office and told them
to stay there until other learners were done writing. They were transferred to the

Deputy Principal’s office where they found Mr. Matome busy with admin work.
Mr Mokwena found them in the office and asked why they were not writing. She did
not respond. After the exam, other learners told her that the paper was not that
difficult and that other learners who got level 2 were allowed to write. This prompted
her to report the matter to the department as she also obtained level 2.
During cross-examination, she stated that the other three learners went home on
the from the camp as they were informed that they did not qualify. Only the two
attempted to write. A version was put to her that all the learners who did not write are those reprimanded by the Principal for not attending extra classes. She admitted that they were reprimanded despite attending the extra classes.

 21. She was in a school uniform on the exam day. She denied that she agreed not to 
       write the exam, when a version was put that she agreed. As she was standing at 
        school, the Principal called her and Mpopote and instructed them to stay in Ms 
       Modiba’s office. She was prepared to write the exam.

The Principal instructed Ms Modiba to take them to her office. They were taken to
the deputy principal’s office. The deputy principal was not in, but Mr Modise. She
denied that Kagisan Mabale, an SGB member, coerced her to report false
allegations against the Principal. She denied that she elected not to write the
exam.
23. Nancy Masebole Modiba testified that she is the Departmental Head for Life Sciences and Geography. The Principal instructed her to keep the two learners in her office because no learners were allowed around the school yard during the exam. The principal was aware that these two learners were supposed to be writing, but she was not worried. She was concerned about these learners being seen around the school yard. She read out her statement on R7.
During cross-examination, she stated that when she asked the principal why these learners were not writing, the principal told her that it was their choice. She did not verify the information with the learners. Her office was occupied with some stuff. Hence, she transferred them to the Deputy Principal’s office. She acted on the Principal’s instructions. The two learners were in a school uniform. However, she could not recall if they were in full uniform.
Applicant’s case
Nkgomotse Elizabeth Motaung testified that the school held incubation camps
during exams to ensure all learners were at school. On the morning of the exam,
she requested the two learners who were not in a proper school uniform to put on
a full uniform before writing.
She referred them to the Departmental Head to provide them with a spare uniform.
After an hour, she realized that those learners were not writing. Learners were
denied entrance into the exam room after an hour of the exam commencing. Hence,
she could not do anything about the situation.
Over the weekend, when she took the learners for the Paper 2 exam, which was
the following Monday, she learned that the three learners left the camp on
Wednesday. After Paper 2, she learned that those learners also did not write
Paper 2. She denied instructing the learners not to write the exam. The five
learners who did not write had poor revision and attendance at extra classes. They
engaged the learners and their parents about poor attendance.
She did not conceal them from writing the exam. She sent them to Ms Modiba to
give them uniforms so they could write the exam in uniform. The learners elected
to stay away from the exam.
During cross-examination, she stated that the action she took to ensure the two
learners wrote the exam was to refer them to Ms Modiba to give them school
uniforms. She knew the chief invigilator would take care of them. She was
administering and managing the running of the Maths literature exam and was
prohibited from involving herself in the Maths exam because she taught the exam.
She denied telling the parents that those who failed the prep-exam would be
prohibited from writing the final exam. If that were the case, many would not have
written. She was not aware that the three learners left the Camp because she did
not do Paper 1 revision. She refuted the veracity of her interview during the
investigation captured in the Exam Irregularity Committee findings on R21.
Oarabile Cort Lekgetho testified that he was the School Governing Body
Chairperson at the time. The learners stated that they did not write the exam because the Principal prohibited them.

32.  During cross-examination, he stated that during the camp he was assisting with 
      guarding duties. They were allocated shifts to guard. He would do night shifts. The 
       Principal told the learners that those not attending revision classes would not write 
       the exam, to encourage them. He was neither involved in the exam writing nor 
       was he around during Paper 1 and 2 exams. He does not know what happened 
       during the exam.

Mbuelo Ranwaha testified that he is a former Maths educator at the school. He
taught Grade 9 to 12 Maths. On the day of Maths Paper 1 and 2, he was not
present because he was the subject/ Maths educator.
The learners who did not write the exam had poor extra lessons attendance. He
did not know their whereabouts on the exam day. In the meeting, the Principal did
not tell the learners that they were not going to write the exam. She encouraged
them to prepare for the exam. He is not aware of any incident where learners
were denied the opportunity to write the exam.
During cross-examination, he stated that he was not involved in the exam writing
of Maths Paper 1 and 2 and could not comment on what transpired. He was not
at school. He never interacted with any of the five learners after Maths exam.
However, he had a conversation with Mpopote once long before the exams. She
was not confident writing the exam. After encouraging her, she assured him that
she would write.
Tidimalo Matome testified that he was working in the Deputy Principal’s office
Around 9H00 when the two learners came in. He did not see who accompanied
them to the office. Shortly after their arrival, Mr Mokoena came in, as he left the
office. She saw the principal reprimanding the learners for not writing. They were
in a school uniform.
During cross-examination, he stated that he did not ask them why they were not writing the exam. The principal reprimanded the learners outside her office, an hour after the exam had started. When a version was put to him that he could not see the principal with the learners outside her office at that time because she said she was invigilating Maths Lit, he said he was not aware that she was invigilating.
38. He is the school’s administrator responsible for, among others, preparing exam venue and seating arrangements. The learners found him in the office at around 09h00. He was part of the committee that prepared exams. However, he left the learners to sit in the office whilst the exams were on and did not check why they were not writing.

CLOSING ARGUMENTS
1. The respondent argued that Pesa told them that she wanted to write despite the prohibition. The Principals have no legal authority to stop registered learners from sitting for exams based on attendance at optional extra classes, low preliminary marks, or fee disputes.
2. During cross-examination, the Applicant indicated that Pesa and Mpopote did not attend extra classes, which Pesa refuted. She insisted that she attended all the extra classes, including the incubation camp. The Applicant stated that these learners were not in school uniform. Pesa, Ms. Modiba and Mr. Matome corroborated each other that they were in full school uniform.

 41. The Applicant’s representative indicated that Mr Ranwaha would testify that Pesa 
       told him that she was not ready to write Maths and would write the following year. 
       This is contrary to  Mr. Ranwaha’s version that he never interacted with any of 
       the five(5) learners after Maths was written but once had a conversation with 
       Mpopote long before the exams. She was not confident writing the exam, but he 
       spoke to her, and she said she would write.

A landmark precedent is the Constitutional Court case of Moko v Acting Principal
of Malusi Secondary School, which established that barring a student from final
matric exams breaches their constitutionally protected right to basic education.
The Department mandates that every enrolled learner is fit to write unless formally
deregistered due to extended, lawful absence (such as missing 14 consecutive
school days).
43. Ms. Modiba testified that the Applicant was aware that the two learners were supposed to be writing. However, she was not worried, and only concerned that they should not be seen around the school yard.
44. It was established that during the Examination Irregularity Committee‘s investigation, she told parents and learners that if they fail preparatory exams, they would not be allowed to write the final exam. She confirmed during the interview that she used that statement as a tactic to encourage the learners to work. Mr. Lekgetho, the SGB Chairperson, corroborated this.
45. During the investigation, the Applicant stated that she saw the two learners around the school yard after the first hour of the Examination session had lapsed, and there was nothing she could do. However, during her examination in chief she indicated that she saw the two learners in the morning before the exams in an improper school uniform.
46. It is clear that the principal saw these learners one hour before exams lapsed and wearing a proper school uniform, as confirmed by Pesa, Ms. Modiba and Mr. Matome, and ready to write. Her version is untruthful.
47. The witness Mr. Matome testified that the learners found him in the office at around 09h00. This contradicted his version that the principal reprimanded the learners and asked why they were not writing about an hour after the exams started. The principal also contradicted Mr Matome by stating that she was invigilating Maths Lit. on that day and was in class throughout the exam.
1. The learners trusted the principal as educators and administrators as in loco
  parentis, but the principal failed to protect these learners as their parent. Therefore, the dismissal was substantively fair. They pray that the dispute should be dismissed.

 49.   The applicant argued that the learners were continuously breaking the school’s     agreements with them and their parents of extra lessons and the incubation camp, which were aimed at preparing and assisting learners to prepare thoroughly for the examination.  She was not the only Maths educator. She was co-teaching the subject with Mr Ranwaha.
 50.  None of the learners had informed Mr Ranwaha that the principal had barred them from writing the exam. Mr Ranwaha also indicated that he did his best to encourage Pesa to write the Maths exam when he learned of her intentions not to write. The learner chose not to write because she was not prepared.
51. The learners should have approached other educators and also Mr Ranwaha to inform them/him about their predicament.  There is no testimony that the learners or their parents complained to anyone about being stopped from writing Maths. Pesa, she was coached by her friend Kagisano Mabale to write a false statement and blame the principal.
 52. The actions of the deputy principal, who was the chief invigilator of the Maths papers, leave much to be desired. She should be blamed for not reporting the non-writing by several learners and failing to trace them. No report or evidence from her confirms or denies that the principal must be blamed. 
53. The Chief invigilator could have seen the absence of the 5 learners from the exam and enquired. She was misquoted; she was encouraging the learners to attend the extra lessons when she said no learner would write the examination without attending extra lessons and the incubation. The parents did not object, as they understood.

On the day of the exam, various staff members saw 2 learners loitering while the exam was on. None of them questioned or instructed the learners to go to the exam room. She is blamed for the learners who chose not to write the exam because they were not ready, as they bunked extra lessons and performed poorly in maths. ANALYSIS OF EVIDENCE AND ARGUMENT
Section 192(2) of the Labour Relations Act 66 of 1995, as amended, provides that the Respondent bears the onus to prove on a balance of probabilities that the dismissal was substantively and procedurally fair. In determining if the respondent had successfully discharged its onus, I was bound to consider Item 7 of Schedule 8 of the Code of Good Practice. The Item provides the guidelines in cases of dismissal for misconduct as follows:-
Any person determining whether a dismissal for misconduct is
unfair should consider-

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or relevant to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

The issues in dispute relate to item (a), i.e, if the applicant contravened the rule.
It is common cause that the five learners did not write the Mathematics Paper 1
and 2 final exam for the 2023 academic year. Furthermore it is common cause
that Pesa and Mpopote were at the school on the days of the exam and that
there were in the incubation Camp. It is not disputed that other three learners

were not at the school on the day of the exam.

57. The issue I must determine is whether the Applicant prohibited the learners from 
       writing the exams. Pesa’s version , which consistent with what she reported to 
       Mr Semenya is that the Applicant informed her that she did not qualify to write 
       the final exam because she obtained lower mark, level 2 during the preparatory 
       exams during the parent/ learner meeting in the presence of her aunt. She 
      insisted that she would write despite the prohibition.

The applicant denies that she told the learners that they would be prohibited to
write exams. Her colleague Ranwaha supports her contention. She further denies
that she told the Exam Irregularities Committee during the investigations , that
she told parents and learners that if they would be prohibited from writing final
exam if they fail preparatory exams as a strategy to motivate them.

59. This is contrary to her witness. Lekgetho, the SGB Chairperson, corroborated    
      Pesa, Mr Semenya ‘s version she told the parents and learners that they would 
      be prohibited from writing final exam if they fail preparatory exams. Semenya’s 
      contention relies on what Pesa told him and the Findings of Examination 
      Irregularities Committee i.e what the applicant told the investigators.

60. Although Lekgetho’s reason for the prohibition is slightly different, his version is 
      probable as it is consistent with the respondent as it has been established and 
      will be displayed below.

Mr Semenya’s version that Principals have no legal authority to stop registered
learners from sitting for exams based on attendance at optional extra classes,
low preliminary marks, or fee disputes. The Principal’s reason for prohibiting the
leaners to as Mr Lekgetho stated and she told the investigators contravenes the
respondent’s policy. I find the applicant’ s denial that she informed the learners
that they were prohibited from exams to be untruthful.
Mr Ranwaha is protecting his colleague when he says the Principal did not say
anything about prohibiting the learners from the exam. Pesa and Mr Lekgetho
heard her utterance. She repeated them to the investigating committee. He was
unable to assist the proceedings because he was not around on the exam day.
Mr Lekgetho is merely speculating when he says her utterance were meant to
motivate the learners. If it was the case the applicant would be standing by the
utterances and not deny them now. She admitted and tried to justify the
utterances during the investigation. Now realizing that the justification was not in
favour, she changes the version and denies the utterance

64. The Applicant contents that the fact that the learners were not in school uniform   
      indicates that they were not ready for exam and they elected not to write the 
      exam.  Pesa, Ms. Modiba and Mr. Matome , her witness corroborated with each 
      other that the Pesa and Mpopote were in full school uniform. Therefore, her 
      defence on this aspect fails.

Her version that she reprimanded the learners for not wearing school uniform and
referred them to Ms Modiba to provide them with uniform was neither put to Pesa
and Ms Modiba for test. I do not attach value to the untested version. In any event
she could not have reprimanded them because they were in school uniform and
no unform discussion it has been proven.
Ms Modiba corroborated Pesa’s version that the Applicant instructed Ms Modiba to
take them to the Deputy Principal’s office. There was no discussion about the
school uniform. When Ms Modiba asked why they were not writing the applicant
told her it was their choice. Ms Modiba’s unchallenged version is that the applicant
was not concerned that the learners were not writing. Her concern was that they
should not been around the school.
1. The Applicant indicated that she saw the two learners in the morning before the
  exams start in an improper school uniform. Later she saw them around the school after the lapse of the first hour of the exam session with nothing she could do. She is contradicting herself because it was improbable to see them during the exam session whilst she was invigilating Maths Lit. It is common that she was the Maths Lit Chief Invigilator on the day.
2. Mr. Matome contradicted the Applicant’s version. He stated that the learners found him in the office at around 09h00. Later Mr Mokoena came and found th learners with him. The learners could not have been outside the Principal’s office where she reprimanded them and be in the Deputy Principal’s office at the same time.
3. A version was put to Pesa that Mr Ranwaha would testify that Pesa told him
  after the exam that she was not ready to write Maths and would write the
  following year. In contrast Mr. Ranwaha’s version is that he never interacted with
  any of the five learners after Maths exam. However, he had a conversation with
  Mpopote once long before the exams. She was not confident writing the exam.
  After encouraging her, she assured him that she would write.
I am persuaded that the applicant acted on what she stated during the parent–
learner meeting. She barred learners with insufficient attendance at extra classes
from writing the examination. Ms Modiba and Pesa confirmed that other learners
who achieved Level 2 in the preparatory examinations were permitted to write the
examination.
The common denominator between the five learners is the poor attendance.
This was confirmed by Mr Ranwaha and Lekgetho. Probably the other low
performers had a potential of improving as they attended extra lessons, hence
they were allowed to write.
These five learners carried a high risk of denting her school performance in
Maths and overall, as Mr Semenya meticulously illustrated the impact.
In addition to their low performance they were not attending the extra classes
to her dissatisfaction or none. The link between the five learners’ shortcomings and
the motive is overwhelming.
The respondent has successfully proven on the balance of probabilities that the
applicant committed the offence. The sanction is not in dispute. Therefore the
dismissal is substantively fair.