Panelist: Ncumisa Bantwini
Case Number: ELRC42-25/26EC Date of Award: 30 September 2025

IN THE MATTER BETWEEN

NAPTOSA obo Sonwabo Yawa and Lungile Kulata Union/Applicants
AND

Department of Education – Eastern Cape : 1st Respondent

Mr. Nkosinathi Mbuthuma : 2nd Respondent

DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was part heard on 18 June 2025, 14 July 2025, 15 July 2025 and was finalized on 18 September 2025 in the 1st respondent’s offices at Bathandwa Ndondo Center in Queenstown. The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).
2. Mr. Aaron Mhlontlo of NAPTOSA appeared for the 2 applicants, Messrs. Sonwabo Yawa and Lungile Kulata. The 2nd respondent, Mr. Nkosinathi Mbuthuma was represented by Mr. Sicelo Scout of SADTU, while Ms. Ntombomzi Damane appeared for the 1st respondent, the Department of Education-Eastern Cape. Parties agreed to submit written closing arguments on 18 September 2025. All arguments have been considered in the preparation of this award. ISSUE TO BE DECIDED
3. The issue to be decided is whether the respondent’s conduct of not appointing the applicants, Messrs Yawa and Kulata to a position of a Principal at Nkwanca High School in Queenstown was fair or not.
4. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended, requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.

BACKGROUND TO THE DISPUTE

5. The applicants referred a dispute to the ELRC regarding an alleged failure by the 1st respondent to shortlist Mr. Sonwabo Yawa and not appointing Mr. Lungile Kulata to the position of Principal at Nkwanca High School. Both applicants applied for a position of principal which was advertised in bulletin no. 3 of 2024 165. The dispute could not be resolved at conciliation level; the applicants filed a request for arbitration through their union.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s case

6. According to Mr. Mhlontlo ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The 1st applicant, Mr. Yawa, applied for the vacant position, but he was not shortlisted. Mr. Kulata, the 2nd applicant, was shortlisted and interviewed but he was not appointed.
7. The 1st respondent deviated from PAM document. Twenty applicants were sifted in and 8 were sifted out. The panel concentrated on 1 applicant (incumbent) and never discussed anything about the other 7 applicants.
8. The panel overruled the decision of the sifting committee as it sifted the 2nd respondent in although his application is incomplete. There is an element of bias by the SGB in dealing with the incumbent.
9. With regards to the procedure, the resource person actively participated in the interview and unions were also involved. The remedy sought is the compensation of the 2 applicants.
10. The 1st applicant, Mr. Sonwabo Yawa, testified under oath as follows:
11. He works for the respondent as a Principal at Pakamani S.S.S. since August 2023 and he previously worked at Nkwanca S.S.S as an Educator. He qualifies for the position as per the bulletin (volume 3 of 2024) and has been teaching grades 8 to 12 Economics and English. He knows the incumbent as he was a Deputy Principal when he (the applicant) was teaching at Nkwanca High School.
12. The applicant testified that the panel did not adhere to the provisions of PAM document as the 2nd respondent’s application form is not fully completed (page 72 and 73 bundle A). According to the listed candidates on page 21 of bundle A, the incumbent was sifted out.
13. The selection criteria set by the panel is contained on page 31 bundle B. He can see that the incumbent meets the set criteria, but he was not supposed to be sifted in because his application form is incomplete. This shows that the panel was biased towards the incumbent.
14. The applicant testified further that the incumbent did not act in the position for over 12 months period as the former Principal Mr. Mkunyana resigned in February 2024. The incumbent acted for 8 months from February to December 2024. The panel was biased towards the incumbent. He seeks compensation as a remedy.
15. Under cross-examination by the 1st respondent, Mr. Yawa testified as follows:
16. The requirements are listed in the bulletin and there are no subject specifications. He did not say he is better than the incumbent, but he can teach grades 10 to 12. There is no bias as the incumbent meets the minimum requirements specified in the bulletin (page 87 bundle B). He was not shortlisted and the SGB ‘s criteria were 5 years managerial experience which he does not possess.
17. The SGB should have thoroughly looked at the application form. Mr. Ndlela was an observer during the sifting process mandated by his union, NAPTOSA and there was nothing wrong in that. He can recall that the incumbent acted from January 2024 even before the position was advertised until December 2024. Around 2010, Mr. Menera used to assist the incumbent by driving his vehicle sometimes for fetch children from school. He has never seen them after hours and maybe it is because of their differences in personalities. He was eligible to be a member of SGB and be in the panel of the interview. There is no misleading information in the incumbent’s application form.
18. The employee could not comment when he was referred to the scores of the other panelists which some of them are even higher than that of Mr. Menera towards the incumbent.
19. Mr. Yawa stated also that one of the panelist members, Mr. Menera has a cordial relationship with the incumbent and scored him (the incumbent) high marks (pages 62 to 63 bundle A). His (the applicant) view is that Mr. Menera favors the incumbent. He noticed the relationship when he was working at Nkwanca S.S.S. that Mr. Menere used to drive the incumbent’s vehicle to fetch children/family members. Mr. Menera should have recused himself from the panel as there was a conflict of interest.
20. Under cross-examination by Mr. Scout, Mr. Yawa testified as follows:
21. He is the Principal at Pakamani School, and he had 1 year experience in management when he applied for the position. When the bar was raised by the panel, he could see that he does not qualify for the position in terms of managerial experience.
22. Mr. Menera and the incumbent’s relationship is that of collegues or cordial as Mr. Menera is a general worker at the school. Mr. Ndlela was mandated by NAPTOSA to be part of sifting process. The applicant could not respond when it was put to him that the incumbent completed columns 5 and 6 as he wrote N/A as he does not have other languages (page 50) bundle A.
23. Under re-examination, the applicant stated that there was a cordial relationship between the incumbent and Mr. Menera and the incumbent did not act for 12 months. The criteria set by the interviewing panel was unfair as it concentrated on 5 years’ management experience.
24. The 2nd applicant, Mr. Lungile Phillimon Kulata, testified as follows:
25. He works as a post level 1 Educator and has been teaching in different schools for 33 years as reflected in the application form (pages 26 to 28 of bundle A. He applied for the position of a Principal at Nkwanca S.S.S as advertised in the volume 3 of 2024 bulletin.
26. The panelist’s scores are invalid, he does not agree with them as he performed to the best of his ability during the interview. The fact that there are no expected answers written by the panel shows that the scores were cooked. He suffered prejudice by not being appointed to the position.
27. He does understand that the incumbent meets the required qualification as reflected in the bulletin. According to the score sheet, the incumbent scored 23.2 and he (the applicant) scored 16.4 points (page 38 bundle A). The incumbent was favored by the panel as he was not supposed to have been shortlisted because of not fully completing the application form. The process must be declared as unjust, unfair and unreasonable and must be compensated as a remedy.
28. Under cross-examination by Ms. Damane, Mr. Kulata testified as follows:
29. He applied for the position of Principal at Nkwanca S.S.S, he was shortlisted and interviewed but he was not appointed. The were 4 scoring panelist members, the resource person was guiding them. There were observers from the unions. He answered the questions to the best of his ability. The process was not recorded during the interview, and he thought it should have been explained as to why there was no recorder.
30. When it was put to the applicant that the process was declared as free and fair according to the signed declaration, his response was that the claim has to be put to scrutiny as the incumbent was not supposed to have been shortlisted. His application form was incomplete. There is no memo prepared to list the expected answers, and this means panelists just gave marks out of their heads.
31. Mr. Kulata testified further that the process was flawed as observers failed to protect other candidates. It was also unfair for the panel to set their own selection criteria. The bar on management experience was raised in order to give preference to those who were principals.
32. He could not confirm if all the candidates were asked the same questions or not as he was not present when they were interviewed. He also does not know the other candidate’s performance as he was not present when they were interviewed, he believes that scores were awarded based on each candidate’s performance.
33. After looking at the questions posed to the incumbent, the applicant confirmed as the same questions which were posed to him as well. He did not ask for the memo or recordings of the process. The incumbent was sifted out and was later sifted in by the panel. He could not believe that the incumbent acted for more than 12 months. He does not know if other candidates who acted for 12 months were looked at or not.
34. Under cross-examination by the 2nd respondent, Mr. Kulata testified as follows:
35. He is disputing the appointment of the incumbent because he was sifted out and sifted in, he was not supposed to have been shortlisted and interviewed. This is where he is basing his argument. The applicant referred to clause 6.7 of the Eastern Cape Chamber Collective Agreement No1 of 2024 which provides-

• 6.7 “An educator who has been acting in the advertised post for 12 months or more and has applied for the post must be shortlisted” (page 10 bundle A.

36. The applicant stated also that the incumbent acted when the previous Principal was on sick leave and not when the position was advertised. When it was put to the applicant that the scores are valid, his (the applicant) performance was not what he expected it to be, his response was that he does not agree with that. He does not know the panelists, and he could not speculate as to why they prejudiced against him as they were not fair towards him.
37. Under re-examination, the applicant stated that he performed excellently at the interview. The expected answers were never disclosed; marks were awarded with no basis. Unions were there as observers to check fairness of the process. He could not ask questions or impose directives to the panel.
38. In closing, Mr. Mhlontlo argued as follows:
39. The 1st respondent did not follow the correct procedure in appointing the 2nd respondent. The interview panel ignored the sifting committee’s report by sifting the 2nd respondent in. The applicants alleged that Panelist Menera was biased, and he was supposed to have recused himself as he had a cordial relationship with the 2nd respondent. The panel went to the recruitment process with a fore conclusion to appoint the 2nd respondent.
40. In Noman v SSSBC and others (2012) 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes unfair labour practice.
41. Circula19 as well as the Recruitment and Selection Policy were ignored by the 1st respondent. The 1st respondent’s reason for not shortlisting Mr. Yawa cannot be justified by common practice. The decision not promoting the applicants was not taken in a fair manner.
42. If it was not due to the element of bias, the incumbent was not supposed to have been shortlisted, interviewed and appointed. The applicant suffered prejudice as Mr. Yawa was not shortlisted while Mr. Kulata was not appointed. The applicants seek 12 months’ financial compensation on the entry notch of the principal as the remedy. Mr. Mhlontlo finally submitted that the 1st respondent’s version should not be accepted as it was never intended to assist the process. The 1st Respondent’s case
43. Ms. Damane, the 1st respondent’s representative, stated in her opening statement that the process of appointment of the 2nd respondent was conducted fairly and all necessary procedures were followed. The unions also confirmed that the process was conducted fairly. Mr. Yawa was not shortlisted because he did not meet the minimum requirements of the position. The second applicant was shortlisted and interviewed but he could not convince the panel. The 1st respondent believes that the panel recommended the suitable candidate (Mr. Mbuthuma).
44. Both unions, SADTU and NAPTOSA were present, and they confirmed that the process was conducted fairly. The 2nd respondent’s opening statement
45. According to Mr. Scout’s opening statement, Mr. Mbuthuma meets the minimum requirements of the advertised position. The 2nd respondent was sifted in after being sifted out because he was acting in the position of principal for more than 12 months. The selection process was fairly conducted and was conducted in line with the prescripts
46. The 1st respondent’s witness Mr. Mzikhona Ndlela testified as follows:
47. He works for Nkwanca S.S.S as an Educator. During the selection process of the position of the principal, he was the secretary of the SGB and the panel of the interview. On the shortlisting day, the resource person came with a sealed envelope and explained the process to be followed e.g. anybody who is conflicted by having a relative among the list, he/she has to recuse themselves. The envelope was given to the chairperson of the SGB to open.
48. There were 20 applicants, and all the names were called out to allow those who were conflicted to recuse themselves. None of the panelist members recused themselves. All the applications were not coded, and they coded them by writing numbers from 1 to 20. The sifting report from HR was also contained in the envelopes and it was read out. He then raised an issue of acting candidates but before checking the applicant’s CVs they consulted about the issue and unanimously decided to include the application of the 2nd respondent as he was the only one who acted as the principal for more than 12 months in the list.
49. The resource person also highlighted that the collective agreement stipulates that applicants who acted for 12 months must be shortlisted. Out of 20 applicants, 9 were sifted out. They developed criteria considering the needs of the school and the nature of the position. The criteria set was 5 years’ management experience and a proven record to lead a big school. Only 5 candidates met the criteria and were shortlisted.
50. Mr. Yawa did not meet the criteria as he did not have 5 years’ management experience. Mr. Kulata was amongst the shortlisted and interviewed candidates. On the day of the interview, only 3 candidates attended and upon phoning the other 2 candidates, they indicated that they withdrew their applications as they were no longer interested in the position.
51. All candidates were given the same treatment, and the process was fairly conducted. When an allegation that Mr. Menera, one of the interview panelists, had a friendship relationship with the second respondent as he used to fetch the incumbent’s children from school, the witness could not comment because he stated that he had never seen that.
52. Mr. Kulata was scored no.2, he was not part of the panel, meaning he was not present when other candidates were being interviewed (page 56 bundle B). The incumbent acted in the principal position from January 2024 when the former principal was on incapacity leave which he extended until the end of the year (December 2024).
53. On cross-examination by the 2nd respondent’s representative, Mr. Ndlela testified that he was the SGB secretary and the interview panel secretary. He was mandated by the union NAPTOSA to be an observer during the sifting process.
54. Under cross-examination by Mr. Mhlontlo, the witness testified as follows:
55. Mr. Gongqa, the Circuit Manager, was the resource person during the selection process. The entire SGB was trained before the process started and the trainer kept referring to PAM document and the ELRC Collective Agreement and the recruitment policy. The sifting report was compiled by CMC and was tabled to the interview panel on 21 November 2024 (pages 23 to 29 bundle B).
56. The witness could not comment when asked as to why the incumbent’s application was sifted in, overruling the sifting committee ‘s decision. He referred to clause 2.2 of the Recruitment and Selection policy which provides that the application forms must be completed in full (page 21 bundle B). The witness did not comment when it was put to him that the decision to sift in the incumbent while he was sifted out by the sifting committee
57. The witness could not comment on the alleged relationship of Mr. Menera with the incumbent as he has never seen or noticed any friendship between them. Mr. Menera is the SGB member and works for the respondent as a Safety Officer. Nothing was made mention of recording device during the training. He could not record the candidate’s answers with the score sheets. He had a template where he recorded the list of questions posed to the candidates. He was a scorer and a secretary during the interview. The other 3 SGB members who were scoring do not have tertiary qualifications.
58. Under re-examination, the witness stated that there is nothing indicating that the panel cannot make changes in the sifting in or out of the applicants. The panel verified all the application forms of the applicants. On page 73 of bundle A the incumbent completed 23.1, 23.2 and 26.5 and those are enough responses. The collective agreement stipulates that an applicant who acted for 12 months or more must be shortlisted, this is why the incumbent was sifted in. The panel was not biased towards the incumbent.
59. Mr. Menera is the SGB member and there is no legislation suggesting that Safety Officers cannot score candidates, he was not biased. All panelist members were capacitated to understand the questions and the expected answers for the interview.
60. In closing Ms. Damane argued as follows:
61. Mr. Ndlela testified that none of the candidates complained about questions posed not being clear during the interview. This means that both applicants are complaining because they felt entitled to the position. In Ngcobo v Standard Bank of SA and others (D439/12) [2013] ZALD 33 (25/09/2013) it was held that in an unfair labour practice dispute relating to promotion or appointment, there is no right of entitlement to promotion or an appointment.
62. The first applicant had 1 years’ experience as a manager and the second applicant had 22 years and the incumbent had 11 years’ experience. The second applicant failed to prove to the panel that he was the best candidate for the job. All the 3 candidates were given a fair chance to compete for the position. In Nooman v SSSBC and others (2012) 33 ILJ 2597 (LAC) a confirmed principle is that there is no right to promotion. The right can be given to a fair opportunity to compete for a post. Any conduct that denies an employee a right to compete for a position if requirements are met constitutes an unfair labor practice. The 2nd applicant in this instance was given a fair chance to compete for the position.
63. Both the 1st and 2nd respondents believe that correct and proper procedures were followed in appointing the 2nd respondent. The 2nd respondent was the best candidate for the position and he scored 23.2 marks while the applicant scored 16.4 marks (page 38 bundle A). The incumbent’s incomplete application form in pages 72 section 18 and 17.4, as well as section 23.3 of page 73 did not prejudice the applicants, and the key question is answered in both pages.
64. The applicants were never denied an opportunity to compete for the position and all points raised by the applicants were disputed by the 1st respondent’s witness. Ms. Damane finally argued that it will not be in the best interest of the school and the learners if this appointment can be set aside. The 1st respondent exercised its discretion fairly. The applicants failed to prove unfair labour practice against the 1st respondent and that their application must be dismissed. ANALYSIS OF EVIDENCE AND ARGUMENTS
65. The issues of common cause that relates to this matter are as follows:
    • That the applicants applied for an advertised position of Principal at Nkwanca S.S. School in Queenstown.
    • That the first applicant, Mr. Yawa, was not shortlisted.

• That the 2nd applicant, Mr. Kulata, was shortlisted and interviewed but was not appointed to the position.

• That 20 applicants were shortlisted and 11 were sifted in and 9 were sifted out.

• All applications were verified as per the HR sifting report.

• That the 1st applicant could not meet the requirement of 5 years managerial experience that was set by the panel of the interview and was sifted out.

• All candidates were asked the same questions as reflected in the score sheet.

• That the interview process was not recorded as this was not challenged.

• That Mr. Mbuthuma was recommended by the SGB and appointed as the best and most suitable candidate for the position.

• That the incumbent scored 23.2 total average score /marks/points while the applicant/Mr. Kulata scored 16.4 marks /points.

• That SADTU and NAPTOSA unions were observing the selection processes, and no issues were raised until the incumbent was appointed.

66. It must be noted that Mr. Yawa during the evidence in chief testified that he had 1 years’ experience in management when he applied for the position and that when the bar was raised by the panel, he could see that he does not qualify for the position in terms of managerial experience.
67. It is the 1st respondent’s case that the incumbent acted in the advertised position for more than 12 months hence he was sifted in.
68. Section 6.7 of the Guidelines for advertising and filling of Educator posts at institutions provides-
    “An educator who has been acting in the advertised post for 12 months or more and has applied for the post must be shortlisted” (page 10 bundle A).
69. Mr. Ndlela’s evidence to the fact the incumbent acted in the principal position from January 2024 when the former principal was on incapacity leave which he extended until the end of the year (December 2024) was not disputed.
70. Mr. Ndlela’s testimony to the fact the same questions were posed to all candidates and that none of the candidates complained about questions not being clear during the interview was not disputed.
71. With regards to the allegation of Mr. Menera being friends with the incumbent, Mr. Yawa testified that when he was working at Nkwanca S.S. School, he used to see Mr. Menera fetching the incumbent’s children from school but he has never seen them after hours and maybe it is because of their differences in personalities. Mr. Ndlela testified that he has never seen that.
72. To me the above statement does not suggest friendship between Mr. Menera and the incumbent.
73. It is undisputed evidence of the 1st applicant that when he compared Mr. Menera’s scoring with that of the other 3 panelists he could not comment when he saw the scores of the other panelists, some of them are even higher than that of Mr. Menera towards the incumbent.
74. This is why the 2nd applicant stated under cross-examination that he does not know the panelists, and he could not speculate as to why they prejudiced him as they were not fair towards him. It appears that the 2nd applicant is now not specifically referring to Mr. Menera alone but to the rest of the panel.
75. Mr. Kulata further testified under cross-examination that he also does not know the other candidate’s performance as he was not present when they were interviewed, he believes that scores were awarded based on each candidate’s performance.
76. I concur with the 1st respondent’s contention in its closing arguments that the incumbent’s incomplete application form in pages 72 section 18 and 17.4, as well as section 23.3 of page 73 bundle B did not prejudice the applicants, and the key question is answered in both pages.
77. It is the respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002) as the qualifying candidate was appointed.
78. It is not disputed that during the ratification process no issues were raised and the selection process was declared as free and fair.
79. On the basis of the above evidence, it appears that the incumbent met the requirements of the position, and he was the best and most suitable candidate hence he was recommended unanimously by the SGB for appointment to the position.
80. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualification and/ or suitability for the position in question, against that of other candidates. The court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for the Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate”
81. See also in Buffalo City FET College v CCMA and others (P 372/12) [2016] ZALC CPE 18 handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotion, the onus is on the Employee to prove that she/ he is a suitable and better candidate for the position in question”
82. It appears from the party’s evidence that the 1st respondent followed a fair procedure in appointing the best and most suitable candidate for the position of Principal at Nkwanca S.S. School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Mr. Nkosinathi Mbuthuma to the position.
83. The applicants have failed to discharge the onus to prove the claim of unfair labour practice based on promotion on balance of probabilities by the respondent.
    AWARD
84. I therefore make the following award:
85. The appointment of the incumbent, Mr. Nkosinathi Mbuthuma by the 1st respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.
86. The 1st respondent, the Department of Education –Eastern Cape cannot be compelled to set aside or to nullify the appointment of Mr. Mbuthuma.
87. The applicants are therefore not entitled to any relief.
88. The application is dismissed.
89. There is no order as to costs

Signature
Ncumisa Bantwini
ELRC Panelist