04 June 2026 – ELRC272-25/26KZN

Panelist/s: Urmilla Patel
Case No.: ELRC272-25/26KZN
Date of Award: 04 June 2026

In the ARBITRATION between:

Xoliswa Cyprian Mpanza
(Union / Applicant)

And

Department of Education
(KZN)
(First Respondent)

And

Ms Ntombifuthi Nkosi
(Second Respondent)

Details of the hearing and representation:

The applicant Xoliswa Cyprian Mpanza was initially represented by Mr Xulu from the trade union SADTU who later withdrew and the applicant was thereafter represented by Mr Mdluli from the trade union NATU.
The respondent the Department of Education (Kwa – Zulu Natal) was represented by Ms Nomfundo Ngonyama.
The matter was scheduled and heard on a number of occasions as reflected in the official registers of the hearings and was finalised on 29th April 2026. The parties agreed to submit their written closing arguments by the 6th of May 2026.
The second respondent, Mrs Ntombifuthi Nkosi attended the hearings but there was no active participation on her part.
The applicant submitted a bundle of documents which was marked “Applicant’s Bundle 1”. The respondent submitted a bundle which was marked “Respondent’s Bundle 1”.
The hearing was held in English and Zulu and was interpreted and manually recorded.
ISSUE TO BE DECIDED
I am required to decide whether the respondent committed an unfair labour practice against the applicant in relation to promotion in terms of Section 186(2)(a) of the Labour Relations Act No 66 of 1995, as amended (the LRA) and if so, order the appropriate relief.
BACKGROUND TO THE ISSUE TO BE DECIDED
The applicant is employed by the respondent as an educator at Lindayiphi Intermediate School in Mandeni, iLembe District, Kwa- Zulu Natal.
The applicant had applied to be promoted to the advertised position of Departmental Head at Lindayiphi School and was short-listed and invited to an interview that was arranged by the School Governing Body (SGB) and held on the 19th of February 2025. The SGB accordingly appointed the interview committee.
The applicant scored the highest at the interview, followed by another candidate (Ndlovu) and the second respondent Ms. Nkosi scored the third highest.
However, the applicant was not appointed to the position, and the second respondent was appointed after the initial interview process was found to be irregular and flawed. The interview process was then taken over by the first respondent, and the second respondent was again interviewed and appointed to the position.
The applicant found this to be unfair and is challenging his non -appointment to the position on the basis that it was unfair for several reasons (pointed out below), including that the respondent invalidated/”nullified” the first interview process and arranged a further interview, without following due process and appointed the second respondent to the position.
The respondent’s position in this regard is that it had acted within the scope of its powers as outlined in relevant policy documents and legislation and that it had not acted unfairly. After establishing that there were irregularities in the first interview, the first respondent then arranged a further interview
In the second interview, the second respondent, who was initially the third highest scoring candidate, was appointed. The applicant’s version is that the resource person had become emotional during the first interview and displayed unhappiness, which the applicant believes was discriminatory and in favour of the second respondent. The applicant lodged a grievance, the outcome of which the applicant was unhappy about, as it was not appropriately dealt with.
A ratification meeting was convened after the interview and after the interview report by the resource person was handed in, the appointment of the successful candidate was confirmed. However, due to reports of various irregularities, no appointment to the position was made and it was decided that the respondent would take over the process and start afresh.
The applicant alleged that the resource person had called Dr Mthiyane (the circuit manager) and that they had acted unlawfully in having the respondent take-over and re-start the process.
The applicant alleged that no valid reasons were provided for the take-over and this was in contravention of the South African Schools Act, No. 84 of 1996 (SASA); that the SGB was unhappy with this take-over and wrote a letter of grievance to the District Grievance Committee. Mrs Ngonyama chaired the grievance committee but the letter according to the applicant was not considered and the decision was made for the process to be taken over by the respondent.
The applicant as the highest scoring candidate in the first interview, was not invited to the second interview without valid reason and the second respondent was invited. The applicant lodged a grievance against this and was told that he was not invited to the interview as the curriculum vitae of the applicants were coded and numbered and the names of the candidates were not visible. The applicant is of the view that this was unfair, biased and unprocedural and the applicant is therefore seeking an investigation into this process, reinstatement of the outcome of the first interview and appointment to the position.
The respondent disputes that it had acted unfairly in taking over the process and re-starting it, as the first process was riddled with inconsistencies and irregularities and was flawed and was therefore nullified by the same SGB, which then co-opted other school principals to conduct the second process. The chairperson of the SGB was in charge of the short-listing and received permission from the entire SGB to nullify the first process. The CVs of the candidates had been number coded and names were not visible.
The SGB found that some of its members were illegitimate as they were not parents of learners at the school which had several difficulties and the SGB was divided. The first respondent had therefore decided to accept the decision of the SGB and co-opt other school principals to conduct the process.
The circuit manager (Dr Mthiyane) who is in charge of 30 schools is required to ensure quality teaching and learning and that an enabling environment conducive to quality education without hindrance to educators, is in place.
The first respondent submitted that the decision whether to promote or not falls within the prerogative of the employer and mere unhappiness or a perception of unfairness does not establish unfair conduct. The resource person was excluded from the second interview in order to ensure fairness.
The first respondent submitted that it had therefore acted fairly in the process and in appointing the second respondent.
SURVEY OF EVIDENCE AND ARGUMENT:
The full record of the proceedings was mechanically captured. For the sake of brevity, only the relevant testimony that relates to the main dispute and the determination thereof is dealt with in this award.
The applicant’s case:
The applicant’s first witness was Ms Ntombizonke Sibiya who was a parent of a learner and a member of the SBG testified as follows:
She was the score-taker in the interview committee.
She along with SGB members attended workshops relating to the recruitment of teachers.
She was aware of the process that was to be conducted but did not know why the process was removed from the SGB and conducted by the Department as everything had been done correctly, no questions were asked by the union, and nothing was wrong. However, the resource person was clearly unhappy and began crying The NATU representative asked her why she was crying to which she replied that they were unhappy with the result as the person who was ranked number 1 was not their preference and they wanted the second respondent who was ranked number 3 to be the number 1 candidate.
Ms Sibiya stated that they did not agree with the process of being removed and the other person who was unhappy was the chairperson (Sinehlanhla Masuku) who had already resigned from the SGB and this was confusing because he was still conducting the second interview after submitting his resignation letter soon after the first interview.
The first step they took to prevent the process from being removed was to speak to the circuit officials and Dr Mthiyane. The response they received was that there was a quarrel regarding the whole interview process, and therefore it was decided to remove the process from them and allow it to be handled by the first respondent.
This was followed by a letter which they wrote to the first respondent and thereafter they were informed by the resource person that there was going to be a meeting and the chairperson who had resigned was informed about the meeting and attended the meeting.
They had signed a register confirming their attendance at the meeting and minutes of the meeting which she did not know about or have sight of, was apparently signed by the chairperson who also chaired the meeting. Dr Mthiyane who called the meeting acted as an assistant to the chairperson at the meeting.
She further confirmed that Masuku (the chairperson) made the final decision to nullify the first interview and that the process must be re-done but the entire SGB did not agree to this. She could still not understand his authority to do this when he had resigned according to the letter that she and others had read in this regard.
Ms Sibiya agreed that an appointment is confirmed only when approved by the Head of Department (HOD) who has the prerogative to appoint a suitable candidate but disagreed that she and Mrs Nkosi (the second respondent) were on bad terms or that there had been any quarrel or fight between them. She agreed that the SGB were divided as to whether the process should be re-started but re-iterated her view that the process was re-started due to Mrs Gumbi (resource person) crying at the interview because she preferred the third-ranked candidate.
At the meeting called by Mr Mthiyane, the first interview was not nullified but the process was re-started because “they were conveniently using their powers”; but she confirmed that she stated that the SGB was divided and remained undecided. However, she did not respond to the proposition that the process was not “taken away” but would be re-started with other school principals elected by SGB members
She was invited to an urgent second meeting without any explanation and stated that there were no disagreements, no arguments and no noise’ as indicated by Mr Mthiyane and also reflected in the minutes which Ms Sibiya stated she did not sign. She was one of the SGB members who complained about the unlawful takeover of the process, and she and others heard nothing further about the appointment of the second respondent.
When it was finally put to her that the process was lawfully taken over by the Department of Education to be conducted at the circuit office, she emphasised that this was unlawful and unfair.
The applicant’s second witness was Mr L Magwaza whose sworn testimony was as follows:
He was part of the SGB during the recruitment process but not part of the Interviewing Committee and was trained in the short-listing process.
He was only present during the meeting called by Dr Mthiyane but received the results of the first interview.
He believed that the interview process was re-started because the resource person (Gumbi) wanted their desired person, namely, Nkosi to be selected and this is what caused a problem despite the applicant having been ranked in the first position.
He did not see the minutes of the meeting stating that the first interview was nullified and there was no agreement that the process be taken over by the first respondent which was authorised by Masuku after he had resigned as a member of the SGB.
Mr Magwaza testified that he did not know whether all the candidates from the first interview were invited to the second interview but agreed that the exclusion of a successful candidate without explanation can be viewed as unfair and according to him, proper procedures had not been followed in appointing Nkosi.
In cross-examination Mr Magwaza confirmed that he was a legitimate member of the SGB for four years as he was a guardian to his sister’s child and had proof of this but has since been expelled from the SGB and is now no longer a member.
He was not aware of any divisions in the SGB, but problems started when Ms Gumbi wanted Ms Nkosi to be appointed and there was no division in the SGB prior to this.
He was aware that Mr Masuku had resigned as there was a formal document that was communicated to their group.
He knew nothing about the process being nullified and he also did not have sight of the minutes as he had only signed the attendance register.
Mr Magwaza testified that he and a colleague had written two letters, one to Ms Ngonyama and the other to the District Director, about their disagreement with the decision that the first process be nullified and re-started because it had gone smoothly. They took the letters of complaint to Ms Ngonyama’s office and she tore up the letter he gave her and threw it in the bin. Neither did they receive any feedback from the District Director.
There was a disagreement between Ms Ngonyama and the witness about whether she did tear up the letter and Mr Magwaza maintained that she had done so. Mr Magwaza reiterated that he believed that the process was unlawfully taken away without reasons being given to the SGB.
He testified that he did not know whether the applicant was invited to this second interview.
The applicant’s 3rd witness was Goodman Nkosi who presented the following sworn testimony:
He was a member of the SGB and his role in the first interview was to call the candidates in for their interview
He received no information that a second round of interviews was going to be conducted but had heard a rumour about that. He confirmed that he had also gone to Ms Ngonyama’s office to hand in a letter voicing his disagreement with the process being nullified and re-started; and that Ms Ngonyama tore up the letter and put it in the bin. The other letter for the District Director was handed to a clerk, and no further response was received to the letter which had been signed by members of the SGB.
He further testified that he had received training in conducting interviews; that the first interview was successful without interruption or disturbances and all protocol and policies had been followed. He was unaware that a complaint had been lodged about the resource person’s conduct and that Mpanza (the applicant) scored the highest and Ms Nkosi (the second respondent) scored the third highest in the interview.
He was fired from the SGB on the basis of him not having children at the school, but this had been checked before they became members of the SGB and he believed that the reason for them being fired was because they did not agree to the second round of interviews being conducted. In addition, protection orders were issued against them, and he believe that they were “bullied” out of the process and fired
Mr Nkosi repeated that all had gone smoothly at the first interview until Mrs Gumbi, the resource person, began crying at the interview because she stated that Mrs Nkosi should have been ranked number 1 in the interview.
It was put to Mr Nkosi that section 25(1) of SASA was relevant to the powers of the SGB being taken away and for its recommendation to be nullified. Mr Nkosi repeated that there was corruption in the first interview in respect of the manner in which it was halted and a person crying and saying someone else needs to be put in the position and that person was put in the position.
There was further discussion as to how the SGB was composed and how many members were in the SGB.
In re-examination, clause 44 of Collective Agreement No 3 of 2016 was referred to which confirmed that significant weight must be placed on the recommendation of the SGB, but Mr Nkosi stated that right up to that day they had not received reasons why the process was taken over by the first respondent and handled by them.
That concluded the applicant’s case.
The respondent’s case:
The respondent’s first witness was Buyisile Thobile Hlongwane who testified under as follows:
She is currently the chairperson of the SGB and succeeded Mr Masuku. She confirmed that the post was that of Departmental Head and that the first interview process was nullified because of divisions in the SGB which led to the circuit manager being called. Agreement was then reached that the process must start afresh and this was whilst Mr Masuku was still chairperson.
There was agreement by the majority of SGB members that school principals be co-opted by the SGB for the second process. Only two members did not agree to this, namely Ms Sibiya and Mr Magwaza, whom it was subsequently discovered were not legitimate members of the SGB as they did not have children at the school. She stated that the divisions in the SGB were due to this, but the verification had not been done and the first and second interviews proceeded without verification of the SGB members
Ms Hlongwane denied that the resource person cried at the first interview but one of the outside observers raised a concern as to something not being right during this first process and this was recorded. There was, however, division and confusion amongst the SGB members and this led to the process being nullified and starting afresh.
They had used only numbers (for applicants for the position) in the second meeting and no names were used on the profiles of the applicants. The same numbers were used during the first and second interviews that were written inside the envelope and she could not tell who had written the numbers but despite not knowing who wrote those numbers, the second Interviewing Committee decided to use the same numbers only one set of numbers/codes were used throughout i.e. for the first and second process
She was Deputy Chairperson of the first meeting and was appointed by the SGB to chair the meeting and held the same role during the second interview. She could not clarify why this verification had not been completed prior to the interviews but confirmed that this was the process during which Ms Nkosi was appointed.
Ms Hlongwane confirmed that the applicant (Mpanza) was ranked first and Ms Nkosi (the second respondent) ranked third in the first interview, and she stated that she was not aware of any dissatisfaction expressed by Ms Gumbi (the resource person) during the first interview, nor did she know of her crying. She denied any close relationship with Ms Gumbi, nor did she work with Gumbi to supply school uniforms.
She confirmed that the provincial HOD had acted in accordance with Section 22 of the SASA in providing reasons and withdrawing the SGB but the SGB’s powers were not withdrawn by the first respondent and that the first respondent did not conduct the process.
The letter of complaint written on the 8th of March 2025 by SGB members about the unlawful take-over may have been written later but the majority of the SGB members had agreed during the process that the first interview be nullified and for the process to start afresh. As far as she was aware, only two people had complained.
Ms Hlongwane confirmed that Mr Masuku was chairperson at the second meeting but disputed he had resigned and that the SGB was not in good standing at the time.
When asked about why there were 3 departmental officials at the meeting when the HRM 20 of 2024 allows for only one departmental official to be present at the meeting, Mrs Hlongwane stated that she thought it was because they had asked them to come and see what transpired at the meeting but agreed (“understood”) it was wrong in terms of HRM 20 of 2024.
She stated that the second interview went ahead on the 24th March 2025 despite the letter of complaint about the re-starting process because they did not receive the letter but when told that the letter was submitted on the 8th of March 2025, she stated that she does not have much information in this regard.
She could not testify in relation to why the applicant (Mpanza) was excluded from the second interview as she did not know the reason for this and referred to the numbered code profiles; but when reminded that the same numbers were used for the first and second interview and that the applicant was the highest scoring candidate and met all the minimum requirements, she stated that the applicant was not the only one excluded.
It was put to Mrs Hlongwane that HRM 20/2024 requires an excluded candidate to be notified of the exclusion, and her response was that no one was notified because as the Interviewing Committee they had agreed that no one be notified. Despite this she believed that it was a procedurally fair process.
Mrs Hlongwane could not clarify whether as a member of the SGB she had a child at the school at the relevant time that the interviews were conducted as her child/children were pupils in May 2025 and the interviews were conducted in March 2025When this was put to her she replied that “I can say that it was like that as I was busy with the process at the time.
Apart from repeating her views, about the process being fair, nothing further of note was presented in re-examination
The respondent’s second witness was Zakhele Absalom Gumede who testified as follows:
He was a Chief Education Specialist and monitors functionality in schools and affords support when challenges arise.
Mr Gumede confirmed that the resource person was the deputy principal and that the first interview was nullified as Dr Mthiyane (the circuit manager) as he received a report that the SGB had serious disagreements relating to allegations of bribery, “meeting in corners” and they then resolved that the process be taken over by the first respondent. He then advised that people with expertise be appointed who were not members of the SGB in accordance with Clause 10.6 of the HRM 20/2024, as they themselves as the SGB had failed to conduct the process due to disagreement. They then agreed to appoint principals from neighbouring schools who were co-opted to the Interviewing Committee and the new resource person was Dr Mthiyane and one person from the SGB was to be the Chairperson. He knew nothing about the chairperson of the Interviewing Committee having resigned or the issue of SGB members not being legitimate as they did not have children at the school which was raised after the first meeting.
In cross-examination he agreed that only the HOD (not the chairperson) can withdraw from the SGB functions and that the process was a smooth and fair one. He was unaware of who scored the highest at the first interview as the process had not been concluded; nor was he aware of the resource person trying to influence the process.
He was aware that the unions had advised Ms Gumbi to accept the tabled results and had lodged a grievance about the conduct of Ms Gumbi.
He was invited to the meeting by the deputy circuit manager and when asked by the allegations of bribery and meetings in corners, Mr Gumede was unable to present any testimony in this regard nor could he tell why these serious allegations were not captured in the minutes, nor did he know where the original minutes were.
He testified that the real reason for the second interview was because they failed to conclude the process and they were invited because the SGB was unhappy with the work done by the Interviewing Committee that they had appointed.
With regard to the letter of complaint written about the takeover of the process by some SGB members and that 3 witnesses had testified about SGB being against the process being nullified and starting afresh, Mr Gumede stated that he did not know of this letter.
Mr Gumede testified that the issue of verification of SGB members being parents arose after the first process; and Mr Masuku had not resigned at the stage when he called the meeting, and he did not know of the resignation. They had acted in accordance with Clause 10.6 of the Procedure Manual (HRM) in appointing persons with expertise and did not take away the powers of the SGB but “amplified” their powers. He also did not know of the ranking of the candidates.
Mr Gumede believed that the second interview process was legitimate and had been legitimised. He authorised the meeting to be held at Kwa Dakuza, for which no approval was required and to provide every possible support to ensure that the meeting is not disturbed.
In re-examination, Mr Gumede confirmed that the second process ran smoothly and was fair, transparent and accountable.
The respondent’s 3rd witness was Mziwenhlanhla Collen Xulu who testified under oath as follows:
He was a Level 1 Educator and had been an SGB member for 10 years and was the secretary and member of the Interviewing Committee. He and others had attended training on how to conduct themselves as SGB members. He confirmed that some members of the Interviewing Committee were “not settled” and there was much walking up and down and in and out and the Interviewing Committee and Mr Xulu were unhappy with the result. Many things were not done in the first process but most of his information was based on rumour which had the effect of causing havoc in the second process where the co-option of principals was made the outcome was ratified and thereafter an appointment was made.
A resolution had been made and recorded and he was unaffected by the result of the second interview, nor did he have any feeling about the outcome
According to him, Mr Masuku’s resignation was after the meeting and said that he had heard rumours about Mr Mdluli meeting with SGB members.
The meeting to re-start the process was initiated by the circuit manager and this decision to re-start the process was taken at the end of this meeting. Thereafter Ms Nkosi was appointed, and the meeting was a properly constituted SGB meeting as evidenced by the register and minutes. He did not know how many departmental members attended the meeting and they were not advised that approval of the provincial HOD was required to remove the meeting from the school, which they did not have permission.
He could not explain why the applicant was not invited to the second interview and why Ms Nkosi the third ranked candidate, was thereafter appointed but that she had acted in that position for 12 months.
That concluded the first respondent’s case.
ANALYSIS OF EVIDENCE AND ARGUMENT:
In a dispute relating to an unfair labour practice, I am required to determine not what I as the arbitrator would do in this matter but to examine whether there was firstly a labour practice and secondly, that such labour practice was unfair (see Grogan Dismissal , Discrimination and Unfair Labour Practice (2nd ed at 48). It is reasonable that such unfairness must relate specifically to the applicant’s application for promotion and that such unfairness lay in arbitrary, unfair action on the part of the respondent, conduct that cannot be explained or objectively justified.
The onus of demonstrating that there was an unfair labour practice lies squarely in the applicant who had applied for a promotion and subsequently alleged unfairness. This was confirmed by the Labour Court in Ethekwini Municipality v SA Local Government Bargaining Council & others [2009] JOL 23625 (LC), where the court confirmed that the applicant had correctly pointed out that the onus to prove the commission of an unfair labour practice rested on the employees.
In discharging this onus, the applicant alleged that an unfair labour practice had in fact been committed by the first respondent which resulted in him not being fairly considered for the promotion that he had applied for and subsequently being unsuccessful in his application.
The applicant’s representative, Mr Mdluli submitted that the unfairness lies particularly in the second interview process which was taken over by the first respondent, after a first interview process was held where he had been ranked as the highest scoring candidate. The results had been tabled indicating that he ranked first but subsequent to this, the process was declared null and set aside on allegations of unfairness, irregularities and inconsistencies by some members of the SGB.
It was therefore the applicant’s case that unfairness lay in nullifying the first process and subsequent decision by the decision by the first respondent to start the process afresh. The applicant submitted that this was unlawfully and unfairly done since the meeting was improperly taken over, for the following reasons: 36.there was no reason to nullify the first interview process as the process had been fairly and smoothly conducted as testified to by all three of the applicant’s witnesses whom, I find clearly and convincingly corroborated each other’s’ evidence.
The only problem that arose during the first interview was that the resource person, namely, Ms Gumbi became emotional and started crying when called to say a few words at the end of the interview after it was established that the applicant was the highest scoring candidate and Ms Nkosi (the second respondent) received the 3rd highest score.
The applicant submitted that the second process was improperly constituted for the following reasons:
It did not comply with Section 22 (2)(a) of SASA in that no reasons and been provided as to why the process was to be taken over and start afresh, with sufficient time allowed for responses and due consideration given to any representations received, the applicant was unfairly not invited to the second interview without any reason provided. the composition of the meeting was not in accordance with clause 10.2.1 of HRM 20/2024 in that there should have been one departmental representative (as an observer to advise on procedural issues) and there were three, the minutes of the meeting was not provided and this was required to be done, the meeting was unlawfully held at the circuit office in Kwa-Dakuza without permission.
The respondents’ response to the above with regard to the first interview was as follows:
The first process was riddled with irregularities’ and “inconsistencies, there were people coming and going during the process and there were “meetings in corners”
The SGB was divided and not legitimate in that some of the members did not have children who were learners at the school as required in terms of Section 23(2) (a) of SASA.
The respondent’s witnesses refuted the testimony of the applicant’s witnesses that Ms Gumbi was crying because she favoured the third ranked candidate and tried to influence the process as she wanted her preferred candidate to be appointed .
The second interview was properly constituted and everything went smoothly, and that there was no unfairness in not inviting the applicant to the second interview because the CV’s were numbered and coded and did not have names and others had also not been invited, even though the same codes and numbers were used in the first and second process.
There was no explanation as to why the minutes of the meeting were not furnished or where the original minutes of the meeting were. A meeting was held where the majority of the SGB agreed to the first process being nullified and starting afresh.
Questions then arise as to why was the observer who stated that something was not right (as per Ms Hlongwane’s testimony), not called to testify in this regard, or why Ms Gumbi herself was not called to directly testify in support of the respondent’s case, whether she did in fact favour Ms Nkosi and try to influence the process and even whether she cried or not. There is no explanation for this failure on the part of the respondents who put forth this evidence as to why the direct testimony of these people was not presented. I therefore find it difficult to accept this as reliable testimony and am inclined to accept the applicant’s witnesses’ version in this regard as being more convincing and credible.
The question that also arises is why these disturbances were allowed to occur and why no one in control tried to stop these disturbances, if in fact this was disturbing or hindering the process. I believe that it would be reasonable to expect that this interview was a serious matter involving the senior position of departmental head and it was being conducted by persons who testified that they were trained to conduct these processes (or even if not trained), that they could exercise their authority to stop or control any inappropriate conduct during the process.
A further question then arises as to whether this did in fact constitute conduct that warranted the process being null and void. The factors that I find that reasonably led to the process being nullified are that there were divisions in the SGB which appeared to surface after the interview, the apparent disturbances and the failure to ratify the appointment of a candidate and whether it was legitimately constituted.
The fact that the SGB was not properly constituted because members were not parents of learners as required in terms of Section 23 (2) (a) of SASA, was something that should have been verified prior to the meeting being held. This was apparently not done and the process continued and people involved in this process who should have ensured this verification was done failed to do so, and now not use this as grounds to declare the process null and void. However, this would contribute to nullifying the process on the grounds that the interview was not correctly constituted in terms of section 23 (2) (a) of SASA.
With regard to Mr Masuku’s resignation, I find it difficult to accept the testimony of the respondent’s witnesses that he either did not resign or that they were unaware of his resignation or resigned later, when testimony from the applicant showed he had resigned because this was shared on the SGB group chat and the applicant also presented the actual resignation letter which clearly indicates that he had resigned after the first interview, as the resignation letter addressed to Ms Gumbi was headed “ Resignation as School Governing Body Member and Chairperson” and was dated the “21-02-2025” (SEE “Respondent’s Bundle”). There is no credible explanation as to why or on what basis he was thereafter involved in the second interview or any explanation as to why he too was not called to directly testify in relation to this.
I find that there is no valid or clear explanation as to proper reasons, (preferably in writing), were not provided for the Head of Department taking over the process and starting the process afresh in accordance section 22 (1) and (2 a- c) of SASA by allowing the governing body reasonable opportunity to make representation to him/her in relation to such intention and that due consideration was given to such representations received. There was no valid explanation/evidence from the respondent as to why this process did not accordingly unfold, resulting in a breach of the relevant legislation. All the respondents put forth in testimony was that a meeting was held where the SGB were notified of the Department taking over the process and it is starting afresh and that either all (as stated initially) or the majority (stated later) of the SGB agreed to this. It is clear from the testimony of the applicant’s witnesses that at least two of the SGB members did not agree to this.
The applicant’s witnesses (Magwaza and Nkosi) both testified that they wrote letters to Ms Ngonyama and the District Director, signed by members of the SGB, complaining about the process being nullified and starting again. They corroborated their testimony that they took the letters to Ms Ngonyama’s office and she tore it up in their presence and threw it in the bin and the other letter was given to a clerk to be handed to the District Director. Although Ms Ngonyama refuted their testimony and denied that she tore up the letters, the probabilities favour the version of the applicant’s two witnesses against her bare denial in this regard. They testified that no feedback was thereafter received from the District Director’s office.
There was no valid explanation from the respondent as to why three departmental representatives attended the second interview meeting when only one was required to do so in terms of Clause 10.2.1 of HRM 20/2024, except to say that they attended to ensure the process ran smoothly but the above section of HRM 20/2024 clearly refers to one departmental representative attending to ensure a smooth process and to provide procedural advice.
There was no valid explanation as to why the applicant was not invited and given an opportunity to participate in the second interview although he was the highest scoring candidate in the first interview, there was no challenge with regard to his score. Apart from stating that codes and numbers were used and not names in selecting candidates for the interview, there was no further explanation for this. However, it must be noted that the respondent further testified that exactly the same codes or numbers were used as were used for the first interview. So, the question arises as to why he was not invited. The respondents’ witnesses either did not know about this or were not involved in this process, and this remains unexplained. It is reasonable to expect that having been the highest scoring candidate in the first interview, he should have been invited to the second interview.
There was no valid explanation from the respondent as to why the minutes were not shared or where the minutes of the meeting were and why they were not furnished to the applicant’s witnesses for signature, as they testified that all they signed was the register of attendance, but they had never seen the minutes. Clause 11 of HRM 20/2024 clearly requires that records and minutes should be safely kept and this is the responsibility of the principal or circuit manager. The respondents’ witnesses could not provide any information about the minutes of the meeting, and it was indicated (by the applicant’s witness Mr Gumede) that it was not even known where the original minutes were.
The courts have endorsed the view that it is not the arbitrator’s duty to decide what he or she would have done in the employer’s position or whether the employer’s decision was correct but to review the decision and decide whether there was unfairness in the manner in which the employer acted towards the candidate as pointed out by the court in SAPS v SSSBC [2010] 8 BLLR 892 (LC). This is further supported by the decision of the court in Minister of Home Affairs v GPSSBC (JR) 1128/07ZALC 35 (26/03/2008) LC in stating that in arbitrating a promotion dispute, the arbitrator reviews the employer’s decision. In accordance with the guidance provided by the courts in these decisions and in view of the evidence outlined above, I find that the respondent had not only breached policy such as the HRM 20/2024), various legislation such as SASA, the Constitution which affords the right to fair labour practices, along with the Labour Relations Act No 66 0f 1995 and the principles outlined in the ELRC Collective Agreement Number 3 of 2016.
In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant amongst other factors to consider the following which are, as the evidence above reflects and is applicable to this case:
whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
whether the employer’s decision was arbitrary, or capricious, or unfair; or
whether there were insubstantial reasons for the employer’s decision not to promote;
I find that the applicant has thus clearly discharged the onus of proving that the respondent acted in an unfair, arbitrary and capricious manner in various instances in relation to the applicant’s application for promotion, as has been pointed out above. The respondents’ witnesses were either unreliable in their testimony, or had no answers or their answers were unclear, at times inconsistent, or they simply provided no valid explanation. I therefore believe that the respondent’s conduct towards the applicant constitutes an unfair labour practice which was substantively unfair in failing to provide valid reasons for the conduct towards the applicant and procedurally unfair in breach of policies and legislation. I believe that the applicant has a fair and realistic chance of being promoted, given a fair opportunity.

AWARD:
I am making the following order:

The appointment of the second respondent and the process is set aside.
The first respondent is directed to restart the process from the interview stage, in a fair, and legitimate manner with all short-listed candidates in accordance with relevant policy, legislation and the ELRC guidelines in Collective Agreement Number 3 of 2016.

Signed at DURBAN on this 04th day of June 2026