IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC 590-23/24GP

In the matter between

Matlou Patrick Applicant

And

Education Department of Gauteng Respondent

ARBITRATION AWARD

The venue of Arbitration: Tshwane North District

Date of award: 03 March 2025

Parties present:

Arbitrator: Mr Chance Khazamula

Applicant Representative: Adv P.A. Mabilo – Legal Rep
Applicant: Mr Mr P Matlou
Employer’s Representative: Ms T Morewane – Employer Rep

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair dismissal dispute in terms of Part C of the Education Labour Relation Council’s constitution (“the ELRC”).
2. The dispute was set down for arbitration before me on 16 February 2024 and continued intermittently until it was concluded on 22 January 2025 at the Respondent’s premises in Tshwane South District and then moved to Tshwane North District offices at Wonderboom Junction.
3. The Applicant was represented by a legal representative Adv P Mabilo whereas the Respondent was represented by Ms T Morewane an official of the Respondent .
4. The Parties previously attempted to conclude the pre-arbitration conference however the minutes were not fully signed.
5. On 18 June 2024, the pre-arbitration clarification session was held with the parties on record where issues to be decided were determined and agreed to between the parties.
6. The Parties submitted a bundle of documents as evidence. The Applicant’s bundles were labelled “Bundle A1, A2 and A3” and the Respondent’s bundle was labelled “Bundle R”.
7. The proceedings were electronically recorded.
8. Parties further submitted written closing arguments as per the agreed date.

ISSUE(S) TO BE DECIDED

9. I have to determine whether the Applicant’s dismissal was procedurally or substantively unfair or not. In doing so, I must determine the following;

9.1. Procedural Fairness:

9.1.1. Whether the Applicant was denied access to obtain documents to prepare his case or not.

9.2. Substantive Fairness:

9.2.1. Whether the purchase of ten (10) school law and governance books by the Applicant was approved by the SGB or not.
9.2.2. Whether the Applicant allowed overtime payment to him and Marema without the approval of the department or the SGB or not.
9.2.3. Whether the Applicant facilitated a payment of Section 38A for him and Ms Wendy Makhubele without an approval letter or not.
9.2.4. Whether the Applicant paid SAOD without the approval of the SGB or not.

9.3. The Relief

9.3.1. The relief sought by the Applicant is reinstatement with back pay.

10. BACKGROUND TO THE ISSUE
11. The Applicant was appointed as the Principal at Die Heuwil Primary School (“the School”) from 01 January 2012 earning a gross salary of R49088.07 paid per month.
12. The Applicant was found guilty and dismissed following a disciplinary enquiry on four (4) allegations of misconduct in that while on duty at Heuwel Primary School, he wilfully or negligently mismanaged the finances of the school in that:
    12.1.1. Allegation 2: he purchased ten school law and governance books to the value of R5000.00 without the approval of the School Governing Body (“SGB”);
    12.1.2. Allegation 3: he allowed Covid-19 overtime payment to the values of R4340.82 for him and Mr MMG Marema without the approval of the department or SGB whilst the country was on hard lockdown;
    12.1.3. Allegation 4: he facilitated the payment of Section 38A for him and Ms Wendy Makhubele to the value of R5507.05 without the approval of the SGB; and
    12.1.4. Allegation 5: he paid an entity called SAOD payroll officers an amount of R149,414.79 without the approval of the SGB.
13. The Applicant after his dismissal referred a dispute of unfair dismissal to the ELRC and I was thereafter appointed by the ELRC to arbitrate the dispute.

SURVEY OF EVIDENCE AND ARGUMENT

The Respondent’s Testimony and Evidence

14. The Respondent’s 1st witness Ms Suzan Boledi Marotholi (“Marotholi”) testified that she knew the Applicant when she was co-opted as a member of the SGB.
15. Before Marotholi was co-opted as a member of the SGB, she was made aware of the issue between the Applicant and the SGB elected in the year 2021. She was approached by Ms Prudence Ramonyoga (“Ramanyoga”) who was the SGB Secretary and Mr Lovemore Gore (“Gore”) who was the SGB Treasurer that Gore was not provided access to the school bank account and financials because the Applicant was not allowing them to the school.
16. The meeting was held at Casper restaurant in Pretoria West and Gore requested Marotholi’s assistance because there were allegations of maladministration and to assist them in writing a letter to the Respondent’s district office (“district”) because of her academic experience. She assisted them in writing a letter to the district which Gore sent to the district.
17. Later the SGB Chairperson resigned and Gore approached Marotholi to be co-opted to the SGB for three (3) months and she agreed. Marotholi started attending meetings in September 2021 and Lesego Mothupi was elected as the Chairperson.
18. About allegation 2, Marothoti testified that they were advised by officials from the district that they needed to purchase the governance books so that they could understand their role. The SGB meeting agreed to purchase the books and one of the members checked on the phone and it was costing R100.00.
19. The finance committee (“Fincom”) composed of the Principal, the SGB Chairperson and the Treasurer was tasked to find three (3) quotes and the SGB had to select the lowest quote. The Fincom did not return to them with the quotes.
20. Marotholi and Ramanyoge were exiled to attend the meetings of the SGB because they were not invited to assess the financials from May to August 2022. The reason was that, every year the SGB had to elect the office bearers. The elections took place in the first week of April 2022. Nine (9) members of the SGB were eligible to vote. Four (4) members of the SGB elected Mothupi and the other four (4) elected Ramonyoge which resulted in a deadlock. The Applicant had a deciding vote and he voted for Mothupi and Gore to be the Treasurer.
21. The Applicant, Mothupi and Gore cancelled all ordinary meetings of the SGB. The SGB had a management plan before the elections and the new members after they were elected cancelled the management plan. They received an email communicating a new management plan with only the dates of the annual general meeting.
22. Marotholi submitted that following a battle between other SGB members and the District the Applicant, Mothupi and Gore were making financial decisions without the SGB. The Respondent’s HOD intervened by suggesting a workshop however the workshop was arranged on Saturday knowing she would be busy with her MBA. The workshop proceeded without her and Ramanyoge.
23. Marotholi wrote to the DG of Basic Education with allegations of maladministration by the Applicant, Mothupi and Gore in that they called themselves EXCO and they were making financial decisions without the SGB. The DG responded that he had engaged the Respondent’s HOD.
24. Following the intervention of the HOD, the Applicant was directed to grant access to the financials and the bank statement from January 2022 to August 2022. She, Ramanyoge, Maditse and Magore viewed the statement and questioned the transactions on the statement. Only five SGB members attended the meeting. Others did not come although they were invited.
25. They asked the Applicant if the books were purchased because they were not shown the quotes in a meeting. The books were purchased for R5000.00 and they were more expensive than what they saw online which was between R75.00 and R100.00. The Applicant stated that he would investigate.
26. Maditse called the company which the books were bought from and they informed them that they were a college and they were not selling books. The payment was for fees and others.
27. Concerning the school banking system, the Applicant loads the payment on the system, the Treasurer authorises and the Chairperson approves. The applicant may give someone his credentials to load but this cannot be done without his knowledge.
28. The Applicant, Mothupi and Gore bought the books by themselves without the SGB and they did not receive the books and the books were not at the school.
29. Concerning allegation 4, Marotholi testified that Section 38A was an extra remuneration for performing work outside the school hours. The budget would be presented to parents in November 2021, so that it could be included for the following year.
30. In 2021, the SGB presented the budget without a provision for Section 38A payment. Before the meeting, the Applicant expressed that he wanted to apply for Section 38A to the SGB. They requested the Applicant to provide a list of additional duties for her and Makhubele however by the time they met with the parents they did not submit. The budget was not approved and the meeting was reconvened on 24 February 2022.
31. During the reconvened meeting, Gore and Mothupi were not present. Ramanyoga as a Secretary, chaired the meeting and Magoro took minutes on her behalf. Section 38A was not part of the budget meeting.
32. At the same meeting when they were analysing the bank statement, it was discovered that the Applicant paid himself and Makhubele for aftercare duties on 7 February 2022 and further until August 2022. The Applicant was asked why he paid himself and he remained quiet without a response.
33. Marotholi in response to the approval letter for Section 38A, submitted that in the year they approve the budget, the SGB will endorse the application for Section 38A. There was no letter and even if there was, the application would require an abstract of the budget minutes showing the approval by the district to the SGB from the school.
34. Marotholi disputed the abstract of minutes of the 2021 annual general meeting (the AGM) because the budget was not approved and the document was null and void.
35. Concerning allegation 5, Marotholi testified when she came in 2021, SAOD was used to pay the SGB employees. Gore had issues with the company in that they were not paying UIF and SARS. In early 2022, about February and March, they had a meeting with Gore presenting and they agreed that the contract be stopped with immediate effect. The Applicant and Makhubela had to pay the SGB employees. The Finance officer was appointed in June for that purpose.
36. When they saw the bank statement, they saw the payment to SAOD. They asked the Applicant the reasons why SAOD and if the service provider was back. The Applicant stated that he did not know. There was never a decision to reinstate SAOD because they were paying the payroll officer. The Applicant, Gore and Mothupi decided without informing the rest of the SGB.
37. Upon being taken to pages 31 to 35 of Bundle R, Marothodi acknowledged she made a mistake about the date. They agreed to stop the contract in October 2021.
38. The Respondent’s 2nd witness Prudence Ramanyoga,(“Ramanyoga”) testified that she was an entrepreneur. She was also a parent and SGB Chairperson from August 2022 to May 2024. From May 2021 to April 2022, she was the SGB Secretary and from April 2022 to August 2022, she was the Deputy Chairperson.
39. Ramonyoga’s relationship with the Applicant was good until Fincom started deciding without SGB. When she joined the SGB in 2021, she did not understand her role however she included Gore as a Treasurer and Makgopa as a Chairperson were inducted by the Applicant which included the handover of documents.
40. During the induction process, she was approached by Gore that he was not allowed to perform his duties as Treasurer and he was not taken to the bank for the change of signatures to the school bank account. Ramanyoga thought that Gore had the insider information of mismanagement and maladministration committed by the Applicant.
41. Gore asked her for assistance in writing a letter to the district. She told Gore that she had a friend (Marotholi) who had an academic background and could assist in writing a letter. Gore had district email contact with him.
42. Gore invited them to Casper restaurant and that’s where the letter was drafted to the district Director to request an investigation and to get the bank statement to prove the allegations Ramanyoga and Gore signed the letter. She supported the letter because the Applicant was reluctant to allow them to the school. The Applicant would have excuses whenever they would want to engage him.
43. They got assistance from the head office after they sent an email. In the meeting with the entire SGB and the head office representative, the SGB Chairperson resigned. They were capacitated on the process to be followed and Mothupi was elected as the Chairperson.
44. About Allegation 2, in one of the workshops held by the district official at the beginning of 2022, they were advised to purchase the governance books. They were told that the governance books could be provided by the district for free. After the workshop, the SGB held a meeting and the Fincom was tasked to get the quotes and the Applicant was tasked with how they can get the books for free from the district. They have not received feedback from the Fincom.
45. When they finally got to view the bank statement, they saw the transaction in Allegation 2. They asked the Applicant and he told them that he did not know and he will investigate. At the time, Maditsi was elected as a new Treasurer replacing Gore. The Finance officer produced an invoice of where the books were purchased.
46. Concerning Allegation 4, during the process of analysing the bank statement, they saw a payment to the Applicant and Makhubele. The SGB never approved the amount or the Section 38A including the parents. Ramanyoga detailed the procedure to follow for the approval of the Section 38A application. She submitted that Section 38A should be a separate agenda item during the parents’ meeting and thereafter the SGB would take an extract of the minutes to the district. After that, the Applicant would receive the approval letter.
47. The extract of section 38A minutes was not a true reflection because she was the SGB Secretary of the meeting in 2021. The budget was presented to the parents but not approved and it was presented again in 2022. The Section 38A amount was not presented to the parents and the minutes of the SGB confirmed that .
48. Ramanyoga saw the Section 38A approval letter for the first during her testimony at the district in the disciplinary enquiry against the Applicant. She did not know how the Applicant received the letter however it appeared to be fraudulent because it was dated before the decision could be taken. The document was not a true reflection of what transpired at the SGB to receive an approval letter including the Applicant’s affidavit which stated that the S38A minutes went missing was not true.
49. Ramanyoga submitted that she received a request from the new SGB Secretary for the handover which she did. The new SGB requested Mkhabela to represent him during the handover. She reported to the SGB that the handover was done. She prepared a checklist of what was handed over.
50. Mothupi requested an affidavit stating the minutes went missing and Ramanyoga refused. Magoro was elected to be the Secretary in the meetings and had the minute book. Magoro had the minutes electronically and those minutes were sent to her and the SGB.
51. Concerning allegation 5, Ramanyoga submitted that there was no meeting of the SGB that reinstated SAOD and the payment was done without the approval of the SGB. Ramanyoga relied on the unsigned minutes of the SGB where they state that “SAOD to be placed on hold from October 2021 and SGB employees be paid directly from the School’s bank account to eliminate third party cost”.
52. During the analysis of the bank statement, they asked the Applicant about the SAOD payment and he stated that he did not know and would revert to them. SAOD was paid while they employed a Finance officer to perform SAOD duties.
53. The signed minutes went missing and the reason was that after the Applicant was placed on precautionary transfer, during a meeting with Marakalala, her, Marotholi, Maditse and the acting Principal, when they perused the SGB Secretary, they found documents missing in the file. The documents went missing under the Applicant’s care.
54. The Respondent’s 3rd witness Ben Maditsi (“Maditsi”) testified on allegation 2. Maditse submitted that he was self-employed and also a parent at the school.
55. Maditsi was elected to the SGB in late 2019. He became aware of allegation 2 after the SGB were analysing the bank statement and that’s when they saw that the amount was questionable.
56. During the purchase of an item, a requisition had to be approved by the Applicant and load a payment on the system. The Treasurer would approve then the process would be complete.
57. Maditsi submitted that the Fincom after they were tasked with obtaining quotes, did not provide feedback to the SGB. The Technisa quote was received after they accessed the bank account and they realised that the item could have been found cheap somewhere else. The price of a book was about R100.00 if it was the most expensive. The Applicant indicated that he did not know after they enquired with him.
58. About allegation 3, Maditsi testified that there was no SGB meeting to discuss or approve the payment. The overtime would only be approved if it was related to the SGB staff. Marema was an SGB employee payment would have been due to him if he worked overtime and it was approved.
59. About allegation 4, Maditsi submitted that during the analysis of the bank statement, one of the SGB members said the Section 38A payment was not allowed without approval from parents. The SGB never applied for Section 38A payment.
60. The Applicant was requested to provide after aftercare duty list before tabling the budget at the parents’ meeting which he did not. Section 38A would be an item in the budget for the approval by parents.
61. Maditsi submitted that the process of S38A would require the applicant to make an application to the district with the approved budget, minutes and attendance register of that meeting. The district would conduct a process to check if the school could afford it.
62. On 24 February 2022 was an extended meeting from 2021 and the SGB budget presentation was approved by the parents. It was in that meeting that Maditsi was voted as a full member of the SGB. Section 38A was not tabled during that meeting.
63. Maditsi became aware of the Section 38A approval letter at the disciplinary enquiry of the Applicant. He disagreed with the letter and stated that it was confusing because it was dated 04 November 2021. During that period the meeting with the parents was deferred and it would have been impossible for the district to issue the letter.
64. About allegation 5, the SGB had to stop the services of SAOD because the SGB employees were not getting UIF benefits. After the payroll was processed in-house by the Finance officer who was later replaced by a new one. The bank statement indicated a payment to SAOD and the Applicant stated that he did not know anything, it was the Treasurer and the Finance officer that made the payment despite the SGB not approving the reinstatement of SAOD.
65. After the discovery of the payment, the SAOD services were stopped again. Maditse, the Chairperson and the Acting Principal visited the company to understand what happened with the UIF issues. The information pointed to an error by the Department of Labour systems. They gave feedback to the SGB and SAOD was reinstated.
66. The Respondent’s 5th witness Mr John Marakalla (“Marakalla”) testified that he was the Respondent’s Deputy Chief Education Specialist responsible for the management of discipline, grievances and disputes amongst others.
67. Marakalla was approached by the employer representative during the Applicant’s disciplinary enquiry indicating that the Presiding officer gave a directive that the Applicant had to obtain the documents from the employer. He stated that they needed to arrange with the SGB to allow the Applicant to access the documents and the SGB agreed .
68. Arrangements were made for the Applicant to go to school on 28 April 2023. Marakalla, the Deputy Principal, the acting Principal, the acting IDSO, and the following SGB members; Ramanyoga and Maditsi went to school to ensure that the process was seamless however the Applicant did not arrive and indicated that he was not around. This was recorded in the logbook as evidence.
69. Commenting on the Applicant’s affidavit Marakalla submitted that the Applicant upon returning from precautionary transfer, came to his office and made a presentation that he wanted to return to school. Marakalla wanted to ensure that the Applicant was integrated and because the circuit support team was unavailable, he agreed to take the Applicant to school on 24 March 2023. He engaged with the Acting Principal and the School Management Team (SMT) that the Applicant was returning to school.
70. On 24 March 2023, Marakalla went with the Applicant to present him to Phukubje (IDSO). Marakalla got a call from the Head Office that there were disturbances at the school. The cluster leader compiled a report about the school and the SGB wrote a petition to the district Director.
71. The Respondent’s last witness William Stephunus Nel (“Nel”) testified that he was responsible for administering policy submission on S38A.
72. Nel detailed the process of the Section 38A application by referring to the workflow. He submitted that the financial year for the schools began on January to 31 December each year.
73. A Section 38A notice would be sent to parents so that the budget could be put on the agenda during the AGM. The Section 38A item must be separate from other budget issues during the AGM. After the AGM approval, an extract of the minutes of the meeting would be sent to the district with the amount approved signed by the Chairperson, Secretary and the Treasure.
74. Upon receipt of the extract of minutes of the meeting, a final letter of approval would be signed by the district Director and sent to the school for implementation. The approval letter was created at the end of 2021 and it was safely locked. This approval was released after they received the extracts of the minutes.
75. The Section 38A checklist compiled by Nel on 12 July 2021 had shortcomings in that the agenda, attendance register and minutes of the SGB were not included. The total amount applied by the school was R74000.00 .
76. The SGB minutes of 18 February 2021 , were sent to Nel however the school did not comply with the procedures because they contained the names of those who would receive Section 38A without stating the amount. Nel created a template drawing the attention of the Applicant and the SGB to the shortcomings in the application. The only part adhered to was the SGB minutes of the finance meeting of 2022.
77. Nel sent an email to the Applicant informing him that they could not proceed with the application until the issues were resolved and thereafter received an affidavit from the Applicant stating that the minutes were missing. The extract of the AGM was received by him signed on 17 July 2022 stating the amount of R74000.00 signed by the Chairperson, Treasurer and Secretary.

The Applicant’s Testimony and Evidence

78. The Applicant’s 1st witness Lovemore Gore (“Gore”) testified virtually in United Kindom that he knew Marotoli, Ramanyoge and Maditsi (“the three Respondent’s witnesses”).
79. Gore submitted that he never had a meeting outside the formal SGB meeting. Marotholi, Ramanyoge and Maditse were working against him and the Applicant and they did not want him and Mothupi as SGB members. He supported the Applicant’s version that there was a plot to remove him from the school. The SGB had a division and they were in the majority.
80. Gore discovered that a female school uniform service provider was related to Ramanyoga. Ramanyoga wanted the SGB to pay the service provider and after they paid she delivered the uniform. After Gore and the parents wanted to buy school uniforms at Parktown, they plotted to remove them.
81. Maditsi bought twenty-one (21) laptops for the school at Incredible Connections and they came pre-programmed. Maditsi pretended something was missing in the Laptops. He pretended to put Windows 7 software in the laptops and charged the school R25000.00.
82. The school purchased ten (10) smart boxes at R380 000.00 and it went through because there were serious factions and they outvoted the Gore faction because they were more.
83. There was renovation at the school and the contract quoted R400 000.00. The contract was told to pay a bribe of R100 000.00 by the three employer witnesses however they did not know that the contractor was connected to Gore. At that time Gore was out of the country and when he came back the contractor told him that they gave the contract to someone. Gore described the Applicant as an honest person.
84. The Applicant testified in his evidence in chief and stated his age, qualification and work experience including school governance. The Applicant submitted that the Fincom as an SGB sub-committee was a delegated structure by the SGB composed of the Principal, the Chairperson who must be a parent and an SGB member and the Treasurer. The SGB office bearers included the Principal as the HOD representative, the Chairperson, the Secretary and the Treasurer.
85. The first type of co-opted members are co-opted because of their expertise however they do not have a say in decision making. The second type was those who were filling vacancies in the SGB during bi-elections.
86. The Applicant submitted that he never had any issues with the previous SGBs. He started knowing about Marotholi late in 2021, Ramanyoga in mid-2021 and Maditsi in 2019. They were the SGB whom he had many problems with. They aimed to take control of everything at the school including taking out the management of the school.
87. The three employer witnesses would come to school pretending to raise issues with their kids and move to SGB issues which the Applicant had a problem with and he would refer them to the Chairperson. All employer witnesses were new parents at the school except Maditsi.
88. He knew Marotholi during a meeting called by the HO to resolve some issues. In the same meeting, the Chairperson Makgoba resigned stating that she could not work with Ramanyoge as the Secretary of the SGB. Ramonyoga proposed that since Makgoba was a parent component the post should be filled. The Applicant proposed that parents should be notified however Ramanyoga insisted that she knew someone who was a friend and parent at the school. After she made a call outside, she came back that Marotholi would come to assist in fighting the issue that’s how the Applicant knew Marotholi.
89. The conduct of Ramanyoga was not proper in terms of the general conduct of SGB members . She manipulated other parents as she was a senior office bearer.
90. The Applicant started knowing Ramanyoga at the beginning of 2021 when she came looking for a space at the school for her child. He told Ramanyoga that he did not have a right to admit the learners as the process was done online. Ramanyoga’s application was rejected because she stayed in Lotus Gardens which was 30 kilometres away from the school.
91. After some time, Ramanyoga came to his office carrying a document from the John Ngobeni – Cluster leader and said the Applicant should admit her child. Ngobeni visited the school and insisted on admitting Ramanyoga’s child. The Applicant recalled during the SGB meeting that Ngobeni came unannounced to the SGB meeting and stated that Ramanyoga’s child was admitted to the school. In the same year, Ramanyoga joined the SGB.
92. The Applicant met Maditsi in 2019 when he came to apply for an exemption from school fees because he was unemployed. After engaging with Maditsi, he realised that Maditsi knew information technology (IT). The Applicant took his credentials to the SGB and that’s how he was co-opted as an SGB member without voting rights. Maditsi was announced to the parents however Marotholi was not announced to the parents.
93. The Applicant knew Nel as a person who dealt with S38A applications since 2012. His relationship with Nel was excellent.
94. The Applicant met Marakalla when he came to deliver the audi alteram partem (Audi letter) letter in 2022 and that was the last time he saw him because the letter instructed him to report to the District.
95. About allegation 2, the Applicant testified that the invoice stated the student’s name as Lesego Mothupi who was the SGB Chairperson. The procurement was the responsibility of the Fincom and after the mandate from the SGB, they obtained three (3) quotes. They used the advantage of Mothupi because he was an advocate and liaised with the college.
96. At the time when they gave feedback to the SGB, Ramanyoga and Marotholi were not attending the SGB meetings but that did not stop the SGB from reaching a quorum as the SGB members in total were nine (9). The books were delivered and recorded in the stock register.
97. About allegation 3, Maditsi was a co-opted member with no voting rights. Maditse would not know the decision of the SGB members as a co-opted member. The previous members of the SGB knew about overtime payment for the performance of extra duties. They were instructed by the Respondent to supervise security guards, pay salaries of SGB etc. There was always a register and an order form in terms of the finance policy.
98. The extract of the AGM template was given to them by Nel. The aspect of S38A was discussed in November 2021 however the entire budget was deferred and was again discussed in February 2022. Minutes for meetings that took place in November 2021 and February 2022 were taken however they were missing.
99. The reason why the extract of the AGM was dated in May 2022 was that the application was done in 2021 to the District. The minutes got lost and the extract was drawn from the direction of Nel.
100. Ramanyoga took the minute book home without the Applicant’s permission. She later reported that the minutes were missing. The SGB Chairperson requested an affidavit but she refused. The Applicant stated that it was a clear sabotage because they were a school asset. Ramanyogo took advantage of that because he was not there.
101. The Applicant testified on his bank statement and the school bank statement to prove that the three (3) employer witnesses stated that they did not approve and knew nothing about Section 38A payments. After they took over in August 2022, they paid him but they testified that they have not approved. The payments were made two months in succession.
102. The Applicant went to Nel in January 2022 informing him that the November 2021 meeting was deferred. Nel stated it was not the Applicant’s school where the budget was deferred and they were signing the approval letters in advance. After the deferred meeting he must send him a copy of the minutes.
103. About Section 38A compliance form the Applicant submitted that the form was signed on 04 August 2022. In 2023, he was not at the school but it proves that it informs the 2023 application and the dates were tempered with. The meeting between Nel and the Applicant was stopped because Marakalla informed Nel to stop the meeting.
104. There was a loader of the transaction, either the Chairperson or the Treasurer must authorise and the Principal must approve. All the banking transactors had their personal identification number to transact. The Applicant could not pay himself without the others. Payments are done by the Fincom and reported to the SGB quarterly.
105. The Applicant disputed the SGB budget presentation because the school letterhead was written in italics but this one was in straight form.
106. About allegation 5, The Applicant testified the invoice and the remuneration list came from SAOD after rendering services . He could not recall SAOD being stopped from rendering the service as there was an existing contract with them that required a notice of termination. SAOD services were suspended and Fincom was instructed to investigate the issues with SAOD. It was agreed that the payment of salaries would be done in-house however the invoice was for May 2022. He submitted that SAOD was still providing services to the School even after this dismissal.
107. The three employer witnesses were not fully participating in the SGB. This was after he broke a tie in the elections of the Chairperson and the Treasure that did not favour Ramanyoga and Marotholi.
108. The Respondent was unfair because the responsibility of finance was placed on the Fincom and the SGB. The Applicant did not take the school funds to empower himself.
109. Concerning Marakalla’s testimony, the Applicant submitted that Marakalla took him to school and introduced him to the SMT after his precautionary transfer. They agreed that the following day he would be introduced to the learners. On the following day, he found that there was a group of parents of not more than ten (10) parents. He did not believe that the parents were from the school and the three SGB members blocked the entrance to the school. He was never allowed to enter the school.
110. The Applicant serviced the Respondent for forty (40) years with a clean record and he was dismissed like a dog. He had a chronic illness and his medical aid was stopped. The housing bond was cancelled and his cars were repossessed as a result of his dismissal.

ANALYSIS OF EVIDENCE AND ARGUMENTS

111. It was evident in this arbitration that there were conflicts between SGB members and also that there were divisions. At the centre of the Applicant’s dismissal, were the transactions in the school’s bank statement which was the source of the Applicant’s charges.
112. The employee bears the initial burden to prove the occurrence of a dismissal. After this is established, the employer must then prove the fairness of the dismissal, which includes showing that it was for a permissible reason and followed a fair procedure. The Labour Appeal Court in Mbanjwa and Senzeni v Shoprite Checkers & Others reiterated that employers must provide tangible and admissible evidence to substantiate claims of misconduct; mere suspicion, regardless of its strength, is inadequate .
113. Did the Respondent succeed in proving that the Applicant’s was procedurally and substantively fair based on the allegation which the Applicant was dismissed for? This is what I have to determine.
114. It was evident in this arbitration that key documentary evidence in the form of the SGB that would have assisted in determining this dispute was not part of the Parties’ bundle of evidence. The Applicant raised a dispute of procedural unfairness on the basis that he was disallowed to obtain documents that would have assisted in defending himself against the allegation he was facing.
115. Both Marothodi and Ramanyoga in their evidence in chief testified that the signed minutes went missing after the Applicant was placed on precautionary transfer, suggesting the Applicant had custody of the documents.
116. According to the evidence, Ramanyoga was responsible for taking minutes of the SGB meetings. She testified that prepared a checklist of what was handed over during her tenure as the Secretary and Magoro had the minute book which was kept at the school when she left as Secretary. She had electronic copies which were shared with the SGB members. The Applicant testified that Ramanyoga took the minute book and refused to provide an affidavit when requested by the SGB Chairperson.
117. There was no credible evidence of how the minutes went missing. I find it implausible that the Applicant took the minute book after he was placed on a precautionary transfer because no one provided testimony as to what the Applicant took when he left the school after he was placed on a precautionary transfer. There was no credible evidence to support the Respondent’s version.
118. Ramanyoga, Marotholi and Maditse were instrumental in issues that led to the Applicant being placed on a precautionary transfer. The only person who could corroborate Ramanyoga’s version was Magoro and she was not called to testify however both Ramanyoga and Magoro were custodians of minutes and therefore they should take responsibility should anything happen with the minutes.
119. The Applicant’s accusation did not assist because he did not provide evidence to support his version. Further, the Respondent did not provide the investigation report perhaps it would have shed light on the missing minutes if indeed they were missing. I am stating this because minutes in my view were key to the Respondent’s case however the minutes were evident that they were at the care of the Respondent after the Applicant’s transfer and the Applicant was never allowed to return to school.
120. According to Ramonyoga, Gore called a meeting because the Applicant did not want him to access the financial records and to change the signatories to the bank account. Marotholi who was a friend to Ramanyoga joined a meeting to assist in drafting the letter to the Respondent for assistance.
121. Gore provided contrary evidence in cross-examination in that it was the former SGB Chairperson who did not want them to have access to the school and was delaying authorising them to come to the school. It was not the Applicant. It is worth noting that Gore was the initiator of the meeting at Casper and the complainant and therefore his evidence carried more weight than that of Ramanyoga and Marotholi. Marotholi was not a member of the SGB at the time but came to assist in drafting the letter.
122. The Applicant testified that there was a plot to remove him because the Marotholi, Ramanyoga and Maditsi wanted to gain financially at the school. The Applicant’s version was corroborated by Gore who testified that the Respondent’s witnesses also wanted to remove him.
123. Ramanyoga in cross-examination testified that she knew Justine Fashion Styles who provided uniforms to school in 2021 when she was the SGB Secretary. Although she denied any relationship with the supplier, Ramanyogo testified that she assisted the supplier in delivering the uniform on behalf of the supplier to avoid the delivery cost because the supplier was staying in Lotus Gardens where she was also residing. It was also confirmed that Marotholi was Ramanyoga’s friend and was called in to assist in drafting the letter at Casper restaurant. Following that meeting, Marotholi was co-opted to the SGB.
124. Maditsi in cross-examination testified that he knew Joseph Kolotsi who was his neighbour and recommended his professional services who made the purchase and updated the software. It was important to note that Maditsi was co-opted to the SGB because of his IT knowledge.
125. Considering the Respondent witnesses’ testimony in cross-examination about the friendship between Ramanyoga and Marotholi including how she got co-opted in the SGB and the involvement of Ramanyoga and Maditsi with the suppliers who are known to them and resided in their neighbourhood raises a question of potential conflicts of interest as SGB members and dented their testimony as credible witness acting in the interest of the school. It further supports the Applicant’s version of a plot to remove him.
126. Concerning allegation 2. The main issue in this allegation was that the Applicant did not have the approval to purchase the law books to the value of R5000.00. According to evidence, the Fincom was tasked to obtain quotes and report back to the SGB.
127. It was only Ramanyoga’s testimony in evidence in chief that the district could provide the books for free. In cross-examination, Ramanyoga submitted that she could not recall who people who checked the prices from Jata. It was not clear why the district official did not provide them with these books if they were for free and if they were the ones who recommended the books. Marotholi testified that someone checked the online prices for books which was about R100.00 and Maditsi called Technisa and they told him that they were not selling books. In this regard, none of the Respondent’s witnesses corroborated each other. A probability exists that their version was presented to cast an aspersion of inflating the price of the book against the Applicant.
128. It was not disputed that the invoice had the name of the SGB Chairperson and also that the bank transaction involved three people. It was odd that the Applicant was the one who was blamed for purchasing the book when the transaction was processed by three people who were members of the Fincom. I therefore find that the Applicant is not guilty of allegation 2.
129. Concerning allegation 3, it is important to note that none of the witnesses who testified were members of the SGB in 2020 as per the allegations except for Maditsi who joined the SGB in 2019 as a co-opted member. Maditsi testified that as a co-opted member was not privy to all the SGB meetings. Marotholi also confirmed in cross-examination that she was not in the SGB when the financial policy was drafted because she was co-opted in 2021. The Respondent did not call a witness to testify about the approval by the department. It was not a disputed fact that it required the Fincom to approve the transaction and therefore the Applicant could not have allowed the overtime payment without the knowledge of other Fincom members. As I have stated before, the source of the Applicant’s allegation was the bank statement spearheaded by the three employers’ witnesses and this allegation in my view confirms a witch-hunt. I therefore find the Applicant not guilty of allegation 3.
130. Concerning allegation 4, the main issue was that the SGB or the parents did not approve the Section 38A as required by the statute however no minutes were supporting the version that the parents did not approve the Section 38A application. The Respondent relied largely on the witnesses’ oral testimony in this regard. The other contentious issue was the Respondent’s S38A approval letter that was issued to the SGB or the Applicant and the extract of the SGB minutes. It was not disputed that Section 38A was approved in the previous years.
131. Ramanyoga testified in cross-examination about the missing and submitted that the minute book was in the care of the school. The minute book was a credible source of what was discussed during the meeting. I agree with her on this version.
132. Ramanyoga conceded that the letterhead on page 17 which was the SGB preparation meeting on 24 August 2022 and page 20 of Bundle R was not the same. I find that this concession places the credibility of the SGB preparation meeting document in question. She further testified that the budget presentation minutes were typed by Magoro and she was chairing the meeting however Marogo was not called to corroborate this version or to testify on the credibility of these minutes. The other concerning issue was that the minutes were unsigned and that there were parents meeting attendance registers without signed minutes. In my view, the attendance register would go along with the minutes of that meeting but in this case, the minutes were missing.
133. There are disputed versions between Nel and the Applicant on the facts around the approval letter. Nel testified about the process of the Section 38A application. Nel testified about the application process for Section 38A emphasising the extract of the minutes where Section 38A was approved by the parents to be submitted to the employer. The extract must signed by the Chairperson, Secretary and the Treasurer and thereafter the Section 38A approval letter will be issued.
134. The extract of the 2021 AGM was submitted to Nel and signed on 17 July 2022 following various to and from communication between Nel and the Applicant this was after Nel rejected the extract of the minutes dated 18 February 2021 because it did not mention the figures. The signatures on the document were consistent with Nel’s testimony in cross-examination.
135. Nel submitted that the Section 38A approval letter was prepared in advance and kept in the office. This proves that there was a Section 38A application that was made to the school. It was not disputed that the Respondent’s witnesses were aware of the intention of the school to apply for S38A because according to testimony, they requested the Applicant to provide the list of duties.
136. According to Nel’s testimony, the Section 38A approval when issued, must be signed off. Nel submitted that he had the register where the recipients of the letter were signed. In my view, this was key evidence to prove when the approval letter was issued. Nel submitted that the Respondent did not ask him to bring the letter.
137. The Applicant was charged and dismissed for facilitating a payment of Section 38A without the approval of the SGB however evidence does not point to the Applicant facilitating the payment on his own but there was an involvement of the other SGB members who were not called to testify. The testimony of the three employers’ witnesses regarding the Section 38A application was not plausible because they had never been exposed or made an application before unless there was evidence proving otherwise. I therefore find the Applicant not guilty of allegation 4.
138. Concerning allegation 5, there was a contradicting version as to whether the SAOD contract was stopped according to the Respondent’s witnesses or suspended according to the Applicant’s witnesses. The main contention of the Respondent’s witnesses was that there was no decision to reinstate SAOD and as such the Applicant paid SAOD without the approval of the SGB. Despite this contradiction, there was no evidence presented as to when the SGB started paying the SGB employees. The remuneration list proved that the SGB employees were paid by SAOD. Again similar to the other allegation, three people were responsible for the payment and were SGB members however the Applicant was singled out in this allegation. Despite the Applicant being charged for SAOD it was a fact that SAOD was still providing services to the school. I therefore find the Applicant not guilty of allegation 5.
139. In conclusion, the Respondent did not discharge its onus to prove that the Applicant’s dismissal was fair. Key documents which would have assisted the Respondent to prove its case was not part of the bundle. The three employer witness’s credibility was questionable and their evidence cannot be completely relied upon in particular on the testimony of possible conflict of interest.
140. There was glaring evidence of different factions and power struggles in the SGB which resulted in other SGB members resigning from the SGB. Other credible witnesses such as parents could have been called. The schools should not be a centre of factional politics however this case displayed factional politics. There must be a clear line between governance and learning.
141. The conduct of the witnesses of the Respondent was not per the code of conduct of the SGB. The fact that an SGB protest and Marotholi posting on social media violated the Applicant’s rights when he was supposed to return to work from precautionary transfer. Marothili’s conduct was clear that she was influencing parents to act adverse against the Applicant on unproven allegations. The fact that the Applicant was denied access to the school undermined the rule of law and the Applicant’s rights to fair labour practice. The SGB or the parents are not the Applicant’s employer. The Respondent in my view failed to protect the rights of the Applicant in this regard.
142. Did the Respondent deny the Applicant an opportunity to collect documents to prepare his case or not? According to the Respondent’s witnesses, an arrangement was made with the Applicant to collect the document but such arrangement included some of the Respondent’s key witnesses and I do not comprehend the reasons why they were involved in the employment relationship that did not concern them. It is very difficult for me to conclude that the Applicant was allowed to get the document. The Respondent could have made future arrangements for the Applicant.
143. The other issue of concern was that the Applicant was not issued with the investigation report. Without the investigation report, it was not clear how the Respondent concluded to charge the Applicant and what evidence it perused to validate the complaints of its witness.
144. The access to the school’s bank statement has been on the radar of the three employer witnesses coming from the Casper meeting. A considerable effort was made to ensure that the bank statement was obtained. There was no evidence that any other documents were obtained. Immediately after they accessed the statement, then the allegations against the Applicant came out.
145. Considering the above, the Applicant is acquitted of all allegations against him. I find that the Respondent failed to prove that the Applicant’s dismissal was fair. I further find that the Applicant should be reinstated with the back pay.
     AWARD
146. I, therefore, issue the following award;

146.1. The Applicant’s dismissal is procedurally and substantively unfair.
146.2. The Applicant is reinstated effectively from three (3) March 2025.
146.3. The applicant shall report for duty within two (2) working days after this award is served to him by the ELRC.
146.4. The Respondent is ordered to pay the Applicant a total amount of R767,002.60 as back pay calculated from 1 November 2023 which is the Applicant’s date of dismissal until the date of this award (Monthly Gross Salary: R45948.00 x 16 Months and 15 days = R767,002,60 ) by 11 March 2025.Chance Khazamula
ELRC Panelist
Date: 03 March 2025

Jairajh