Panellist/s: Seretse Masete
Case No.: ELRC 1030-24/25MP
Date of Award: 04/06/2025

In the ARBITRATION between:

Wafawanaka Elliot Katsenga

(Union / Applicant)

                                                                                And

Department of Education : Mpumalanga (1st Respondent)
Makhongwana W (2nd Respondent)

(Respondent)

Union/Applicant’s representative: Mr C Machingura, an Attorney
Union/Applicant’s address:
Telephone:
Cell:

Respondent’s representative: PM Shabangu

Respondent’s address:
Telephone:
Cell:

Particulars of proceedings and representation

1. The matter was held on 16 May 2025 at the 1st respondent’s premises in Mbombela.
2. The Applicant, Wafawanaka Elliot Katsenga was represented by C Machingura, an Attorney from Machingura Attorneys, while the 1st respondent, Mpumalanga Provincial Department of Education’s Head of Department (HoD) and the 2nd respondent, Wanele Makhognwana, were represented by Phemba M Shabangu.
3. The proceedings were in English and digitally voice recorded.

Background and Nature of the dispute

4. The applicant was employed by the 1st respondent as a teacher in January 2008, and he was stationed at Kusasalethu comprehensive school, earning R31,000-00 per month at the time of the dispute.
5. He applied for the promotional post and he was shortlisted. He was later invited to attend the interviews where he obtained position one, but he was not appointed.
6. He challenged both the procedural and substantive fairness of the 1st respondent’s failure to appoint him and sought to be appointed into the disputed promotional post .
7. The 1st respondent challenged the applicant’s allegation, citing that he (applicant) needed to prove that he was the best candidate to be appointed.
8. The applicant testified as a witness, called one more witness and submitted one bundle of documents marked EE, while the 1st respondent called 3 witnesses including the 2nd respondent, and submitted one bundle of documents marked ER.

Survey of evidence by the applicant.
The applicant, Wafawanaka Elliot Katsenga, testified under oath as follows:

9. He applied for the promotional post in dispute, attended the interviews where he obtained position one, but he was not appointed, see page 49 of bundle EE. In refusing to appoint him, the interview committee, cited amongst others things that he was a foreigner and that he was about to reach the retirement age, see page 50 of bundle EE. Mr EA Vilakazi who was the co-author of the submission on page 50 of bundle EE, was not even the chairperson of the SGB at that time. He (applicant) had a South African citizenship issued by the department of home Affairs (DHA). He was a good performer in grade 12 and he contributed to the school in obtaining position one with grade 12 results. However, the 1st respondent removed him from teaching grade 12 in 2023, and that decision compromised the performance of the school, see pages 24,27,28,29 and 30, of bundle EE. The school results dropped after Sibanyoni VC took over his subjects, see pages 32 and 33 of the same bundle EE. He had far more experience than the 2nd respondent. He felt he was discriminated against, due to the fact that he was from Zimbabwe. He believed that the 1st respondent did not care about the school. The 2nd respondent has never taught technical science, civil and electrical technology subjects. The advert was on page 18 of bundle EE. The 2nd respondent was teaching physical science which was not part of the subjects indicated on the advert. There was a female foreign educator (Apoka Phiri) from Zimbabwe who was appointed into the promotional post. He did not know whether Apoko Phiri had a permanent South African citizenship or not. The 2nd respondent was not even heading the department he applied for after being appointment, he was instead, placed in the physical science department. Mr N Malange was given the technical sciences and natural sciences subjects, and the other two subjects were given to Apoko Phiri. He found it strange for someone to be appointed in a particular department but take up other positions. The 2nd respondent would further be allowed to take the learners he was not teaching to the camp, leaving his own learners behind. When he (applicant) enquired which criteria was used to appoint an educator to take the learners to the camp, he was told that performance was the criteria used. Ironically he (applicant) was the one who was performing better. The 2nd respondent once applied for marking at the marking centre using his (applicant’s) results and the principal authorised it. That conduct amounted to fraud according to him and it further blocked him (applicant) from being appointed as a marker where he would normally be appointed as a senior marker. He was not even reporting to the appointed candidate.
10. He prayed that he be promoted and appointed as the departmental head of the post he applied for. He further wanted his salary to be retrospectively adjusted with effect from the first of December 2024.

2nd witness, Patuwe Bridgett Xaba (Xaba), testified under oath as follows:

11. She was the applicant’s colleague and she was working at the same school with him. She was a PL1 educator and also served in the School Governing Body( SGB). She was not familiar with the score sheet displayed on page 49 of bundle EE. She was however, one of the scorers during the interviews, but her name and Mthethwa’s name did not appear on the names of the signatories. There were some misunderstandings between the principal (Jele), SGB and union members during the process. The principal stood up during the altercations and one SADTU member requested him to sit down, but he was reluctant to sit down. There was no follow up meeting to consolidate the interview results to date. She did not know how the 2nd respondent was appointed because the interview committee did not sit down and make recommendations as claimed on page 50 of bundle EE. Mr Mdluli was also one of the members of the interview committee, but his name was not on the list on page 49 of bundle EE. Ms Kgala was the secretary for the day. There was no chairperson during the interviews because Mr Mdluli refused to be one.
12. She did sign the first minutes of the interviews, but she was later called to come and sign the minutes again. She refused to sign for the second time because she already signed the first ones. She was not familiar with the minutes on page 1 of bundle ER, but she knew the scores on that page because she was part of the scorers.
13. In closing, the applicant argued that the dispute was about appointments where he scored 109 points ahead of all the other candidates. The meeting to recommend the appropriate candidate was abandoned. The principal (Jele), testified that Mthethwa and Xaba refused to sign the minutes for reasons unknown to him. That made it clear that the minutes, the scoring and the attendance register, lacked credibility because the people who were present in the interviews, refused to sign. There were people who had nothing to do with the process but they signed the interview minutes. That was caused by the chairperson of the day who did not want to recommend him (applicant). All that information was enough for the commissioner to make a decision. All the evidence showed that he (applicant) excelled in the interviews. The 2nd respondent alleged that he (applicant) was not performing well but he (2nd respondent) did not asses him (applicant). Only opinions were formed during the arbitration. He prayed that the commissioner appoints him (applicant) retrospectively into that promotional post with effect from December 2024.

Survey of evidence by the 1st respondent.
1st witness, Elphas Albert Vilakazi (Vilakazi), testified under oath as follows:

14. The principal was the chairperson of the interview committee and he (Vilakazi) was an acting chairperson of the SGB at that time. He was familiar with the members of the interview committee who scored the candidates on page 9 of bundle ER and page 49 of bundle EE. The document on page 10 and 50 of bundles ER and EE respectively, was prepared by him. He confirmed that the employee scored higher than the other candidates, but the interview committee recommended the 2nd responded. He signed the documents of the interviews as the acting chairperson of the SGB, meaning that the chairpersonship on page 9 of bundle ER was referring to him as the chairperson of the SGB not of the interview committee. The 2nd respondent was teaching physical science and technical sciences. It was put to him that the 2nd respondent was not teaching technical sciences. He answered that he was not an educator, so he could not answer that question. He declined to answer the question as to why they recommended a person to be promoted into a higher post which had the subjects he was not teaching.

2nd witness, Sipho Bhekimuzi Jele (Jele), testified under oath as follows:

15. He was the principal of the school. Pages 9 and 50 of bundle ER and EE respectively, were the minutes of the interviews that took place at the school. Four candidates availed themselves for the interviews. The interview committee recommended the 2nd respondent, and the SGB as well as the union representatives signed the recommendations. Three candidates, the applicant, the 2nd respondent and Sibanyoni, were recommended for appointment, and the 2nd respondent was ultimately appointed. The appearance of mathematics on page 1 of bundle ER was a mistake. The 2nd respondent was teaching technical and physical sciences and he measured in civil technology in his studies. The teacher who teaches physical science can also teach technical science because technical science has just been introduced recently. They wanted a person who could manage those technical science subjects. All the interview committee members on page 9 of the ER bundle, were members of the SGB. He did not know why Ms Xaba said she was not aware of page 9 of bundle ER. Pages 10 and 50 of bundles ER and EE respectively, were the recommendations made by the SGB where they recommended the 2nd respondent.
16. The 2nd respondent was recently appointed to mark physical science at the marking centre. It was put to him that the 2nd respondent once marked technical sciences which he was not teaching. He answered that he was not certain because a teacher would sometimes be called directly to go and mark at the marking centre. It was put to him that he was a very devious person. He answered that if the 2nd respondent was asked to come for marking, he would allow him to go. Page 9 of the ER bundle was prepared by the school clerks. The people on the bottom of page 9 of bundle ER were signing to agree with the scores. He was the chairperson of the interview committee. It was put to him that Mthethwa and Xaba did not sign for the allocated scores. He answered that there was no space for them to sign and it did not mean that if someone did not sign it was not the true reflection of what happened. It was put to him that the scorers did not sign the minutes on page 1 of bundle ER. He agreed. It was put to him that if participants (scorers) did not sign but only put initials on the document, it becomes prone to manipulation. He answered that the participants refused to sign and did not give a reason. He denied to have picked up his people to agree with him by only putting their signatures. To him it made sense for an educator who produces poor results to assist the one producing good results. It was put to him that some members of the interview committee refused to sign the recommendations because he (Jele) wanted a poor candidate to be recommended. He did not comment. He was asked as to whether the appointed candidate (2nd respondent) was performing the subjects he applied for. He said yes. The 2nd respondent was supposed to perform the work pertaining to technical subjects, but because he was working with Mr Malange ( see page 52 of bundle EE), Mr Malange took control. It was put to him that page 52 of bundle EE, corroborated that the person appointed to head the technical sciences department was not doing his work, as it was done by Mr Malanga. It was further put to him that he was biased and his biasness was corroborated by his comment on page 50 of bundle EE. It was also put to him that he was devious and lying. He answered that he did not know why an ID was given to a foreigner by the DHA. He conceded that he acted with prejudice. He further conceded to have appointed Apoko Phiri as a Zimbabwean national into a promotional post.

3rd Witness, Wanele Makhognwana(2nd respondent), testified under oath as follows.

17. He was managing physical sciences, life sciences, technical sciences and natural sciences department. Page 52 of bundle EE, was a monitoring report of the applicant done by Mr Malange. He was teaching physical sciences and life sciences and Malange was teaching technical sciences.
18. He was not Jele’s favourite. It was put to him that the report which showed that he was not doing well, was compiled by the school. He responded that he was not doing worse. Technical sciences were the subjects for the weaker leaners than physical science which was a pure natural science. It was put to him that the applicant was never given a chance to teach physical science, and his(2nd respondent) comparison was therefore incorrect. He respondent that he was assessing the applicant though he did not have evidence to proof it.
19. In closing, the 1st respondent’s representative argued that the minutes concluded in that interview process and the final score sheet, were a final and correct reflection of what transpired during the interviews. The final decision lied with the district director to appoint as it was held in Noonan v SSSBC matter, which held that the highest scorer in the interviews was not necessarily the one to be appointed.

Analysis of the evidence and arguments

20. The dispute before me was about unfair labour practice in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as mended (the Act). The applicant alleged that the 1st respondent failed to appoint the employee into the promotional post of the departmental head technical sciences at Kusasalethu technical school. He testified that the 2nd respondent was not even teaching the technical subjects but physical science. He (2nd respondent) was not even placed in the post he applied for. The subjects within that promotional post were shared between one Mr Malange and one Ms Apoko Phiri. Apoko Phiri was a Zimbabwean national who was promoted into the post of a departmental head at the same school. The reason for failing to recommend the applicant for appointment because he was a Zimbabwean, was therefore not logical.
21. It is trite that an applicant who alleged that he was the victim of unfair labour practice bears the onus of proving the claim on the balance of probabilities, see ELRC guidelines on unfair labour practice promotion and arbitrations, Collective Agreement number 3 of 2016. The applicant in casu, testified that the decision not to appoint him was unfair. The reasons for his version were amongst others that the interview committee scored him 109 (highest score) but they never sat down to consolidate and agree on the candidate to be recommended for appointment. The principal (Jele) favoured the second respondent at his expense. There was an altercation among the panel members which was triggered by the issue of who should be recommended for appointment. The witness of the employer, Jele, who is also the principal of the school, wanted the 2nd respondent to be recommended as candidate number one for appointment. The interview committee did not agree with him and that was the time he (Jele) became agitated and stood up in the meeting. By then, scoring had already completed and there was no disagreement thereof. The minutes submitted to the district director were not signed. The score sheet submitted to the district director was not signed by all the members of the interview committee because some members like Mr Mthethwa and Ms Xaba did not sign. Those members refused to sign because Jele wanted a wrong candidate to be appointed. The witness of the employee, Xaba, corroborated all the above versions and the 1st respondent did not dispute except to mention in its closing arguments that the minutes were a true reflection of what transpired during the interview process.
22. In terms of the minutes, the applicant was scored 109 points, the 2nd respondent was scored 106 points and one Sibanyoni VC was scored 98 points, see page 9 of bundle ER. In terms of that score sheet on the above-mentioned page, the candidates were recommended as follows in order of preference; the 1st preference was the 2nd respondent, the 2nd preference was the applicant and the 3rd preference was Sibanyoni VC. Mthethwa and Xaba who were members of the panel and who participated in the scoring, were not part of the recommendations made, see the first table and the second table on page 9 of bundle ER. The names of M Serake and BE Tholo, appear on the second table but not on the first table, see page 9 of bundle ER. This further corroborated the version of the employee that the conduct of the 1st respondent was unfair on the balance of probabilities.
23. Some of the reasons appearing on the submission for the request to appoint the recommended candidate, page 10 of bundle ER, were that the applicant might be in possession of the South African ID, but he was a Zimbabwean and the 2nd respondent was a Bonafide South African, he was younger and had a lot more to offer. These are the worst reasons in my experience on the balance of probabilities to advance when declining to appoint someone who has the citizenship in that country. It was also ridiculous because Apoko Phiri was appointed into a promotional post being a Zimbabwean at the same school. Over and above that, the 2nd respondent, was not placed in the post he applied for, instead, he remained in the physical sciences department, and that was not disputed. The educators who were given the responsibility to handle electrical subjects, technology, civil technology and technical sciences which were the subjects needed in the disputed promotional post, were Mr Malange and Apoko Phiri. The 1st respondent’s defence in that area was that the 2nd respondent was assisting Mr Malange. However, there was no documentary proof to that effect. The principal (Jele) and the acting chairperson of the SGB, Vilakazi, were not credible witnesses. Jele amongst others, argued that there was no space for every member of the interview committee to sign, but he surprisingly robed in the outside people to sign for the recommended candidates. Vilakazi supported Jele’s unprocedural processes. He (Jele) also testified that the marking centre would directly call an educator to go and be part of the markers, which was not true because he was challenged to produce evidence to that effect but he couldn’t. He further testified that the results produced by the 2nd respondent had quality, while those produced by the employee was just a quantity, but there was no documentary evidence to corroborate such scientific version. He initially denied that he once authorised the 2nd respondent to go for marking using false information, but he later conceded to that.
24. My finding on the balance of probabilities is that, the 1st respondent when failing to promote the applicant, committed an unfair labour practice pertaining to promotion in terms of section 186(2)(a) of the the Act. I further make a finding that the 2nd respondent was appointed using incorrect substantive information because he was not teaching the subjects required in the said promotional post. Even if the post was a managerial one, it was still unfair on the balance of probabilities to prefer him over the candidates who had a vast experience in teaching the technical subjects. He, (2nd respondent) did not have the relevant experience as compared to the applicant and Sibanyoni VC. Sibanyoni VC who was one of the candidates, was just like the employee, teaching technical subject, see page 32 and 33 of bundle EE and that was not disputed. The 2nd respondent was teaching physical science which fell under a different department, see pages 25 to 33 of the same bundle. Over and above that, the 2nd respondent was not placed in the department he applied for. He proceeded teaching physical science even after his appointment, and he did not manage the department he applied for. I agree with the applicant on the balance of probabilities that the appointment of 2nd respondent, was based on misleading information submitted by the interview committee to the district director.
25. Procedurally and on the balance of probabilities, the interview committee should have a chairperson who facilitates the proceedings. The 2nd witness of the applicant, Ms Xaba, testified that there was no chairperson during the interviews, because the person who was requested to be a chairperson, Mr Mdluli, declined. That version was not disputed at the time of her testimony. Secondly on the balance of probabilities, the interview committee, should sit down after scoring the candidates to agree on the candidates to be recommended for appointment. Ms Xaba testified that there was no meeting held for consolidation until at the time of the arbitration. She indicated that the consolidation meeting was not held due to the erupted altercations among the interview committee members especially Jele and labour. That version was not disputed by the 1st respondent during the time of Ms Xaba’s testimony. Jele only came later and testified that there was a consolidation meeting. However, he was challenged by the applicant because some people who signed on the recommendations were not members of the interview committee. The minutes were also not signed by the members of the interview committee except that there were initials on the bottom of each page of which some were not of the interview committee members. My finding on procedural fairness is that the appointment of the 2nd respondent and the failure to appoint the applicant by the 1st respondent, was procedurally unfair on the balance of probabilities.
26. In conclusion, it is my view on the balance of probabilities that the process of appointing the 2nd respondent and the failure to appoint the applicant was both substantively and procedurally unfair.
27. The relief. The applicant prayed that the commissioner should appoint him into the disputed promotional post and his salary be backdated with effect from the 1st December 2024. My view in this case is that, the 2nd witness of the 1st respondent, who was also the principal of the school and who claimed that he was the chairperson of the interview committee (Jele), and the 1st witness of the 1st respondent, who was also the then acting chairperson of the SGB (Vilakazi), misled the Head of Department (HoD) who is the only person that has the competency of making appointments unless if she/he has delegated someone to do so. The two witnesses of the 1st respondent (Jele and Vilakazi), unilaterally compiled the submission on page 10 of bundle ER without the involvement of the other interview committee members and recommended the 2nd respondent to have been the best candidate for appointment. The reasons mentioned thereof, especially the one that the applicant was a Zimbabwean, were irrational, divisive and irritating. The two witnesses further conspired to mislead the HoD on the subjects taught by both the applicant and the 2nd respondent as well as their performance. They painted a false picture depicting that the 2nd respondent was performing better than the applicant and that he was teaching technical subjects when he was teaching physical science. Now, what is my role as an arbitrator! My role as an arbitrator is not to be an employer, my task was to determine whether the employer acted fairly or not, when the appointment was made. The decision to promote or not to promote a candidate, falls within the managerial prerogative of the 1st respondent, see SAPS v SSSBC and others BLLR 892 (LC). This is a principle which was adopted in several court proceedings. Also see the Constitutional court in SAPS v PSA (5 BLLR 383 (CC)) where it was held that the employer retains discretion in deciding whether or not to promote the incumbent even if they meet the criteria outlined in the relevant regulations. This does not mean that employers can do as they please and appoint candidates based on arbitrary grounds, hence the existence of Bargaining Councils and the CCMA which have commissioners to preside over such dispute to determine the fairness thereof.
28. In the light of the above, I will be acting ultra vires in terms of my powers as a commissioner if I appoint the applicant. It is therefore my view on the balance of probabilities that the matter should be reverted back for the interview committee members to finalise the consolidation process and make recommendations for appointment to the HoD. The appointment of the 2nd respondent, should be reversed. The 2nd witness, Jele (the principal) and the 1st witness, Vilakazi, of the 1st respondent, should no longer be part of the interview committee to finalise the process as they were not credible witnesses and displayed too much biasness during their testimony on the balance of probabilities. Award
29. The matter is reverted back for the interview committee to finalise the consolidation and make objective recommendations for appointment to the HoD.
30. The 1st respondent is ordered to reverse the appointment of the 2nd respondent, (Mr Wanele Makhongwana) immediately effectively on receipt of this award.
31. The processes in paragraphs 29 above, must be completed on or before 8 July 2025.
32. No order with regard to costs.

Seretse Masete Date 04/06/2025
ELRC Panellist