05 March 2026 -ELRC788-25/26LP

Commissioner: ME Dikotla
Case No: ELRC788-25/26LP
Date of Award: 04 March 2026

IN THE ARBITRATION BETWEEN

Katlego Maake: Applicant

And

Education Department of Limpopo: First Respondent
Moseki Shadrack Mmola: Second Respondent

DETAILS OF HEARING AND REPRESENTATION

The arbitration was held at the offices of the Department of Education in Tzaneen, Limpopo Province. The Applicant was represented by NJ Ndhlovu, an attorney. The First Respondent was represented by P Modipa, its Assistant Director: Grievance & Dispute Resolution. The Second Respondent appeared in person.
The proceedings were electronically recorded.
The First Respondent submitted a bundle of documents which was designated as ‘A’. The Applicant and the Second Respondent did not submit any bundles of documents.
The First Respondent and the Applicant submitted their closing arguments orally after the conclusion of the arbitration. These were taken into account in making my decision.
The Second Respondent did not submit any closing arguments.
ISSUE TO BE DECIDED
I am required to determine whether the First Respondent committed an unfair labour practice when it refused to promote the Applicant to the position of Departmental Head at Mmaphai Primary School. If I find that the First Respondent had committed an unfair labour practice, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
The Applicant was employed by the Department of Education in Limpopo as CS1 Educator since 01 July 2018. Her annual remuneration is R372 522.00.
A position of Departmental Head became vacant at Mmaphai Primary School. This post was advertised and the Applicant was one of the applicants who applied for the post. The Applicant was shortlisted and interviewed. The School Governing Body (SGB) ranked her number one (1) and was recommended for appointment. The Second Respondent, Moseki Shadrack Mmola, who was also shortlisted and interviewed, was ranked number two (2).
The District Director appointed the Second Respondent to the position of Departmental Head on 01 January 2026, despite being ranked number two. The First Respondent claimed that the successful candidate, Mmola, who is a male, was appointment on the basis of affirmative action. The Applicant, who is an African female, is challenging this appointment as she is of the view that she was the most qualified in terms of the ranking and educational background.
It was common cause that both the Applicant and the Second Respondent met the minimum requirements of the post.
The Applicant prays for the setting aside of the Second Respondent’s appointment and appoint her to the position of Departmental Head.
SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
Katlego Clementia Maake’s evidence was briefly to the following effect:
An advertisement came out for post number 28 and she applied for it. After the shortlisting, she was called for interviews. The Circuit Manager came to Mmaphai Primary School and held a meeting with staff members. She told the staff members that there were issues of gender with the position. She further indicated that the position was obtained by her and a male candidate obtained position number two (2). Thereafter the District sent a letter to the SGB of Mmaphai Primary School for it to explain why it deviated from the circular. The District demanded an explanation as to why the SGB recommended her and not the Second Respondent.
She hoped that she was going to be appointed until she discovered that Mr Mmola was appointed to the post. The advertisement did not state that the position required a male candidate in terms of the circular. She was aware of the circular which stated that they must appoint in terms of the equity as there were less male Departmental Heads and more female Departmental Heads.
Her problem was that the advertisement did not include the gender equity circular. The circular came on the day of the shortlisting and this was never communicated to the candidates. This should have been communicated before they applied for the post.
Under cross-examination by the First Respondent, she was asked if the previous advertisement indicated affirmative action requirements when she applied for the post of CS1 Educator. Her response was in the negative. She indicated that at the time she was not surprised because she got position one (1) and was ultimately appointed. This time she got number one (1) but was not appointed.
She conceded that she was previously a member of selection panel and they were given employment equity circulars. She further testified that in terms of the information on page 224, point 3.3 of the bundle, females were overrepresented but she does not believe that the appointment of the Second Respondent was fair. She conceded that the appointment was based on employment equity but she believes that she was discriminated against.
The Second Respondent did not cross-examine the witness.
First Respondent’s case
Khutso Daphney Nthoke’s evidence was briefly to the following effect:
She was employed as Assistant Director: Human Resources. She deals with recruitment and selection of Educators and non- Educators. Reference was made to the recommendation for the appointment of Departmental Head post number 28 (pages 15-17 of the bundle). The recommendation for appointment was informed by the interview documents from the school and she was part of it.
The Department issued circular number 167 of 2025. This circular was an equity profile, which should be adhered to when appointing for promotional posts. Reference was made to page 224, item 3.3 of the bundle. This document shows the posts of Departmental Heads. African males were 2368 and African females were 2655. The percentage of African females was 51.6 and African Males was 46.0.
Reference was made to the employment equity profiles as follows: In terms of point 3.3.1 of page 224, African, Coloured, Indian and White males are underrepresented. In terms of 3.3.2, African and White females are overrepresented. In terms of 3.3.3, Coloured and Indian females are underrepresented.
They were directed by the Departmental circular number 167 of 2025 to appoint all categories based on the employment equity profiles. They adhered to the circular.
Under cross-examination, the witness testified that the directive was signed on 11 June 2025. When the post was advertised on 14 April 2025, the employment equity circular was not yet signed. She averred that when the candidates applied for the post, they were aware of the circular because all the Principals were given the circular to disseminate to the schools.
Second Respondent’s case
The Second Respondent did not testify.
ANALYSIS OF EVIDENCE AND ARGUMENTS
Section 186 (2) of the Labour Relations Act (the LRA) provides: ‘Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving-
(a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissal for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) …..
(c) …..
(d) …..’
The Applicant in this case applied for the post of Departmental Head at Mmaphai Primary. After the interviews, the SGB ranked her number one (1) and recommended her for appointment. The District Director went against the SGB’s recommendation and instead appointed the Second Respondent who was ranked number two (2). The decision for not appointing the Applicant as the Departmental Head was taken because of the Employment Equity considerations. African females Departmental Heads were overrepresented. This was supported by the Departmental circular no. 167 of 2025 on pages 223-225 of the bundle.
It is trite that in unfair labour practice disputes, the onus in on the employee to prove that the employer committed an unfair labour practice.
The Applicant contends that the First Respondent should have appointed her as she was ranked number one (1) and the SGB recommended her for the appointment.
The Employment Equity Act 55 of 1998 (the Act) prohibits unfair discrimination in the workplace but permits measures designed to protect or advance people disadvantaged by past unfair discrimination.
Section 6 (2) of the Act provides: ‘ It is not unfair discrimination to-
(a) take affirmative action measures consistent with the purpose of this Act; or
(b) distinguish, exclude or prefer any person on the basis of inherent requirement of a job’.
The Departmental circular no. 167 of 2025 on page 224 of the bundle indicates the employment equity profiles of Principals, Deputy Principals and Departmental Heads posts. According to the Departmental Heads profiles on page 224, point 3.3 of the bundle, African, Coloured, Indian and Whites males were underrepresented. African and White females were overrepresented. This was the First Respondent’s basis for not appointing the Applicant to the position of Departmental Head.
It is clear that appointing the Applicant to the position of Departmental Head would have worsened the representativeness of African female Departmental Heads. The Applicant conceded that she was aware that the circular required the First Respondent to appoint in terms of the Employment Equity as there were less male Departmental Heads. Certainly, the appointment of the Second Respondent should not have shocked her.
Her other contention was that the Respondent should have stated in the advertisement that the post required a male candidate in terms of the circular. I must indicate that this is not a requirement and the First Respondent was not obliged to do so.
In her closing arguments, the Applicant cited the following authorities: Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) (2016) ZACC 18 and South African Police Service v Solidarity obo Barnard (CCT 01/14) (2014) ZACC 23.
I must state from the outset that the former authority is distinguishable from this case. The Constitutional Court dealt with amongst others, the Employer’s obligation in terms of section 42 (1) (a) of the EEA. It held that the Respondent acted in breach of its obligation in terms of section 42 (1) (a) of the EEA by failing to use the demographic profiles of both the national and regional economically active population to set the numerical targets. The Court came to this conclusion because the Employer failed to take the regional demographics into account.
In South African Police Services v Solidarity obo Barnard (CCT 01/14) (2014) ZACC 23, it was held that the decision to refuse to appoint Barnard, a white female, was not unlawful. Barnard, just like the Applicant, obtained the highest score but was refused promotion. She was refused promotion on the basis that white females were already overrepresented in the occupational level to which she wanted to be appointed. In other words, she belonged to a category of persons that was already adequately represented at that occupational level. Had the Employer decided to appoint her, the overrepresentation in the occupational level was going to get worse.
It must be noted that the SGB can only make recommendations but the decision to appoint rests with the relevant authority in the Department.
I do not find that the First Respondent’s decision to refuse to appoint the Applicant was irrational, capricious, arbitrary or in bad faith. The decision was taken in terms of its Employment Equity Plan and in pursuit of achieving its employment equity targets. The First Respondent as a designated employer was obliged to take affirmative action measures.