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05 May 2025 -ELRC1259-24/25LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT POLOKWANE

Case No. ELRC1259-24/25LP

In the matter between

KGANYAGO KHOMOTSO WELEMINAH Applicant

And

DEPARTMENT OF EDUCATION – LIMPOPO Respondent

ARBITRATION AWARD

Details of hearing and representation

This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 as amended (the Act). The hearing took place at the Department of Education, Polokwane, Limpopo Province on 10 April 2025 at 09:00AM. The Applicant, Kganyago Khomotso Weleminah was represented by Seopa Maruta Martin from South African Democratic Teachers Union (SADTU), while the Respondent, Department of Education- Limpopo was represented by Rasebotsa Nthabisheng, one of its officials. The proceedings were digitally voice recorded and conducted in English. The parties handed in bundles of documents I marked as follows; Respondent’s bundles – Bundle R, while the Applicant’s bundle – Bundle A.

Issues to be decided.

  1. The nature of the dispute was in terms of section 24(2) [24(5)] of the Act, Interpretation or application of a collective agreement. I must decide whether on correct interpretation of ELRC Collective Agreement 1 of 2009 read together with Departmental Circular No: 15 of 2024, clause 3 the applicant qualified to mark the December 2024 Sepedi First Language Paper 1 or not. To determine an appropriate relief, if it is found that the applicant qualified.

Background to the dispute

  1. The applicant is employed by the respondent as a PL1 educator. She did not mark grade 12 papers in December 2024. She sought to mark Sepedi First Language Paper 1. She applied to mark Sepedi First Language Paper 1 in December 2024. The applicable agreement is ELRC Collective Agreement 1 of 2009 (collective agreement) read together with Departmental Circular No: 15 of 2024, clause 3 (Circular). She previously taught at Madibo High School and started teaching at Tlakale Mashashane High School in January 2022.

SURVEY OF EVIDENCE
Applicant’s case.

Two witnesses, including the applicant, testified. The first witness was the applicant herself. Khomotso Weleminah Kganyago testified under oath and in English that:

  1. She was teaching Sepedi Home Language grades 8-12 at Madibo Secondary School. She started teaching at Tlakale Mashashane Secondary School in 2022, teaching Sepedi grade 12 (all the papers). In 2023 she was teaching Sepedi Grades 10 and 11. In 2024 she was teaching Sepedi Home Language grade 10.
  2. She qualified for marking because the respondent gave her an application form to apply for marking Sepedi Home Language paper 1. She applied and the principal, Mr. Rammutla T.E (principal) signed off her application form. It was her surprise when she was called by the principal and told that she does not qualify for marking because she was not teaching grade 12. She was employed as an educator, having qualifications, having professional qualifications, fourteen (14) years’ experience and was teaching Sepedi grades 10 and 11 in 2024 (page 14 of Bundle R, paragraph 6.1.1).
  3. During cross examination, she testified that they have rotational teaching at their school. Rotational system is a system whereby a teacher is not teaching the same subject but changes subjects. She was teaching Sepedi Home Language grade 12 in 2022, in 2023 grades 10 and 11, and in 2024 grade 10. She taught Sepedi Home Language grade 12 at Tlakale Mashashane Secondary School. She was not issued with the appointment letter for marking. She saw the appointment letter for the first time during this arbitration hearing (pages 23-26 of Bundle R). The second witness of the applicant was Kgwadi Tshwantshi Johannes. Kgwadi Tshwantshi Johannes testified under oath and in English that:
  4. He was the chairperson of SADTU Mashashane Maraba Branch. The applicant informed him of the appointment/release to mark letter which was withheld by the principal. They held a meeting with the principal, SADTU representatives and the Circuit Manager. The principal told them that the letter has been returned because the applicant does not qualify to be appointed as a Sepedi Home Language, Paper 1 marker. In that meeting they agreed that the applicant qualified to mark, and the appointment letter was erroneously returned by the principal. The principal acknowledged his mistake of returning the letter before the Circuit Manager.
  5. During the cross-examination, he testified that the purpose of the meeting was to check with the principal the reason for withholding the letter from the applicant. The principal brought with him the appointment letter, since it was requested by SADTU. According to SADTU the appointment/release letter was wrongly formulated because it only refers to a person who is teaching grade 12. It does not cover clause 2.5 of the ELRC Collective Agreement 1 of 2009. The principal was not correct because the people dealing with the appointment of markers have read the collective agreement. The collective agreement takes precedent over a circular.

Respondent’s case.

One witness testified for the respondent. Rammutla Tswene Edwin testified under oath and in English that:
  1. He was the principal of Tlakale Mashashane Secondary School. The applicant came to teach in their school in 2022 and allocated to teach grades 10 and 11. The applicant was never allocated to teach Sepedi Home Language grade 12. There was no rotational teaching in their school. Rotational teaching means they have a group of teachers teaching grade 10 this year and go with the learners to grade 11 and grade 12. The applicant was teaching Sepedi in grades 10 and 11.
  2. He called the applicant to his office after he received the appointment/release letter for marking. The reason for calling her was because he must confirm that the applicant was teaching grade 12. He indicated to the applicant that he could not confirm that she was teaching grade 12. After speaking to the applicant, he then wrote a letter to the Circuit Manager saying that he would not release the applicant for marking due to the reason that the applicant was not teaching grade 12 (page 26 of Bundle R). He was not at school when applications for marking were submitted. It is correct that there was a meeting held with him, circuit manager and SADTU. The purpose of the meeting was to check with him the reason for refusing to release the applicant for marking.
  3. During the cross-examination, he testified that they did not have an agreement in the meeting. SADTU was not happy that the applicant was not released to go and mark. The purpose of the letter was to inform his seniors that he could not confirm that the applicant was teaching grade 12 while she was not. He was familiar with the circular.

Analysis of the evidence and arguments

  1. The applicant is required to prove on the balance of probabilities that she qualified to be released and go for marking in December 2024. She applied to mark Sepedi Paper 1. Item 6.1, clause 6.1.5 of the ELRC Collective Agreement Number 1 of 2009 states that “ A prospective marker should satisfy the following requirements:
    6.1.1 be employed as an educator (in terms of the employment of Educators Act No. 76 of 1998 as amended);
    6.1.2 have a recognized academic qualification in the subject applied for;
    6.1.3 have a recognized professional qualification;
    6.1.4 have at least two (2) years recognized teaching experience; and
    6.1.5 must have taught the subject and paper the previous year in Grade 12 and/or currently be teaching the same subject within the FET band”.
  2. The applicant joined Tlakale Mashashane Secondary School in 2022. According to the testimony of the principal she was allocated to teach Sepedi Home Language grades 10 and 11. She never taught Sepedi Grade 12 at Tlakale Mashashane Secondary School. This evidence was not challenged by the applicant. In 2023 the applicant was teaching Sepedi Home Language grades 10 and 11. In 2024 she was teaching Sepedi Home Language grade 10. The applicant did qualify to mark Sepedi Paper 1 in 2024 because satisfied all the requirements in terms of the collective agreement, hence the appointment letter (page 23 of Bundle R). Even though she did not teach Sepedi Home Language in grade 12 the previous year (2023), she was teaching Sepedi Home Language in grades 10 and 11, which fall within the FET band.
  3. The applicant was issued through the principal with the letter of appointment to serve as a marker for the 2024/11 NSC examination (page 23 of Bundle R). This letter was issued together with the acceptance declaration and release letter by the principal. In terms of the acceptance letter the applicant must amongst other things declare that she was teaching Sepedi paper 1 in grade 12 full time learners (page 24 of Bundle R). This was a challenge because the applicant was not teaching Sepedi grade 12 in 2024. The other challenge was with the confirmation that the principal must make in terms of the release letter (page 25 of Bundle R). The principal did not release the applicant because the release letter wanted him to confirm that the applicant was teaching Sepedi in grade 12 in 2024. The acceptance and release letters are not in line with item 6.1, clause 6.1.5 of the collective agreement. The applicant’s witness from SADTU conceded to that. In terms of these two letters the principal was correct not to release the applicant because he was not going to confirm that the applicant was teaching Sepedi in grade 12 meanwhile it was not. The evidence of the principal which was not disputed was that he could not have confirmed that the applicant was teaching Sepedi in grade 12 because she was not. In those circumstances the applicant could not have been released to go and mark NSC examination in 2024.
  1. The applicant sought as a relief to be paid an amount of R17 000.00 which was equivalent to the amount a marker was paid in 2024. It is my belief that the applicant is not entitled to this relief because she did not perform the duty of marking and the reason for not releasing her was valid. The respondent appointed her for marking in 2024, however, she could not have been released due to the manner the acceptance and release letters were crafted. Award
  2. I find that the respondent, Department of Education – Limpopo did not misinterpret the ELRC Collective Agreement Number 1 of 2009 read together with Departmental Circular No. 15 of 2024.
  3. The dispute referred by the applicant, Kganyago Khomotso Weleminah, dispute is dismissed.

VICTOR MADULA
ELRC PANELIST