05 May 2026 – ELRC1246-25/26LP

ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC1246-25/26LP

SADTU OBO MAKHUBELA MARGARET MAKKE-KGATLA APPLICANT

And

EDUCATION DEPARTMENT OF LIMPOPO 1st RESPONDENT

EDWICK PHETELO MABITSELA 2nd RESPONDENT

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was heard and finalized at Mopani West, Tzaneen on 16 April 2026.
1.2. Both parties attended the proceedings. The 1st and 2nd respondents were represented by Portia Modipa, while the applicant was represented by Hezekiel Madire, union official from SADTU.
1.3. The hearing was held in English and Sepedi and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the decision by the 1st respondent not to shortlist the applicant for the interviews of the position of Principal at Modika Secondary School was substantively fair.
2.2. If the decision not to shortlist the applicant was substantively unfair, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
3.1. The applicant views the decision of the 1st respondent not to shortlist her for the interviews for the position of Principal to be substantively unfair and prayed that the appointment of the 2nd respondent be set aside and the selection process start afresh.
3.2. The following issues are common cause to both parties:
a) the applicant applied for the position of Principal at Modika Secondary School, but she was not shortlisted.
b) the 2nd respondent applied for the position, shortlisted and interviewed.
c) the 2nd respondent was appointed to the disputed position with effect from 01 January 2026.
3.3. Prior to the commencement of the proceedings, the applicant submitted a bundle of documents marked “A”, while the 1strespondents submitted a bundle of documents marked “R1 and R2”. The 2nd respondent did not submit any documents.
3.4. The applicant closed her case after leading her own evidence, while the 1st respondent closed its case after leading the one witness. The 2nd respondent did not lead any evidence or call witnesses.
3.5. Both parties submitted oral closing arguments immediately after closing their respective cases.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant, Makhubila Margaret Maake-Kgatla, testified that she is currently employed as a CS1 educator for 37 years. The minimum requirement for the position of principal is 05 years’ experience as an educator, REQV 13 qualification, registration with SACE and experience in a managerial position. Her REQV 13 qualification is B.Ed Hons and she has been registered with SACE. She has been part of the school SMT for the past 20 years and she has been an educator for 37 years. She is also a member of the SGB, and she is also training student netball and drum majorettes. Mr Morwasetla M.G was supposed to have recused himself from the shortlisting committee because he once told the SGB members that she should not be appointed for any promotional post at the school. The 2nd respondent and her meet the minimum requirements for the position of principal.
5.2. Under cross-examination, the applicant testified that at the time of the shortlisting, the 2nd respondent was an acting principal. From the 32 candidates that have applied for the position of the school principal, the shortlisting committee must select five candidates to be interviewed. She was supposed to have been appointed as an HOD, but the previous school’s principal denied her the opportunity to apply by hiding the advertisement. Netball and drum majorettes are not part of the curriculum. The 2nd respondent has been appointed as HOD and Deputy Principal. She has never been appointed as HOD, Deputy Principal, Acting Principal or Subject Advisor. As part of the school’s SMT for 20 years and the fact that she was denied the opportunity to apply for the position of HOD, she is on the same level as candidates that have been appointed as HODs, Deputy Principals, Acting Principals or Subject Advisors. In terms of the rankings, being a member of the school’s SMT is the lowest rank.

THE RESPONDENT’S CASE
6.1. The 1st respondent’s only witness was Margaret Kedibone Mohale. She testified that during the shortlisting, she was a chairperson. Only five candidates were selected from the 32 applications they received for the position of Principal at Modika Secondary School. The shortlisting panel decided to consider the highest ranked candidates to select the five candidates to be interviewed. There were candidates who were ranked higher than the applicant but were not shortlisted. The five candidates that were shortlisted were occupying the position of Deputy Principal or Acting Principal at the time of the shortlisting.
6.2. Under cross-examination, Margaret Kedibone Mohale, testified that she was part of the shortlisting panel. To get the five candidates to be interviewed, the shortlisting committee considered the candidates who were occupying the positions of HOD, Deputy Principal and Subject Advisor. There are candidates who were occupying the position of HOD at the time of shortlisting, but they were not shortlisted. The applicant is part of the school’s SMT, but she does not have managerial experience relating to the HOD, Deputy Principal, Acting Principal or Subject Advisor positions. If all the candidates that have applied for the position meet the minimum requirements, the shortlisting panel is permitted to come up with a criterion to select the top five candidates to be interviewed.

ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision not to shortlist her for the position of school Principal was substantively unfair.
7.2. The Collective Agreement No 2 of 2020: Guidelines for Sifting, Shortlisting and Interview Procedures for School and Office based Educator Posts, provides that the shortlisted candidates should neither exceed five (5) nor be less than three (3) per post.
7.3. In terms of the Collective Agreement No 2 of 2020: Schedule 1: Shortlisting Procedure (Phase 2), From (a) to (c) below allocate a score of one (1) if the dimension is present, and Zero (0), if any of the dimensions is absent:
a) Management experience (member of the SMT, HODs, Deputy Principal and Subject Advisor)
b) Leadership experience in support of curriculum activities
c) Experience in stakeholder relation in Education.
7.4. In this matter, it is common cause that 32 candidates applied for the position in dispute and that the shortlisting committee must select only 5 candidates for the interviews. It is also undisputed evidence of the respondent’s only witness that to select the best five candidates, the shortlisting committee has considered the candidates that were Deputy Principals or Acting Principals at the time of the shortlisting.
7.5. The applicant conceded during cross-examination that she was never appointed as HOD. Deputy Principal, Acting Principal or Subject Advisor and that being a member of the school SMT is the lowest rank in terms of managerial experience. The applicant’s version that she is on the same level as the candidates who have managerial experience relating to HOD, Deputy Principal, Acting Principal or Subject Advisor because she was denied the opportunity to apply for the position of HOD and that she has been a member of the school SMT for 20 years, is classic example of hopeless attempt at a solution. The applicant’s experience of 20 years as an SMT member alone fell short of the managerial experience requirement adopted by the shortlisting committee to select the five best candidates.
7.6. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to shortlist her was substantively unfair.

AWARD
8.1. The applicant’s application is dismissed.