Panellist/s: Seretse Masete
Case No.: ELRC360-26/27LP
Date of Award: 30/09/2026

In the ARBITRATION between:

Pfariso Madevha

(Union / Applicant)

                                                                                And

Education Department of Limpopo

(Respondent)

Union/Applicant’s representative: Pudyane Mengenge Ben, a Union representative from SADTU

1st Respondent’s representative: Portia Modipa

2nd Respondent: Mabusela Mokoabi Frans.

Particulars of the proceedings and representation

1. The matter was held on 15 September 2026 at Modimolle.
2. Pfariso Madevha (applicant),was represented by Mengenge Ben Pudyane, a union representative from SADTU, while Education Department of Limpopo, (1st respondent), was represented by Portia Modipa.
3. Mabusela Mokoabi Frans ( 2nd respondent) was represented by Portia Modipa.
4. The proceedings were in English and digitally voice recorded.

Issues to be determined.

5. Whether or not the conduct of the 1st respondent by not appointing the applicant into a promotional post of a departmental head (DH) constituted an unfair labour practice against the applicant, and if so, grant the appropriate relief.

Background and Nature of the dispute

6. The applicant was employed by the 1st respondent as an educator on September 2021 and acted as a departmental head (DH) earning R31,829-00 per month at the time of the dispute.
7. She applied for the promotional post of a DH where she was shortlisted and invited for the interviews.
8. She obtained position one in those interviews but she was not appointed.
9. She believed the conduct of the 1st respondent amounted to an unfair labour practice, and sought the appointment of the 2nd respondent to be nullified and she be appointed.
10. The 2nd respondent did allegedly not meet the curriculum needs of the post, and she was the best candidate.
11. The 1st respondent presented that both the 2nd respondent and the applicant met all the requirements but the 1st respondent had to comply with employment equity plan.
12. The applicant testified as a sole witness and submitted no bundle of documents, while the 1st respondent called three witnesses and submitted one bundle of documents marked “the bundle”.
13. Common cause issues. The applicant was an educator at Makhutjisha senior secondary school. She applied for the post , shortlisted and attended the interviews. She obtained position 1 in those interviews but she was not appointed.
14. The 1st respondent considered the employment equity when appointing the candidate.
15. The bundle was accepted as admissible.
16. No jurisdictional issues raised.
17. No expert witness was called.
18. Disputed issues. The 2nd respondent did not meet the curriculum requirements of the post.

Survey of evidence by the parties.
Evidence by the applicant
The applicant, Pfariso Madevha, testified under oath as follows;

19. She was teaching Civil technology & Engineering, Graphics and Design in grade 10 -12 as well as technical Maths grade 11 and 12. She has been acting as a DH for technical subjects since 2025, see page 121 in the bundle. By then, the 2nd respondent did not meet the requirements of the post she was acting in. She applied for post no 48 as shown on page 18 of the bundle.
20. Cross-questioning. She was teaching civil technology which she found the 2nd respondent teaching when she joined the school. The 2nd respondent achieved 100% in civil technology in grade 12, see page 87 of the bundle, but he did not qualify because he was just teaching wood work. She did not know his years of experience. It was wrong for the 1st respondent to appoint the 2nd respondent because he did not have all the technical subjects. His certificates were only wood work. The DH for technical subjects is supposed to know all the technical subjects. She was able to teach construction, wood work engineering graphics and design. Since she started working at the school, the 2nd respondent has never acted as a DH, unless before she arrived. She agreed that he has been teaching wood work for 17 years. He, however, lacked engineering graphics and design. According to his qualification, he (2nd respondent) did not have speciality in Civil technology. It was put to her that the 2nd respondent was developed and trained to equip him with knowledge of civil technology. She argued that the 4 days certificate would have been issued to anyone who attended the training. The 2nd respondent was developed only under practicals.

Evidence by the 1st respondent party.

1st witness, Makhubele Vukosi Wealth, testified under oath as follows;

21. He was employed as DH at Mkhari school. He was the chairperson of the panel during the interviews. During shortlisting, the panel looked at the qualifications of the candidates. The 2nd respondent had fine arts degree which was related to technical subjects, see page 72 of the bundle, and the school was not a technical school, but just offering technical subjects. Paragraph 3.3 on page 16 of the bundle, also provided for the consideration of qualifications as well as other appropriate experience. The 2nd respondent has been teaching technology for a very long time and that should be considered as per paragraph 3.3 on page 16 of the bundle. They (panel) looked at the subjects included in his (2nd respondent) fine arts which were technical subjects and they also looked at his experience in that field. His good performance as per the certificate on page 86 of the bundle was also considered. The certificate was not a qualification, but it corroborated that he was the best performing educator. He would not say he (witness) knew civil technology per se, but he had a general knowledge thereof. It was put to him that the 2nd respondent’s certificate on page 83 was not ratified by SAQA and that there was no graphic design in the 2nd respondent’s qualifications. He answered that they were not looking at a candidate who specialised in both subjects, but as long as there was a technical subject in their qualifications. It was put to him that in terms of meeting the requirements, the 2nd respondent should have been given a zero. He disagreed. The higher institutions (universities and colleges) were the ones which issued qualifications and made people to qualify. They (panel) considered the transcripts on page 72 of the bundle. It was put to him that the areas/subjects mentioned on page 18 of the bundle, did not appear in any of the applicant’s qualifications. He answered that they considered the fine arts degree because it had technical subjects in it.

2nd witness, Makgakga Kwena (Makgakga) Robert , testified under oath as follows;

22. He was working at Hector Petersen school as a principal. He was the secretary of the panel during the interviews, but he did not participate in the process. The subjects mentioned in the advert, were Civil technology & Engineering Graphics and Design grade 10 -12. The 2nd respondent was shortlisted because he had fine arts and some accreditations in the subjects. The teacher unions like SADTU, also ratified the shortlisting. They scored the 2nd respondent, 01, on the requirements, because he satisfied the curriculum requirements with his degree in fine arts together with the accreditations he received. As a panel, they recommended the applicant for appointed to the SGB, see page 42 of the bundle. He has seen the recommendation document on page 43 of the bundle before the names were inserted. The SGB, however, recommended the 2nd respondent to be appointed, see page 30 of the bundle. The SGB, the Circuit manager and the district director, recommended the applicant. He did not know why the SGB appointed the 2nd respondent, but he assumed that they used the equity plan document as per page 25 of the bundle.
23. Cross-question. The document on page 82 of the bundle, was issued in terms of the duties performed by the 2nd respondent in classroom. Page 83 thereof, had wood work which was part of the civil technology qualifications. He agreed that PAM was binding to all the schools. He also conceded that there was no authority to lower the qualifications mentioned in PAM. He believed the 2nd respondent qualified to be shortlisted. It was put to him that fine arts was not a technical or engineering subjects. He answered that they sat down and agreed as a panel together with the union to shortlist the 2nd respondent. He believed that it was only SAQA that could tell them about incorrect qualification. All candidates qualified for the post. He understood specialisation, as per page 52, to be obtained from the university.
24. Re-exam. Fine-arts was used to shortlist the 2nd candidate. If the second respondent did not qualify, they would have just not shortlisted him, but he did.

3rd witness, Maswanganyi Machine (Maswanganyi), testified under oath as follows;

25. He was the principal of Makhutjisha school where the disputed post was, and he was the departmental representative, but he did not play a role those interviews. He was a resource person. In 2025, the applicant was acting in the technical subjects. The 2nd respondent acted as a DH before he (witness) arrived at the school although he did not have proof to that effect . It was not true that the 2nd respondent was not appointed to act because he did not meet the requirements. The panel discussed the candidates and agreed on shortlisting him for the disputed post. He did not agree that the 2nd respondent did not qualify, because he has been teaching the technical subjects and performed excellently. He also have some accreditations. He even obtained 100 percent in teaching civil technology which he taught for more than 10 years.
26. Cross-questioning. He agreed that the panel had to comply with PAM. Should there be a mistake, it needed to be corrected. Wood work did appear in the applicant’s accreditation certificates on pages 83 , 84 and 85 of the bundle, and that meant he met the requirements of the post. It was put to him that it was just a component certificate. He answered that it was part of the subjects. The requirements were not reduced because the subjects were there in the 2nd respondent’s certificate. It was put to him that page 83 and 85 certificates, were not issued by the accredited institution. He denied and added that both the applicant and himself did not know which institution was accredited or not. The applicant was appointed to act as a DH for technical subjects after a discussion with the school management team (SMT). At the time of appointing the applicant to act, he did realise that she was over qualified. The equity plan would be considered if the margin is too thin, but it would depend on the one who appoints. Analysis of Evidence and Argument
27. The central issue is whether the appointment of the second respondent to the post of Departmental Head for the technical subjects constituted an unfair labour practice relating to promotion. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA which defines unfair labour practices with regard to promotion as follows, “unfair labour practice’ means any act or omission that arises between an 1st respondent and an applicant involving….unfair conduct by the 1st respondent relating to promotion…….of an applicant.” In the current matter, the applicant
28. The applicant’s case was essentially that the second respondent did not meet the advertised post’s subject requirements, particularly Civil Technology and Engineering Graphics and Design, and that he was therefore improperly shortlisted and appointed. He was appointed on 01 July 2026. The starting point is that an applicant in a promotion dispute must establish more than that she was qualified, experienced or believed herself to be the better candidate. She (applicant) must establish that the 1st respondent’s conduct in preferring the successful candidate was unfair, and that there was a causal connection between the alleged unfairness and the prejudice suffered. That approach was confirmed in Pamplin v Western Cape Education and Others (C1034/2015) [2018] ZALCCT. The mere fact that an applicant possesses the requisite qualifications or experience does not, by itself, establishes an unfair labour practice. The evidence, however, raised a more fundamental question as to whether or not the 2nd respondent met the minimum requirements of the advertised post in the first place.
29. The applicant’s evidence was specific on the balance of probabilities. She testified that the post required teaching Civil Technology and Engineering Graphics and Design, and that the second respondent’s formal qualifications were predominantly in Woodwork/Fine Arts. She also testified that he did not possess a qualification or specialisation in Civil Technology or Engineering Graphics and Design. Importantly, her evidence was not merely that she was better than him; she challenged his eligibility to be shortlisted. There was considerable support for the applicant’s concern in the evidence of the 1st respondent’s own witnesses. Makhubele conceded that the second respondent did not have a qualification specifically in Civil Technology and that he could not say that the second respondent. He (Makhubele) nevertheless, regarded the Fine Arts qualification, together with experience and other accreditations, as sufficient. Similarly, Makgakga conceded that PAM was binding and that there was no authority for the panel simply to lower the qualifications prescribed in PAM. He (Makgakga) too, maintained that the second respondent qualified because of his Fine Arts degree and additional accreditations. Maswanganyi gave substantially the same evidence. He(Maswanganyi) relied upon Woodwork appearing in the second respondent’s certificates and considered that to be sufficient to meet the requirements. Those evidence created an important distinction between being eligible to teach some technical subjects, and meeting the particular qualification/specialisation requirements of the advertised DH post. The fact that the second respondent had taught Woodwork for approximately 17 years, had taught Civil Technology for a period of time, obtained excellent results, and had undergone training or received certificates, may demonstrate experience and competence. It does not necessarily on the balance of probabilities, cure a failure to possess a prescribed qualification or specialisation when that qualification was an essential requirement of the post. Chapter B, section B4 of PAM expressly recognises promotion to a DH post as a promotional appointment, and requires compliance with the educational qualifications, statutory requirements, competencies, skills and experiential competency of the post. The panel was therefore on the balance of probabilities not entitled to simply disregard an essential requirement just because it considered the candidate’s experience or performance impressive.
30. I agree with the applicant in her closing arguments that she did not merely say she was better than the successful candidate, there was objective evidence that she was ranked first in the actual interview process, she was recommended by the interview panel, but was ultimately displaced by the SGB in favour of a candidate whose compliance with the advertised qualifications was disputed . That version was corroborated by the 1st respondent’s witness, Makgakga , who further testified that he did not know why the SGB recommended the 2nd respondent. Those circumstances distinguished the matter from a case where an unsuccessful candidate merely relies upon her own assessment that she was the best candidate. The applicant’s first position in the interview process is objective evidence that, when the candidates were assessed by the interview panel against the criteria applied during the interviews, she emerged as the highest-ranked candidate. The panel’s subsequent recommendation of her for appointment was consistent with that result. The fact that the SGB ultimately recommended the second respondent is therefore an important departure from the outcome of the interview process. Although an interview panel’s recommendation does not necessarily bind the appointing authority, the SGB’s departure from the first-ranked candidate and the panel’s recommendation, requires a rational and evidence-based explanation. Surprisingly, the 1st respondent did not even call the SGB to come and explain their reasons for deviating from the panel’s recommendations. There was no satisfactory evidence explaining that departure.
31. Makgakga testified that the panel recommended the applicant, but that the SGB recommended the second respondent. He did not know why the SGB did so and could only assume that the SGB relied on the equity plan. Such an assumption cannot establish the actual reason for the departure. The explanation by the SGB would be very important on the balance of probabilities, because the second respondent’s eligibility was itself questionable. The advertisement did not merely state that the candidate should have a related qualification. On the evidence, it specified the relevant qualifications/subjects, namely Civil Technology and Engineering Graphics and Design. The 1st respondent’s witnesses nevertheless, justified the second respondent’s eligibility by referring to his Fine Arts degree, Woodwork certificates/accreditations, teaching experience and his excellent performance in Civil Technology. That evidence does not on the balance of probabilities necessarily answer the question whether he possessed the qualification prescribed in the advertisement. Makhubele’s evidence that the Fine Arts qualification was “related” to technical subjects was particularly revealing. The issue is not whether the panel considered Fine Arts sufficiently related to the advertised qualification. The issue is whether the applicable recruitment criteria permitted the panel to substitute a related qualification for the qualification actually stipulated. That was reinforced by Makgakga’s concession that PAM was binding on the schools and that there was no authority to lower the qualifications prescribed by PAM. The second respondent’s 17 years of experience teaching Woodwork, his experience teaching Civil Technology, his excellent results and his additional certificates may all be relevant considerations concerning experience, competency and performance. But they cannot automatically transform an unrelated or differently specialised qualification into the qualification expressly required by the advertisement. The distinction is therefore between qualification and experience/competence.
32. A candidate may be highly experienced and competent in a particular subject but still not possess the formal qualification required for a particular post. The applicant’s first position in the interviews is also relevant to the question of prejudice. Had the applicant merely established that she was qualified and that the second respondent was appointed, the 1st respondent could legitimately argue that there was no evidence that she would have been appointed. The applicant therefore did not have to rely solely on her subjective belief that she was the better candidate. The interview process itself placed her in first position, and the panel recommended her. The critical question consequently becomes why the first-ranked candidate was displaced by the second respondent. If the SGB had produced a cogent and evidence-based explanation, it could may be have been a different story, but they did not even come to testify. The principal of the school, Mr Maswanganyi, who normally would be the ex-officio member of the SGB, testified that he only served as a departmental representative and did not participate in the interview process per se. The 1st respondent could therefore not explain the SGB’s reason, but merely assumed that the equity plan had been applied.
33. My finding on the totality of the evidence and on the balance of probabilities, is that, the applicant has established more than mere comparative superiority over the second respondent. She has on the balance of probabilities established that the selection and appointment process was materially irregular and unfair. The irregularity was not merely that another candidate was preferred. It arose from the combination of the applicant’s first position in the interviews, the panel’s recommendation in her favour, the unexplained departure from that recommendation, and the failure of the 1st respondent to satisfactorily establish that the successful candidate possessed the qualifications prescribed in the advertisement. Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9; (2012) 33 ILJ 2597 (LAC); [2012] 9 BLLR 876 (LAC), recognised that procedural irregularities must be material and capable of rendering the selection process unfair. It was further held in Ndlovu v CCMA and others (D544/99[2000] ZALC 153, that interference with an appointment is reserved for cases where it is shown that the applicant would probably have been appointed, which was the case in the current matter on the balance of probabilities.
34. Relief. In Department of Education Northern Cape Province v Crow and Others [2025] ZALCCT 58. The Labour Court dealt with a deviation from a recommendation in a school appointment context. The court found that the absence of reasons for departing from the recommendation, coupled with the absence of evidence supporting the appointment, rendered the non-appointment arbitrary and substantively unfair. Importantly, the court confirmed that retrospective promotion was within the arbitrator’s powers. Clause 59 of the ELRC collective agreement 3 of 2016, Guidelines: promotion arbitration, provides that, once the applicant has proved that she was the best of all the candidates who applied for the post, the arbitrator is entitled to appoint him or her to the post, also see minister of Home Affairs vs GPSSBC and others (JR1128/07 [2008] ZALC35 in that regard. Clause 61 of the same collective agreement, provides that, provided that the successful candidate has been joined as a second respondent, the arbitrator has the discretion, irrespective of the relief requested by the applicant, to set aside the appointment of the successful candidate, also see SAPS v Inspector Zandberg and others (2010) 31 ILJ1230 (LC).
35. It is therefore my view that he appointment of the second respondent to the advertised post of DH at Makhutjisha school, should be set aside, insofar as the appointment resulted from the unfair and irregular departure by the SGB from the interview panel’s recommendation without reasons. The first respondent should be ordered to retrospectively appoint the applicant into the post of DH with effect from 01 July 2026 which is the date on which the second respondent was appointed. The second respondent was given an opportunity to present his case but he declined to do so. However, the fact that the second respondent declined to testify does not automatically prove every allegation against him, but it means his evidence cannot be relied upon to explain or justify his appointment where he chose not to place his version before the me (the commissioner).

Award

36. The conduct of the 1st respondent by appointing the second respondent into the disputed advertised post of Departmental head (DH), amounted to an unfair labour practice.
37. The applicant proved on the balance of probabilities that she was the best candidate among all the candidates who applied for the post in paragraph 36 above.
38. The appointment of the second respondent is hereby set aside.
39. The 1st respondent is ordered to appoint the applicant retrospectively with effect from 01 July 2026 into the position of the Departmental Head at Makhutjisha Senior Secondary School. The remuneration consequences of the retrospective appointment shall be determined after taking into account remuneration received by the applicant during the relevant period.
40. No order as to costs.

Panellist/s: Seretse Masete