06 May 2026 – ELRC851-25/26LP

ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC851-25/26LP

SADTU OBO MASIE JOHANNES SHOROMA APPLICANT

And

EDUCATION DEPARTMENT OF LIMPOPO 1st RESPONDENT

HLOMANE SAMUEL MANKWANA 2nd RESPONDENT
DETAILS OF THE HEARING AND REPRESENTATION

1.The arbitration hearing into an alleged unfair labour practice, referred to in terms of section 186(2) of the Labour Relations Act no 66 of 1995, as amended (LRA) was finalized at Polokwane, 1st Respondent’s offices, on 24 April 2026.
Both parties attended the proceedings. The 1st and 2nd Respondents were represented by Eric Nyathela, while the Applicant was represented by Hezekiel Madire, a union official from SADTU.
The hearing was held in English and was digitally recorded.
ISSUES TO BE DECIDED
Whether or not the decision of the 1st Respondent to appoint the 2nd Respondent to the position of HOD at Kopanong Primary School was procedurally and substantively fair.
If the appointment of the 2nd Respondent was procedurally and substantively unfair, I must determine appropriate relief in terms of section 193 of the LRA.
BACKGROUND TO THE ISSUES
The Applicant viewed his non-appointment to the position of HOD to be procedurally and substantively unfair and prayed to be appointed to the position as advertised.
The following issues are common cause to both parties:
a) the Applicant is currently employed as a CS1 educator at Kopanong Primary School since 01 January 2015.
b) both the Applicant and the 2nd Respondent applied for the position of HOD, were shortlisted and interviewed.
c) the Applicant lodged a grievance immediately after the interviews, but the grievance was not resolved.
d) the 2nd Respondent was appointed to the disputed position from 01 January 2026.
Prior to the commencement of the proceedings, the Applicant submitted a bundle of documents marked “A”, while the 1st Respondent submitted a bundle of documents marked “R”. The 2nd Respondent did not submit any documents.
The Applicant closed his case after leading his own evidence while the 1st Respondent closed its case after leading the 2nd Respondent and one witness.
Both parties submitted written closing arguments on the agreed date and time.
SUMMARY OF EVIDENCE AND ARGUMENTS
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
12.. The Applicant, Masie Johannes Shoroma, testified that the 2nd Respondent highest score of 95%, is not consistent with his other scores. Other interviews panelists scored the 2nd Respondent 59%, 64% and 74%. The 2nd Respondent was scored 95% by one of the panelists to make sure that he is ranked number one. On the other hand, his scores are consistent. The interview panelists scored hm 79%, 76%, 81% and 87%.
The panelist who scored the 2nd Respondent 95%, was influenced by Mr Maganyela. During the shortlisting and interview processes, Mr Maganyela was very instrumental. During the shortlisting, Mr Maganyela phoned and informed him that he was shortlisted to be interviewed. On the day of the interviews, he saw Mr Maganyela mingling and drinking tea/coffee with the interviews panel members. He also saw Mr Maganyela driving the vehicle of one of the interviews panelists. Mr Maganyela is an additional member of the school SGB. Mr Maganyela and him are not on good terms.
On 08 June 2023, Mr Maganyela described him in his resignation letter as an old pinpointed old individual who believes himself to be always relevant while not. In resignation letter, Mr Maganyela also alleged that him and the secretary are running the SGB sport subcommittee as if it is their baby and perpetually sidelining other members. Immediately after the interviews, he lodged a grievance which was never resolved until the appointment of the 2nd Respondent.
Under cross-examination, the Applicant testified that when other candidates were being interviewed, he was not present. The 2nd Respondent’s highest score of 95%, was influenced by Mr Maganyela. During the interviews, Mr Maganyela was not scoring but his presence within the premises might have influenced the scoring. It is in Mr Maganyela’s nature to demand things to happen as he demands. He does not have evidence to support his claim that Mr Maganyela influenced the scoring except to submit that they are not on good terms. Mr Maganyela was supposed not to have phoned him and invited him for interviews because they are not on good terms.
THE RESPONDENTS’ CASE
The 2nd Respondent, Hlomane Samuel Mankwana, testified that he knows Mr Maganyela as a colleague and they are not friends. They are also not staying in the same area. He is staying at Jane Furse, while Mr Maganyela is staying in Mogoroane Village.
Under cross-examination, the 2nd Respondent testified that he has no idea how Mr Maganyela had influenced the scoring during the interviews. On the day of the interviews, he never saw Mr Maganyela assisting/engaging with the panelists. When Mr Maganyela telephonically informed him about the date of the interviews, he assumed that he did the same with other candidates.
The Respondents’ witness was Tshwuba Cambridge Maganyela. He testified that the only role he played during the employment process was to phone the candidates and invite them to the interviews. As member of the school’s SGB, he was requested by the SGB committee to phone the candidates.
He was not part of the interview process, either as a panelist or observer. He knows the 2nd Respondent as a colleague and they are not friends. He is close to the Applicant more than the 2nd Respondent. The Applicant would from time to time assist in picking up his kids from school whenever he is busy. The Applicant also has attended most of his family events/gatherings. His resignation letter that he submitted to the SGB sport subcommittee on 08 June 2023, was not directed to the Applicant alone but to the whole committee.
Under cross-examination, the witness testified that he was verbally requested by the SGB committee to phone the candidates and it was immediately after the shortlisting and before the interviews.
It is recorded on the shortlisting minutes that he has been requested to phone the candidates. On the day of the interviews, he was not mingling with the panelists or drinking tea/coffee with them. He also never went near the interviews’ venue. His resignation letter was directed to the whole committee of the SGB sport subcommittee. In his resignation letter, he did mention that the Applicant and the secretary of the subcommittee own the portfolio as if it is their baby and that the two are always sidelining him and other members of the portfolio.
He also mentioned in his resignation letter that he cannot be able to continue working with old individuals who believe themselves to be always relevant whereas they are the opposite. What he wrote in his resignation letter was not intended to insult the Applicant or the secretary but to vent his frustration and opinion on how the SGB sport subcommittee was run by the Applicant and the secretary. After he submitted his resignation letter to the subcommittee, the Applicant attended his sister’s wedding.
ANALYSIS OF EVIDENCE AND ARGUMENTS
23.. In this matter, the onus was on the Applicant to prove on balance of probabilities that the decision not to appoint him to the position of HOD was procedurally and substantively unfair.
The Collective Agreement No 3 of 2016 ELRC Guidelines: Promotion Arbitrations, provides that where the employee complains that another employee was promoted, he or she must show that:
a) he or she has the necessary skills; and
b) the person who was promoted does not possess the same or same level of skills.
25.. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for unsubstantial reasons, or based upon any wrong principle or in a biased manner.
The Applicant based his argument on the disputed allegation that Mr Tshwuba Cambridge Maganyela had influenced the panelist who had scored the 2nd Respondent 95%. It is also the Applicant’s disputed evidence that Mr Maganyela and the 2nd Respondent are friends.
During cross-examination, the Applicant conceded that he does not have any supporting evidence to support his claim that Mr Maganyela influenced the scoring. His evidence that on the day of the interviews he saw Mr Maganyela mingling and drinking tea/coffee with the interview panelists did not assist his case. The fact that he did not see Mr Maganyela mingling with specifically one panelist makes his version that the panelist who has scored the 2nd Respondent 95% was influenced, very weak and not convincing.
His version that Mr Maganyela and him are not on good terms because of what he wrote about him in his resignation letter to the SGB sport subcommittee during 2023, is neither here nor there. It is the undisputed evidence of Mr Maganyela that he viewed the Applicant as a friend more than the 2nd Respondent because he always assisted him in picking up his kids from school when he was busy and attended his family events/ function prior and after he submitted his resignation letter. The Applicant’s case is based on assumptions and not facts. I find that the Applicant argued his case on a very shaky grounds.
The 2nd Respondent and Mr Maganyela submissions that they are not friends, appeared very convincing. The 2nd Respondent and Mr Maganyela’s friendship was never testified in detail by the Applicant during his evidence in-chief nor was a version put to them during their cross-examination. Mr Maganyela’s vehement denial that on the day of the interviews he was mingling and drinking tea/coffee with interview panelists was very convincing.
In Observatory Girls Primary School & another v Head of Dept: Dept of Education, province of Gauteng, Case No 02/15349, [2006] JOL 17802(w), the Court held that one should not go digging to find point to stymie the process of appointing suitable candidates to teaching positions.
In the circumstances, I conclude that the Applicant has failed to prove on balance of probabilities that the decision not to appoint him to the position of HOD was procedurally and substantively unfair.