---
title: "06 November 2026 – ELRC184-26/27GP"
description: "IN THE ELRC ARBITRATION ELRC184-26/27GP BETWEEN: NEHAWU obo J.Y Bothane “the Applicant” and DEPARTMENT OF HIGHER EDUCATION TRAINING “the Respondent” (CENTRAL JOHANNESBURG TVET COLLEGE) Date of Award: 06 November 2026 ARBITRATION AWARD Details of hearing and representation 1. This arbitration…"
url: "https://elrc.org.za/docs/06-november-2026-elrc184-26-27gp/"
updated: "2026-11-06"
category: AWARDS
---

# 06 November 2026 – ELRC184-26/27GP

IN THE ELRC ARBITRATION ELRC184-26/27GP
BETWEEN:

NEHAWU obo J.Y Bothane “the Applicant”

and

DEPARTMENT OF HIGHER EDUCATION TRAINING “the Respondent”
(CENTRAL JOHANNESBURG TVET COLLEGE)

Date of Award: 06 November 2026
ARBITRATION AWARD

Details of hearing and representation

1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard at the offices of the Respondent in Johannesburg on 14 August 2026 and 09 October 2026.
2. The Applicant is Mr Bothane, J.Y represented by Mr Lephoto, D an official from NEHAWU. The Respondent is the Gauteng Department of Higher Education, represented by Mr Nkambule, T, J Assistant Director: Labour Relations.

Issue to be decided

1. I must decide whether the dismissal of the Applicant was substantively fair. If I find that the dismissal was substantively unfair, I must determine appropriate relief. The Applicant sought reinstatement as a primary relief.

Background to the dispute

1. The parties have submitted a signed pre-arbitration minute which was read and forms part of the record. The Applicant was employed by the Respondent as a PL1 Lecturer from 28 January 2013. At the time of his dismissal, he earned gross salary of R28 192.00. The Applicant is challenging substantive fairness of his dismissal in that he did not commit the misconduct he was dismissed for, examination irregularity, he did not plead guilty and oath was not administered.
2. Parties submitted bundles of documents as follows, bundle “R” for the Respondent and bundle “A” for the Applicant.
3. The parties were given an opportunity to submit closing arguments on 16 October 2026.
4. The Applicant was charged as follows: “It is alleged that on 27 November 2023 while tasked with the duty of being the invigilator for Diesel Trade Theory, you committed examination irregularity in that after collecting the scripts of students who were writing at the hall, you did not take them straight to the examination office, instead you first went to your office with the scripts before submitting them to the examination office. Because of your actions when the scripts were counted and verified it was found that one script was missing and the script that was missing was later found in your office”.
5. A comprehensive outline of the process was given to the parties, including but not limited to how evidence is to be presented and how versions are weighed up; the standard of proving a case on a balance of probability, the onus in terms of section 192, as well as the importance of challenging an incompatible version through cross-examination, the consequences of not doing so and binding effects of the pre-arbitration minutes.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.

Respondent’s case

1. Mr M.I Mulaudzi (“Mulaudzi”) testified under oath that part of his duties was to invigilate examinations. On 27 November 2023, he was invigilating together with Mr Bothane. He stated that the Applicant took scripts that were allocated to him. He wrote a statement as contained in bundle “R16” because there were two scripts with identical examination and ID number. The Applicant was not supposed to have taken a script which was allocated to him.
2. Under cross-examination he testified that the Applicant was not charged and dismissed for two scripts which had the same examination number but that he went to his office first before handing them to the examination officer. The reason why he did not, in his statement, include that the Applicant went to his office was that he was told to write about the two scripts. He was the head invigilator on the day. Scripts which were missing are not part of the Respondents bundle.
3. Under re-examination he testified that the Applicant is the one who brought the scripts to the exam office.
4. Mr M.P Mamaribe (“Mamaribe”) testified under oath that he is based at Alexander campus and he is the exam officer. On 27 November 2023, they discovered two scripts with the same exam number. Buthelezi was called and the incident was reported to him, and when he arrived, he was informed of what happened. He did not see the Applicant going to his office.
5. Under cross-examination he testified that when scripts are brought to him, they count them in the presence of the invigilators. He testified that the Applicant brought the scripts to the examination office with other invigilators. The Applicant left before counting could be done. He did not call him to come back.
6. Under re-examination he testified that the Applicant is the one who brought the scripts which belonged to Mulaudzi. It was not proper for the Applicant to leave before counting.
7. Mr M. Buthelezi (“Buthelezi”) testified under oath that he is the Head of Department at Alexander campus. He was the Chief Invigilator on 27 November 2023. He was called by Mamaribe to the examination office; he was informed about the incident. He then called Mjoli to come and assist because the student did not want to tell them why she had two scripts. Mjoli then took the student to another room which she said she wrote in Lesiba’s office. While Mjoli was with the student, Lesiba came with the script and stated that it might have fallen.
8. Under cross-examination he testified that he did not see the Applicant going to his office.
9. Mr V. Mjoli (“Mjoli”) testified under oath that he is the Senior Lecturer at Alexander campus. A student was called and he took her to another room because she was refusing to explain to them about what happened. The student confessed that she wrote at Lesiba`s office.
10. Under cross-examination he testified that he did not see the Applicant taking the scripts to his office.
11. Under re-examination he stated that the student mentioned Lesiba`s name and not the Applicant’s.
12. Mrs S.D Jose (“Jose”) testified under oath that she is a Senior Lecture at Alexander campus. On 27 November 2023 she was the Marking Center Manager, while she was standing outside, she saw the Applicant with the scripts towards the office he shares with Lesiba and Lindela. She then asked him if what he had were scripts and his response was yes, he is going to hand them in. Invigilator assigned must submit their allocated packs at all times. It is not allowed for an invigilator to leave before counting is done.
13. She further stated that she was not expecting what she saw. She made a follow-up whether the Applicant brought the scripts. The answer she got was, yes, but he left. She reported the incident to the Chief Examination Officer. It is irresponsible for the Applicant to leave before verification is done.
14. Under cross-examination she testified that she was a relief invigilator. She was tasked to manage marking but not examinations. The procedure is that after exam venue the invigilators must go to the examination office.
15. Miss Z.Hlongwane (“Hlongwane”) testified that she is a Senior Examination Officer and she manages examinations. She wrote a statement as bundle “R25” due to an irregularity that happened. On 27 November 2023, she saw someone roaming around and she asked him who he was and his response was that he is the module lecturer, he wants to see how the students were doing. She later learned that it was Lesiba. She then told him to leave and then she reported the incident to the department. Lesiba then brought the script and said it might have been left by the Applicant. A case was also opened after the student confessed.
16. Under cross-examination she testified that she was monitoring all subjects written on the day. The Applicant is the one who brought the scripts. There was no register, but the Respondent can prove that the student cannot right the exam without a register.
17. Under re-examination she testified that she does not know who compiled the bundles.
18. Mr J. Chiloane (Chiloane”) testified under oath that he was the chairperson of the disciplinary hearing. The Applicant pleaded guilty to the charge without being influenced or coerced. The department places high premium on examination. Invigilators are appointed and there are workshops. Examinations are the core business of the college. The Applicant’s conduct is a serious irregularity. The Applicant and Lesiba colluded.
19. Under cross-examination he testified that it would be a joke if the Applicant would say he did not commit misconduct. If the Applicant would have pleaded guilty with “but”, he would have heard their evidence. An oath was administered in the disciplinary hearing.
20. Under re-examination he testified that he asked the Applicant to plead through his representative

Applicant’s case

1. Mr Yardley Jackie Bothane (“Bothane”) testified under oath that he did not commit misconduct charged for. It is not true that he went to his office as per the charge. He took the scripts with other invigilators to the examination officer. He went to work the following day, and he was never told about missing scripts. He was at the hall until the last student finished writing. It is true that the badge he took was Mulaudzi`s.
2. He testified that he shares the office with Lesiba and Lindela. He did not plead guilty and oath was not administered.
3. Under cross examination he testified that it is not true that he did not follow procedure because of leaving before process is completed. He received a call from his wife stating that she is sick. He told Mamaribe about the call.
4. Mr Phindela Mpendulo (“Mpendulo”) testified that he shares the office with the Applicant. He was not invigilating on 27 November 2023. He did not go anywhere on the day.
5. Under cross-examination he stated that he did not go to the toilet on the day but smoke. He does not know what sanction was imposed because the matter was escalated to the region. It is not true that the Applicant was seen going to his office because it is far. It would be irregular if the invigilator goes to his office first.

Analysis of evidence and argument

1. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The Applicant disputed substantive fairness in that dismissal in that he did not commit the misconduct he was dismissed for, examination irregularity, he did not plead guilty and oath was not administered.
2. The dismissal of the Applicant is not in dispute the Respondent is therefore required to prove on a balance of probabilities that the dismissal was substantively fair.
3. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
4. The Applicant contention is as follows: that he did not commit the misconduct he was dismissed for, examination irregularity, he did not plead guilty and oath was not administered. I will deal with the items as follows: whether the Applicant committed misconduct, whether he pleaded guilty and whether oath was administered.

Substantive fairness
Whether the Applicant committed misconduct

1. The Respondent witness, Mulaudzi testified that the Applicant took scripts that were allocated to him. The Applicant was not supposed to have taken a script which was allocated to him. This evidence was not challenged by the Applicant. In fact, in his testimony there were two versions, first was that the badge he took was not Mulaudzi`s but the invigilators and the second statement was that the badge he took belonged to Mulaudzi.
2. Jose testified that she saw the Applicant with the scripts coming from his office he shares with Lesiba and Lindela. The Applicant in his own testimony stated that it is an irregularity for an invigilator to go to his office first before handing the scripts in. Lindela testified that he was in the office the whole day, he only left to smoke. It is not true that the Applicant went to his office before handing the scripts in. I find it impossible for Lindela not to leave the office the whole day.
3. Hlongwane testified that she saw someone roaming around and she asked him who he was and his response was that he is the module lecturer, he wants to see how the students were doing. She later learned that it was Lesiba. She then told him to leave and then she reported the incident to the department. Lesiba then brought the script and said it might have been left by the Applicant. Lesiba was not invigilating on that day. I find it improbable for him get hold of the script if it is indeed that the Applicant did not go to his office before handing the scripts to the examination office. I have no doubt that someone with the Applicant experience would not know that that it is an irregularity to go to his office with the scripts before handing them in. The Applicant in his defence either gave short answers and/or stated that he did not commit misconduct he is charged for. I find that the Applicant committed the misconduct he was dismissed for.

Whether the Applicant pleaded guilty

1. As indicated above arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. In that being the case, it is immaterial whether the Applicant pleaded guilty or not. The parties were afforded an opportunity to state their respective cases in an arbitration process.

Whether oath was administered

1. It is settled law that substance prevails over form. I am of the view that evidence in employment law presented with affirmation or oath does not lack the status or character of admissibility. This means that for the fact that the Applicant claims that oath was not administered does not invalidate the process or admissibility of evidence. The Applicants argument is rejected on that basis.
2. I therefore find that the Respondent proved the case on the balance of probability.
3. I accordingly find the Applicant’s dismissal substantively fair.

Relief

1. The Applicant is not entitled to relief.

Award
46. The application is dismissed.

Commissioner: Thabo Mathibedi
Date: 06 November 2026