07 July 2025 – ELRC1341-24/25LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD IN Polokwane on the 18th of June 2025

Case Number: ELRC1341-24/25LP
Panelist: Thapelo Mathekga

In the matter between: –

Moleke MM Applicant

And

Limpopo Department of Education First Respondent

Masweneng ME Second Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

The hearing was held in Polokwane at the Department’s premises on the 18 June 2025.
The Applicant was represented by Adv. M. Monene on the instruction of Ramabala Attorneys, while the Respondent was represented by Ms. N. Rasebotsa, who is employed by Respondent as an Assistant Director responsible for grievances and disputes.
Both parties submitted bundles of documents which were admitted as evidence and were marked as “R” and “A” for the Respondent and the Applicant respectively. Bundle “R” contained some 126 pages, while bundle “A” contained 100 odd pages.
The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments by Friday, 27 June 2025. I have since received same from the Respondent which was considered in this award.

THE ISSUE IN DISPUTE

I must determine whether the appointing authority applied his/her mind correctly when he/she exercised his/her discretion by deviating from appointing the Applicant who was ranked and recommended as candidate number one (1) for appointment by the SGB in favour of the incumbent, the Second Respondent, who was ranked and recommended for appointment as candidate number three (3), and thereby committing an unfair labour practice for the purposes of section 186(2)(a) of the of the Labour Relations Act 66 of 1995 (“the LRA”), . If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

The Respondent advertised the position of Head of Department under circular No.2 Volume 3/2024. Subsequently, the School Governing Body (“SGB”) recommended for appointment the Applicant, Ms. MM Moleke as the first (1st) choice preferred candidate, and the incumbent, Mr. Masweneng ME as the third choice (3rd) preferred candidate.
The arbitration was then set down before me on the 18 June 2025. Mr. Masweneng ME was joined to the proceedings and cited as the Second Respondent. He attended the proceedings, but chose not to participate by either adducing evidence and/or cross-examining the witnesses.
The matter was digitally recorded.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
MM Moleke

Ms. Moleke testified under oath, and her evidence can be summarized briefly as follows. That she applied for the vacant position of the Head of Department at Dithotwaneng Secondary School for which she was shortlisted and interviewed for same by the SGB. She was recommended for appointment as the first (1st) choice preferred candidate.
She further testified that there were two processes, and that the first process was nullified following rumours of interference.
That the process was restarted without advertising as the same profiles were used in shortlisting, and she was interviewed and recommended for appointment as candidate number one (1).
She further testified that she was then informed by the SGB that the District Director has deviated from appointing her, and appointed the second Respondent instead.
She further testified that there were two vacant posts, being post number 14 and 21, wherein a certain Ms. Makola MA and Mr. Masweneng ME were appointed for post 14 and 21 respectively.
She further testified that the school had a staff compliment of 22 teachers, made of 10 males and 12 females.
Ms. Moleke further testified that she felt humiliated by the decision not to appoint her, more so that the employment equity was not applied in two schools within the same circuit, being Modipane and Mphanama primary schools.
Further, she testified that she was scored higher at 65.6% followed by Moshia ME with 61.4 and lastly the second respondent with 60%.

Maja Tladi Joel Phogole

Mr. Phogole testified under oath in vernacular which was translated into English. His evidence can briefly be summarized as follows.
That he was elected as the SGB chairperson since 2024 and participated in the panel interview of post 21 (Vol 3/2024) at Dithothwaneng Secondary School. He testified that post 21 had a re-run, having previously been ordered to restart by the Circuit Manager on the allegations of a letter of dispute and/or a grievance.
He further testified that he has not seen the letter of dispute himself but was told by Mr. Matsimela that the complainant was Mr. Masweneng ME, the incumbent who was not shortlisted in the first round of the same process.
Mr. Phogole further testified that he was part of the interview panel that recommended the Applicant for appointment as the preferred candidate number one, with the incumbent as preferred candidate number three.
Mr. Phogole further testified on the letter attached on page 17 of “A” wherein the Respondent wrote a letter to the SGB informing them of the District Director’s decision to deviate from appointing the first preferred candidate in favour of candidate number three.
Mr. Phogole further testified that in the same letter they were asked to respond within five (5) days, for which they responded.
Mr. Phogole testified that another letter was written on the 27 January 2025, directed at the District Director in which it was pointed out that the incumbent was not shortlisted in the first process due to him not meeting the curriculum needs of the school, and that the letter was not responded to.
Further, Mr. Phogole testified that another letter was written to the District Director on the 27 January 2025, this time inviting the Director to engage the SGB at the school which was neither responded to.
Mr. Phogole further testified on the letter written by the Respondent to the SGB on the 12 November 2024, instructing the SGB to re-run the process in respect of posts 14 and 21. The letter was authored and signed by one Mr. Phasha MS, the Deputy Director-Corporates Services in the employ of the Respondent.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

The Respondent’s first and only witness, Mr. Phasha MS, testified under oath, and his evidence can be summarized briefly as follows. That he holds the position of Deputy Director: Corporates Services and his responsibilities include managing human resources and development and labour relations amongst other responsibilities.
He further testified that post 21 was advertised in the year 2024 wherein three candidates were interviewed and Mr. Masweneng was appointed.
Mr. Phasha further testified that three appointable candidates were recommended by the SGB, and they appointed Mr. Masweneng in compliance with circular 226 of 2024.
Ms. Phasha testified that clauses 3.1.1, 3.1.2 and 3.1.3 of circular 224 of 2024 were the reason for the deviation, and the department was overrepresented with females at the HOD level throughout the province, with females at 52.7% versus males at 46.7%.
Mr. Phasha further testified that had the SGB been dissatisfied with the decision of the District Director they had an option to appeal to the Member of the Executive (MEC), which they did not exercise.

ANALYSIS OF EVIDENCE AND ARGUMENT

The parties narrowed the disputes and reduced same into writing through the signed pre-arbitration minute. Per the pre arbitration minute, I am called upon to determine “whether the District Director exercised his/her discretion properly when he appointed the second respondent over the first preferred candidate by the SGB.
The facts in this case are hardly controversial. It is common cause that the SGB interviewed three candidates, namely Ms. Maleke MM, Ms. Mashia ME and Mr. Masweneng ME. The candidates were scored 65.4, 61.4 and 60 percentages respectively.
It is also common cause that the recruitment process was restarted. In the initial run, the incumbent was not shortlisted. However, he was shortlisted in the second process, while the Applicant was shortlisted in the both processes.
In this case, the parties agreed in the arbitration minute that the only issue in dispute is the reasonableness, or otherwise the fairness of the District Director’s decision to deviate from appointing the first preferred candidate by the SGB.
The court in South African Breweries (PTY) LTD v Louw restated the purpose of the arbitration minute as follows:
“The chief objective of the of the pre-trial minute is to agree on limiting the issues that go to trial. Properly applied, a typical minute – cum –agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute”
Similarly, the court in the National union of Metalworkers of South Africa v Driveline Technologies (PTY) LTD and Another held that like a pretrial minute, a pre-arbitration minute “is a consensual document which binds thereto and obliges the arbitrator (in the same way the pleadings do) to decide only the issues set out therein”.
The parties’ signed pre-arbitration minute was part of the record which appears on page 40 of “A” as amended.
It is also common cause that the Applicant was recommended as the first preferred candidate by the SGB, and further that the District Director deviated from appointing the first preferred candidate and appointed Mr. Masweneng ME instead.
It is that deviation that is subject of this dispute. Put differently, if the District Director acted reasonable and fairly in applying circular 226 of 2024 when he deviated from appointing the Applicant, then the Respondent committed no unfair labour practice against the Applicant. On the contrary, if I find that the decision and/or the deviation was unreasonable nor fair, or taken for ulterior motives, then the Respondent would have committed an unfair labour practice against the Applicant.
Section 6(3) of the Employment of Educators Act provide thus:
“(b)The Head of department may only decline the recommendation of the governing body of the public school or the council of the further education and training institution, if-
(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed
(ii)the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators
(iv) sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence
(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1) of the Act
(c) If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department”.
It is common cause that the appointing authority in this case refers to the District Director, and not the Head of Department.
Section 6(3) b and c of the Act are relevant to assess whether the discretion of the District Director was properly exercised in the appointment of the incumbent, wherein the SGB preferred candidate for appointment, Ms. Moleke not appointed.
The District Director, as the appointing authority, must apply his mind and give reasons for the deviation.
The Respondent’s witness, Mr. Phasha testified that the District Director applied his mind and appointed the incumbent in compliance with the employment equity plan as contained in circular 226 of 2024. He further conceded under cross examination that the powers to appoint rested with the District Director, and he as the Deputy Director for corporate services was not enjoined with the powers to appoint.
Counsel for the Applicant referred Mr. Phasha to page 112 of “R”, wherein a memorandum prepared by one Ms. Zungu NB requested the approval to appoint Ms. Moleke MM as the Head of Department (PL2 Educator) at Dithothwaneng Secondary School. The memorandum was verified and signed off by two signatories, then another signatory, one Malatjie ME recommended Ms. Moleke ME for appointment. In the same memorandum, on page 114 of “R”, Mr. Phasha MS did not support the appointment, and commented thus “the appointment of Masweneng ME is herewith supported on the basis of employment equity. Circular 226 of 2024”.
Following Mr. Phasha’s comment, wherein he supported the incumbent, the District Director, Dr. Malatjie JF approved without commenting or providing reasons.
I am now ceased with evaluating the reasons for the deviation by the District Director in a situation where he deviated without providing any reasons. The question is whether the Director applied his mind, if yes, has he done so fairly without committing an unfair labour practice against the Applicant?
Subsequently, Mr. Phasha wrote a memorandum dated the 24 February 2025, titled “report on the appointment of departmental head post no.21 at Dithothwaneng secondary school”.
In the memorandum, Mr. Phasha repeated the reasons for supporting the appointment of Mr. Masweneng ME, and attached circular 226 of 2024 together with letter informing the SGB of the decision for the Director to sign. Again, the District Director signed, without commenting.
It is not in dispute that the power to appoint lies with the District Director. It is also not in dispute that the District Director must apply his mind and give reasons, more so when he deviated from appointing an SGB’s first preferred and recommended candidate.
From the evidence before me, it is evident that Mr. Phasha, as the Deputy Director for corporate services, exercised the power he does not have when he did not support the appointment of Ms. MM Moleke. The District Director, on the evidence before me, could not be said to have applied his mind nor gave any reasons for not appointing the Applicant, nor reasons for appointing the incumbent. If anything, it is Mr. Phasha who gave his reasons for not supporting the Applicant citing circular 226 of 2024. It is also Mr. Phasha who gave reasons for appointing Mr. Masweneng, in the process exercising the powers he does not have. This in my view should not be condoned.
Further, circular 226 of 2024 was signed into law on the 10 September 2024. It was preceded by the advertisements or publishing of open vacancy list in volume 3/2024, which was published on the 05 August 2024. The timelines are important in order to evaluate the how the discretion or deviation not to appoint Ms. Moleke MM was arrived at.
Firstly, the open vacancy list volume 3/2024 has a preface. Clause 1.2 provide thus “it is the responsibility of schools to ensure that their staff and governing bodies are informed about the contents of this preface”. The preface is five pages long, and not even once was an employment equity plan mentioned or circular 226 of 2024.
Seemingly, the application of circular 226 of 2024 was not only retrospective, since it was not in existence at the time of advertising, it was also not applied consistently as per the uncontroverted evidence of Mr. Phogole and the Applicant in respect of appointing only female HOD’s in neighboring schools of Modipane and Mphanama, which appointments were after the appointments in this case.
The District Director exercises a public function, which must not only be fair, but must lawful and reasonable.
Further, the Applicant and her witness, Mr. Phogole, testified that that circular 226 of 2024 was only applied in post 21, and was not applied in two neighboring schools where female teachers were appointed at the HOD level. This version was not seriously challenged by Mr. Phasha, who feigned ignorance., save for suggesting that the Applicant must prove his allegations.
The court in Sidumo and Another v Rustenburg Platinum Mines Ltd and others was ceased with a dismissal dispute. However, an important principle emerged, which in my view is applicable in this case as well.
The court held that triers of facts must consider the totality of evidence, and not decide disputes on a piecemeal approach. In keeping with that, I have considered the fact that the genesis of this dispute can be traced back to the letter dated 12 November 2024, wherein the Mr. Phasha instructed the SGB to rerun the process.
It was not disputed that Mr. Masweneng was not shortlisted in the first process, and was subsequently shortlisted in the second process. Further, Mr. Phasha conceded under cross examination that the reasons advanced for rerunning the process only affected post no.14, however the instruction to rerun included post 21.
In my view, an inescapable inference can be drawn that the real reason for restarting the process was to accommodate the incumbent, Mr. Masweneng, who was not shortlisted the first time. It is not clear how Mr. Masweneng was shortlisted in the rerun as there was no re-advertisement. Be that as it may, that is not the dispute I am ceased with as both parties did not address this important question in their evidence or closing arguments.
In my view, the Respondent committed an unfair labour practice towards the Applicant.
The question is whether that conduct of the employer is enough to warrant interference with the prerogative of the employer to appoint a candidate of their choice?
In my view, yes. The LAC in the Ncane v Lyster NO and Others held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides.
Firstly, the District Director never applied his mind to the alleged deviation. It was Mr. Phasha who ran the process on behalf of the Director.
This view was not only confirmed by Mr. Phasha himself under cross examination, but is also evident on the comment he made on the memorandum motivating for the appointment of Ms. Moleke, wherein he cited circular 226 of 2024 as the reason for not supporting the appointment.
When Mr. Phasha was asked whether he considered the national figures in relation to employment equity figures, he respondent “I only focused at the district”. There simply was no pretense that the person who ought to be making decisions was missing in action, and is his place, Mr. Phasha was making decisions, albeit exercising the powers he was not clothed with.
Thirdly, it seems to me that circular 226 of 2024 was an afterthought and an attempt to sanitize a sham process and clothe it with some semblance of rationality and fairness when in fact it was a retrospective application of the policy.
Further, at least two cases at the level of the constitutional court dealt with disputes concerning employment equity targets. The constitutional court in Solidarity v Department of Correctional Services and South African Police Service v Solidarity obo Barnard have had an occasion to adjudicate dispute implicating the employment equity plans. Importantly, the two judgments teach us that “as a bare minimum, the principle of legality would require that the implementation of a legitimate restitution must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct in implementing a lawful project attracts unlawfulness”.
Further, the same judgments teach us that black women were just as maligned by the apartheid laws as were black men, but black women were more so.
Similarly, in this case, it would seem an irrational decision was taken to advance what would otherwise be a lawful project in terms of balancing the gender equity. In my view, a decision without reasons where reasons are required cannot be said to be a rational decision.
The Respondent’s representative referred me to various case laws including Sidumo supra. In her detailed closing arguments, she urged me to consider the fact that the courts have repeatedly held that “as a general rule employer may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision”. In my view this argument missed the Applicant’s case, more so what both parties agreed in arbitration as the question for determination. The Applicant’s case was not that the employer was not entitled to appoint whomever the preferred. The argument was about whether the District Director exercised such discretion fairly and properly.
Ms. Rasebotsa also urged me to consider the fact that the SGB had an option to appeal the District Director’s decision if they were aggrieved, and that they did not. She argued that because the SGB did not appeal, they should not succeed. I beg to differ. This mater was ripe for adjudication at the council at the time a decision to appoint or not to appoint occurred. The appeal is but just one of the options available, so is the council.
Lastly, the Respondent had an opportunity to call the District Director as a witness in order to defend his decision. They chose not to call him.
The court Shishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC) at paragraph 112, held that:
“[112] The failure of a party to call a witness is excusable in certain circumstances, such as when the opposition fails to make out a prima facie case. But an adverse inference must be drawn if a party fails to testify or produce evidence of a witness who is available and able to elucidate the facts, as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him, or even damage his case. That inference is strengthened if the witnesses have a public duty to testify.”
In this case, the Applicant testified first, and strongly implicated the District Director. The entire case of the Applicant was that the District Director did not properly exercise his discretion not to appoint the her. They concluded their case on that basis.
Yet, the Respondent chose not to call the District Director, who was directly impugned by the testimonies of two witnesses. There were no reasons advanced for his non-attendance to vindicate his or her decisions. In line with Shishonga supra, I am inclined to draw negative inference of such a decision. Counsel for the Applicant strongly argued that a wrong person made decisions referring to Mr. Phasha, and the District Director ought to have been called to give his or her version, unless of course, if her/she feared unfarouble evidence or facts to be exposed before the council, or even worse, that he feared to defend decisions he or she knows nothing about. In my view, the District Director had a duty to testify in this case, and he chose not to.
Clause 56 of Collective Agreement 3 of 2016 (“CA”) – ELRC Guidelines: Promotion Arbitrations, provides that “before granting any relief, the arbitrator must consider the effect that the relief that he or she intends to award, is likely to have on the school, the education department, and the learners”.
I have already found that the Respondent’s refusal to promote Ms. Moleke was substantively unfair.
The incumbent, Mr. Masweneng ME was appointed to the position of HOD on the back of a discretion that was not properly exercised, or exercised for ulterior motives, and ought to be set aside.
Ms. Moleke MM performed well in interviews, and is equally competent in terms of the qualifications and experience. In fact, the sole reason for not appointing her was based on the requirements of circular 226 of 2024. It was never in dispute that she was a suitably qualified candidate.
In the circumstances, I make the following award.

AWARD

I make a declaratory order that the appointment and/or promotion of the incumbent, Mr. Masweneng ME was arbitrary, irrational, unreasonable and substantively unfair.
The promotion of Mr. Masweneng MM is set aside effective on the 31st of July 2025
Ms. Moleke MM is appointed to the position of Head of Department at Dithothwaneng Secondary School effective the 01st of August 2025.
There is no order as costs.