IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT VIA THE ZOOM DIGITAL PLATFORM
Case No ELRC701-19/20EC
In the matter between
SADTU obo PK Ngqondi Applicant
and
Provincial Education Department: Eastern Cape Respondent
ARBITRATION AWARD
Arbitrator: JC Robertson
Heard: 15 04 2021, 24 06 2021, 09 10 09 2021, 13,14 12 2021, 17,18, 19 01 2022, 04, 05 05 2022, 23,24,25 05 2022, 21 06 2022, 23,24,25 05 2022, 05,06,07 09 2022, 03,04,05 10 2022, 13,14,15 03 2023, 13,14,15 04 2023, 03,04,05 07 2023, 18,19,20 09 2023, 13 10 2023, 14,15 12 2023, 24,25 01 2024, 31 01 2024, 28,29 02 2024, 16 04 2024, 08,09 05 2024, 01 07 2024, 12 08 2024.
Closing arguments
Applicant: 01 November 2024
Respondent: 15 October 2024
Award: 03 March 2025
Summary: Labour Relations Act 66 of 1995 – Section 186(1)(a) – Unfair Dismissal Dispute; .
Details of hearing and representation
- This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(i) of the Labour Relations Act, No 66 of 1995 (LRA). The hearings were conducted via the teams / zoom digital platform and also face to face at venues in East London on the dates set out above. Adv. M Mannya instructed by Mr F Tjale, and later in his then capacity as an attorney, represented the applicant party , SADTU obo Mr Phillip Kholisile Ngqondi (the applicant). Adv S Collett instructed by the State Attorney, represented the Provincial Education Department: Eastern Cape (the Respondent). Mr M Ndabambi, Mr B Banga and Mr D Kova acted as interpreter. The proceedings were digitally recorded. The matter was finalised on 1 November 2024 when the applicant party submitted written closing arguments. I requested an extension to submit my award. Preliminary matters
- The applicant applied to strike out certain charges on the basis that documents germane to the said charges had not been made available. The applicant argued that documents had been removed from the school by the respondent and it had either lost them or had them in its possession. Failure to be placed in possession of these documents would compromise his ability to prepare in respect of the charges, including his right to a fair hearing. The respondent opposed the application on the basis that documentation had been handed up in respect of each charge. The applicant was responsible for the removal of the said documents from the school. It had however located additional documents at the school and these were available for inspection by the applicant. I dismissed the application and ruled that the parties engage one another in respect of the additional documents, see my ruling dated 24 August 2021 herein.
3 Towards the close of the day’s proceedings on 22 June 2022, Mr Mannya during cross-examination of Mr Totana , asked him whether he was still working for the Department of Education EC and following on his reply, when Mr Totana had stopped working for the department and he replied 31 January 2022. He was asked the reason and replied that he had resigned. Mr Mannya then asked Mr Totana what his reason was for resigning. Mr Totana replied that he had stated his reasons in a letter he had submitted to the department, which he could bring to the Commissioner (i.e. hand up to the proceedings).
4 Adv Collett, on behalf of the respondent, objected strongly to the handing up of the letter and argued that it was of no relevance to the issues in dispute. Mr Mannya argued that they intended to question the integrity of the witness and wished to pursue this line of questioning.
5 The witness had offered to hand up the letter in question. I pointed out to the parties that to make a ruling on the production of the letter could be construed as a finding on the integrity of the witness and that this was something I could not do at that stage until all the evidence was in. In other words, my ruling on the production of the letter or not could not be construed as a finding on the integrity of the witness. That being said, I made an ex tempore ruling to the effect that Mr Totana should hand up the letter in question at the next hearing and, if necessary, any aspects concerning the witnesses privacy rights could simply be redacted .
6 On 13 February 2023, the applicant raised an objection to the content of an expert notice that had been delivered by the respondent long in advance of the hearing, to the effect that it did not contain a summary of the evidence to be tendered and only listed issues to be addressed. The applicant argued that the expert notice was defective and that there had been no reason for the applicant to reply to it at an earlier stage. In addition, the applicant argued that the witness was not an expert.
7 The respondent argued that the notice had been delivered long ago and to raise an objection at the hearing was tantamount to ambushing the respondent. If the applicant had not been satisfied with the expert notice, he should have raised an objection at an earlier stage. In the respondent’s view, the notice contained a summary of the expert’s opinion, that the witness was an expert and his CV had been attached.
8 After hearing the parties, I ruled that the witness, Mr Hanekom, was not an expert and that the notice was defective. My reasons included the following:
8.1 The expert notice did not contain a summary of what the witness was to testify on, but rather listed issues which the witness intended to deal with.
8.2 There were various references to sections of the Employment of Educators Act, the South African Schools Act and regulations in the PAM. It is not for a witness to testify on the requirements of the law in an expert capacity or otherwise.
8.3 The CV and qualifications did not indicate at face value that the witness was an expert.
9 Accordingly there was no obligation to respond to the notice. I further ruled that the respondent may nevertheless lead the witness as an ordinary witness. Mr Hanekom thereafter testified.
The issue to be determined - I am required to determine whether the dismissal of the applicant was fair, and if not, to determine appropriate relief.
- Background
- The applicant, Mr PK Ngqondi, at the time the principal of Molly Blackburn Senior Secondary School (MBSSS), was charged and subsequently dismissed on various charges of misconduct over the period 2010-2013.
12 The applicant commenced employment with the respondent on 1 January 1993. The applicant was subsequently appointed as the principal of MBSSS. The applicant was charged with misconduct on 28 July 2015 (A11) relating to the period 2010-2013. His disciplinary inquiry commenced on 22 September 2015 and was finalised on 17 May 2019. The applicant was charged with 22 counts of misconduct. One charge was withdrawn, he was acquitted on 8 charges and found guilty of the balance of 13 charges and dismissed. He appealed the finding and sanction. His appeal was not successful and he then referred a dispute to the ELRC. A copy of the charge sheet is attached hereto marked Schedule 1. The charges in respect of which the applicant was found guilty were charges 6.1.6, 6.1.8, 6.2.1, 6.2.4, 6.2.5, 6.2.6, 6.2.7, 6.2.8, 6.2.8, 6.2.10, 6.2.12, 6.2.13 and 6.2.14.
13 At the arbitration hearing ,the applicant pleaded not guilty and denied contravening any rule and / or that there was a rule applicable to one or more charges.
13.1 In his plea explanation handed up by Advocate Mannya, the applicant confirmed his plea of not guilty and briefly explained his position with regard to the charges in summary as follows:
13.2
Charge No. Substance of charge against applicant Applicant’s explanation
6.1.6 Meetings with SMT and staff Submits regular staff meetings held, there is no policy regulating frequency and number of meetings to be held
6.1.8 Assessment schedule Grade 10 December 2013 Agrees there was a rule. Admits there was an issue with erroneous allocation of marks but this as a result of uncooperative educators in respect of submissions and capturing of marks on SAMS. He took corrective steps and resubmitted schedule. Not the result of misconduct of the applicant but of the educators.
6.2.1 Permitted appointment of Mr Rodrigues as security guard The decision (to appoint) taken by SGB in response to security problems at MBSSS and SGB authorised in law to do so. Therefore the applicant did not commit misconduct
6.2.4 Permitted loans to staff from school funds (R 73 500.00) Submits payments to staff approved by SGB following failure of department to pay salaries. The SGB had authority to take such a decision and it was never intended for these to be loans. Disputes that these were loans
6.2.5 Permitted MBSSS to operate 4 banking accounts. Submits that on taking over as principal MBSSS already had 3 bank accounts and a fourth, an investment account, was opened on the authority of the SGB. He was not responsible
6.2.6 Failure to assist SGB in preparation of annual financial budget for 2013 Submits that he did provide the assistance and trained the SGB
What rule did he contravene ?
6.2.7 Failure to ensure supporting documents or proper authorisation of expenditure Submits that all supporting documents were kept and that these documents were removed by the respondent during an investigation.
6.2.8 Issuing of cash cheques (in the amount of R 704 208.00) Admits cash cheques were issued but submits that this was approved by the SGB for practical purposes. Disputes the issuing of the cheques were in contravention of any rule.
6.2.9 Failure to ensure cheque payments to VA Dlutu made with supporting documentation Submits supporting documents were kept, requisite approval obtained from the SGB and payments made in accordance with SGB decisions and approvals.
6.2.10 Procurement and payment to T Dladla for grass cutting (2010-2013) Submits payments were based on a quotation obtained and this was approved by the SGB
6.2.12 and 6.2.14 Failure to follow proper petty cash procedures Submits proper procedures followed and records kept. The records were removed during the respondent’s investigation.
13.3 He averred that the investigation conducted was not credible and was not based on sound investigative principles.
13.4 It was his case that financial decisions were taken by the SGB as provided for in law and that he performed the duties he was required to perform in law.
13.5 He complied with the functions and responsibilities of the principal of the school as contemplated in section 16A of the South African Schools Act.
13.6 He placed consistency in the application of discipline both historically and current in dispute. It was the applicant’s case that teachers at MBSSS had committed misconduct, they had failed to submit schedules which led to charges against the applicant, no action had been taken against them. The applicant would submit the list of names. No disciplinary action was taken against the principal of Ithemelihle High School in respect of allegations of financial mismanagement. Three senior executives, based at head office, were appearing in court on inter alia charges of corruption and yet no disciplinary action had been instituted against them.
14 The applicant raised the following with regard to procedural fairness:
14.1 Not being provided with documents to facilitate preparation.
14.2 Unreasonable delay in instituting disciplinary proceedings.
15 In his referral ,the applicant sought as relief that he is reinstated
16 The respondent’s case was to the effect that:
16.1 The applicant was guilty of the charges in respect of which he had been dismissed. The two charges 6.1 and 6.2 were the main charges relating to the professional administration (6.1.6 & 6.1.8) and financial management / administration (6.2.1, 6.2.4, 6.2.5, 6.2.6, 6.2.7, 6.2.8, 6.2.9, 6.2.10, 6.2.12, 6.2.13 & 6.2.14) of the school respectively. The misconduct in respect of which the applicant was charged was governed by legislative prescripts which he was required to observe in terms of his job description (R363-R364) as a principal. These were known and established, e.g. aspects of section 16A of the South African Schools Act No. 84 of 1996 (SASA). The respondent intended to show what these requirements were, prove that the applicant was aware of or should have known of them, and that he failed to comply therewith / contravened the requirements in question.
16.2 With regard to consistency, the respondent was unaware of the applicant’s allegations it would need more information as to whether the circumstances were similar.
17 As to procedural fairness, it was the respondent’s case:
17.1 That it had made available all the documents in its possession to the applicant. It was the respondent’s view that the applicant was in possession of documents, the property of the respondent, which it required.
17.2 As to delay. Risk Management had submitted two investigation reports the first one approved on 22 July 2014 (R140-R173 I(7)) and a supplementary report (R174-R178) approved on 27 July 2015. The fact that the charges related to the period 2010-2013, came out of the investigations that were spearheaded at MBSSS. There accordingly was no delay and the issue of delay had not been raised at the disciplinary inquiry.
18 The issues in dispute accordingly relate to substantive and procedural fairness’
Substantive fairness
In respect of each charge:
18.1 The existence of the rule.
18.2 Whether:
18.2.1 The rule was valid or reasonable
18.2.2 The applicant was aware or could reasonably be expected to be aware of the rule
18.2.3 The rule was consistently applied
18.2.4 Whether the applicant contravened the rule.
19 The sanction of dismissal
Procedural fairness20 Delay in instituting disciplinary action
21 The provision of documents to facilitate preparation
Survey of evidence
The Respondent’s Submissions22 The respondent led the following witnesses and closed its case:
Mr Balie: Education Development Officer (EDO), Uitenhage District, appointed 28 01 2013 as an EDO but allocated to schools as from April 2013. MBSSS was one of the schools within his district.
Mr Hlekani Chief education Specialist (CES), Labour Relations, Nelson Mandela District (Port Elizabeth, Uitenhage, Despatch).
Mr Totana: At the time in question, Senior Manager, Risk Management, Department of Education: Eastern Cape. He conducted the investigation into alleged mismanagement and maladministration at MBSSS. He conducted a risk management investigation on the instruction of the HOD at MBSSS during the latter part of 2013 -2014. The period in respect of which the investigation focused was 2010-2013. His first report was finalised on 22 07 2014 (R173) and his supplementary report on 22 07 2015 (A178).
Ms Biko: Involved with finance with the department since 2009. Currently Deputy Director of Finance, Department of Education: Eastern Cape. At the time in question the Director of Payments, responsible for making payments to schools..
Mr Hanekom: Acting Chief Education Specialist (CES), Directorate Institutional Development Support and Governance (IDS&G), Department of Education: Eastern Cape.
Ms Madonsela: Acting Director, Human Resource Administration Department of Education: Eastern Cape.
Ms Ndika: Head of department of Science and Natural Science at MBSSS and a member of the SMT.
Mr Stuurman: Started at MBSSS in 2010 as a post level 1 educator. 2010-2013 he was a post level 1 educator and secretary of site executive of SADTU.
2012-2013 he was a member of the SGB. Currently he was a deputy principal teaching Social Sciences.
The Applicant’s Submissions23 The applicant testified on his own behalf and led the testimony of:
Mr S Stokwe: He had been a post level 1 educator in the department of Mathematics, Science and Technology at MBSSS from 2010 to 2015. Currently he was the principal at Nkuleke Public SS, Uitenhage.
Mr L Koliti: At the time (2010-2013) a post level 1 educator in the department of Commerce and the SGB Secretary MBSSS. Currently he was the principal at Gravid Vuku PS.
24 The applicant handed up a bundle of documents Exhibit A1-A265. The respondent handed up the following documents: The transcript of the disciplinary inquiry on a flash drive. Exhibit R1-R139, R139(1)-R139(87), R140-R173, R173A(1-49), 173B(1)-B(14), R173C(1)-C (13), R173D(1)-D(4), R173E(1)-E(4), R173F(1)-F(4),R174G(1)-G(5), R173H(1)-H(32), R173I(1)-I(7), R174-R378, Exhibit D1-D8, Exhibit D1(1)-D1(13), Respondents Bundle 3 Award on merits (161 pages) and Award on sanction (24 pages), Respondent’s bundles 3 and 4 (Cheque / Cheque requisitions without supporting documents 2010-2013) and Respondent’s bundles 5-7 (Petty cash vouchers without supporting documents 2010-2013). The documents were handed up on the basis of what they purport to be without admitting the contents thereof.
25 I shall refer to the documents, where necessary as A1, A24, R23-R25, and the Transcript as T1318 etc.
Analysis
26 My thanks to the parties’ representatives for their respective written arguments.
27 Subject to weighing same against the probabilities, I intend dealing with the evidence of Mr Totana on the basis of the direction in the High Court in The Road Accident Fund v Auditor-General of South Africa and Others (RAF) and the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (Bato Star). In the RAF case the High Court said the following:
“[17] Auditing is a process that involves the conduct of an official financial inspection of a company or its accounts. Most importantly, the purpose of an audit is to form a view on whether the information presented in the financial report, taken as a whole, reflects the financial position of the organisation at a given date. There are various types of audit opinions that can be issued.”
In Bato Star the Constitutional Court held as follows:
“[48] In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the proper role of the Executive within the Constitution. In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. …”
28 With regard to Ms Biko, Ms Madonsela and Mr Hanekom, I intend, subject to weighing their testimony against the probabilities, to deal with their evidence similarly to the approach taken in TN obo BN v Member of the Executive Council for Health, Eastern Cape (36/2017) [2023] ZAECBHC 3; 2023 (3) SA 270 (ECB) (7 February 2023). Namely that given the nature of their work and responsibilities, they are able to give insight into the role, functions and responsibilities of a principal in the school environment. Their testimonies in so far as they include their opinion in relation to the financial oversight and the professional management functions and responsibilities of a principal are not expert evidence but given their respective positions, are of assistance in contextualizing the dispute within the applicable legislation, the school management manual and PAM, to make necessary decisions. Ms Biko, with experience in finance, having been previously the director of payments, making payments to schools and currently deputy director of finance, testified in relation to the financial responsibilities and functions that a principal is required carry out. Mr Hanekom, CES IDSD&G, testified both in respect of a principal’s role of professional management and financial oversight. He also contextualized the principal’s roles and responsibilities in terms of SASA, the Employment of Educators Act 76 of 1998 (EA), and the School Management Manual.
29 I have not set out the testimony of the respective witnesses separately and will refer to relevant aspects when dealing with the respective charges. The respondent’s witnesses impressed as reliable and credible. Their respective testimonies were supported by reference to applicable legislation, policy, regulation and the Personnel Administration Measures (PAM).
General30 The LRA provides that an employee may not be unfairly dismissed , and that a dismissal includes the situation where an employer terminated employment with or without notice . Further that [i]n any proceedings concerning any dismissal, the employee must establish the existence of the dismissal and that [i]f the existence of the dismissal is established, the employer must prove that the dismissal is fair . In terms of Section 188 of the LRA, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason (substantive fairness) and that it was arrived at in accordance with a fair procedure (procedural fairness), taking into account any relevant code of good practice issued in terms of the LRA . Schedule 8 of the LRA, the Code of Good Practice: Dismissal; sets out guidelines relating to procedural and substantive fairness and guidelines on determining sanction .
31 This matter arises out of the applicant’s referral of his dismissal dispute. Dismissal was not in dispute. The applicant raised issue with procedural fairness and substantive fairness including consistency, see above. The applicant seeks reinstatement. It was the respondent’s case that the applicant was guilty as charged and that dismissal is an appropriate sanction.
32 In terms of section 192 of the LRA, the applicant bears the onus to prove the existence of the dismissal / i.e. that s/he was dismissed. Dismissal was not placed in dispute and the respondent accordingly has the onus to prove that the dismissal of the applicant was substantively and procedurally fair. The respondent needs to prove by way of credible evidence, that its version is the more probable and acceptable version . The onus is determined on a balance of probabilities .
33 In order for the dismissal to be substantively fair, the employer must prove that the employee contravened the rule/s; and that dismissal was an appropriate sanction for a breach of the rule .
34 In Stellenbosch Farmers Winery Group Limited & Another v Martell et Cie and Others, the SCA explained the approach to the resolution of factual disputes as follows. In resolving factual disputes, an arbitrator must make findings on (a) the credibility of the various factual witnesses ; (b) their reliability ; and (c) the probabilities . The credibility and reliability of the witnesses and the probability / improbability of their versions are not to be treated piecemeal. They are part of a single enquiry into the acceptability or otherwise of the versions. A finding on the probabilities involves a process of reasoning by way of inferences drawn from the facts to arrive at the most natural, plausible, and logical conclusion to be drawn out of any number of possible conclusions from those facts .
35 In Sasol Mining (Pty) Ltd v Ngqeleni NO and Others the Labour Court after quoting from the above SCA judgment (SFW) stated as follows:
“One of the commissioner’s prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour . He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. …”.
36 Accordingly where there are differing factual versions presented by witnesses, this entails, in summary, an assessment of the credibility, by way of their demeanour, any partiality, prejudice or self-interest , of the witnesses, the reliability and accuracy of their testimony , and the inherent probability or improbability of the witnesses testimony together with an overall consideration of the probabilities of each party’s version and to make a determination thereon as to the most natural and plausible conclusion .
37 I take into account that in the event of circumstantial evidence, inferences on the probability of the facts in dispute may only be drawn from proven objective facts. As such, it constitutes indirect proof and care must be taken as to the nature of the evidence from which it is sought to draw an inference about the facts in dispute. “If the facts permit of more than one inference, the Court must select the most ‘plausible’ or probable inference” . The distinction between speculation, (an impermissible inference), and a permissible inference grounded on objective facts, must also be born in mind :
“There can be no inference unless there are objective facts from which to infer other facts, which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
38 In summary, in the event of circumstantial evidence, it is necessary to determine whether there are proven objective facts , on which inferences can be drawn and the probability or otherwise of such inferences (i.e. where the facts permit of more than one inference, that it is the most ‘plausible’ or probable inference).
Substantive fairness
Inconsistency challenge
39 At the outset, the applicant raised issue with the question of discriminatory treatment / inconsistent application of the rules or sanction. The applicant referred to principals, who he named, of various schools and stated that they had not been disciplined. He further referred to educators at MBSSS who had not been disciplined in relation to incidents that formed part of the general pattern of indiscipline that permeated MBSSS. In addition he referred to a number of senior head office officials who were currently facing charges in court of amongst other things, corruption. The respondent objected to the manner in which this was raised and the applicant undertook to make name lists available. In addition he would have to present suitable evidence of a comparable nature in order that like cases could be considered with like. No list of names or evidence relating to the position of the respective employees, the nature of the charges, whether they were found guilty or not, sanction or whether they were not charged, has been adduced. In cases, on the applicant’s claim, where the employees were not charged, again no evidence has been adduced as to what the cause was, who was responsible, whether this had been communicated to the employer, whether any investigations were made or pending and whether disciplinary steps are being considered or a conscious decision was taken not to. The applicant has accordingly tendered no evidence of a comparative nature to make any determination on the issue of consistency. In his closing arguments, the applicant referred to the startling revelation made by Mr Totana as to selective disciplinary action / inconsistent application of discipline. This too cannot be resorted to as an example of inconsistency, given the obvious disparities.
40 The respondent led the evidence of Mr Hlekani, Chief Education Specialist (CES), Labour Relations, Nelson Mandela District who testified that the respondent viewed financial mismanagement / misconduct in a serious light. During 2012 the respondent had taken a decision that where there were allegations of financial misconduct, risk management had to investigate. The role of risk management was to assist the department in ensuring systems were in place and to curb financial misconduct. Risk management was tasked to investigate misconduct and make recommendations to the department / HOD on the way forward, including charges. He referred to several principals who had been charged with financial misconduct and dismissed. One principal had resigned when proceedings were instituted and had accordingly been deemed discharged. I accept the testimony of Mr Hlekani
41 Consistency is not an end in itself, it is one of the factors to be taken into account in determining whether a sanction may be unfair. In the circumstances, it should not operate so that an employee receives a benefit or profits from the oversight of an employer. Where an employee has committed serious misconduct, it would be unfair to invoke the parity principle only on the basis that in a previous case a wrong decision had been arrived at. See the discussion in Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 42 ILJ 1686 (GJ) (26 May 2021) (LAC) [25]-[26].
42 An unsubstantiated claim that an employer has treated an employee differently, cannot form the basis of a consistency challenge, as there is no basis to compare the respective cases, e.g. the nature of the misconduct, the level of responsibility of the employee (comparator), whether there were in fact charges laid, if so the nature of the charges, the plea, the finding and other factors such as the seriousness and duration of the negligence / misconduct, remorse or the absence thereof. In the circumstances, I find that the applicant has not shown that the respondent acted inconsistently toward him in the application of the rule and sanction. For the same reasons, I find that the respondent has shown that it did not act inconsistently toward the applicant.
The rules underlying the charges and validity of the school management manual & resource file (Manual)43 The School Management Manual & Resource File (Manual) as testified to by Mr Hanekom and other respondent witnesses is an instructional tool made available to principals to enable them to follow their appointed mandate. Mr Hanekom in fact testified that principals were obliged to comply with the Manual. The Manual sets out in practical terms how a school should be managed in accordance with the requirements of SASA, in particular section 16A, with regard to financial and academic matters. The applicant did not dispute the applicability of the Manual.
44 The applicant however raised issue with the basis of the Manual . He argued that the Manual was based on the Public Finance Management Act No. 1 of 1999 (PFMA). The PFMA did not apply to schools. He argued that as public schools were not listed in Section 3 of the PFMA as entities to which the PFMA applies, any rules or regulations made under the PFMA will not apply to schools. The Manual was based on the PFMA not SASA and accordingly it was not competent to charge the applicant with contravention of rules emanating from the PFMA. He cited Nxumalo v President of the Republic of South Africa [2014] ZACC27 to the effect that where a functionary purports to exercise under one Act a power that Act does not confer on him/her, that Act is unlawful, even if there is another Act that confers such power. It was accordingly the applicant’s argument as I understand him, that:
44.1 The PFMA does not apply to public schools
44.2 The Manual, relied on by the respondent, was issued in terms of the PFMA and not in terms of SASA
44.3 The rules upon which the respondent relied for charges (in respect of procurement and financial management as per the Manual) against the applicant were based on the PFMA, although disguised as contraventions of SASA.
44.4 It was not competent to charge the applicant based on rules developed from the PFMA, accordingly the charges should fall away.
45 The respondent was of the view that the PFMA found application to the respondent except for the question of school fees as per section 3 and section 13 read with Schedule 4 of the PFMA.
46 In terms of section 3(a) of the PFMA, the PFMA applies to departments. A department is defined in section 1 to mean “… a national or provincial department or a national or provincial government component”. Section 22(1) provides that “[a]ll money received by a provincial government, including the provinces equitable share, and grants made to it, in terms of the annual division of revenue act must be paid into the provinces provincial revenue fund, except money received by – … (d) a provincial department in the province – (v) if the money is of a kind described in Schedule 4”. “Schedule 4 Exclusion From Revenue Fund” refers to “SA Schools Act (covering school fees)” at item 1. In terms of section 36 (2)of the PFMA the Head of Department is identified as the accounting officer.
47 It is readily apparent that the PFMA applies to the respondent and its operations, including schools and their financial administration except for school fees. The applicant’s claim that no legitimate basis exists for the rules and charges in relation to the financial misconduct charges is accordingly without merit. Likewise any objection to the validity of the Manual on this basis too is without merit .
48 Sight must not be lost of the fact that the charges are prefaced with a reference to the respective provisions of SASA which are applicable to principals and in respect of which the applicant was charged with contravening. In many instances, these legislative provisions are echoed in the Manual. In the circumstances, I find that there is a rule underlying each charge, that such rules are valid and reasonable and that the applicant is aware of them. Not only do these rules derive in the main from legislation but also from the applicant’s job description as principal.
The position and responsibilities of the applicant as principal
49 Prior to dealing with the respective charges, it is necessary to set out the position and responsibilities of the applicant as principal. The job description of the post of principal is found in the Personnel Administration Measures (PAM). The job description is updated from time to time to take account of various agreements reached in the ELRC and amendments to legislation.
50 In terms of the job description of principal ,the applicant is required, amongst other things, to ensure that the school is managed satisfactorily and in compliance with applicable legislation, regulations and personal administration measures as prescribed. Under core duties and responsibilities, he is responsible inter alia for the professional management of the public school, to have various kinds of school accounts and records properly kept and to make the best use of funds for benefit of the learners in consultation with the appropriate structures. To assess and to record the attainment of learners taught, to serve on the SGB and render all necessary assistance to the SGB in the performance of their functions in terms of SASA. To liaise with the circuit office concerning the administration, staffing, accounting, purchase of equipment, research and updating of statistics in respect of educators and learners. To cooperate with the SGB with regard to all aspects as specified in SASA. Public Schools that have acquired section 21 SASA status have more autonomy than normal public schools and may perform any one or more of the functions listed at section 21(1) (a)-(e). MBSSS is a section 21 school. This impacts on the principal’s responsibilities particularly in the oversight of procurement and payment for goods and services.
51 The functions and responsibilities were clarified and codified by way of section 8 of Act No 31 of 2007, in terms of which section 16A was included in SASA. Certain additional responsibilities / amendments to section 16A were effected by Act 15 of 2011. Section 16A of SASA provides as follows:
“16A. Functions and responsibilities of principal of public school.—
(1) (a) The principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in sections 23 (1) (b) and 24 (1) (j).
(b) The principal must prepare and submit to the Head of Department an annual report in respect of—
(i) the academic performance of that school in relation to minimum outcomes and standards and procedures for assessment determined by the Minister in terms of section 6A; and
(ii) the effective use of available resources.
(c) (i) The principal of a public school identified by the Head of Department in terms of section 58B must annually, at the beginning of the year, prepare a plan setting out how academic performance at the school will be improved.
(ii) The academic performance improvement plan must be—
presented to the Head of Department on a date determined by him or her; and tabled at a governing body meeting.
(iii) The Head of Department may approve the academic performance improvement plan or return it to the principal with such recommendations as may be necessary in the circumstances.
(iv) If the Head of Department approves the academic performance improvement plan the principal must, by 30 June, report to the Head of Department and the governing body on progress made in implementing that plan.
(v) The Head of Department may extend the date contemplated subparagraph (iv) on good cause shown.
(2) The principal must—
(a) in undertaking the professional management of a public school as contemplated in section 16 (3 ), carry out duties which include, but are not limited to—
(i) the implementation of all the educational programmes and curriculum activities;
(ii) the management of all educators and support staff;
(iii) the management of the use of learning support material and other equipment;
(iv) the performance of functions delegated to him or her by the Head of Department in terms of this Act;
(v) the safekeeping of all school records; and
(vi) the implementation of policy and legislation;
(b) attend and participate in all meetings of the governing body;
(c) provide the governing body with a report about the professional management relating to the public school;
(d) assist the governing body in handling disciplinary matters pertaining to learners;
(e) assist the Head of Department in handling disciplinary matters pertaining to educators and support staff employed by the Head of Department;
(f) inform the governing body about policy and legislation;
[Para. (f) amended by s. 9 of Act No. 15 of 2011.]
(g) provide accurate data to the Head of Department when requested to do so; and;
[Para. (g) amended by s. 9 of Act No. 15 of 2011.]
(h) assist the governing body with the management of the school’s funds, which assistance must include—
(i) the provision of information relating to any conditions imposed or directions issued by the Minister, the Member of the Executive Council or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4 ; and
(ii) the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school;
[Para. (h) added by s. 9 of Act No. 15 of 2011.]
(i) take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school;
[Para. (i) added by s. 9 of Act No. 15 of 2011.]
(j) be a member of a finance committee or delegation of the governing body in order to manage any matter that has financial implications for the school; and
[Para. (j) added by s. 9 of Act No. 15 of 2011.]
(k) report any maladministration or mismanagement of financial matters to the governing body of the school and to the Head of Department.
[Para. (k) added by s. 9 of Act No. 15 of 2011.]
(3) The principal must assist the governing body in the performance of its functions and responsibilities, but such assistance or participation may not be in conflict with—
instructions of the Head of Department;
legislation or policy;
an obligation that he or she has towards the Head of Department, the Member of the Executive Council or the Minister; or
a provision of the Employment of Educators Act, 1998 (Act No. 76 of 1998), and the Personnel Administration Measures determined in terms thereof.”
[S. 16A inserted by s. 8 of Act No. 31 of 2007.](emphasis added)
52 As can be seen, the insertion of section 16A into SASA confirms the considerable authority, responsibility and mandatory duties of a principal, including the duty to report any maladministration or mismanagement of finances to the SGB and HOD. In short, the principal is obliged to attend , inform , advise , prevent , report and assist . In addition, the principal must assist the SGB in the performance of its functions and responsibilities, which assistance may not be contrary to the instructions of the HOD, legislation or policy, obligations to the HOD or MEC. Section 16A was in place when the applicant assumed his appointment as principal.
53 Flowing from the responsibilities allocated the principal in terms of section 16A, the principal must inform the SGB of and ensure compliance by the SGB with e.g.:
53.1 The ambit of the SGB’s functions as set out in section 21 and section 22
53.2 Section 37, in respect of opening one bank account and, with the approval of the MEC, investing surplus monies in an investment account
53.3 Section 38, the preparation of an annual financial budget and presentation to the parents at a meeting, subject to 30 days-notice of the meeting and to informing the parents that the budget will be available for inspection at the school at least 14 days prior to the meeting.
53.4 Section 38A, the SGB may not give any state employed educators remuneration, other financial benefits or any benefit.
54 In terms of SASA, the governing body (SGB) of a public school “must establish a school fund and administer it in accordance with directions issued by the Head of Department”, see section 37, SASA. All monies received “including school fees and voluntary contributions must be paid into the school fund”, section 37(2), SASA. The SGB must open and maintain one banking account unless it obtains the approval of the MEC to invest surplus money in another account, see section 37(3), SASA. The school fund, all proceeds thereof and any other assets of the school “must be used only for” the purposes as set out at section 37(6) SASA, namely educational purposes for the school, another public school by agreement and with the consent of the HOD, the performance of the functions of the SGB, an educational purpose agreed between the SGB and the HOD.
55 The Eastern Cape Schools Education Act 1 of 1999 (ECSEA) provides as follows at section 64(1)
“The principal, in his capacity as accounting officer of the school, shall ensure that the functions of the finance committee, as outlined in the manual relating to school funds, are properly executed.”
(Emphasis added)
56 Paragraph 3.2.2 of the Manual (R25 / C13) provides as follows:
“The principal in his capacity as accounting officer must ensure that the functions of the finance committee relating to school funds are properly executed.”
57 Paragraph 1.4 of the Manual (R38 / F2) provides as follows:
“The head of department appoints the principal as the responsibility officer in the school. This means that the principal is responsible for the overall control of all the schools finances and for managing all its resources and assets. After consulting with others concerned, the principal must advise and inform the SGB about expected expenses and sources of income. The principal must work within the powers delegated to him or her by the SGB to carry out their decisions and to manage the school effectively.”
58 What is evident from the above is that the principal is the official responsible for ensuring that the financial administration, including procurement and payment of goods and services are properly executed in accordance with the instructions of the HOD, in effect, in accordance with the Manual and in line with section 16A, SASA.
The charges59 The charges are divided into two broad categories, namely charges related to general management and administration, including the professional management of the school (6.1) and charges related to financial management and administration (6.2). Charge 6.1 sets out the nature of the misconduct the applicant is charged with and the relevant common law or statutory prescripts (underlying rules). Charges 6.1.6 and 6.1.8 concern instances / activities / conduct or omissions on the part of the applicant, where the applicant is alleged to have contravened the rule/s. Charge 6.2 read separately with charges 6.2.1, 6.2.4, 6.2.5, 6.2.6, 6.2.7, 6.2.8, 6.2.9, 6.2.10, 6.2.12, 6.2.13 and 6.2.14 follow a similar pattern. The charges are attached hereto in Schedule 1.
Charge 6.1.660 Mr Totana testified that he was unable to locate minutes for the relevant meetings that should have been held. Those minutes he did locate did not have attendance registers and so he was unable to verify them. In addition ,the SGB meetings that were held were not properly attended / quorate. In his view, from the paper trail the various committees were dysfunctional. There were no minutes to record activities or effectiveness of committees. Three individuals, The applicant, Mr Dlutu and Mr Goba, the School Management team (SMT) were effectively running the school. In his view, this was one of the causes of the instability as only they took decisions on school management matters and sidelined others. There were no minutes for the procurement committee for the whole of 2013, which accordingly was also dysfunctional. The finance committee was also dysfunctional. In terms of section 16A of SASA, the principal was required to be a member of the finance committee and ensure its functionality. During the period 2010-2013 the SGB and its sub structures were dysfunctional, particularly in 2013, when instability reigned. The HOD had had to come and address stakeholders at the school.
61 The applicant denied the charge and stated that meetings were held and referred to SMT and Staff meeting minutes in the documents he had handed up, i.e. Exhibit A. The respondent’s witnesses testified to attending briefings but complained about absence of staff meetings. A perusal of the minutes handed up by the applicant at A1-A72 and minutes of meetings contained in Mr Totana’s report reveals a combined total of 12 SMT meetings in 2012 and 6 in 2013, 7 staff meetings in 2012 and 5 in 2013. There is no record for 2010 and 2011.
62 The Manual points to the absolute necessity for formal staff meetings with compulsory attendance and permission for non-attendance. Staff meetings are a vital tool for ensuring communication and facilitating that the institution runs smoothly and effectively and all are aware of what is required of them. Not one of the staff meeting minutes has an attendance register, and the frequency of meetings is hopelessly inadequate.
63 MBSSS at the time in question had over 1 000 learners and approximately 50 educators. The annual budget if one goes by the figures in the draft 2013/2014 budget was in the region of R 2 996 614.00. This amount excludes salaries of the departmental staff as this was paid directly by the department. The point is that MBSSS is a large organisation and requires attention to communication systems, (regular weekly staff meetings at a minimum), to enable it to operate effectively. 7 or 5 staff meetings a year can in no way begin to address effective communication in the school. Mr Totana was unable to find evidence of regular weekly staff meetings. He was unable to find proof that the SGB sat regularly or was properly constituted at meetings or that the status of the committees as presented to him on paper were actually functional. I accept that Mr Totana only removed those records that he required for his report, these being the gravamen of the charges subsequently brought against the applicant. Logic dictates that these records were incomplete / did not have all supporting documents / were evidence of incorrect procedures etc., making up the documents on which Mr Totana based his reports. I do not accept the claim of the applicant that Mr Totana took away with him, documents relating to shortfalls in respect of which he is charged in the sense that if such documents were available this would show that proper processes etc., had been followed. This is simply not probable. The fact that applicant did not respond to questions put to him in cross-examination as to what these documents were, is telling in this regard.
64 I find that the applicant is guilty of contravening 6.1.6
Charge 6.1.865 Mr Balie testified that the applicant had met with him a number of times in connection with the submission of the 2010 Grade 10 assessment schedule. The schedule was dated 5 12 2013 and signed by Mr Dlutu and the applicant. He had found several errors on checking and the schedule had been returned to the applicant several times to remedy it. Eventually he was satisfied and signed it on 10 12 2013. The applicant then returned to him on 13 12 2013 requesting that the schedule be retracted and replaced as he had found fresh errors. Mr Balie agreed but only on assurance from the applicant that no reports would be sent out based on the “old” retracted schedule. The new schedule was then signed. It was common cause or at least not disputed by the applicant that reports were indeed sent out based on the incorrect schedule leading to some learners being progressed when they should not have been and vice versa.
66 The applicant testified that the assessment schedule was the product of several members of staff, the deputy principals, the assessment committee, the heads of department and the capturers. The role of the principal was that of coordinating and collating the information. The schedule was checked by the assessment committee and brought to him for spot checking. If there was an error in the schedule, this would not mean that it was caused by him.
67 He was checking the schedules after submission to Mr Balie on 10 12 2013 and noticed many errors. He queried this with the functionaries and that was when the problems were highlighted. Mr Stokwe highlighted the problem. He had then again approached Mr Balie.
68 Mr Stokwe testified that after the applicant had gone to submit the schedule to the EDO on 10 12 2013, he had noticed that marks in respect of mathematical literacy had been incorrectly captured. The capturer had included the SBA in the mark in the last column. This was the only problem that he picked up. He agreed on it being put to him that in respect of some learners, there were problems not only with mathematical literacy but also in three other subjects. Further, in the case of one learner, only one mark was correct. He later added that the fact he picked up differences in mathematical literacy meant that all marks for all subjects had to be verified on direction from the principal. Mr Stokwe is now a principal and has to submit assessment schedules to the EDO in respect of his school. He holds the view that as the EDO is senior to him, he will be responsible should there be any errors. He however had agreed earlier that by virtue of the declaration, he confirmed the correctness of the schedule. In addition, as principal, he was responsible for the management of his school and in the event that the assessment schedule was incorrect, he would be held responsible. Mr Stokwe appeared to be amending his testimony to better favour the applicant.
69 The applicant claims he is not responsible for the erroneous schedule or that reports based on it went out. The assessment schedules are signed, in this case by Mr Dlutu in the capacity of educator, by the applicant in his capacity as principal and Mr Balie in his capacity as EDO. The initial and erroneous assessment schedules were signed by Mr Dlutu and the applicant on 5 12 2013 and Mr Balie on 10 11 2013. Mr Balie testified in cross-examination, when asked, that the schedule had been returned to the applicant to correct about 10 times before he signed it on 10 12 2013. The final schedules are dated and signed by Mr Dlutu and the applicant on 5 11 2013 and by Mr Balie as EDO on 13 12 2013. As principal, the applicant was responsible for the submission of the assessment schedule in accordance with the assessment instruction 50 of 2013, a copy of which is in bundle A.
70 The applicant and those signing the assessment with him make a declaration as recorded on the document above their signatures that all learners have been included and have been correctly promoted / retained, all marks have been calculated correctly and are in the correct columns, the reports given to learners have been generated from the schedule and have exactly the same marks on them, no alterations will be made after it is signed off by the EDO and submitted to the Provincial Office.
71 The applicant is charged with failing to manage the correct assessment and recording of the schedule during December 2013 adequately, or at all, resulting in erroneous marks awarded to learners to their prejudice. The mark assessment schedules were not managed correctly. In the first instance, the EDO picked up errors on the assessment schedule necessitating it to be returned 10 times, meaning that the schedule was then signed off 5 days later on 10 12 2013. The applicant then returned, advising that there were further errors that had to be corrected and the schedule was then signed off by the EDO on 13 12 2013. Despite the applicant confirming to the EDO that no reports would go out on the basis of the erroneous schedule, some reports were in fact sent out. The principal is required to undertake the professional management of the school which includes the implementation of all educational programmes and curriculum activities, the management of all educators and support staff . I cannot see on what basis he can claim he is not responsible.
72 I find that the applicant is guilty of charge 6.1.8.
Charge 6.2.173 Mr S Rodrigues was appointed as a security guard (December 2010) at the time his wife, Mrs Rodrigues, was the SGB treasurer. It was the applicant’s case that he had not appointed Mr Rodrigues. The SGB had appointed him. He had no power to stop the SGB making any decision.
74 Mr Totana, with reference to the documents and his reports, pointed out that according to the minutes of a Fincom meeting R139(87) held on 14 07 2010 , reference was made to the SGB proposing the appointment of a security guard. On 11 12 2012 Mr Rodrick was appointed as a security guard as per the contract at R139(75)-R139(77). There was no proof that during the intervening 2 years, a fully attended SGB had sat to agree on the appointment, whether Mrs Rodrigues had recused herself as required in terms of section 26 of SASA and what processes had been followed.
75 The appointment contract of Mr Rodrick provided to risk management is signed by the applicant as principal and witnessed by Mr Dlutu (Deputy principal) and Ms Matshoba (SGB secretary). There are no supporting documents e.g. minutes of an SGB meeting / procurement processes followed. The contract was not signed by the chairperson of the SGB and there is no authorisation for the principal to sign for the SGB / chairperson.
76 The applicant did not seek to deny that his signature appeared on the contract of Mr Rodrigues. His case was that the SGB appointed Mr Rodrigues and that he had no power to stop them making a decision. The applicant is obliged to inform the SGB about policy and legislation and required to implement it . The applicant must assist the SGB in the performance of its functions and responsibilities (section 16A (3)). The applicant must inform the SGB about policy and legislation (section 16A (2)(f)). The applicant cannot, as principal, attempt to shift his responsibility to the SGB simply on the basis that he had no power to stop the SGB from making a decision. In the event he had properly informed and assisted the SGB in this instance and the SGB had nevertheless gone ahead, he as the principal would be entitled, given the financial implications, to report the matter to the SGB and the HOD. No documentation / records relating to the principal having informed the SGB about relevant policy and legislation relating to procurement, or his having reported the matter to the SGB and HOD were made available to Mr Totana. The applicant’s attempt to hold the SGB responsible is an attempt to shift responsibility from himself and to cover up that he did not give any thought to what was required of him and simply appointed Mr Rodrigues / Rodrick as per the contract at R139(75)-R139(77).
77 In the circumstances, I find the applicant guilty of charge 6.2.1.
Charge 6.2.478 It is self evident that loans were made to educators at MBSSS. See R173H(1)-R173H(32) for copies of the loans / financial assistance contracts between MBSSS SGB and various educators. See also Mr Totana’s report at R162 for a list of the educators, their PERSAL numbers and the amounts loaned them. The total amount is R 73 500.00.
79 The applicant’s case was that the SGB had been approached and that it was their decision to pay the teachers. Stuurman had confirmed that when the site committee had approached him about giving loans to the teachers, he had said he did not have authority to do that, that the money available at the school was SGB money and that it was ringfenced. Stuurman did not disagree that it was Mr Yamile who approached the SGB.
80 In terms of section 16A of SASA, the applicant is required to inform, advise and assist the SGB in respect of policy and legislation. Section 38A of SASA prohibits the payment by the SGB of any financial benefit to employees, employed in terms of the Employment of Educators Act 76 of 1998, without approval from the employer. The applicant accordingly is guilty of charge 6.2.4.
Charge 6.2.581 The applicant’s position regarding the 4 MBSSS bank accounts was that he was not involved in the opening of the bank accounts. He had found three bank accounts already in place when he commenced as principal. He was not sure whether all three were open or not. The SGB had taken the decision to open the fourth account (investment advantage). He was aware, at the time, that a school may not have more than one bank account and to open others would require the approval of the MEC.
82 The applicant was appointed as principal of the MBSSS, as such he was required to advise the SGB of policy and legislation in this regard. Opening an additional bank account without the approval of the MEC was contrary to SASA and irregular. The applicant as a principal was required in terms of section 16A of SASA to advise the SGB in terms of policy and legislation and he failed in this. Even if the bank accounts were there when he took over, he should have advised accordingly. The applicant was aware of this and his attempt to shift responsibility to the SGB does not assist him. It points to a lackadaisical approach to his functions and responsibilities as principal.
83 I find the applicant guilty of contravening charge 6.2.5
Charge 6.2.684 The applicant testified that notice of the SGB meeting for 27 11 2012 was given on 26 11 2012 (A125). An undated notice was addressed to parents to attend the parents meeting on 28 11 2012 (A115). The parents completed and signed an attendance register on 28 11 2012 (A116-A124). He testified further to the effect that he had complied with what he had been charged with, as per the production of the budget at A126-A127. Asked what steps he had taken in the preparation of the budget. He failed to answer the question and responded to the effect that one could not have a budget without preparation steps, the budget was there, he was not charged for not taking steps. The budget was not signed, he had submitted the signed original to the department. He had obtained A126-A127 from his computer records. It was the same as the one prepared for 2012. Referred to the Manual, he agreed that it set out a step by step process to arrive at a budget . He was not charged with this. He was of the view that he was charged for not producing a budget, that was all. No evidence was led that no steps were taken. However because there was a budget, steps must have been taken. All this was done, as that is why there was a budget at A126. He referred to the attendance register of the parents meeting and on being asked stated that he had got copies from different people, might be someone had the register, might be someone in the SGB had it. As to whether he removed the documents from the school, he had no comment.
85 Mr Koliti testified to the effect that he presented the budget to the SGB and to the parents. It was apparent from Mt Totana’s investigation, the relevant documents referred to, (sans the budget at A125-A126) that; a budget for 2013 was presented by Mr Koliti to the SGB meeting on 27 11 2012 (R139(14)-R139(16)) for presentation to a parents meeting on 28 11 2012.
86 The financial year of the department runs from 1 April to 31 March of the next year, The financial year of a public school runs from 1 January to 31 December . Section 38(2) of SASA requires that before an annual budget is approved by the SGB, it is submitted for consideration and approval by the majority of parents present at a general meeting of parents convened on at least 30 days’ notice. Section 38(3) provides that the notice of the meeting must inform the parents that the budget will be available for inspection at the school at least 14 days prior to the meeting. The process for preparation and submission of the budget to parents is set out in the Manual .
87 If one were to accept that the budget handed up was in fact the budget presented by Mr Koliti to the SGB, this is of no assistance to the applicant. It is impossible to have presented the budget in accordance with section 38(2) and 38(3), which requires that notice, of the parents meeting for consideration and approval of the budget, is given on at least 30 days before the meeting and that the parents are informed that the budget will be available for inspection at least 14 days prior to the meeting. The SGB meeting of 27 11 2012 accordingly cannot qualify as a preparatory meeting, The parents meeting was held the next day.
88 In the circumstances, I find the applicant guilty of charge 6.2.6.
Charge 6.2.789 In terms of Section 42(a) of SASA the SGB must keep records of its financial transactions. The principal is obliged to assist the SGB with management of the school’s funds and must assist the SGB in the performance of its functions and responsibilities, which assistance may not be contrary to the instructions of the HOD, legislation or policy, obligations to the HOD or MEC. The principal must be a member of Fincom to prevent any financial maladministration or mismanagement by any staff member or by the SGB . The processes and requirements, including pro-forma forms for quotations and tenders, requisitions, orders, commitment register, receiving of goods and payments etc., are set out in the Manual
90 Mr Totana was provided with documentation by MBSSS on his request, addressed to the principal. He removed only the documentation that was non-compliant. The rest was left at MBSSS. He found that there was no proper authorisation or source documentation to confirm the accuracy of the transaction in respect of the non-compliant documentation. The failed to inform the SGB regarding its functionality and duties, this had resulted in a dysfunctional SGB during 2010-2013. In addition, the applicant had failed to report such maladministration to the HOD. The principal failed to advise, assist or ensure that there was supporting documentation / proper authorisation for expenditure in 2010, 2011, 2012 and 2013 as set out in charge 6.2.7, based on the cheque / cash requisitions in Bundles 3 and 4 (Cash / Cheque Requisitions without supporting documents).
91 The applicant stated that when Mr Totana and his team conducted the investigation, all the supporting documentation had been there. Mr Totana and his team had removed the supporting documentation. Accordingly he was not guilty.
92 I have stated elsewhere that I do not accept the applicant’s claim that Mr Totana removed the “missing documentation” and that Mr Totana did not remove any “missing” documents. The applicant was charged only in respect of non-compliant transactions. Accordingly, the “missing” documentation could not have been there in the first place. That the risk management team would allegedly remove supporting documents to prove the non-existence of supporting documents for the transactions in question, not only does not make sense but is also improbable.
93 In the circumstances, I find the applicant guilty of charge 6.2.7.
Charge 6.2.894 The applicant denied the charge. He stated that the cheques in question were signed by people delegated by the SGB as signatories. They could not sign a cheque without the decision of the SGB. Effectively the SGB signed the cheques.
95 The cheques in question (at R233-R263) are all made to cash in various amounts, against two of the school’s bank accounts namely account number 4048158112 and 4040625743. The total cash value of the cash cheques, issued in the period 2010-2013, is R 704 208.00 . There are 3 signatures, one of which is that of the applicant, on each cheque.
96 The Manual provides that cheques must be crossed and the words or bearer deleted . In other words, no cash cheques may be issued. The testimony of Ms Biko, Mr Hanekom and Mr Totana confirmed that no cash cheques may be issued by the SGB. In terms of section 16A of SASA, the applicant in his capacity of principal and ex officio member of the SGB and representing and acting in accordance with the HOD’s instruction was duty bound to bring this to the attention of the SGB and ensure that cheques were issued in compliance with the Manual and that no cash cheques were issued. In the event of failure to comply, then the applicant was required to report this to the HOD in accordance with 16A(2)(k). He did neither of these and as apparent from the above authorised / permitted the issue of the cash cheques.
97 I find the applicant guilty of charge 6.2.8.
Charge 6.2.9 and 6.2.1498 The applicant denied that he was responsible for this. The SGB had a process on how cheques were signed and this was applied. The cheques were those reflected at R265-R276 in respect of Mr Dlutu and at R336-R354 for Mr Koliti. He was one of the signatories to the cheques. The SGB designated Mr Dlutu, the deputy principal and Mr Koliti, a member of Fincom, to fetch the money from the bank and return it to the school. The SGB had decided on this and it therefore was permissible. There was no limit on the amount that could be drawn for Petty Cash. Mr Dlutu and Mr Koliti had simply collected the money in cash from the bank and brought it back to the strongroom as delegated thereto by the SGB. They received no benefit or payment for this. The supporting documents in respect of the cash cheques were; the signed cheque in question, the completed cheque counterfoil, Both were required to take their identity document so that the bank could check who they were. On giving the money to the school, they would sign a cash requisition for verification purposes. All financial documents were kept in the strong room. These documents were taken by risk management and never returned. Payments were made in cash to service providers for reasons agreed at the SGB. Mr Koliti testified that it was a community decision that payments be made in cash as many did not have bank accounts.
99 Mr Totana pointed out inter alia the following:
99.1 Dlutu and Koliti were employed as educators at the school
99.2 Dlutu and Koliti were not service providers
99.3 In terms of the Manual, the principal or designated substitute must check the account and authorise payment before a cheque can be issued .
99.4 In terms of section 38 of SASA, any financial benefit to an employee must be authorised by the employer first. It was not permissible for the SGB to authorise such payment.
99.5 The cheques were made out to cash, were not crossed and the words “or bearer” deleted, contrary to the Manual.
99.6 There were no invoices.
99.7 Even if payment were made to Dlutu of Koliti to pay a service provider (in cash), this would undermine the systems and place financial management at risk.
99.8 The expenditure was grossly irregular.
99.9 The applicant as principal was responsible in terms of section 16A of SASA to advise the SGB regarding any financial transaction with financial implications and if the SGB failed to adhere, to report any mismanagement / maladministration to the HOD.
100 I have stated above that I accept that Mr Totana did not take any “missing” documents and that I do not accept the applicant’s claim that he did and did not return them. There is no gainsaying the position as set out above by Mr Totana. The documents referred to above, coupled with the applicant’s responsibilities leave no doubt that the applicant is guilty of this charge 6.2.9 and 6.2.14. His attempt to abdicate responsibility is not possible given the responsibilities placed on him by virtue of his position as principal.
Charge 6.2.10101 The applicant stated that the SGB procured the services of T Dladla. No evidence had been tendered and he was not responsible.
102 The applicant repeated his claim regarding documents taken by Mr Totana and not returned and which I have dealt with above. He did not admit the documents in respect of charge 6.2.7 and 6.2.10. He did however concede that the documents in Bundles 3-6 and from R277 onwards, dealing with cheque/ cash requisitions-payment to Dladla for grass cutting, related to MBSSS.
103 Mr Totana stated that he had engaged with Mr Dladla and reported that Mr Dladla had told him that he had charged R 6 000.00, 4 times a year (every term). Resulting on his investigations, he pointed out:
103.1 Mr Dladla had done grass cutting for the school from January 2012 to April 2013.
103.2 Mr Dladla had been paid a total of R 97 700.00 as per the table setting out dates and amounts paid at R176. This was substantially more than R 6 000.00 per term.
103.3 No proper procurement was adopted for this service provider
103.4 There was no proper procurement documentation to validate the appointment of Dladla
103.5 There was no SGB authorisation or minute signed by the SGB to confirm the appointment of Dladla
103.6 There were no invoices, he only saw cheque / cash requisitions (R277-R290)
103.7 There was no evidence to show that payments were made in accordance with financial procedures.
103.8 Payment was not in accordance with the Manual as:
103.8.1 No cash payments should have been made
103.8.2 Any payment made should have been on the basis of invoices (which was not done).
104 The documentation provided to Mr Totana was made available by the applicant on request to him. This documentation was scrutinized by Mr Totana and his team. They found that there was no proper authorisation or supporting documentation for many of the transactions. He and his team examined all the documentation and only removed documentation that was found to be non-compliant. Again the position as set out by Mr Totana above, coupled with a perusal of the documents in question and the responsibilities of the applicant as principal leave no doubt that the applicant was guilty of this charge 6.2.10.
Charge 6.2.12105 The applicant was of the view that Mr Totana and the risk team had removed supporting documents and or authorisations and not returned them and that if he had access to them, he would be able to prove his case. I have dealt with this argument above and will not repeat it here.
106 The applicant was of the view that several transactions were in order e.g. they had been authorised by the SGB and referred to payments to temporary teachers in various amounts ranging from R 1 500.00 to R 4 000.00. In the circumstances, he argued that this showed that the petty cash payments had been in order. The applicant’s argument loses sight of the fact that these payments were above the limit for petty cash payments and that payments to educators is contrary to section 38A of SASA.
107 Mr Totana pointed out that petty cash should not exceed R 2 000.00 and that petty cash should be reserved for payment of small items. How to operate a petty cash was set out in the Manual at paragraph 2.5 . His investigation had found that the applicant had approved petty cash payments to himself in the amount of R 1 950.00 without supporting documents to validate the transaction. The total of the petty cash payments made without supporting documents and or authorisation amounted to R 122 080.59 for the period 2010-2013 .
108 Mr Hanekom confirmed the approach to the use of petty cash in a school. Ms Biko likewise. As per the agreed summary of Ms Biko’s evidence relating to the non-compliance with petty cash procedures, without applicant conceding same, her testimony was as follows:
108.1 The amount does not qualify as a petty cash amount in terms of the policies and/or School Manual and/or Treasury practice.
108.2 There is no supporting documentation for the expenditure;
108.3 There is no authorization on the document, and/or the authorization is not valid because the item is not a petty cash expense and/or the expense should have gone through the normal bid process;
108.4 The recipient is not named and/or the recipient never signed the petty cash voucher
109 The following is set out regarding petty cash in the Manual;
“2.5 PETTY CASH
o The SGB must approve the maximum amount of petty cash to be retained by the school and the maximum amount for payments allowed from petty cash e.g. 10% of the petty cash
o The cheque may be made out to a designated official and arrangements made with the bank for immediate clearance of such cheque. In this way, money can be made available for the petty cash supply. This money must be reflected as a receipt in the petty cash analysis book,
o Only the petty cashier may hold the keys to the petty cash box and make entries in the petty cash analysis book.
o All payments made from petty cash must immediately be recorded in the petty cash analysis book as payments. If there is not a cash slip or other source document to indicate for what the payment has been made, the petty cashier must make out a petty cash voucher that is kept in the cash box until the source document is available. The person receiving the cash payment must sign the voucher. (See Annexure/Fin/07 – Petty cash payment voucher)
o The petty cash analysis book is used for recording all petty cash transactions and uses the following columns for recording data:
Income: Date; particulars of income source; Amount received
Expenditure: Date; Document no.; Expenditure items as per school budget e.g. stationery, cleaning materials, postage, etc. (the amount is reflected in the relevant column); Total.
o The petty cash analysis book must be balanced at the end of every month. At the end of the school year the petty cash analysis book must be closed off and all monies must be deposited in the school fund account. This transaction is the final payment in the petty cash analysis book. An example of the format for the Petty Cash Analysis Book is attached as Annexure/Fin/08”
110 It is evident form the documents handed up and the testimony of the respondent’s witnesses including Mr Totana, Ms Biko and Mr Hanekom that the applicant failed in his oversight role in respect of petty cash, including personally not complying with the requirements of petty cash. The documents referred to above, coupled with the applicant’s responsibilities leave no doubt that the applicant is guilty of this charge 6.2.12. His attempt to argue that petty cash had no limit and that payments to educators which otherwise may have qualified were over the limit in so far as the amount was concerned and constituted prohibited payments in terms of section 38A of SASA. The applicant’s use of these to show that documentation and the necessary authorisation had been made does not assist him. It shows his continuing refusal to accept the governing prescripts and his responsibility as a principal.
Charge 6.2.13111 The applicant referred to correspondence at R317, R324, R326 and R328. He denied that he was guilty as charged under 6.2.13. The HOD had appointed Ms Matshoba on the basis of a recommendation by the SGB. He had no authority to tell the SGB not to recommend the translation of Ms Matshoba. He did not influence the department in appointing Ms Matshoba.
112 Mr Totana reported on the outcome of his investigations as follows:
112.1 The SGB parent component initiated the process of Ms Matshoba’s translation / appointment in an SGB Meeting (Minutes of Special SGB Exco Meeting on 29 05 2012 at Principal’s office by Mr Jack, Chairperson R329/ R329/330).
112.2 There was no quorum as required by the Manual (R137), and no attendance register.
112.3 Present were Mr Jack (chairperson and parent), Malinduka (parent), Rodrigues (parent), i.e. 3 out of 9 parents, the applicant ex officio as principal, Ms Matshoba (representative of non-educator staff and office bearer-secretary) and Mr Dlutu and Mr Goba, both of whom were not members of the SGB.
112.4 Ms Matshoba, the SGB secretary (office bearer), was present and there was no proof that she recused herself in accordance with section 26 of SASA.
112.5 There was no record of the decision to translate Ms Matshoba having taken place at a full SGB meeting.
113 He pointed out the following:
113.1 The HOD appoints educators to the establishment of the school.
113.2 The SGB are required to make recommendations on the appointment of educators. The HOD after considering the information presented by the SGB will approve the appointment.
113.3 In terms of section 16(2) of SASA the SGB stands in a position of trust to the school and accordingly the HOD relies on the SGB.
113.4 The educator staff were surprised to hear of Ms Matshoba’s appointment as an educator and her translation was raised as an issue in the petition.
113.5 The HOD accordingly was misled as to there having been an SGB meeting to recommend Ms Matshoba. In this regard the applicant failed to ensure proper approval by the SGB regarding the translation / appointment of Ms Matshoba from clerk to post level 1 educator.
114 The respondent argued that:
114.1 The minute provided at R329(19)-R139(20) / R139(19-R139(20) to support the decision for the appointment of Ms Matshoba, was not that of a fully-fledged SGB as required in terms of section 6 of the Employment of Educators Act. There were anomalies around the dates of the memorandum and motivation letters that were not explained.
114.2 The application for appointment was not approved by the HOD on 14 November 2012 (R323). An appeal was sent on 26 02 2013 (R326). It was inconceivable that this would not have been known to or discussed amongst members of the SMT and SGB.
114.3 In the circumstances and on the oral and documentary evidence the SGB did not recommend Ms Matshoba for appointment in terms of section 6 of the EEDA. The applicant was aware of the legislation and failed to ensure that a fully-fledged SGB made the recommendation.
115 In terms of section 20(1)(f) of SASA a SGB must “recommend to the head of department the appointment of educators at the school, subject to the Employment of Educators Act, 1998, and the Labour Relations Act, 1995”.
116 In terms of section 6(1) of the Employment of Educators Act, 76 of 1998 (EEDA), “… the appointment of any person, or the promotion or transfer of any educator – (b) in the service of a provincial Department of Basic Education shall be made by the Head of Department”.
117 In terms of section 6(3)(a) of EEDA, “…. any appointment, promotion or transfer to any post of the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned.”
118 The translation process of Ms Matshoba was done, according to the documentation handed up, by the District Office on the basis of the motivation letter submitted by the SGB Chairperson and applicant (R324 dated 27 09 2012). The letter is addressed to the District Office as a motivation from the SGB and principal for the conversion of Ms Matshoba from clerk to educator at MBSSS. The memorandum (R317-R323) is dated 12 07 2012 by the compiler (R317-R32). This is somewhat anomalous as the motivation letter, R324, to which the memorandum would appear to owe it genesis, is dated 27 09 2012, (some two months after the memorandum). There is a further anomaly in that there is a query by the Acting Director: HRA on 19 09 2012 to the effect that “Recommendation letters” of the principal and SGB are not attached. On 11 11 2012 Mr H Isaacs, A/CFO endorses that the “Outstanding documents” as per the Director HRA, are attached. At this stage it would appear that only the letter dated 27 09 2012 (R324-R325) had been forwarded to the District Office. On 14 11 2012, the HOD did not approve the transfer / translation of Ms Matshoba. On 26 February 2013 the SGB Chairperson and the applicant addressed, an appeal to the disapproved conversion of admin clerk, to the HOD (R326-R327) with a copy to the District Office. In terms of a letter dated 3 06 2013 from the District Office to Ms Matshoba she was informed of her permanent placement as a post level 1 educator at MBSSS with effect from 1 06 2013.
119 The applicant is charged with having failed to ensure that there was proper approval by the SGB in respect of the appointment of Ms Matshoba from an administrative clerk to a post level 1 educator.
120 The minutes of the meeting on 29 May 2012 (R139(19)-R139(20) are headed Special Exco meeting. It is attended by 3 Parent members, the applicant in his position as principal and ex office, a member of the SGB, Ms Matshoba as an SGB member and as an office bearer (Secretary). In addition Mr Dlutu and Mr Goba, who were not members of the SGB, are listed as in attendance. The minute records that Ms Matshoba having completed her studies, requested translation from non-teaching to teaching. The principal confirmed there is a need in the EMS department. Exco accepted the request and instructed Ms Matshoba to write a letter regarding the matter. There is no minute confirming that exco’s decision was ratified and formed a recommendation of the SGB.
121 The meeting held on 29 05 2012, is described as a special SGB Exco meeting, was not quorate and Ms Matshoba failed to recuse herself. The meeting cannot qualify as an SGB meeting. There is no record of any SGB meeting at which the recommendation for the translation of Ms Matshoba was made. The letter signed by the SGB chairperson and the principal on 27 09 2012 (R324-R325) cannot of itself act as a recommendation by the SGB to translate Ms Matshoba. This letter is implicitly premised on the fact that the SGB endorses the translation of Ms Matshoba and accordingly that it discussed the matter and agreed on this at a proper fully fledged SGB meeting. There was however, no documentary proof that such a meeting ever took place. From the aforegoing, it is highly improbable that such a meeting could have taken place.
122 The letter of 26 02 2013 (R326-327), appeal on disapproved conversion of admin clerk, is addressed directly to the HOD and it too is implicitly premised on the fact that the SGB endorses the translation of Ms Matshoba and accordingly that it discussed the matter and agreed on this at a proper fully fledged SGB meeting. The principal is a signatory to both this letter and the earlier letter dated 27 09 2012 (R324-R325).
123 The professional management of a public school must be undertaken by the principal under the authority of the HOD . A principal, amongst other things, must attend and participate in all meetings of the SGB , inform the SGB about policy and legislation and provide accurate data to the HOD when requested to do so . In addition a principal must assist a governing body in the performance of its functions and responsibilities and is under a duty to keep all school records safe .
124 Given the above it is self-evident that the principal did not ensure that the SGB was properly constituted when it recommended the translation of Ms Matshoba, (or ensure that the SGB call a meeting for such purpose or that it kept proper minutes). As a consequence, the HOD, in making a decision, was not in possession of the facts.
125 In the circumstances I find that the applicant was guilty as charged in respect of this charge 6.2.13,
Procedural fairness
Delay in instituting disciplinary action126 In Stokwe v MEC: Department of Education, Eastern Cape and others (CCT 33/18) [2019] ZACC 3; (2019) 40 ILJ 773 (CC); 2019 (4) BCLR 506 (CC); [2019] 6 BLLR 524 (CC) various factors were laid down for consideration on the aspect of delay in instituting discipline, including the length of and explanation for the delay, whether the employee had taken steps to assert his rights to a speedy process, any material prejudice (including an assessment of the impact of the delay on the employee party to properly conduct his/her case) caused to the employee by the alleged delay and the nature of the offence.
127 The applicant failed to testify or argue on this aspect other than to raise it in his referral, the pre-arb minute and in opening statements. The respondent argued that there had been no delay.
128 The risk management intervention was established by the HOD during October 2013. This was triggered by a petition from members of the educator staff at MBSSS / MBSSS SADTU Site and unrest at the school, particularly amongst educators, in 2013. The first risk management report was finalised on 22 07 2014 (R173). The supplementary report was finalised on 27 07 2015 (R178). The risk management investigation was conducted into the period 2010-2013. The reports highlighted conduct, going as far back as 2010 and made recommendations as to the further conduct of the matter. The respondent acted on the recommendations and issued charges dated 27 07 2015 (R16), against the applicant on 28 07 2015 (R11).
129 On the above, the respondent became aware of the alleged misconduct on completion of the risk management reports. It was then in a position to draft charges and charge the applicant accordingly. There is accordingly no delay, alternatively any delay is adequately explained by the surrounding circumstances, in the institution of disciplinary action against the applicant by the respondent.
Not provided with documents to facilitate preparation130 The applicant, despite his ipse dixit to the effect that records were available for all the shortfalls in respect of which he was charged and that these had been removed by the respondent, did not provide any detail of the documents so removed and or prejudice. During evidence in chief, the applicant stated that all the supporting documents and authorisations had been at the school when Mr Totana had commenced with the risk investigation (charge 6.2.7). All the financial documents, identification documents, check counterfoils were taken by risk management and never returned (charge 6.2.9 and 6.2.14). During cross-examination, he declined to specify what documents he was referring to. E.g. regarding charges 6.2.7 and 6.2.10, when asked what documents were taken by risk management, the applicant responded, somewhat obtusely, to the effect that no evidence had been presented, he could only answer to evidence given against him, the documents were not evidence and accordingly he could not testify to that. With regard to charge 6.2.12 (petty cash expenditure without supporting documents), he stated that the supporting documents and authorisations were kept in the strongroom, waiting for the auditors. The documents were given to risk management and never returned to the school, while he was there.
131 I accept Mr Totana’s testimony that he removed only those records used for the basis of his investigation and charges. The applicant’s claim that records were available in respect of all the shortfalls he was charged with, not only is convenient, but is highly improbable, given the actual risk management reports and annexures and the overwhelming volume of documents handed up. Notwithstanding his claim as to removed documents, the applicant handed up a bundle of documents, Exhibit A of 259 pages, supplemented with Mr Totana’s letter dated 22 11 2021, Circular MI of 2019 Department of Basic Education dated 8 02 2019 and what appear to be excerpts from the Manual pages F-35-F-40. Given the above, the failure of the applicant to address this aspect and the overwhelming volume of documents handed up, the probabilities favour that the applicant was furnished with all relevant documentation in possession of the respondent.
132 In the circumstances, I find that the respondent conducted the applicant’s disciplinary inquiry in a procedurally fair manner and that there was no procedural unfairness visited on the applicant.
Sanction133 Turning to the issue of sanction, Clause 2, Item (1) Schedule 8, the Code of Good practice regarding dismissals, of the LRA as amended, provides that “Whether or not a dismissal is for a fair reason is determined by the facts of the case and the appropriateness of dismissal as a penalty”.
134 I have found that the applicant was guilty of the misconduct he was charged with.
135 In Sidumo , the Constitutional Court listed the factors that a commissioner should consider when deciding on the fairness of a dismissal. The Constitutional Court emphasised that this is not a closed list and that the weighting that should be attached to each factor would differ from case to case. The factors are; the totality of the circumstances, the importance of the rule that was breached, the reason the employer imposed the sanction of dismissal, the basis of the employee’s challenge to the dismissal, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and the long-service record of the employee .
136 The Constitutional Court in Sidumo held further that:
“To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
137 Guidelines relating to the imposition of dismissal are set out in item 3(4)-3(6) of the Code .
138 The applicant has been found guilty of serious misconduct involving the financial administration and professional management of a public school, MBSSS, as set out more fully above.
139 The applicant is a principal and self-evidently occupies a position of responsibility and trust. The principal is the representative of the HOD in the school and on the SGB. As such, he has an important role to fulfill in the school in respect of the professional management of the education function and financial administration of the school. The principal represents the HOD in the school and is responsible for ensuring that the school is a place where teaching and learning can take place. The HOD / respondent accordingly reposes considerable trust and confidence in the Principal to manage the school in accordance with the directions in SASA, Regulations, PAM and instructions of the HOD. Where he is unable to cope or circumstances have escalated beyond his control, he is required to report this to the HOD to secure the necessary intervention. The applicant has not done this. On the contrary, he continued with his style of leadership, did not seek help and the district office alerted by the petition, attempted to address the then complete breakdown of management and leadership. The district office’s attempts at remedying the situation was a lost cause as the teachers had become entrenched in their attitudes and insisting on an investigation. It is this investigation, commenced late 2013, conducted into 2014 and reports submitted in 2014 and 2015, that uncovered the misconduct, set out in the charges, going as far back as 2010. The point here is that the applicant’s lackadaisical approach and failure to observe proper communication processes and activities and to effectively manage finances and the academic endeavour of MBSSS did not commence in 2013, but in 2010 and the fallout commenced in 2013. The fact that it took an investigation, launched after several abortive attempts by the district office to resolve matters indicates, on the probabilities, that the principal could not have been making an open and frank report to the district office and by extension, the HOD and subsequently to the Risk management investigation.
140 A child’s best interests are of paramount importance In all matters concerning the child . The applicant’s failure to oversee the proper implementation of financial processes and administration and professional management of the school, placed the school fund and the education function at risk, including the interests of the learners. The applicant’s misconduct and attitude that he is not responsible or guilty, displayed during the arbitration, in the face of overwhelming evidence to the contrary, did not assist him. The applicant’s misconduct goes to the heart of the employment relationship. Trust and confidence are fundamental pillars of the employment relationship. Accordingly, conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employment relationship, will entitle the employer to bring it to an end .
141 With regard to trust and confidence, the Labour Court In Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others , held:
“The general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long-established one. See Council for Scientific and Industrial Research v Fijen (1996) 17 ILJ 18 (A) at 26E-G .”
142 On this basis alone, there can be no continued employment relationship. The employee has by his conduct destroyed any trust between him and the respondent.
143 In denying his guilt when manifestly he was guilty, the applicant showed a total lack of remorse for his conduct. The approach to lack of remorse on the part of an employee is appositely set out by Snyman AJ in Masubelele V PHSDSBC & others (LC) JR1151/08 (17 January 2017) as follows:
“[43] … In this regard, the relevant issues are that the applicant never showed any genuine remorse and persisted with what were entirely unacceptable and unreasonable explanations for his misconduct. Furthermore, the misconduct of the applicant clearly related to offences of dishonesty. As to the absence of any remorse in this instance, reference is made to the De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others .
This brings me to remorse. It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust, which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”
…
144 In Timothy v Nampak Corrugated Containers (Pty) Ltd the Labour Appeal Court held as follows, with regard to remorse:
“…. she contended that, given the fact that the appellant had an unblemished record and that, until this point, there was no indication in his conduct of any dishonesty or any impropriety prior to the events that gave raise to this dispute, a form of progressive sanction would have been more appropriate. I have no doubt that these arguments would have carried far greater weight had there been a scintilla of recognition by the appellant of his wrongdoing. By contrast, the appellant denied that any conversation or conversations had taken place with Ms Brisley. Throughout the disciplinary hearing and the hearing before third respondent appellant continued to take the view that the allegations brought against him were no more than lies. Appellant showed no remorse, no recognition of misconduct, save for a blatant and clearly dishonest denial. That places this case into an order of different magnitude from those urged upon us by Ms Bezuidenhout.
…. in a case such as the present, where there is an egregious act of dishonesty, and I use that word advisably because, as I have already indicated appellant’s conduct throughout this dispute constituted a perpetuation of the dishonesty, by way of a denial, conversely complete a lack of acknowledgement of any wrongdoing, there is a formidable obstacle in the way of the implementation of a progressive sanction. Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer’s organisation, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct.
In these circumstances, where there is nothing more than an aggressive denial and a perpetuation of dishonesty, it is extremely difficult to justify a progressive sanction, particularly in a case where the dishonesty is as serious as this dispute.”
145 The applicant failed to acknowledge any wrongdoing on his part and throughout the hearing persisted in the view that he had not committed misconduct. I have alluded to the nature of the misconduct above, which goes to undermine the financial administration, the professional management including the teaching and learning environment, so necessary for the effective functioning of a school. In the absence of an acknowledgement of and remorse on his part for such wrongdoing, there can be no re-establishing of the trust relationship / employment relationship between him and the respondent.
146 The risk of retaining the applicant in its employment, touched on above, is unacceptable given the Constitutional imperatives impacted on by the applicant’s misconduct.
147 The Labour Appeal Court has held that dismissal is a rational response to risk management and is a legitimate reason for dismissal as effectively as a breakdown in trust . In De Beers Consolidated Mines Ltd V CCMA & Others (2000) 21 ILJ (LAC) at 1058F –G it was further stated:
“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”
148 In Miyambo v CCMA and Others the Labour Appeal Court followed the approach in De Beers and held as follows:
“[13] It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust. …”
149 The applicant has been in the employ of the respondent for some 25 years and 9 months. Long service as such does not justify a lesser sanction. The following comments by the Labour Appeal Court, in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others, are apposite.
“[22] …. Long service is no more than material from which an inference can be drawn regarding the employee’s probable future reliability. Long service does not lessen the gravity of the misconduct or serve to avoid the appropriate sanction for it. A senior employee cannot, without fear of dismissal, steal more than a junior employee. The standards for everyone are the same. Long service is not as such mitigatory. Mitigation, as that term is understood in the criminal law, has no place in employment law.”
150 The applicant is a senior official, the gravity of the misconduct is serious. I am accordingly of the view, based on the misconduct of the applicant, that his length of service does not assist him when it comes to determining on sanction. No inference, based on his misconduct, his failure to acknowledge his wrongdoing and lack of remorse, can be drawn to the effect that he will change his ways. What the applicant’s years of service demonstrate is that he should know better than to commit the misconduct with which he was charged and found guilty. Rather, the applicant’s length of service, is an aggravating factor. This view is supported by the Labour Appeal Court in Toyota SA Motors (Pty) Ltd v Radebe and Others where it held as follows:
“Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.”
151 No work related personal circumstances of the applicant have been drawn to my attention that may impact on the issue of sanction.
152 The interests of the respondent far outweigh the interests of the applicant. Fairness dictates that the respondent should not be forced to retain in its employ an employee who has been found to have committed misconduct of the nature the applicant has been found guilty of and thereby undermined the financial administration and professional management of a public school.
153 There are no redeeming features that may be considered with a view to imposing a lesser sanction. It follows that a sanction less than dismissal / progressive discipline cannot be applied. For the same reason, additional training and instruction cannot be considered. Accordingly, in taking into account the totality of the circumstances, I find that the respondent did not unfairly dismiss the applicant and that the sanction of dismissal was an appropriate sanction
154 I make the following award:
Award
155 The dismissal of the applicant, Mr Phillip Kholisile Ngqondi, by the respondent, the Provincial Education Department: Eastern Cape, on 1 October 2019, was procedurally and substantively fair.
156 The applicant’s dismissal dispute referred under Case Reference ELRC701-19/20EC is dismissed.
157 The ELRC is directed to close the file in this matter.
Senior Arbitrator ELRC
Makhanda / Grahamstown
SCHEDULE 1
EDUCATION LABOUR RELATIONS BARGAINING COUNCIL
Case: ELRC701-18/19EC
In the Matter Between:
SADTU obo PK Ngqondi Applicant
And
Provincial Department of Education: Eastern Cape Respondent
CHARGES
6.1 It is alleged that you are guilty of gross misconduct and / or dereliction of duty and / or negligence in that you have contravened Section 16A (2)(a) and (f) and 16A (3) as read with Section 20 of the South African Schools Act 84 of 1996 (SASA) more particularly:
6.1.2 You failed and / or neglected to inform the governing body (SGB) of policy and / or legislation regarding its functionality and duties resulting in a dysfunctional SGB during 2010/2013.
6.1.3 You failed and / or neglected to assist the SGB in the performance of its functions and / or responsibilities during the above period.
6.1.4 You failed and / or neglected to report the maladministration of matters relating to the SGB to the Head of Department despite your statutory obligation.
6.1.5 You failed and / or neglected to distribute circulars and / or assessment instructions to staff.
6.1.6 You failed and / or neglected to manage the educators or support staff at the school in that you failed and / or neglected to schedule regular meetings between the SMT and staff.
6.1.7 You failed to request a substitute or temporary educator for Social Science Grade 11 and 12 thus jeopardizing the delivery of education to learners.
6.1.8 You failed to manage the correct assessment and recording of Grade 10 schedule during December 2013 adequately or at all, resulting in erroneous marks being allocated to learners and consequent prejudice to learners.
6.2 It is alleged that you are guilty of gross misconduct and / or dereliction of duty and / or negligence in that you have contravened Section 16A (2), (h), (i), (j), (k) and Section 16A (3) of SASA regarding the financial management and administration of school funds at Molly Blackburn SSS and failed to report such activity to the Head of Department more particularly
6.2.1 You permitted the appointment of Mr Rodrigues as security guard in the absence of acceptable procurement procedures.
6.2.2 You permitted the appointment of Mr F Malinduka as chairperson of the school nutrition program despite a clear conflict of interest.
6.2.3 You permitted the procurement of service providers to the school nutrition program in contravention of acceptable procurement procedures.
6.2.4 You permitted loans to be made to staff from school funds without proper authority and contrary to statutory prescripts in the amount of R73 500.00 which amount remains outstanding and represents a loss to the school and its learners.
6.2.5 You permitted the school to operate four banking accounts without the approval of the head of department or the MEC, as is required in terms of statutory prescripts.
6.2.6 You failed to ensure and / or assist the SGB in the financial matters of the school, more particularly in the preparation of an annual financial budget for 2013.
6.2.7 You failed and / or neglected to advise, assist or ensure that there was supporting documentation and / or proper authorization for expenditure during the period 2010 – 2013 in the following amounts
2010 R21 750.00
2011 R129 240.00
2012 R195 032.38
2013 R256 888.76
6.2.8 You authorized alternatively permitted the issue of cash cheques in the amount of R704 208.00 contrary to acceptable financial practice during the period 2010 – 2013, more particularly:
Account NO: 4048158112 2010 R 94 028.00
2011 R 116 380.00
Account NO: 4040625743 2010 R 4000.00
2011 R 152 700.00
2012 R 277 500.00
2013 R 59 600.00
6.2.9 You failed and / or neglected to ensure that cheque payments issued to VA Dlut[u] were made with the required supporting documentation and authorization during the period April – November 2013 in the amount of R123 800.00.
6.2.10 You failed and / or neglected to ensure that the services of Thandoxolo Dladla were procured and / or paid in terms of proper procurement and authorization procedures during the period 2011 – 2013 in the amount of R 94 200.00 in excess of the R 6 000.00 per term claimed by the supplier for services rendered for grass cutting, resulting on a payment in excess of the procured services.
6.2.11 You failed and / or neglected to ensure that the procurement and authorization of the payment made to Tico Rico Trading Company in respect of plumbing was correctly effected in the amount of R 57 000.00.
6.2.12 You failed and / or neglected to ensure that proper petty cash procedures and records were effected resulting in petty cash expenditures without proper supporting documents and / or authorization in the amount of R 122 080.59 during the period 2010 – 2013.
6.2.13 You failed and / or neglected to ensure that there was proper approval by the SGB in the respect of the appointment of Ms MP Matshoba from an administrative clerk to post level 1 educator.
6.2.14 You failed and / or neglected to ensure that cheque payments issued to LC Koliti were made with the required supporting documentation and authorization during the period February 2013 – October 2013 in the amount of R 337 230.00
6.3 You failed and / or neglected to properly record and / or mark and / or preserve the assets of the school. You permitted Mr T. Claasen to utilize a laptop belonging to the school at his private home in contravention of the statutory prescripts, and ultimately resulting in the loss of the laptop and financial loss to the department.