IN THE ELRC ARBITRATION
BETWEEN:
NATU obo Dumisani Dlodlo “the Applicant”

And
Head of Department of Education – KZN “the 1st Respondent”
SADTU obo Dumisani Manyoni “the 2nd Respondent’
ARBITRATION AWARD

Case Number: ELRC622-25/26KZN

Date of arbitration: 17 October 2025, 27 November 2025, 25 February 2026, 26 February 2026, 10 April 2026, 22 April 2026, and 28 July 2026, and 29 July 2026.

Date of award: 07 September 2026

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearings were held at the Zululand District Offices in Mkuze at the dates mentioned on the first page of this award.
2. The Applicant, Mr. D Dlodlo was present and represented by Mr. SGE Mdunge, a NATU Union Official. The First Respondent, the Department of Education in KwaZulu Natal, was represented by Mr. Muz’thini Sibanyoni, its Deputy Director, Employment Relations. The Second Respondent, Mr. Dumisani Manyoni, was represented by Mr. Mr. S Acheampong, a SADTU official. The parties provided documentary evidence and called 4 witnesses to testify.
3. At the beginning of this case, there was a second applicant, Mr. Mphikeleli Khumalo. The second applicant subsequently withdrew his case on 27 November 2025.
4. The proceedings were held in English and IsiZulu, digitally and manually recorded.
5. Ms. Nontethelelo Ndlovu and Mr. B.A Hadebe, interpreters of the ELRC provided interpreting services.

ISSUE TO BE DECIDED

6. I am required to determine whether there was procedural and substantive unfairness in the appointment of the Second Respondent to the position of Principal (Post Number 2130) at Prince Domba High School. The Applicant sought the setting aside of the appointment made for the position and for the appointment process to be referred back to the school SGB to redo shortlisting and interview through its Interviewing Committee as the First Respondent allegedly interfered with the selection and interview process.

BACKGROUND

7. The Applicant, Mr. Dumisani Dlodlo was employed by the Respondent on 10 April 2000 and issued persal number 61764183. He was promoted to Science Department Head and in 2024, he applied for a principalship position post number 2130 at the Prince Domba High School in the Nongoma Circuit within the Zululand District in response to HRM20 of 2024.
8. He alleged that there were discrepancies during the interview process for the principalship position in question and lodged a grievance. After the outcome of the grievance, the Applicant referred section 186(a) of the LRA promotional dispute to the ELRC on 03 September 2025.
9. After the matter remained unresolved after conciliation, the Applicant requested the matter to be arbitrated and the ELRC set the matter for arbitration before on 17 October 2025 and was arbitrated as shown in paragraphs [1] to [5] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

10. The Applicant’s Representative called one witness and provided one bundle of documents. The First Respondent called two witnesses and provided one bundle of documents. The Second Respondent called one witness and provides one bundle of documents. All relevant submissions and documents were duly considered, and I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision as guided by section 138 of the LRA as amended.

The Applicant’s Case

11. The Applicant’s Representative, Mr. SGE Mdunge called his 1st Witness, Mr. Bheki Mahlambi, who testified under oath as follows:
12. He was the chairperson of the SGB at Prince Domba High School. Following the departure of the previous principal, Mrs Mngomezulu, the Circuit Manager, appointed the applicant, Mr. D.T. Dlodlo, as the acting principal. Once the permanent posts for the principal and deputy principal were advertised, Mrs Mngomezulu instructed the School Governing Body (SGB) to notify the School Management Team (SMT) to establish an Interview Committee (IC). This committee initially comprised the SGB and three principals: Mr. Sibisi, Mrs Mathe, and Mr. Mathenjwa.
13. A series of disruptions subsequently occurred within the committee. Mr. Sibisi resigned from the IC due to a conflict of interest after his wife applied for a post, prompting the SGB, under the direction of Mrs Mngomezulu, to co-opt Mr. Nyambose (Mchitheni High School) and Mr. Gcina (Thusani School). Ms. Ntshangase also withdrew from the committee.
14. During the shortlisting phase, critical irregularities came to light. Mr. M Gcina disclosed to him predetermined outcomes for the positions. Specifically, Mr. M Gcina stated that the successful principal candidate would be an external applicant and named an internal candidate who had already agreed to accept the deputy principal position. Due to this clear predetermination prior to the interviews, the SGB members decided to withdraw from the process.
15. In response to the SGB’s non-attendance, Mrs Mngomezulu informed him that the Department would conduct the interviews independently at the circuit office if the SGB did not proceed and instructed the SGB to set a new date. Further complications arose when Mr. Sibisi, who had been appointed by the Department of Education as a resource person for the interview process, advised Mr. Nhlengethwa to resign due to safety threats, and Mrs, Mngomezulu advised separating the interview dates for the two posts. The SGB then decided to co-opt two additional principals to split the panels.
16. However, during a departmental workshop at Phumanyova High School, Mrs Mngomezulu questioned the addition of the new principals. Despite his explanation that the SGB lacked trust in the existing IC principals and was exercising its right to co-opt members, Mrs Mngomezulu and Mr. Mbatha, the Chief Education Specialist (CES), ordered the two newly co-opted principals to leave the workshop.
17. The interview process faced further challenges from union representatives. On the first interview date, Mr. Qwabe from the NATU disputed the legal standing and legitimacy of the SGB and requested that the process be halted. However, Mr. Sibisi insisted on proceeding. On the subsequent interview date, Mr. Nyambose from SADTU questioned why the union was excluded from the Phumanyova High School workshop, why the SGB’s co-opted principals were dismissed, and requested minutes that Mr. Sibisi could not provide. Mr. Nyambose further requested the interviews be stopped on the grounds that the Department had usurped the powers of the SGB. Nevertheless, the interviews proceeded.
18. Following the interviews, the SGB refused to sign the ratification because their co-opted principals had been improperly dismissed by the CES and DCES. The SGB then formally wrote to the DCES outlining that the process was compromised and requested a restart; however, no response was received from the DCES or the Department of education.
19. In terms of the documents on pages 28 and 29 of the bundles, he testified that his name is filled in, but the handwriting and signatures are not his as he did not participate in or sign the ratification document in March 2025 at Prince Donga High School.
20. At a grievance hearing at James Nxumalo High School, he was not granted an opportunity to state the SGB’s case. Additionally, Mrs Mngomezulu later introduced the newly appointed principal and deputy principal to the school without notifying the SGB. When the SGB called a meeting with the SMT to address this lack of communication, the Mrs Mngomezulu arrived with police, took over the chairing of the meeting, and no agreement was reached.
21. A follow-up meeting requested with parents and the CES (who arrived without the DCES) resulted in no changes, and the appointments stand. His requests to escalate the matter to the Director, an investigation by the DCES, and a physical visit by the SGB to the Director’s office in Vryheid have all yielded no feedback or resolution.
22. Under cross examination by the first respondent’s representative, Mr. Bheki Mahlambi testified that he understood the basic responsibilities of the SGB Chairperson, which include ensuring school safety, supporting the principal, and maintaining a proper environment for teaching and learning in line with government standards. While no legislation was formally introduced to him at the start of his term, the SGB recently attended a workshop on the BELA Act, where they were advised not to disrupt the learning environment during internal disputes. The SGB’s primary mandate remained to act in the best interest of the school.
23. The Hindrances arose during the selection process for the Principal and Deputy Principal positions when the Circuit Manager instructed the SGB to establish the IC comprising experienced principals and SGB members and directed that all communications be routed strictly through her. Despite initially stating she did not need to know the selected committee members, the Circuit Manager later requested their names and required them to attend a workshop at Mlokothwa High School before participating in interviews. Problems escalated when some principals could not attend the workshop, leading to a resignation. The Circuit Manager then instructed the SGB to fill the position.
24. He further testified that he did not have a one-on-one discussion with SGB members regarding the deputy principal and principal posts. No meeting took place with Mr. Gcina; he only interacted with him briefly after the shortlisting process to provide fuel money for interview travel. The SGB did not have a preferred candidate and intended to remain neutral until the interviews were completed. He did no contact Mr. Khumalo regarding the post, however, he made a call to the individual who allegedly agreed to become Deputy Principal solely to confirm if this individual had done so.
25. The SGB ultimately decided not to sign the ratification documents for the following reasons: several IC members had been dismissed at the Phumanyova High School workshop and were no longer part of the committee; and the SGB was dissatisfied with how the process was handled. Following an internal meeting, members unanimously agreed that signing was not in the best interest of the school, especially given the community’s role in the principal’s integration and potential accountability issues.
26. On or the day after the new principal was introduced, a gathering occurred at the school gate, which was locked at time. He requested a meeting with Mr. Dlodlo to clarify why the SGB had not been informed by the Circuit Manager about the new principal’s arrival. Mr. Dlodlo indicated he assumed the SGB was already aware. After learning that the learners were rioting, he requested that Mr. Masango and Mr. Mthembu intervene, after which the learners returned to their classrooms.
27. He denied the assertion that the principal was rejected based on personal preference, stating no personal objection to Mr. Manyoni. He testified that the opposition was strictly rooted in the failure to follow the correct selection and interview processes. Furthermore, he denied signing any appointment documents or promising the Circuit Manager that the ratification minutes would be signed.
28. Mr. Bheki Mahlambi during cross-examination by the second respondent’s representative testified that the shortlisting panel consisted of Mr. Mathe, Mr. Nhlengethwa, Mr. Nyambose, Mr. Mathenjwa, Mr. Gcina, and Ms. Ntshangase. Those same individuals attended the IC training. Mr. Nhlengethwa and Ms. Ntshangase voluntarily left the committee during the shortlisting process.
29. Mr. Mntimande and Mrs. Xaba, the newly co-opted principals, were removed from the IC by the Circuit Manager at the Phumanyova High School workshop prior to the workshop/training taking place. The Circuit Manager instructed that the initial IC would proceed with the interview process without the newly co-opted principals.
30. The shortlisting panels consisted of him, Mr. Mthethwa, Mr. Mathenjwa, and Mr. Gcina who were co-opted into the first IC and were responsible for shortlisting both the deputy principal and principal posts. Mr. Mahlambi was also part of the panel for the principal post and was present during the interviews. Mr. Manyoni was one of approximately six candidates. Due to the high volume of candidates, Mr. Mahlambi did not recall Mr. Manyoni’s name or face specifically until he was later introduced at the school. He denied having a preferred candidate in mind for the principal position.
31. After Mr. Gcina informed him that certain individuals had already been recommended for the post, he did not speak to the Circuit Manager immediately because it was late. Instead, he informed the SGB. The SGB subsequently wrote a letter to the Circuit Manager detailing what Mr. Gcina had disclosed. However, he refused to provide Mr. Gcina’s name to the circuit manager, noting that she was his senior. He confirmed that the Circuit Manager was formally notified of the SGB’s complaints after the interview process was finalized. He disagreed with the assertion that he failed to follow the proper process, explaining that he assumed the Circuit Manager was involved in Mr. Gcina’s actions, and noted that she had requested to be reported to during formal meetings.
32. In re-examination, Mr. Bheki Mahlambi confirmed that he did not have a preferred candidate for the school principal position, noting that the selection was to be determined through interviews and no prior discussions took place regarding who would be appointed. He testified that, with the exception of one principal, the members alleged to have been co-opted were not the individuals originally appointed by the SGB. The additional of the IC members were dismissed by the Circuit Manager and Chief Education Specialist at the Phumanyova High School meeting.
33. He confirmed that no ratification meeting took place after the interview process for either post. The SGB refused to proceed with the ratification because the two co-opted principal had been dismissed at the Phumanyova High School, consequently, the SGB maintained that the Circuit manager and Chief Education Specialist should handle the ratification. He confirmed that he did not sign the ratification documents.
34. In his closing arguments, Mr. SGE Mdunge the Applicant’s Representative, submitted as follows amongst other submissions:
35. The dispute was properly framed under Section 186(2) (a) of the Labour Relations Act 66 of 1995. While the applicant did not claim an automatic right to promotion, he maintained a statutory right to fair treatment, objectivity, transparency, and procedural regularity throughout the competitive process (Ndlovu v CCMA and Others).
36. The fairness of the process was severely compromised by the participation of Mr. Sibisi. Despite initially withdrawing due to a conflict of interest, Mr. Sibisi returned to participate and actively influenced the composition and leadership of the panel by requesting the resignation of the Selection Committee Chairperson, Mr. Nhlengethwa. This on-going conflict violated the rule against bias (President of the RSA v SARFU and BTR Industries v MAWU).
37. Evidence was led that the SGB Chairperson spoke to Gcina, who allegedly disclosed the successful candidate before the lawful conclusion of the process. The respondents failed to call Gcina or the connected internal candidate to rebut this allegation. In line with Elgin Fireclays Ltd v Webb, an adverse inference must be drawn that their evidence would have been unfavourable.
38. Mrs Mngomezulu ordered interviews to be held on separate days, resulting in two separate panels and a second co-option (Mrs Xaba and Mr. Nsibande). Subsequently, the CES, Mr. Mbatha, held a training meeting after shortlisting had concluded to nullify this co-option. The applicant submitted that the CES acted ultra vires, as departmental officials could not lawfully bypass, override, or reconstitute an SGB-driven process (Governing Body of Thuthukani Special School, Asiphephe Primary School, and Rivonia Primary School).
39. Mr. Sibisi claimed a ratification meeting took place and that Mr. Mahlambi signed the minutes. Conversely, Mr. Mahlambi testified that no such meeting occurred. Furthermore, the signature on the minutes is materially questionable when compared to Mr. Mahlambi’s undisputed signature on the arbitration attendance register.
40. Mr. Mbatha contradicted himself regarding who signed the form, ultimately admitting that members of the ad hoc selection committee signed it, rather than the SGB itself. Legally, valid ratification requires a properly constituted meeting of the authorised principal body acting with full knowledge of the facts (Smith v Kwanonqubela Town Council).
41. Mr. Mbatha provided contradictory versions regarding the submission date of the ratification record. Because the appointment was implemented while the validation documentation remained incomplete and uncertain, the decision lacked a proper factual and lawful foundation (Stellenbosch Farmers’ Winery, Pharmaceutical Manufacturers Association, and Walele v City of Cape Town).
42. Given that the process was fundamentally tainted by unauthorised interference, a reasonable apprehension of bias, and unresolved material contradictions, procedural fairness cannot be treated as a mere technicality. The Applicant respectfully requested that the forum find the recruitment and selection process procedurally unfair and materially irregular, set aside the impugned process and/or appointment recommendation, and direct that the process recommence before a properly constituted, impartial panel free from unauthorised interference.

The 1st Respondent’s Case

43. The First Respondent’s Representative, Mr. Muz’thini Sibanyoni called his 1st Witness, Mrs N.A Mngomezulu, the Respondent’s Circuit Manager who testified under oath as follows:
44. She conducted an investigation following grievances lodged regarding principalship post no. 2130 and deputy principal post no. 2119, which included allegations concerning the legitimacy of SGB and the IC. Subsequently she complied the investigation report on page 1 of the bundle.
45. Her findings revealed that two SGB members, Mr. Zulu and Mr. Masango, faced eligibility challenges. While Mr. Masango did have a child at the school, Mr. Zulu’s child was registered only as a part-time learner for the NSC examination. Consequently, Mr. Zulu was advised that he could not serve on the SGB, and he subsequently resigned.
46. On 31 July 2025, the introduction of the newly appointed principal was postponed because the SGB chairperson stated it clashed with their own meeting. On 05 August 2025 the introduction was rescheduled, but no parent components attended. The SGB chairperson cited a pension pay day and his presence in Pongola as the reasons for his absence. She then introduced the principal to the educators only.
47. On 06 August 2025, a school lockout and riot occurred. She was accompanied by the police, and found the SGB meeting with the School SMT, Mr. Dlodlo, Mr. Mthembu, and Mr. Khumalo. During this meeting, the SGB chairperson explicitly stated they would not accept the new principal until the department responded to their submitted complaint. The SGB chairperson openly admitted that the SGB wanted Mr. Mthembu to be appointed as the school principal.
48. The SGB was fully functional, and its committees were trained by the CES. No interference occurred during the selection processes. However, during the interviews, two members (Mr. Nhlengethwa and Mr. Mathe) withdrew, halting the process. The SGB subsequently co-opted additional members. At a meeting at Phumanyova High School, the CES nullified two of the newly co-opted members after the original members confirmed they could proceed without them, which the SGB accepted.
49. Following the interviews, the SGB chairperson failed to submit the required ratification minutes despite multiple reminders. While he signed the interview results, he refused to submit the ratification minutes on the day of the interview, promising to submit it later. Regarding allegations of forgery, she testified that that the chairperson’s signature is naturally inconsistent across various documents and denied signing any ratification minutes on behalf of anyone else.
50. In March of 2026, both the principal and deputy principal received threatening messages, prompting an intervention by the CMC on 13 March 2026. This meeting was disrupted by the SGB chairperson’s objections regarding the unresolved grievance. The school portfolio was eventually revised in the absence of the SGB chairperson, and governance and management at the school remain highly strained.
51. During cross-examination by the Applicant’s representative, Mrs, Mngomezulu testified that she understood the procedures, legislation, and prescripts governing the promotion process. She testified that the first step in any interview or selection process was ensuring the availability of the interview committee, and it terms of the policy, this committee was a permanent sub-committee of the SGB. While she was unsure of the exact composition of the committees, she noted that the sub-committee could have been revised to include co-opted members for their expertise.
52. Prior to the interview process, the SGB was functioning well with existing sub-committees. She confirmed that two separate interview committees were established after the selection process to conduct two separate interviews. At Phumanyova High School, she discovered that the interview dates were separated, two additional principals were co-opted, and two committees were utilised.
53. She testified that there were two panels emanating from the SGB meeting as detailed on page 23 of the bundle. The principal post interview committee consisted of 3 members, X. Mthethwa, Mr. Nsibande, and Mrs Xaba.
    The deputy principal interview committee also consisted of 3 members Mr. X.V. Mthethwa, Mr. M.V. Mathenjwa, and Mr. M. Gcina.
54. She confirmed that, procedurally, the SGB was not permitted to co-opt new members into the interview committee once the process had commenced. The CMC held the authority to guide the SGB when procedures were not followed. She confirmed that the final product of the interview process was ratification. However, there were no minutes available for the ratification process (referencing page 28 of the bundle). She further confirmed that the EHR11 form had to be concluded and filed at the ratification meeting, which took place on 19 March 2025.
55. She received the EHR11 from the departmental nominee, Mr. Sibisi. While she believed Mr. Mahlambi signed the EHR11, she could not confirm the details of the meeting as she did not attend. She stated she could not comment on the SGB chairperson’s version that their primary concern was the process itself; she testified that during the meeting, the chairperson stated he wanted Mr. Mthembu appointed as the school principal.
56. During re-examination, Mrs, Mngomezulu testified that the two late co-opted members voluntarily recused themselves. Mr. Sibisi submitted the results and confirmed that the meeting took place. Following the meeting, Mr. Mahlambi signed the EHR11 form. While Mr. Mahlambi never indicated to her that the meeting did not sit, he repeatedly promised to sign the ratification minutes but failed to do so. Consequently, she could not confirm whether he was aware that the signed EHR11 had been submitted.
57. Additionally, she addressed the grievance with Mr. Mahlambi regarding the letter he sent after the interview process concluded. She had not provided a written response to the complaint letter received from the SGB but did advise Mr. Mahlambi verbally that any grievances or deviations should be addressed using the ratification letter.
58. The First Respondent’s Representative, Mr. Muz’thini Sibanyoni called his 2nd witness, Mr. T.R Sibisi, the Respondent’s Resource Person in the interview Committee who testified under oath as follows:
59. He was appointed as the resource person following the advertisement for the principalship post at Prince Domba High School. His responsibilities entailed guiding the IC and the school through the shortlisting and interview processes on behalf of the Department of Education.
60. He testified that the shortlisting process was successful, well-attended by unions, and concluded with the signing of all relevant documents. No grievances or complaints were raised during this stage. Regarding the interview process, he observed that it proceeded well and without any complaints. While both SADTU and NATU were invited, only SADTU attended and signed the necessary documentation. The interviews were chaired by Mr. Mahlambi, the SGB Chairperson.
61. Following the interviews, a ratification meeting was held on 19 March 2025, also chaired by Mr. Mahlambi. He and the SADTU representative waited outside while the SGB finalized the meeting. Upon conclusion, they were handed with the signed EHR11 form, which had been executed by the IC members and the SGB Chairperson. The Circuit Manager was not present at this meeting.
62. He testified that the SGB Chairperson committed to sending the minutes to the circuit office, and no changes were made to the ratification process. He subsequently submitted all interview documents to the circuit office without alteration. He confirmed that he did not report any challenges to the Circuit Manager, aside from noting that the ratification minutes had not yet been received from the SGB Chairperson.
63. During cross examination, Mr. Sibisi testified that he had knowledge of the promotion and interview process, and he was trained for it. He confirmed his role as a school principal and an ex-officio member of the School Governing Body (SGB). Regarding the minutes of the training of IC members and the SGB on 17 March 2025 at Prince Domba High School, all signatories were members of the IC. He confirmed that some SGB members were not part of the IC, estimating there were about four such members.
64. His signature on page 28 of the document was to confirm that the SGB met and agreed there would be no changes to the candidates’ scores and rankings. He disputed the allegation that the ratification meeting did not take place. The chairperson of the SGB also signed the document on page 28, though he could not account for any discrepancies in the signatures.
65. All relevant documents were submitted to the circuit office on 19 March 2025. The submission date was omitted from the document because there were outstanding files. Under these circumstances, the circuit manager was expected to insert the date upon receiving the remaining documents.
66. He did not leave the profiles with the SGB for submission to the circuit. He took all other documents, except for the ratification minutes.
67. He did not return to the school to collect the ratification minutes because the SGB chairperson promised to submit them directly to the circuit. He informed the circuit manager of this arrangement, transferring the responsibility to them to follow up. He disagreed with the assertion that the ratification minutes did not exist and that this was the reason they were not submitted.
68. During re-examination, Mr. Sibisi testified that in terms of the submission date on the EHR11 form, the date to be entered was the date of submission to the circuit office. The circuit manager was responsible for submitting the EHR11 form.
69. In his closing arguments, Mr. Muz’thini Sibanyoni, the First Respondent’s Representative, submitted as follows amongst other submissions: The Applicant’s argument rested on two grounds. First, that the selection process was unfair due to interference from the circuit manager, and second, that the results were predetermined.
70. In terms of Section 186(2) (a) of the Labour Relations Act (LRA), the onus lied entirely with the Applicant to prove unfair conduct by the employer. As established in Adams v General Public Service Sectoral Bargaining Council and others (C839/2019), the Applicant had to prove that he was the candidate who deserved to be appointed. South African courts had repeatedly affirmed the employer’s prerogative and discretionary powers regarding appointments. While an applicant could challenge a process if it was manipulated arbitrarily, they had to adduce evidence to prove that the selection process was not conducted in good faith.
71. Furthermore, as noted by Lagrange J in Sun International Management PTY LTD v CCMA and Others (LC) JR 939/14, a mere breach of protocol or procedure in a recruitment process was insufficient; the Applicant had to demonstrate that the breach actively prejudiced him. In this matter, the Applicant failed to prove that he would have been the preferred candidate even if the second co-option had been allowed, or if a different panel had been in place. The Applicant also bore the onus to show that he was the best candidate for the position, which was never attempted.
72. The undisputed interview scores, which were chaired by Mr. Mahlambi and never questioned when raised with the School Governing Body (SGB). As held in Ngcobo v Standard Bank of South Africa and others (D439/12), there was no inherent right to promotion, only a right to a fair chance to compete, unless a statutory right existed within the contract. The Applicant conceded that he was given an equal opportunity to contest for the principalship. The corollary of this principle was that if an appointment decision was rationally justified, minor procedural errors did not constitute unfairness justifying interference. The only exceptions were discrimination or victimization, neither of which applied to this case.
73. The Commissioner was presented with insufficient evidence to conclude that the First Respondent committed an unfair labour practice when appointing Mr. Manyoni. The Applicant relied on the uncorroborated testimony of a single, unreliable witness, Mr. Bheki Mahlambi. The Applicant party failed to call any of the individuals allegedly excluded by the Circuit Manager to substantiate the claims of manipulation.
74. Regarding the allegations that the SGB Chairperson’s signature was forged on the EHR11 form, the Applicant failed to provide any supporting testimony or identify the alleged perpetrator. The document on page 24 of the bundle contained multiple other signatures, the validity of which was never disputed. Because the Department of Education could process submissions even if a member refused to sign the EHR11, there was no logical reason to forge the signature.
75. The First Respondent argued that this case reflected an attempt by certain SGB members and unions to manipulate the appointment process. The contradictions in the SGB Chairperson’s testimony indicate a clear ploy to place their preferred candidate.
76. In line with Section 28 of the Constitution, the best interests of the child must remain paramount in all state decisions. The SGB was mandated under the South African Schools Act 84 of 1996 to support school authorities and ensure quality education. Mr. Mahlambi’s actions were outside these provisions, alongside his failure to adhere to the code of conduct outlined in Provincial Gazette 18 of 2018 and undermined this mandate.
77. In light of the gross contradictions, biased testimony from the Applicant’s sole witness, and the complete lack of evidence establishing an unfair labour practice, the First Respondent prayed that the Applicant’s case be dismissed.

The 2nd Respondent’s case

78. The Second Respondent’s Representative, Mr. S Acheampong called his 1st Witness, Mr. C. F Mbatha, and the First Respondent’s Chief Education Specialist who testified under oath as follows: He was employed as a Chief Education Specialist at the Nongoma CMC and was involved in the selection process for the principal post at the Prince Domba High School. His role was to conduct training for the IC and the SGB. He attended the meeting at Phumanyova High School, where he noted that some members of the IC had not been trained. Upon receiving a message indicating that certain IC members at Prince Domba were untrained, he requested a meeting to facilitate this training. This meeting took place after the shortlisting process.
79. At the meeting on 17 March 2025, he discovered that one additional IC had been formed so that there was one for the deputy principal post and one for the principal post. He learned that the SGB had established a second IC, intending for the first to handle the principal post and the second to handle the deputy principal post. He advised that this was improper, as an IC already existed and had managed the selection process effectively, rendering a second committee unnecessary.
80. The members of the second IC indicated they were unaware of the standing IC. It was agreed that only the members of the first IC and the SGB would remain for the training. Consequently, Mr. Nsibande and Mrs Xulu, who had been co-opted later, left the meeting, and the training proceeded.
81. The first IC raised no objections to proceeding with the interview process. No complaints were raised by the SGB during the training; rather, complaints arose afterward. The primary grievance was that the Department was usurping the responsibilities of the SGB, to which Mr. Mbatha advised that the Department was merely providing guidance.
82. The interviews were subsequently conducted by the first IC. The SGB’s complaint was received only after the interview process concluded, not before or during. A challenge arose when the SGB Chairperson refused to submit the ratification minutes. He identified the document on page 28 of the bundle as the standard form used to recommend candidates for appointment in terms of the procedure manual.
83. This document informed the final appointment decision. According to the procedure, once the IC finalised its process, the SGB joined the IC. The SGB then reviewed the top three candidates to decide whether to alter the ranking, which required written justification. Following this, the ratification was performed by members of the SGB and the unions, and the corresponding minutes had to be submitted.
84. The Department of Education did not receive the ratification minutes because the SGB Chairperson failed to provide them when requested. He testified that the EHR11 form was only signed after the ratification meeting occurred. The individuals who signed the EHR11 form attended the ratification meeting, as the document was directly dependent on that meeting.
85. To his knowledge, IC members were authorised to sign the EHR11 document. The submission date on the EHR11 form had to be filled in by the individual submitting the recommendation documents to the circuit, which had to include the ratification minutes. In instances where documents were missing, the date could not be completed, and the document was only dated once all files were submitted. He confirmed he did not receive any minutes indicating that the SGB would decline to sit for ratification, and the Department possessed the EHR11 form demonstrating that ratification had occurred. Following the riot, the Department of Education intervened to restore peace at the school, a process which he personally attended to.
86. During cross-examination, Mr. Mbatha testified that during the training at Phumanyova High School on 17 March 2025, Prince Domba High School was the only school present. Other schools were trained on a different day. He called the meeting to train the existing IC members. He was unaware until the meeting that the SGB had formed a second IC committee and that certain SGB members remained untrained. He requested the untrained members stay behind to complete the training.
87. He denied the allegation that he was used by Ms. Mngomezulu to remove the two co-opted IC members. During the meeting, a consensus was reached that the first IC committee would proceed and the second would be recused. A complaint was raised after the meeting claiming the department of education was stripping the SGB of their powers, to which he responded that the department’s role was strictly to provide training.
88. He confirmed his authority to advise the SGB, noting that while the SGB had rights and powers, these were subject to limitations. The IC assessed candidates, scored them, and made calculations during interviews. The IC could not make final recommendations to the SGB; they only submitted the rank order of candidates.
89. Following shortlisting and interviews, the IC presented the rank order to the SGB for ratification. The presentation was made, and the IC and union representatives then left. The SGB held a closed ratification meeting to decide whether to change the rank order. In this specific case, the rank order was not changed. Because the IC served as an ad-hoc committee for the interview process, co-opted members did not sit in the closed SGB ratification meeting.
90. While IC members signed the interview documents, the EHR11 form was signed by both the SGB and the IC committee after the SGB ratification meeting. The Chairperson’s signature confirmed that the SGB had ratified the process and approved the order of merit.
91. He testified that he did not have enforcement powers if a member of the SGB refused to provide documents. However, if a document was purposely withheld by anyone, it did not stop the department of education from appointing the successful candidate. He disputed the claim that the ratification meeting did not take place, stating that the EHR11 form could not be produced without the meeting occurring first.
92. During re-examination, Mr. Mbatha testified that the first IC was established by the SGB. The absence of a date on the EHR11 submission did not affect the placement. Based on his understanding, if the SGB was not complying, it was assumed that they lacked capacity, unless extreme circumstances warranted taking away their powers. Governance within the department was responsible for this and could enforce a code of conduct on the SGB if they failed to comply.

ANALYSIS OF EVIDENCE AND ARGUMENT

93. On 17 October 2025, this matter and ELRC712-25/26KZN were joined by agreement between the parties and me as the issues surrounding them were the same. However, on 27 November 2025, the Applicant for ELRC712-25/26KZN, Mr. M Khumalo decided to withdraw his matter which related to the deputy principalship position number 2119 due to safety concerns. I then proceeded with ELRC622-25/26KZN only.
94. Section 186(2) (a) of the LRA stipulates that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
95. Section 186(2) (a) of the Labour Relations Act clearly defines; “unfair labour practice as unfair conduct by the employer relating to the promotion” (of any employee). The court in SAA SOC LTD v SA Cabin Crew Association Obo Members & Others, established three key elements of an ULP; “(1) Firstly, it must be established whether an unfair act or omission that arises between an employer and employee. This must be established by the employee; (2) Secondly, it must be established that the employer must have actually done something the employee(s) claim it should not have done; (3) the third element is unfairness by the employer relating to promotion (demotion or the provision of benefits).
96. In this case, the Applicant alleged that there was interference of the Zululand District Nongoma Circuit management in the formulation of the interviewing committee for the conducting of interviews for past number 2130 at Prince Domba High School.
97. The Applicant further alleged that the SGB refused to ratify the submitted results by the IC which is why the SGB Chairperson refused to sign the EHR11 ratification form and the 1st Respondent got someone else to sign the ratification form without the convening of the ratification meeting.
98. The Respondents denied the allegations and instead accused the Applicant’s witness of having had an interest in the filling of post number 2130. The Respondents further submitted that all the interview processes were conducted properly.
99. In accordance with Collective Agreement 3 of 2016, par. 48 outlined the considerations for procedural unfairness with respect to promotions required an applicant in a promotion dispute to establish a causal connection between the unfair conduct of the employer and the failure to promote. Courts have therefore declared that even in instances of unfair conduct by an employer during a promotion process, this did not mean that there was substantive unfairness. As such substantive unfairness had to be considered in light of the procedural elements.
100. An arbitrator or court cannot be considered as the employer, as such it was not the task of either to deciding whether the employer had arrived at the correct decision, but rather it was to oversee that the employer did not act unfairly towards the candidate that was not promoted. This was held in SAPS v SSSBC [2010] 8 BLLR 892 (LC).
101. Mr. Mahlambi testified that during the shortlisting phase, critical irregularities came to light. Mr. M Gcina disclosed to him predetermined outcomes for the positions. Specifically, Mr. M Gcina stated that the successful principal candidate would be an external applicant and named an internal candidate who had already agreed to accept the deputy principal position. Due to this clear predetermination prior to the interviews, the SGB members decided to withdraw from the process. The Respondent did not dispute what Mr. Mahlambi testified regarding the predetermination of the outcomes of the interviews.
102. An external candidate was indeed recommended and appointed the principal of Prince Domba High School, and an internal candidate was appointed the deputy principal as Mr. Mahlambi was informed. The Respondents failed to call Mr. M Gcina or the connected internal candidate to rebut this allegation.
103. Mr. Mahlambi’s testimony also explained why the SGB pulled out of the interview process to the point of not ratifying the interview results for the principal position number 2130 as the SGB Chairperson testified that he did not sign the ratification form since there was allegedly no ratification meeting.
104. The Respondent witness, Mr. Sibisi could not reliably inform the ELRC who gave him the ratification form signed by the SGB Chairperson.
105. Mr. Mahlambi further testified that the SGB co-opted two principals and separated the IC for the positions as instructed by Mr. Mngomezulu after it raised concerns of interference by Nongoma Circuit Management. However, at Phumanyova High School workshop, Mr. Mbatha, the CES instructed the two co-opted principals to leave against the SGB wishes. Mrs Mngomezulu and Mr. Mbatha disputed this stating that it was agreed at the workshop that the two co-opted principals should leave as one IC was enough to conduct both interviews for the two positions. No minutes for the Phumanyova High School workshop could be provided by Mr. Mbatha or Mrs Mngomezulu.
106. The CES, Mr. Mbatha, held a training meeting after shortlisting had concluded to nullify the co-option of Mrs Xaba and Mr. Nsibande. It follows then that the CES acted ultra vires, as departmental officials could not lawfully bypass, override, or reconstitute an SGB-driven process. I was not persuaded by the answers given by Mr. Mbatha as to why he had to train the Prince Domba High School SGB at Phumanyova High School when shortlisting had already been concluded.
107. Mr. Mahlambi testified that following the interviews, the SGB refused to sign the ratification form because their co-opted principals had been improperly dismissed by the CES and DCES. The SGB then formally wrote to the DCES outlining that the process was compromised and requested a restart; however, no response was received from the DCES or the Department of education.
108. Mr. Mahlambi further testified that both NATU and SADTU union representatives complained about the circuit management’s involvement in the interview process for the principal and deputy principal positions and asked that the process be stopped but Mr. Sibisi insisted that the interviews proceed.
109. Mr. Sibisi pointed out that the EHR 11 ratification form was signed by the Union Representative though. Only a SADTU Union Representative signed the EHR11 and not the NATU Union Representative. That to me indicates that there was unhappiness from NATU on the interview process.
110. The ERH11 ratification form also did not have a submitted date. This is a further indication that the SGB did not ratify the IC recommendation for the principalship position 2130.
111. As an interested party in the process, the Applicant alleged that the 1st Respondent had no right to interfere with the formulation of the IC to conduct the interview process for post 2130.
112. The Applicant applied for the Principalship post 2130 at Prince Domba High School and the allegation is that there were irregularities that led to the predetermination of who will be appointed to the principalship post. This indirectly denied him a chance to be appointed to the post regardless of his performance at the interviews. The Respondents did not dispute the predetermination of who will be appointed to the principalship post even though it was not corroborated by another witness. However, I am persuaded by the totality of the evidence before me especially the denying by the SGB chairperson that he signed the EHR11 ratification form that the testimony of the Applicant’s only witness was on a balance of probabilities true and credible.
113. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani (2002) 23 ILJ 761 (LC) it was held that an employee must prove not only the existence of a labour practice but also that it was unfair. In this case, it is my finding that the Applicant proved the existence of the labour practice by the 1st Respondent and that it was unfair.
114. Since the 2nd Respondent was joined in this matter and I have made a finding that the 1st Respondent conducted unfair labour practice against the Applicant and this had a negative impact on the Applicant, to remedy the situation, I am convinced that the setting aside of the appointment of the 2nd Respondent would give the Applicant a fair chance to advertise his skills during an interview process without any interference from Circuit Management. The 2nd Respondent and the other candidates will also have a chance to be considered for the Principalship position in question.
115. The above-mentioned remedy of this dispute will not jeopardize the best interest of the children of the Prince Domba High School as teaching and learning will proceed during the sifting process until the appointment of the new principal. The 1st Respondent is expected to appoint an acting principal after the 2nd Respondent’s position has been set aside.

AWARD

116. The 1st Respondent, Head of DOE-KwaZulu Natal committed unfair labour practice by interfering with the formation of the post 2130 interviewing committee and processing an EHR11 ratification form not signed by the SGB Chairperson but by an unknown party.
117. The action of the 1st Respondent negatively affected the Applicant’s and other candidate’s promotion chances.
118. Accordingly, the appointment of the 2nd Respondent to post 2130 is hereby set aside and the 1st Respondent is directed to instruct the Prince Domba High School current SGB to redo the selection process for post 2130 from the shortlisting stage.

L Mkhize

Arbitrator
07 September 2026
ELRC622-2/26 KZN