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07 September 2026 – ELRC655-25/26LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT THOHOYANDOU

Case No. ELRC655-25/26LP

In the matter between

DR. HLONGWANE CHARLOTTE MISAVENI Applicant

And

LIMPOPO DEPARTMENT OF EDUCATION First Respondent

MOYANE SILVIA Second Respondent

ARBITRATION AWARD

Details of hearing and representation

  1. This arbitration award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearings took place at the Department of Education, Vhembe East District Offices and Fulufhelo Special School, Thohoyandou, Limpopo Province on 25 to 27 March, 28 to 29 May, and 29 to 31 July 2026 at 9:00AM. The Applicant, Hlongwane Charlotte Misaveni, was represented by Advocate Moraka Makgaa, who was briefed by KKM Attorneys, while the First and Second Respondents, Limpopo Department of Education and Moyane Sylvia were represented by Portia Modipa, one of the officials and Maphaha T.R from South African Democratic Teachers Union (SADTU) respectively. Mr. Hezekiel Madire from SADTU represented the Second Respondent only during the hearing of 28 to 29 May 2026. The proceedings were digitally voice recorded. The Interpreters were Baloyi R.R, Maunatlala Sharon, and Hlongwane Christinah. The parties handed in bundles of documents, which I marked as Bundle A for the Applicant and Bundles R and RR for the First Respondent.

Nature of the dispute

  1. The dispute concerns the Applicant’s alleged unfair labour practice related to promotion. The Applicant is alleging that the First Respondent’s failure to appoint her to the position of Deputy Principal (Post No:30) at Malamulele Secondary School constituted unfair labour practice related to promotion. The Applicant is also alleging that the Second Respondent did not qualify to be shortlisted and that there was non-existence of a valid recommendations by the School Governing Body (SGB).

Issues to be decided.

  1. I must decide whether the failure by the 1st Respondent to appoint the Applicant into the post of Deputy Principal (Post No:30) at Malamulele Secondary School constitutes unfair labour practice or not. I must also decide whether the 2nd Respondent qualified to be shortlisted for the post of Deputy Principal (post 30) at Malamulele Secondary School or not as well as whether there was a valid recommendation by the SGB or not. I must determine an appropriate relief if it is found that the conduct of the 1st Respondent was unfair.

Background to the dispute and common cause issues

  1. The Applicant is currently employed as a CS1 Educator at Malamulele Secondary School. She was employed on 01 January 1990. She is earning a salary of R50 937.50 per month. The First Respondent advertised a post of Deputy Principal at Malamulele Secondary School (Post No: 30) through open vacancy list 1 Volume 2/2025. The Applicant was shortlisted and interviewed. The Second Respondent was appointed into that post.
  2. The relief sought by the Applicant is that the whole process of selection to be set aside (re-shortlisting by different shortlisting and interviewing committee). Survey of evidence
    The Applicant’s case

Five witnesses testified for the Applicant. The first witness was the Applicant herself. Dr. Charlotte Misaveni Hlongwane testified under oath and in English that:

  1. She was assigned the duties of a Senior Teacher in 1998. She was controlling home economics subject, working with departmental head. In 2013 she was coopted into school management team (SMT). She was assigned to oversee consumer studies and tourism. She and the Second Respondent have been working together at the same school, Malamulele Secondary School.
  2. She believed she was the best candidate as she served in the SMT, despite the fact that she was highly qualified with four (4) Degrees and three (3) Diplomas (pages 118-124). The Second Respondent was not in the SMT of the school at the time they applied for the post. The 2nd Respondent indicated in her Curriculum Vitae (CV) that she (Second Respondent) was a member of the SMT responsible for Geography and Social Science. The SMT member responsible for Geography and Social Science was Mr. Nkuna Mkhatsane Isaac who retired in May 2025.
  3. The Second Respondent indicated again in her CV that she was a teacher at Zibuko Secondary School in 2008 and a SMT member responsible for Geography and Social Science, while she was a temporary teacher instead. Before a person is coopted into SMT, that person must first be a permanent or senior educator in control of a departmental subject.
  4. The Second Respondent indicated in her CV that she was the SGB deputy secretary for Malamulele Secondary School since 2018 to date and SGB secretary since 2021 to date. By the time herself and the Second Respondent applied for this post, Second Respondent was not a SGB member.
  5. On the 13th of August 2025, she went to Makumeke Primary School where the interviews were taking place. As they were waiting for the interviews, she overheard an argument between the Malamulele Secondary School SGB chairperson, Mr. Manganyi Shadrack Ntsako and his (chairperson) deputy secretary, Malepfane Iren. The argument of the chairperson and his deputy secretary was about three points; the first point was about the meeting which took place at the circuit offices in the evening of 12 August 2025, where the chairperson wanted to know what happened. Present in that meeting were SGB deputy secretary, Malepfane Iren, Circuit manager, Circuit Task Team members, two ladies from SGB, Mr. Mhinga S.C and Mabungwa (SGB member). The second point was the inclusion of Mr. Baloyi F.G into the panelist of post number 30. Mr. Baloyi F.G was not appointed to be one of the panelists for post number 30. The third point was about the removal of Mrs. Mashaba Olivier from participating as a panel member for post number 30. Mrs. Mashaba was the one appointed by the SGB to be part of the panelists for this post number 30 and not Mr. Baloyi F.G.
  6. After the interviews she consulted with the SGB teacher component and from the whistleblower that indeed there was a meeting at the circuit offices in the evening of the 12th of August 2025, a day before the interviews. Mr. Baloyi F.G and Mrs. Mashaba Olivier were tried to be stopped from participating in the interviews by Malepfane Iren. The Acting principal then, Mr. Chauke N.S confirmed that.
  7. During the cross-examination by the First Respondent, she testified that the Second Respondent was not supposed to be shortlisted. The Second Respondent did not meet the requirements in terms of the applicable experience (page 15 of Bundle R, paragraph 3.3). The Second Respondent has a three years qualification, registered with SACE and more than five years actual experience (page 22 of Bundle R). In terms of experience the Second Respondent does not qualify. The Second Respondent did not have the experience in managing the academic sphere. The Second Respondent did not have management and leadership experience in curriculum activities. She still maintained that the Second Respondent did not meet the minimum requirements and should not have gone into phase 2. The CV of the Second Respondent misled the shortlisting panel. She did not agree that when one teaches a subject, one is managing it (subject). When one mentors and controls a subject, one is managing it.
  8. During the cross-examination by the Second Respondent, she testified that she agreed that the sifting process was for sifting the applications which did not meet the minimum requirements for the post. Her issue was the removal of the fifth panel member, Mrs. Mashaba Olivier from the interviews. The second witness Nkuna Mkhacani Isaac testified under oath that:
  9. He is an employee of Malamulele Secondary School. He joined the school in 1986. He was promoted to a departmental head (DH) in 1995 and a deputy principal in around 2011. He was promoted to a principalship position in 2025. He retired due to age on 30 May 2025.
  10. He knows the Applicant as she was his teacher during his tenure as a Principal. The Applicant was afforded the status of a senior teacher in 1998. He coopted the Applicant as a member of SMT in 2013. He knows the Second Respondent as well as she (Second Respondent) joined the school around 2008/2009 as CS1 Educator. During his tenure as the Principal of Malamulele Secondary School, the Second Respondent was not a member of the SMT. He was responsible for Geography and Social Science in the SMT.
  11. Page 66 of Bundle R is the testimonial of the Second Respondent. The enquiry on the document was him, but the signature is not his. He does not know the signature on this document.
  12. During cross-examination by the First Respondent, he testified that he does not have problem with the testimonial but the signature. He used to delegate the Second Respondent to control, monitor and moderate Geography, Xitsonga and Social Science. One could be delegated management activities but remained as a teacher, if one is not a member of SMT. Both the Applicant and the Second Respondent met the requirements in terms of minimum qualification (REQV 13), registration with SACE and applicable experience (pages 15 and 22 of Bundle R). Both the Applicant and the Second Respondent met the requirements in terms of management experience, leadership experience, participation in departmental and professional committees and additional qualifications in Education (page 18 of Bundle RR). The scores of the Second Respondent (76%) were higher than that of the Applicant (66.5%). The Applicant was ranked position 3 and the Second Respondent 1 by the SGB and the interview committee. The appointment of the Second Respondent was approved.
  13. There was no cross-examination by the Second Respondent. The third witness Olivier Mashaba who testified under oath that:
  14. She was the Deputy Principal of Ximunwana Secondary School since 2022 to date. She has experience in shortlisting and interviews since 2023 to date. She was one of the panelists when PP Mhinga Secondary School and Khatisa Secondary School were appointing a DH as well as in George Sonto Secondary School.
  15. She was appointed one of the panelists for post 30 (Deputy Principal) at Malamulele Secondary School. Page 153 of Bundle R was her appointment letter as panel member for post 30. The shortlisting date was the 6th of August 2025. When shortlisting they looked at the best candidates as per their CVs.
  16. In terms of page 27 of Bundle R, phase 2, management experience, they looked if the candidate is in SMT or a DH. Had the Second Respondent supplied the correct information regarding her management experience, they would have scored her (Second Respondent) zero (0). Had they scored the Second Respondent zero, the totals would have been 17 points instead of 27 (page 28 of Bundle R). Had the Second Respondent scored correctly, she would not be amongst the top 5 shortlisted and interviewed.
  17. Before the interviews, she received a call that she should not come to the interviews process as a panelist. She then, called the Acting Principal, Mr. Chauke to confirm the issue of her not being a panelist for post 30. The Acting Principal told her to come to the interviews process as she was a panelist.
  18. She went to the interviews on 13 August 2025 with other panelists. The resource person, Mr. Jeleni indicated that she should leave the interviews since she applied for a promotional position somewhere. Then, she was called outside the interviews room by the resource person and the SGB. The deputy secretary of the SGB, Malepfane Iren chased her out of the interviews. She had no choice but to leave. She did apply for a post of principal in another circuit.
  19. During cross-examination by the First Respondent, she testified that she did not know what the panel looked at when she was appointed Deputy Principal without her being in the SMT or been a DH. She agreed that participating in SMT and being DH were not the requirements for a Deputy Principal post. The Second Respondent qualified in terms of qualifications. The Applicant was more qualified than the Second Respondent.
  20. During cross-examination by the Second Respondent, she testified that she had been workshopped on ELRC Resolution 2 of 2020. One could be Deputy Principal without SMT or DH participation, provided one is more qualified than others. Her appointment letter as a panelist was signed by the SGB chairperson or secretary. It was incorrect that she was removed from the panel because she was not appointed. She was removed because she applied for a promotional post somewhere. The fourth witness Makamu Amukelani Forget testified under oath that:
  21. He was a teacher at George Sonto Secondary School. He was a union, Professional Educators Union (PEU) for both the shortlisting and interviews in respect of post 30.
  22. On 13 August 2025, he arrived at Makumeke Primary School where the interviews were held. There was a briefing session in that morning which was directed by Mr. Baloyi M.J from the circuit management task team. Afterthe briefing session the resource person, Mr. Jeleni handed the panelists with the agenda of the interview’s proceedings. The panelists started with the formulation of the interviews’ questions.
  23. In the middle of the formulation of questions, Mr. Jeleni called Mrs. Mashaba Olivier, who was one of the panelists outside. When Mrs. Mashaba Olivier and Mr. Jeleni were out, the other panelists continued to formulate questions. When Mrs. Mashaba Olivier came back into the interviews’ room, she told them (panelists) that she has been removed as panelist. He, together with the representative of the South African Democratic Teachers’ Union (SADTU), Mr. Baloyi enquired why Mrs. Mashaba Olivier has been removed and Mr. Jeleni told them that he got an instruction from the circuit task team office.
  24. They then, went to the circuit task team officials who told them that Mrs. Mashaba Olivier was removed to avoid her benefiting from the interviews in terms of knowing the questions and answers, because she has applied for another position somewhere. Mrs. Mashaba Olivier did not voluntarily recuse herself from the interviews’ panel. There was also no decision from the interviews’ committee to remove Mrs. Mashaba Olivier.
  25. During the cross-examination by the First Respondent, he testified that the role of the observers from PEU and SADTU was to observe the proceedings. Where they see wrong things, they must ask and lodge grievance. He did not do anything after he was told the reason of Mrs. Mashaba Olivier’s removal because there was no PEU member who was part of the interviewees, even though his role was to act irrespective of whether there was a member of his union. It is correct that as PEU they failed the process by not declaring a dispute after they realized that something was wrong.
  26. During the cross-examination by the Second Respondent, he testified that the interviews results for post 30 were accepted, himself been responsible to accept them (results) representing social partners. The fifth witness Ntsako Shandrack Manganyi testified under oath that:
  27. He was the SGB chairperson of Malamulele Secondary School since 2024. Mr. Baloyi F.G was appointed to be a member of the panel in respect of post number 28 and not post 30. The post 28 was for DH of Xitsonga and Geography.
  28. On 12 August 2025 he was not part of the meeting but informed by the Principal, Mr. Chauke S telephonically. The Principal told him that he (Principal) was not aware of the meeting but he would attend as he was called by the circuit manager. The Principal told him that the meeting was about the removal of Mrs. Mashaba Olivier from the panel.
  29. On 13 August 2025 before the start of the interview process, the panel went to the other room where the SGB members were not allowed. Mr. Baloyi J who was the chairperson of the circuit task team came to them (SGB) and informed them that Mashaba Olivier was not supposed to be part of the interviews. The reason for the removal of Mrs. Mashaba from the interview panel was that she was already been shortlisted for principalship post at another school. They (SGB) then, wanted to see Mrs. Mashaba Olivier outside. Mrs. Mashaba Olivier had not applied for principalship post at Malamulele Secondary School or Malamulele Central Circuit. The SGB members present on that day, 13 August 2025 were; Olga Mashaba, Salphinah Mdlovu, Patience Chauke, Thembani Mabungwa, Mr. Mhinga S, Shimbambu G, Malepfane Irene and himself.
  30. While he was still talking to Mrs. Mashaba Olivier, Irene Malepfane told her (Mrs. Mashaba Olivier) that she may leave the interview room. He did not go to the interview room. The circuit task team members were Baloyi J.M, Mr. Mathonsi, Mr. Ben Khamanyani, Mr. Ben Jeleni, and Hlongwane.
  31. After the interviews, the panel called them (SGB) and gave them the results which were according to preferential order. They were made to sign the forms without them reading and told who was the appointed candidate. They did not recommend who should be appointed.
  32. During the cross-examination by the First Respondent, he testified that Mrs. Mashaba Olivier ended up leaving the interviews before the process started. The SGB was not asked about its preferred candidate but only given papers to sign. He once attended interviews, and after the panel concluded the interviews, they (panelists) would tell them (SGB) about the results and ask if they (SGB) recommend the selected candidate. The circuit task team interfered with the interviews for post 30. The SGB found that post 30 was given to the Second Respondent and not what they decided. The SGB was supposed to be the ones recommending the candidates in order of preference. There was never a meeting where the SGB was informed of the candidate appointed into post 30.
  33. During the cross-examination by the Second Respondent, he testified that as the chairperson of the SGB he was not part of the meeting where the Second Respondent was introduced at the school. He asked the deputy secretary of the SGB about the meeting of the 12th of August 2025. He was as a chairperson, the one responsible with the calling of SGB meetings. The First Respondent’s case Eight witnesses testified for the First Respondent. Dr. Baloyi Dingani Graham testified under oath and in English that:
  34. He was appointed as the chairperson of the shortlisting and interviews panel for post 30. The Second Respondent scored the highest (76%). The Applicant was number three with the score of 66.5%. The Applicant was more qualified than the Second Respondent. In Deputy Principal post, qualifications were used in shortlisting and during interviews they use scores. Both the Applicant and the Second Respondent had five years’ experience. The Second Respondent met the four requirements for the post. The Second Respondent was ranked because of the scores. The SGB recommended after the panel ranked the candidates.
  35. The Second Respondent did not ask any question to this witness.
  36. During the cross-examination, he testified that they shortlisted looking at the candidates’ CV and any other document supplied. In terms of management experience, they checked if the candidate was managing the subject and the pupils. They also looked at whether that teacher is part of the committees and managing other teachers. If he is a teacher and the Principal delegated him to manage certain project, he is managing. If the panel becomes aware of false CV, then the people dealing with investigations will investigate and the panel does not do anything. If the CV contains false information and the panel becomes aware, that CV would not be considered. He agreed that Mrs. Mashaba Olivier ended up not part of the interviews. Mrs. Mashaba was called outside the interview room by the chairperson of the SGB and the panel was not given the reason. Mrs. Mashaba Olivier came back to collect her stuff and indicated that she would no longer be part of the panel. To be member of SMT, it just adds an advantage for one to be shortlisted. The second witness of the First Respondent Tshembo Yvonne Manganyi testified under oath that:
  37. She was appointed as a panelist (secretary) of the interview committee in the appointment of the Second Respondent. They agreed to use the CVs and testimonials of the candidates. In terms of management experience, they looked at the actual number of years as SMT. For Deputy Principal, a person must be managing curriculum as acting or coopted to lead a certain subject or group/departmental head for a specific subject. They were also looking at where a person participated in the committees, like circuit committees, attending seminars and courses. In terms of additional qualifications in education, they looked at added qualifications.
  38. All the candidates shortlisted met the requirements. The panel shortlisted the SMT because they (panel) did not want to leave them out. According to the CV, the Second Respondent qualified. Even if the Second Respondent was not part of SMT, she was going to be shortlisted because of the additional qualification. The Second Respondent met the requirements for Deputy Principalship post (page 22 of Bundle R). It is not possible for CS1 teacher who did not participate in SMT to be shortlisted.
  39. The panel ranked the Second Respondent as number one (1) and the Applicant number three (3). The shortlisting process went well, but the interviews did not because of interruption by the resource person, Jeleni M.B. Mr. Jeleni M.B called one of the panelists, Mrs. Mashaba Olivier outside. Mrs. Mashaba Olivier was removed from the panel because she was shortlisted for another post somewhere. Then the interviews continued without Mrs. Mashaba Olivier. PEU indicated that the scores were not fair, but the panel did not capture that issue in the minutes. The results were accepted after long deliberations.
  40. There was no question asked by the Second Respondent to this witness.
  41. During the cross-examination, she testified that in terms of management experience the panel agreed to look at people who participated in SMT, DH and coopted in committees when shortlisting. All the five shortlisted candidates were permanently appointed educators, SMT, DH or acting in that capacity. If the Second Respondent got zero (0) under management experience, her total scores would have been seventeen (17) and not twenty-seven (27). If she (Second Respondent) was scored 17 under management experience, she would not have been part of the five shortlisted for post 30. If the panel was aware of the misinformation on the Second Respondent’s CV, they (panel) would not have shortlisted her (Second Respondent). The panel shortlisted the Second Respondent because her CV showed that she has been SMT member (page 57 of Bundle R). Mrs. Mashaba Olivier did not recuse herself and neither did the panel. There is no provision for the circuit task team in the Limpopo ELRC Collective Agreement 2 of 2020 (Bundle RR). The third witness Baloyi Greppeson Fetsie testified under oath that:
  42. He was appointed as a panel member during the interview of the Applicant and the Second Respondent. He was also part of the shortlisting process. When the panel were shortlisting, they were using Bundle RR. On management experience, they looked at classroom management, because a teacher controls a class in terms of keeping discipline. Controlling learners coming to school at the gate is part of management.
  43. Both the Applicant and the Second Respondent met the requirements in terms of qualification, registration with SACE and applicable experience (pages 15 and 22 of Bundle R). The Second Respondent was ranked position 1 by the panel and the Applicant position 3.
  44. He did not see any problem during both the shortlisting and interviews processes. Mrs. Mashaba Olivier only participated in the shortlisting process and not the interviews. Mrs. Mashaba Olivier was called outside by the SGB and when she returned, she just took her stuff and left without telling the panel the reason. It is possible for a teacher without participating in SMT to be shortlisted for deputy principal post, as long as she/he has RQEV 13. He knew nothing about PEU having issues with the scores of the Second Respondent.
  45. There was no question asked by the Second Respondent to this witness.
  46. During the cross examination, he testified that the deputy secretary of the SGB, Malepfane Irene told him that he was selected as a panel member of post 30. He received appointment letter as a panelist for post 28 on 05 August 2025. He had another appointment letter as a panelist for post 30 as well. However, the SGB told him that he was a panel member for post 28. The SGB chairperson told him to go to post 30 because Mrs. Mashaba Olivier recused herself. The fourth witness of the First Respondent Ramudzuli Ntshayheni Maggie testified under oath that:
  47. She knew both the Applicant and the Second Respondent. She met the Applicant during the interviews of this post number 30. She saw that the Applicant was not prepared for the interviews of post 30.
  48. In terms of the shortlisting scoresheet, the Applicant scored higher than the Second Respondent (33 and 27 respectively. In the interviews, the Applicant had total scores of 66.5% and the Second Respondent 76%.
  49. The Second Respondent was scored higher than the Applicant. The Second Respondent qualified for the post in terms of the Limpopo Provincial Government Collective Agreement 2 of 2020. For a post of Deputy Principal, management generally refers to the duties of a teacher in the class. When a teacher is in class teaching, he or she would be managing. When a teacher is doing QMS and directing learners to something, he/she would be managing.
  50. From the questioning by the Second Respondent, she testified that, the candidates were ranked according to the Respondents’ actions in terms of the Collective Agreement.
  51. During the cross examination, she testified that she has been involved in the recruitment processes for promotional posts since 2013. She was trained by the union on the Collective Agreement 2 of 2020. The SGB was not trained on the Collective Agreement, but on how to appoint the panel for shortlisting and interviews. Sifting is done at the district level. In terms of Personnel Administration Measures (PAM) every teacher is doing management. When the panel shortlists, they had CVs of the candidates and there was no need to consult or do reference check. There was no provision for the circuit task team in the Collective Agreement 2 of 2020. The fifth witness of the First Respondent Jeleni Mzamani Ben testified under oath that:
  52. He was the departmental representative during the interviews of post number 30. One of the union representatives raised the issue of Mrs. Mashaba Olivier’s recusal because she applied for a post somewhere. Since there were no provisions in the Collective Agreement 2 of 2020, he had to consult with the circuit task team. After consultation he went back into the interviews’ room.
  53. Then the chairperson of the SGB came and requested Mrs. Mashaba to go out with him (chairperson of SGB). After a while, the chairperson of SGB and Mrs. Mashaba came back into the interviews’ room. Mrs. Mashaba Olivier then told the panel that she was recusing herself. The panel continued with the process.
  54. From the questions from the Second Respondent, he testified that the SGB was called after the whole process was finalized and results ready for signature. After the interviews, the chairperson of the panel gave the package to the chairperson of the SGB who signed off the package.
  55. During the cross-examination, he testified that the issue of Mrs. Mashaba’s recusal was raised by SADTU’s observer, Mr. Baloyi. Mrs. Mashaba Olivier did not recuse herself from the panel. None of the candidates brought Mrs. Mashaba’s recusal application because it (recusal) took place before the start of the interviews’ process. The non-participation of Mrs. Mashaba in the interviews process was not the discussions of the panel. The sixth witness of the First Respondent Olga Nancy Mashau testified under oath that:
  56. She was the SGB member of Malamulele Secondary School. She was part of the panel members for the post of a deputy principal at Malamulele Secondary School. Baloyi DG, Manganyi Yvone, Manganyi S (chairperson of the SGB), Ramudzuli, Sithole Reckson and Baloyi FG were the panel members for shortlisting. At the end of the shortlisting process, Mashaba Olivier replaced Sithole Reckson as a panel member.
  57. The panel members for interviews were Baloyi DG, Manganyi Yvone, Baloyi FG, and Ramudzuli. Mrs. Mashaba Olivier came for the interviews process but dismissed by the SGB and she left. The reason for the chasing away of Mrs. Mashaba was that she applied for a post in another school. The SGB did not explain to the panel the reason why Mrs. Mashaba Olivier was leaving the process.
  58. The Second Respondent was the one recommended by the panel and the SGB. The SGB signed off the recommendation for the appointment of the Second Respondent. The chairperson of the SGB, Mr. Manganyi S was the one who introduced the Second Respondent to the school staff.
  59. When asked by the Second Respondent, she testified that Mrs. Mashaba Olivier was not appointed to be part of the panelist for post number 30. They agreed as SGB to call Mrs. Mashaba Olivier that she should not come as they did not call her (Mashaba Olivier). Baloyi FG indicated to her that she received two letters in respect of posts 28 and 30.
  60. During the cross examination, she testified that she remembered the meeting they held at the circuit office on 12 August 2025. The meeting was held at around 16:00 to 17:00. The purpose of the meeting was to talk about Mrs. Mashaba Olivier. The people who attended that meeting were Mashau OK, Malepfane Irene, Mabunganywa, Ms. Pheshi, Chauke S, and the SGB. She knew that the chairperson of the SGB had to be consulted and give permission before the SGB meeting is called. Mrs. Mashaba Olivier was called by the deputy secretary of the SGB, Malepfane Irene to say she (Mrs. Mashaba Olivier) must not come to the interviews. There was no properly constituted SGB meeting that took a decision to stop Mrs. Mashaba Olivier from coming to the interviews as panel member. Mrs. Mashaba Olivier was removed from the interviews’ panel because some of the SGB members did not know her. All the appointment letters of panel members were signed off by the chairperson and the deputy secretary of the SGB, but were (letters) not written by them (chairperson and deputy secretary). The chairperson of the SGB agreed with the recommendations of the panel and they all signed off as SGB in the presence of the panelists. The seventh witness of the First Respondent Muchini Jonas Baloyi testified under oath that:
  61. He was the Principal of Tivanani Primary School. On 13 August 2025, he was involved in the interviews of post number 30 at Makumeke Primary School as he was sent by his Circuit Manager. His role was to allocate the venues for the interviews. There was a complaint from one of the union observers (SADTU and CTU-ATU) about one of the panelists whom they have issues with. He consulted the circuit manager over the phone who advised him to inform the SGB to remove that panelist. The SGB was called to a meeting and informed of the advice from the circuit manager. The chairperson of the SGB was part of meeting. He did not know what happened in the interviews’ room as he was not allowed to enter.
  62. When asked by the Second Respondent, he testified that he did not know about the task team from the circuit offices. Jeleni Ben was the one who raised the complaint about one of the observers.
  63. During the cross-examination, he testified that he did not know of the task team. He was delegated by the circuit manager to do certain task and he was not a task team. He was not part of the shortlisting and interviews. One of the SGB members and the deputy secretary came to him and complained about Mrs. Mashaba Olivier. The union observer who complained about Mrs. Mashaba was from SADTU. He was not the chairperson of the task team but chaired the process on 12 August 2025. The eighth witness of the First Respondent Chauke Nkhensani Pesly testified under oath that:
  64. She was the member of the SGB. Sithole R was not a panelist for post number 30. Mrs. Mashaba Olivier was not nominated for post number 30. After shortlisting, the SGB discussed about a panelist that they did not nominate. The deputy secretary, Malepfane Irene called Mrs. Mashaba Olivier and told her that she should not come to the interviews as she was not nominated. Mrs. Mashaba Olivier then called the Principal. The principal arranged a meeting to discuss Mrs. Mashaba Olivier’s issue. In the meeting, it was Olga, Irene Malepfane, and Mabuyangwa, the Principal, Nkuna and Circuit Manager. The chairperson promised to come but he did not.
  65. On the day of the interviews, 13 August 2025, the SGB discussed the removal of Mrs. Mashaba Olivier from the panel. Baloyi told the SGB that they could remove Mrs. Mashaba Olivier from the panel. The chairperson of the SGB went to the interviews’ room and removed Mrs. Mashaba Olivier from the panel.
  66. The SGB was called by the panel and the results were read. The circuit people told the SGB that they could not change the results. Then, the SGB signed off the results.
  67. When asked by the Second Respondent, she testified that people who signed off the results were the SGB chairperson, Irene Malepfane, Tintswalo, Mabuyangwa, Mhinga Salphinah and herself.
  68. During the cross-examination, she testified that shortlisting for post number 30 was done on 06 August 2025. Mrs. Mashaba Olivier was part of the shortlisting process. Mrs. Mashaba Olivier was not nominated for post number 30 panelists. She did not know of the appointment letter for Mrs. Mashaba Olivier to be part of post numb er 30 panelists. She did not know if the SGB chairperson and the deputy secretary had powers to appoint panelists. Mrs. Mashaba Olivier was appointed for shortlisting and not for interviews’ process. They went to the circuit offices on 12 August 2025 and that was when Irene Malepfane called Mrs. Mashaba did not to come to the interviews on 13 August 2025. Irene Malepfane called Mrs. Mashaba Olivier before they set for the meeting. The meeting at the circuit offices on 12 August 2025 started at around 19:00 to 20:00. The reason for the removal of Mrs. Mashaba Olivier from the panel was that she (Mrs. Mashaba Olivier) was not nominated by the SGB. After the interviews, the results were announced.

Analysis of the evidence and arguments

The First Respondent, Department of Education – Limpopo is hereby ordered to restart the recruitment processes of the post of Deputy Principal: Malamulele Secondary School (post 30) from shortlisting with new panelists other than the previous one. VICTOR MADULA
ELRC PANELIST

In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended (the Act), an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on the terms the arbitrator deems reasonable. Section 186 (2) (a) of the Act defines an unfair labour practice as follows: “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee”.
The Applicant referred an unfair labour practice dispute related to promotion. She alleged that the First Respondent failed to promote her by not appointing her into the Deputy Principalship post of Malamulele Secondary School. She also alleged that the Second Respondent was not supposed to be shortlisted for the post and that there were no valid recommendations by the SGB. The Applicant has a duty to begin and the onus to prove on the balance of probabilities rests with her. The Applicant must prove on the balance of probabilities that the conduct of the First Respondent for failing to appoint her as the Deputy Principal of Malamulele Secondary School constituted unfair labour practice related to promotion.

It is common cause that the Applicant applied, shortlisted, and interviewed for the Deputy Principalship post (post 30) of Malamulele Secondary School advertised through open vacancy list No:1 Volume 2/2025, dated 14 April 2025. The Applicant and the Second Respondent were among the five candidates recommended for appointment. The Applicant was position three (3) and the Second Respondent position one (1).

The testimony of the Applicant in the main was that the Second Respondent misled the shortlisting and interview panel by indicating in her CV that she was SMT member responsible for controlling Geography and Social Science at Zivuko Secondary School in 2008. The Second Respondent went further to mislead the panel by indicating again in her CV that she was SMT member responsible for Geography and Social Science at Malamulele Secondary School since 2009 to date as well as SGB deputy secretary since 2017 to date. The Second Respondent could not be a member of SMT at Zivuko Secondary School as she was a temporary teacher. The Second Respondent was not re-elected SGB deputy secretary in 2024. It was the testimony of the Applicant’s witness, Mr. Nkuna that the testimonial of the Second Respondent was misleading and forgery. The signature on it (testimonial) was not his (page 66 of Bundle R).

The First Respondent’s testimony in relation to the CV of the Second Respondent was that, participating in SMT was not one of the requirements for appointment into the Deputy Principal post (post 30). The fact that the Second Respondent was an educator, she was managing subjects and as such had actual educator’s and applicable experience. The Second Respondent met the minimum requirements for the post as she had three-year Secondary Education Diploma and Advanced Certificate in Education (M+4), registered with South African Council of Educators (SACE) and applicable experience.

The Applicant went further to testify that Second Respondent should not have been shortlisted since she (Second Respondent) did not meet the requirements in terms of management experience and leadership experience in curriculum activities. The Second Respondent should not have been scored under this phase 2 dimensions. The Second Respondent never participated in SMT nor led any curriculum activities. Had the Second Respondent been properly scored in terms of phase 2 dimension she would not have been shortlisted. The Second Respondent would have been scored 17 and that would have disqualified her (Second Respondent).

The First Respondent’s testimony was that the Second Respondent met the requirements in terms of all the dimensions, hence she was properly scored and obtained 27 scores. The Second Respondent was managing the subjects she was teaching in class. Some of the witnesses of the First Respondent, the chairperson and secretary of the panel, Dr. Baloyi Dingani Graham and Tshembo Yvonne Manganyi respectively, testified that the candidates were shortlisted based on their respective CVs, testimony and other documents submitted. The panel also looked at participation to SMT and managing of the curriculum as well as managing other teachers. The secretary of the panel testified that all the five shortlisted candidates were permanently employed, SMT members or Departmental Head (DH). These two witnesses testified that, had the panel became aware that the CV of the second Respondent contains false information, they would not have shortlisted her (Second Respondent). In terms of management experience, the panel looked at the number of years as SMT member and the Second Respondent was shortlisted because of her CV.

The Applicant and her witnesses testified about the removal of Mrs. Mashaba Olivier as panel member. Their testimony was that the circuit task team removed her from the interview panel, even though she was appointed by the SGB chairperson. Mrs. Mashaba Olivier participated in the shortlisting process. The Applicant testified that there was a meeting at the circuit offices on 12 August 2025 at around 16:00 to 17:00, which was a day before the interviews on 13 August 2025. The meeting was held by the Circuit Manager, and some SGB members. The attendees were Mashau OK, Malepfane Irene, Mabungoanyiwa, Ms. Pheshi, ChaukeS and the SGB.

The Respondent’s testimony was that, one of the union observers from SADTU complained about the inclusion of Mrs. Mashaba Olivier in the panel. The reason being that Mrs. Mashaba Olivier applied a principalship post somewhere. However, some of the witnesses of the First Respondent testified that Mrs. Mashaba Olivier was removed from the panel because she was not appointed as panel member. The resource person, Mr. Jeleni Mzamani Ben and circuit delegate, Baloyi Muchini Jonas consulted with the circuit manager about the removal of Mrs. Mashsba Olivier. The circuit manager advised that Mrs. Mashaba Olivier be removed from the panel. The removal of Mrs. Mashaba Olivier from the panel was irregular. The panel was supposed to be informed and discuss it (the removal). The fact that Mrs. Mashaba Olivier applied a principal post somewhere does not disqualify her to participate in any panel. The other panel should not have proceeded with the interviews without Mrs. Mashaba Olivier if there was nothing sinister.

The Second Respondent elected not to testify during this arbitration hearing. There was no evidence from the Second Respondent challenging all the insinuations put against her (Second Respondent) by the Applicant and her (Applicant’s) witnesses.

The Court in Monyakeni v SSSBC and others (JA 64/13) [2015] ZALAC 17 (handed down on 18 May 2015) held that “There are two components to a complaint regarding a failure to promote an Employee as an unfair labour practice. The one relates to the procedure followed by the Employer. The other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question”. The First Respondent’s processes of shortlisting and interviews were marked by irregularities. The Applicant and her witnesses were consistent in terms of their evidence in so far as the misinformation in the Second Respondent’s CV and testimonial. The Second Respondent indicated in her CV that she was a member of SMT responsible for Geography and Social Science at Malamulele Secondary School, from 2009 until the time she applied for this post and SGB deputy secretary since 2017 to date. The secretary of the panel, Tshembo Yvonne Manganyi who testified for the First Respondent corroborated the evidence of the Applicant when testifying that the Second Respondent was shortlisted based on her CV, which CV indicated that the Second Respondent was SMT member. One of the Applicant’s witnesses, Nkuna Mkhacani Isaac testified that the testimony of the Second Respondent bears his name as enquiry but the signature was not his (witness’). This evidence was not challenged by the Respondents. Therefore, the Second Respondent’s CV was misleading.

The First Respondent’s witnesses contradicted each other in so far as the phase 2 of the dimension, particularly management and leadership in curriculum activities experience. The chairperson and the secretary of the panel conceded to the evidence of the Applicant that these experiences relate to managing the subjects and other teachers. The Applicant was a senior teacher, part of SMT of the school, and in possession of five degrees, Doctorate included and three diplomas, while the Second Respondent had Secondary Teachers Diploma and Advanced Certificate in Education. It is common cause that the Second Respondent was scored 76% and the Applicant 66.5% by the panel. Both of them were recommended for appointment with the Second Respondent positioned 1 and the Applicant 3. The Constitutional Court in Abdurahman v PHSDSBC and others (C 25/14) (2015) ZALCCT 34 (handed down on 30 April 2015) held that “the Commissioner failed to determine whether the Employer acted fairly as opposed to assessing whether the complied with their own policies and procedures”. In Department of Rural Development & Agrarian Reform, Eastern Cape v General Public Service Sectoral Bargaining Council & others (2020) 41 ILJ 1321 (LAC) the court held that “it is not sufficient for a candidate for promotion to claim that she was better qualified or more suitable than the successful candidate. The candidate must show that the decision to appoint another was unfair”. The First Respondent acted unfairly in appointing the Second Respondent whom I believe did not satisfied all the dimensions.

The Labour Court in Tshishonga v Department of Justice and Constitutional Development and Another (JS898/04) [2006] ZALC 104; [2007] 4 BLLR 327 (LC); 2007 (4) SA 135 (LC); (2007) 28 ILJ 195 (LC) (26 December 2006) held in paragraph 112 that “The failure of a party to call a witness is excusable in certain circumstances such as when the opposition fails to make out a prima facie case. But an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case. That inference is strengthened if the witnesses have a public duty to testify”. The Second Respondent has been in all material times part of the proceedings. It was the Applicant’s testimony that the Second Respondent’s CV was misleading in that it indicates the Second Respondent as SMT since 2009 whereas she was not. The testimony by the Applicant was that the Second Respondent did not have management experience and leadership experience in curriculum activities. The Second Respondent failed to challenge this testimony, but cross-examined the witnesses of the Applicant. Therefore, the evidence of the Applicant, relating to the Second Respondent remains unchallenged by her (Second Respondent). As a result, I draw an inference that the Second Respondent did not want to testify for fearing to expose himself and damage her case.

Regarding the signing off of the panel recommendations, the Applicant’s testimony was that there were no valid recommendations by the SGB. The First Respondent’s testimony was that there was recommendation by the SGB. The chairperson of the SGB signed the recommendations. Therefore, it is my finding that the SGB chairperson Manganyi Shadrack signed off the recommendations from the panel.

It is trite law that in Sidumo v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held that the test for fairness is reasonableness. An Arbitrator must determine whether the decision taken by a decision maker is one that any reasonable decision maker would have taken, given the same set of facts or not. Based on the above analysis, it is my finding that the Second Respondent’s appointment into the post of Deputy Principal: Malamulele Secondary School was irrational. Had the panelists became aware of the misinformation in the CV of the Second Respondent and the forged signature on the testimonial, they would not have shortlisted her (Second Respondent) for the post of Deputy Principal: Malamulele Secondary School.

In view of the above, I am of the view that the Applicant has on the balance of probability proved that the processes leading to the appointment of the Second Respondent into the post of Deputy Principal: Malamulele Secondary School was unfair. The Applicant is therefore, entitled to the relief sought. Award

I find that the processes leading to the appointment of the Second Respondent, Moyane Silvia, into the post of Deputy Principal: Malamulele Secondary School was unfair.