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09 July 2025 – ELRC914-24/25KZN

IN THE ELRC ARBITRATION
BETWEEN:
NATU obo Simelane P “the Applicant”
And
THE HEAD OF DOE KwaZulu Natal “the 1st Respondent”
And
SADTU obo Nyawo P “the 2nd Respondent”
ARBITRATION AWARD

Case Number: ELRC914-24/25KZN

Date of arbitration: 13 February 2025, 13 to 14 March 2025 &15 May 2025

Date of award: 28 June 2025

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

  1. The arbitration hearings were held at the Umkhanyakude District Offices in Mkuze at the dates mentioned on the first page of this award except on 13 February 2025 where it was held online.
  2. The Applicant, Mr. P Simelane was present and represented by Mr. Patrick Ngomane, a NATU Union Official from 13 to 14 March 2025. On 15 May 2025, the Applicant was represented by Mr. P D Buthelezi, an official of the NATU Union as well. On 13 February 2025, the Applicant was represented by Ms. Khanyile, a NATU official. The 1st Respondent, the Head of Department of Education in KwaZulu Natal, was represented by Mr. Thabani M Mchunu, its Employment Relations Officer from the Human Resource Management and Development Section. The 2nd Respondent, Mr. P K Nyawo was present and represented by Mr. T S Dlamini, a South African Democratic Teachers’ Union Official. The parties provided documentary evidence and called witnesses to testify.
  3. The proceedings were held in English and digitally and manually recorded.
  4. Mr. Siyabulela Mthembu, a part time interpreter of the ELRC provided interpreting services.

ISSUE TO BE DECIDED

  1. I am required to determine whether there was procedural and substantive unfairness in the appointment of the 2nd Respondent to the position of Principal (Post Number 1230 of HRM 20 of 2023). 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 1st Respondent allegedly lacked jurisdiction to intervene when it was asked to take over the responsibility of the SGB. The Applicant’s argument was that the SGB should have co-opted any competent member to run the interviews and not handed over its responsibility to the 1st Respondent. The 1st Respondent argued that the SGB requested an intervention of the 1st Respondent and the 1st Respondent made the appointment. The 1st Respondent further argued that the ELRC did not have jurisdiction to entertain this matter which it considered administrative action governed under the PAJA Act enforceable at the High Court. The Applicant Union Representative discarded all prior arguments and witness testimony prior to his arrival and did not call any witnesses. The issue was argued further on papers.

BACKGROUND

  1. The Applicant was employed on a permanent basis as a Post Level 1 Educator by the 1st Respondent as from 21 January 1997 at Mavela High School. On 06 May 2002, he was promoted to Head of Department at the same school. On 27 July 2009, he was promoted to Deputy Principal at Thongwana High School. On 19 January 2015, he was transferred to Mthanti Secondary School. On 16 January 2017, he was transferred to KwaPhaweni Primary School. On 08 February 2021, he was transferred to Mgabadeli High School as a Deputy Principal still. The Principal position for Mgabadeli Primary School was advertised in HRM 20 of 2023.
  2. On 30 August 2023, the Applicant applied for Principalship post number 1230 response to HRM circular number 20 of 2023. The Applicant was shortlisted, participated in an interview process on 18 October 2023. On 19 October 2023, the Applicant lodged a grievance with the District Grievance Committee regarding an interaction between the resource person and an SGB member who had recused himself due to being in close association with one of the candidates. The grievance was upheld and the School Governing Body was requested to redo the interview process with a different resource person provided by the Department.
  3. On 14 November 2023, the SGB informed the Department that it could not proceed with interviews for post 1230 and gave reasons. The SGB then requested to be given another chance to request those with specialist knowledge of overseeing the conducting of interviews to be urgently asked to assist as they were running out of time according to the management plan.
  4. On 16 November 2023, Mr. MW Shezi, the Acting Chief Education Specialist directed the SGB to finalize the selection process for post number 1230 within seven days, failing which the Department would take over the selection process.
  5. On 17 November 2023, the SGB held a meeting with Mr. Mazibuko, the Circuit Manager where the letter from the Department dated 16 November 2023 was discussed. After Mr. Mazibuko left, the SGB voted and agreed that it would be best to delegate the running of the selection process for post number 1230 to the Department. The SGB Chairperson disagreed with the decision but was outvoted by other SGB members.
  6. On 11 December 2023, the Umkhanyakude District Director requested the Department to take over the selection process for post number 1230 and gave reasons. The request involved the formation of an independent panel to expeditiously do shortlisting and interviews within 21 days from the approval by the Department. The request was approved by the Head of Department for KZN DOE on 22 January 2024.
  7. On 18 March 2024, a shortlisting meeting was held and candidates were scored. Five candidates were shortlisted out of 18 applications received. The Applicant was one of the shortlisted candidates. The 8th of April 2024 was chosen as the interview date.
  8. The interviews were held on the 8th of April 2024. However, through his union, the Applicant lodged another grievance and alleged that he was not treated the same as other candidates in that he was given different interview questions which were handwritten.
  9. On 11 June 2024, the District Grievance Committee issued an outcome that the interview process was procedurally fair and dismissed the grievance. The post in question was released.
  10. On 01 November 2024, the 2nd Respondent, Mr. P K Nyawo was appointed as principal of Mgabadeli Primary School.
  11. Aggrieved about the appointment of the independent panel that took over the selection process for post number 1230 from the SGB, the Applicant referred an unfair labour practice dispute relating to promotion to the ELRC on 06 December 2024. The matter was conciliated but remained unresolved. The Applicant then requested that the matter be arbitrated and the ELRC scheduled it to be arbitrated before me on the dates shown on the cover page of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

  1. When the new Applicant’s Representative joined the proceedings, the issues were narrowed again and there was agreement on the issue disputed and what the ELRC would make a determination on. The Applicant’s Representative presented an agreed stated case through a filed affidavit. . The 1st Respondent Representative provided a bundle of documents and also filed an opposing affidavit stating its case. This was done in line with the meaning of a stated case as it was held in NUM and Others v Hartebeestfontein Gold Mining Co Ltd 1986 (3) SA 53 (A). 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

  1. In his submissions, the Applicant Union Representative, Mr. P D Buthelezi stated as follows: The Applicant Mr. PR Simelane who was the Acting Principal of Mgabadeli Primary School in Umkhanyakude District, had applied for the Principalship post 1230 that was advertised in HRM 20 of 2023. Before the shortlisting and interviews processes could commence, the School’s Governing Body (hereinafter, SGB), wrote to a letter to the Department requesting that the Department take over the processes of HRM 20 of 2023.
  2. The Department indeed took over the processes of shortlisting and interviews from the SGB and appointed members on 18 March 2025 to conduct the processes.
  3. It was the view of the Applicant that there was unfair labour practice in terms of section 186(2) (a). The School Governing Body abdicated its duty and delegated it to the employer (Head of the Department) who has the powers of appointment upon receiving the School Governing Body’s recommendation.
  4. The Constitution made it clear in this section 238 that an executive organ of state in any sphere of government may delegate any power any power or function to another executive organ, provided the delegation was consistent with the empowering legislation.
  5. The exercise of the power of delegation is subject to the trite rule of law that discretionary powers may not be delegated in the absence of express or implied statutory authority.
  6. The role of both the Head of the Department and the School Governing Body in the appointment, promotion and transfer of educators was governed by section 6 (3) of the Employment of Educators Act, 76 of 1998. In terms of section 6(1) of the same act, that authority vests in the head of the department. The authority was however subject to s 6(3) of the same act which provides the relevant parts:
    (a) … (Any) appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school …
    (b) The governing body must submit, in order of preference to the Head of the Department, a list of –
    (i) at least three names of recommended candidates Or
    (ii) fewer than three candidates in consultation with the Head of Department.
  7. In Kimberly Junior School v The Head of the Northern Cape Education, the Head of Department had appointed a candidate which had not been recommended by the school governing body. It justified its decision on s 6 (3) (f) which empowers it to appoint any suitable candidate on the list submitted by the SGB. Brand JA found, and correctly so, that the recommendation of the SGB is an objective jurisdictional fact which must be present in the appointment or promotion or transfer of an educator and that in the absence of that recommendation, the HOD is not authorized by the empowering provision to make an appointment. The appointment was accordingly set aside.
  8. Furthermore, in School Governing Body of Ntilini J.S.S v MEC for Education (Case No:615/2008, page 6 (15)3, the judgement was clear that: “the SGB had no right to delegate its statutory powers. It is simply not empowered to do so by the Employment of Educators Act. The HOD should not have accepted the delegated power. In my view the delegation of power by SGB is unlawful and it is against the maxim “delegatus delegare non protest.”
  9. It was clear that the Applicant was shortlisted and interviewed by a panel which was unlawful and the recommendation to appoint was never made by the SGB. He strongly recommended that the appointment be reviewed, set aside and the SGB allowed to redo the processes from shortlisting.

The 1st Respondent’s Case

  1. In his submissions, the 1st Respondent Representative, Mr. Thabani M Mchunu stated as follows amongst others: During the selection process the School Governing Body (hereinafter, “SGB”) received a directive from the Acting CES, Mr. Shezi M.W, on the 16th November 2023 – denoting the need for the body to conclude the selection process in adherence with the decision given by the District Grievance Committee (hereinafter, “DGC”). The CMC intervened in the selection process in accordance with the directive of the DGC and therefore delegated the circuit manager of the Mkuze Circuit (under UMkhanyakude District) as the new resource person, however, the Interview Committee (IC) failed to duly conclude its work.
  2. In light of the circumstances the SGB was directed to mandate the IC to re-do its selection process and thereby implement the decision of the DGC within 7 working days from the 20th November 2023. The SGB and IC accordingly were therefore made aware that the failure to implement the decision will result in the Department having to assume authority over the selection process for the concerned post.
  3. The Respondent thus maintained the view that the dispute was premised on jurisdictional matter and thus fell outside the ambit of the matters the council ought to be at liberty to consider as the Respondent would demonstrate with reference to the South African Schools Act 84, of 1996, Employment of Educators Act 76 of 1998 read in conjunction with the Constitution of the Republic of South Africa and other prevailing legislation.
  4. The primary challenge was determining whether the dispute was in fact an unfair labour practice dispute or an administrative action. As such we had to define and look at the framework(s) for the respective considerations as they bore different consequences and outcomes in terms of application in the context of the matter in casu. The Department also aimed to demonstrate that the council might not be the appropriate judicial body to effectively adjudicate the matter as it did not fall within the ambits of the authority conferred upon it in the Labour Relations Act 66 of 1995.
  5. The council was able to adjudicate in (however, not absolutely limited to) matters related to misconduct or unfair labour practice as prescribed by the EEA and accompanying legislation. The Department maintained adamantly therefore, that matter in casu as it had been brought before the council, did not constitute unfair labour practice for reasons which would be conveyed below.
  6. 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). Unfairness in this context is evidenced by arbitrary or capricious conduct on the behalf of the employer.” It was the view of the employer that there was no cognizable unfair labour practice in terms of section 186(2)(a).
  7. The more central issue with reference to the matter in casu was examining the fairness of the procedure followed and whether the procedure itself resulted in actual unfairness. 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.
  8. 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).
  9. On the other hand, PAJA 3 of 2000 defined ‘administrative action” as any decision taken, or a failure to take a decision, by an organ of state or a natural/ juristic person exercising public power or performing a public function, which adversely affected the rights of any person and had a direct external legal effect. The challenge to administrative decisions therefore typically proceeded through judicial review of the decision (or lack thereof). The grounds for review were comprehensively set out in section 6(2) of PAJA and thus include; a) Lawfulness (HODs decision is deemed to be outside of their powers, or in violation of specific legal principles). b) Reasonableness c) Procedural fairness.
  10. In trying to differentiate between what constituted an administrative decision or an unfair labour practice the court in Gcaba v Minister for Safety and Security and others 2010 (1) SA 238 (CC) noted that the employment and labour relationship issues did not amount to administrative action. As such a distinction between the two was implicitly in the recognition by the Constitution of the distinct rights to fair labour practices in section 23, which sought to regulate the employment relationship between the parties, and administrative action in section 33, which dealt with the relationship between the bureaucracy and the citizens. Accordingly, where the conduct of the state as the employee had no direct consequences for other citizens, it would not amount to administrative action.
  11. A competent court was therefore bestowed with the authority to accordingly adjudicate upon and vary any decision in such matters in accordance with section 8 of PAJA. Accordingly, where a party wished to challenge administrative action it had been established in the Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 supra, the appropriate forum would be the High Court, however, the Labour Court may also be approached in accordance with section 158(1)(h); which denotes that a competent court could; “review or set any decision taken or any act performed by the State in its capacity as employer, on such grounds as a permissible in law.”
  12. In other jurisprudence regarding administrative action, in the matter of Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48 3 All SA 1 (SCA); 2004 (6) SA 222 (SCA) (28 May 2004), the SCA held: “Until the administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot be simply be overlooked. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view of the subject takes of validity of the act in question. No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside”.
  13. The rationale for the inclusion of section 158(1)(h) in the LRA was explained by the Constitutional Court in Chirwa v Transnet Ltd and others (2007) ZACC 23; 2008(4) SA 367 CC: “Consistently with this objective the LRA brings all employees, whether employed in the public sector or under it except those specifically excluded. The powers given to the executive or administrative acts of the state an en employer give effect to the intention to bring public sector employees under one comprehensive framework of law pertaining to all employees.”
  14. Moreover, in accordance with the above-mentioned Oudekraal judgment the decision of the HOD to take over the appointment process at Mgabadeli Primary School, was valid as the Department correctly took over the process in adherence to the prescripts enjoining them to do so and in light of all the relevant factors. Additionally, considerations had to be given to whether the HOD’s decision bore legally enforceable consequences as they arose from a lawful action that could not be considered outside the ambit of the administrative powers conferred upon the HOD. As such the HOD could not be said to have acted ultra vires with respect to the appointment of the applicant. However, even if it were alleged to be the case, the appropriate forum to challenge and accordingly seek variance in that decision would be a competent court.
  15. Accordingly, the dispute that has been brought forth by the applicant does not constitute unfair labour practice in light of the aforementioned considerations.

2nd Respondent’s Case

  1. The 2nd Respondent’s Union Representative, Mr. T S Dlamini, a South African Democratic Teachers’ Union Official did not present a case for the 2nd Respondent and did not submit any closing arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. 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.
  2. The Applicant for the Principalship post 1230 and previously lodged a grievance to the 1st Respondent due to an incident that involved the misbehaviour of a former resource person and a member of the SGB that had recused himself. The DGC upheld the grievance and the process had to be redone.
  3. Moreover, the Applicant is a Deputy Principal at Mgabadeli Primary School and had an interest in the appointment of the principal as he would have to work with such a person. If the 1st Respondent were to disregard the applicable laws in appointing the Principal in his school, he was directly affected like the other educators and children in the school. Since he applied for the position as well, an improper process could negatively affect his chance of being promoted. Thus, he had a right to refer a Section 186 (2) of the LRA matter to the ELRC and the ELRC had jurisdiction to entertain the matter based on the articulation of the Applicant in referring his dispute.
  4. As an interested party in the process, the Applicant alleged that the 1st Respondent had no right to take over the selection of the interview process for post 1230. Moreover, the Applicant alleged that the SGB of Mgabadeli Primary School had no right to delegate their authority to the 1st Respondent. He is seeking relief of setting aside the appointment of the 2nd Respondent and the redoing of the process by the SGB from the interview stage.
  5. I have checked section 6 of the Employment of Educators Act 76 of 1998 and could not find anywhere where the SGB of any school could delegate its role to the HOD of any Provincial DOE. If there are problems of delivery by the SGB, the HOD can make a temporary appointment or re-advertise the post. This is in the context of an SGB that is failing in their duties as envisaged section 6 (3) (b) and (c) of the Employment of Educators Act 76 of 1998.
  6. Clause 10.16 of HRM Circular No 20 of 2023 refers to chapter 3 of paragraph B of the Employment of Educators Act 76 of 1998 and nowhere does this act authorize the HOD to accept take over from an SGB that delegates its functions to the HOD. The duty of the SGB always remains with it for a permanent appointment as done by the 1st Respondent in this case.
  7. In attempting to achieve the objectives of the Department in terms of offering quality education, the 1st Respondent could have declined the incorrect delegation of authority by the trained SGB and advised them to co-opt a skilled person to assist them in performing their task of conducting interviews. If there were still challenges, the HOD could have made a temporary appointment from the list of applicants in accordance to the act until the SGB was able to conduct its functions. The other option was to re-advertise the position.
  8. In the School Governing Body of Ntilini J.S.S. and Others v Makhitshi and others (615/2008) ZAECMHC 4 (25 March 2010) case, Par [10], it was held as follows: “It appears from the affidavits that the members of the School Governing Body experienced internal conflicts which prevented them from carrying out their statutory duty. For this reason delegated its statutory powers to shortlist, interview and recommend a candidate for appointment to the Department of Education.” This is the same situation as in this case.
  9. Still in the Ntilini JSS SGB case, it was held in Para [15] that “In their answering affidavit the appellants admitted that the committee appointed by the School Governing Body to shortlist and interview the candidates had been appointed improperly and that the school Governing Body had to convene another meeting in order to appoint a Selection Committee in terms of the procedure prescribed by law. The School Governing Body did not comply with the advice given. No proper panel was appointed. Instead the School Governing Body requested the Department of Education to do the shortlisting and to conduct the interviews. According to the appellant they “reluctantly agreed to the request” and took over the whole issue of the appointment of a principal. In its judgment, the court a quo has dealt extensively with the question of delegated authority and held in paragraph 17 of its judgment that:
    “the SGB had no right to delegate its statutory powers. It is simply not empowered to do so by the Employment of Educators Act. The HOD should not have accepted the delegated power. In my view, the delegation of power by the SGB is unlawful as it is against the maxim delegatus delegare non potest.” “
  10. Based on the above, paragraph, it is my view that the Ntilini JSS SGB case has many similarities to this case. The main difference is that the Educators of the School who did not even apply for the Principalship position challenged the Department’s decision to appoint the principal without the recommendation of the SGB and in this case, it is the Deputy Principal of the school who is challenging the irregularity by both the SGB and the 1st Respondent as he is an interested party since he applied for the position and there could have been different results had the 1st Respondent not taken over the selection process from the SGB. Hence, the resolution taken by the School Governing Body to delegate its powers is null and void. The Department of Education ought not to have relied on it.
  11. X M Petse, the Acting Deputy Judge President stated as follows in the Ntlini JSS SGB case: “The most fundamental principle which is that the SGB, on a proper reading of the South African Schools Act, 84 of 1996 (SASA) and its broader context and scheme simply had no competence to delegate the powers conferred on it by SASA. The broader contextual scheme of SASA the intention of the Legislature must have been to promote maximum participation by all relevant segments of the community in the running of the affairs of public schools and thus give content to the values that underlie an open and democratic society in keeping with the letter and spirit of the Constitution.” I also agree with his assertions.
  12. The SGB of Mgabadeli Primary School should be compelled to adhere to the prescripts of SASA and not abdicate the statutory responsibility vested in it by SASA in favor of the HOD of the Department.
  13. Based on the evidence before me, it is my finding that the Applicant succeeded to prove that the 1st Respondent committed unfair labour practice by taking over the process of selection from the Mgabadeli Primary School SGB after being requested to do so by the same SGB which had no authority to do so itself. Hence, the relief as sought by the Applicant is granted as per the following award.

AWARD

  1. The ELRC has jurisdiction to entertain this matter.
  2. The 1st Respondent, Head of DOE-KwaZulu Natal committed unfair labour practice by taking over the selection process for post 1230 of HRM Circular 20 of 2023 from the Mgabadeli Primary School SGB.
  3. The action of the 1st Respondent negatively affected the Applicant’s promotion chances.
  4. Accordingly, the appointment of the 2nd Respondent to post 1230 is hereby set aside and the 1st Respondent is directed to instruct the Mgabadeli Primary School SGB to redo the selection process for post 1230 from the shortlisting stage.

L Mkhize

Arbitrator                                                                                                28 June 2025

ELRC914-23/25 KZN