11 June 2026 – ELRC927 – 25/26GP

IN THE ELRC ARBITRATION
BETWEEN:

PEU obo A VUKEYA “the Applicant”

And

GAUTENG DEPARTMENT OF EDUCATION “1st Respondent”
KB MOSHOBANE “2nd Respondent”

AWARD

Case Number: ELRC927 – 25/26GP
Last date of arbitration: 5 May 2026
Written arguments received on: 12 May 2026
Date of award: 11 June 2026 (extension granted)

COEN HAVENGA
Senior ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

Details of hearing and representation

The arbitration hearing was held over several days, the last day being on 5 May 2026 at the Thutothebe Teachers’ Centre in Garankuwa. The parties requested opportunity to submit written closing arguments which were received on 13 May 2026. The Council granted extension for the submission of the award due to the commissioner’s medical incapacity subsequent to the receipt of the closing arguments.
The Applicant is Mr Vukeya, A, represented by Mr Mohlatlole, K, an official of PEU. The 1st Respondent is the Gauteng Department of Education (“GDE”), represented by Mr Mbonde, G. The 2nd Respondent, being the incumbent in the disputed post, is Mr Moshobane, KB (“Moshobane”), also represented by Mr Mbonde.

Issue to be decided

The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties concluded a pre-arbitration meeting, and the minutes thereof form part of the record of the arbitration hearing (marked as Bundle C).
The parties agreed on the following common cause issues:
4.1 The Applicant is a PL2 Educator and departmental head employed by the GDE at Vukosi Primary School (hereinafter referred to as “the School”).
4.2 The advertised promotional post which the Applicant applied for was post number TW25ED1030, being the Deputy Principal post with post requirements of administration, leadership and management.
4.3 Both the Applicant and Moshobane applied for the post, were shortlisted and interviewed.
4.4 Moshobane was the 1st recommended candidate on the recommendation list of the School Governing Body (“SGB”) to the GDE and was appointed in the post.
4.5 The Applicant was not one of the 3 recommended candidates on the recommendation list of the SGB to the GDE.
The minutes of the pre-arbitration meeting clearly stated that the issue to be determined by the arbitrator was whether the process was procedurally fair in recommending Moshobane. Although it was stated that the Applicant felt that he was the best candidate, the substantive fairness of the promotion was not placed in dispute.
The following procedural fairness issues were specifically placed in dispute by the Applicant:
6.1 The panel violated clause 8.1.1 of ELRC Collective Agreement no. 1 of 2021: Recruitment and Placement Procedures for Educators at Schools (“the CA”), in that parents must be one more in the total number of panellists.
6.2 The panel members did not maintain strict confidentiality as required by clause 9.1.4(e) of the CA.
6.3 The process of compiling a preference list was not correctly followed by the SGB and Teacher component.
6.4 Some SGB members did not support the recommended candidate.
6.5 The IDSO Ms Judy Mashala had undue influence on the SGB because she had a negative attitude towards the Applicant.
The relief sought by the Applicant is for the appointment of Moshobane to be set aside and the process to be redone from the interview and recommendation stage, supervised by head office.
The GDE submitted Bundle R. The Applicant did not submit any documents.

Background to the dispute

The Applicant referred an unfair labour practice dispute relating to promotion at the School. The Applicant applied for the post was shortlisted, interviewed and not recommended as one of the 3 candidates on the list of recommendations of the SGB. Moshobane, the 2nd Respondent, was the no. 1 recommended candidate on the list of recommendations of the SGB and was appointed in the post. The Applicant disputed the procedural fairness of the appointment. He also argued that he was the best candidate for the post.
The 1st Respondent argues that it followed all the processes to the letter of the law and appointed the best qualified and no. 1 recommended candidate. There was no irregularity in his appointment.
The Respondent argued that section 23(9) of the South African Schools Act 84 of 1996 (“SASA”) states that the number of parents must compromise one more that the combined total of other members of a governing body who has voting rights, and not that parents must be one more in the total number of panellists in the interview panel, as argued by the Applicant. All the panellists complied with the confidentiality requirement. The IDSO Mashala was appointed as resource person in terms of the regulations. She complied with clause 8.2 of the CA. The Applicant was not the best candidate during the interviews and was not one of the top three recommended candidates of the SGB.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondents’ and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

Applicant’s case

Arthur Vukeya, the Applicant, testified under oath that he had been appointed in 2003.
Clause 8.1.1 of CA and section 23 of SASA were violated by the interview committee. There were four in the panel, two of the SGB, the principal and the principal of another school, instead of five, with three being SGB members.
Clause 15.1 of the CA requires that the preference list compiled by the interview committee must be ratified by the SGB before forwarding it to the HOD for appointment. The IDSO Mashala was part of the ratification. Her name appears on both the attendance registers for the interviews and the ratification meeting as reflected in R19 and R23. Only SGB members were supposed to be present for the ratification meeting.
The Applicant testified that Mashal told him he would not be deputy principal as long as she was IDSO. He thought she influenced ratification.
The confidentiality clause 9.1.3 of CA was violated. On 24 June 2025 the Applicant received a call from Lindiwe of the SGB. She told him that he made it, but they would not consider him. She said there was big corruption. Another panellist, Gary Ledwaba, also called him and alleged corruption. He said that Mashala was influencing the SGB members to recommend Moshobane.
The Applicant testified that he was the best candidate during the interview. He answered all the questions correctly.
During cross-examination the Applicant testified that Lindiwe Mahlangu said that she was afraid to testify. Gary Ledwaba will testify. He could not say whether the SASA took precedence over the CA.
The Applicant testified that he was an experienced union official. He agreed that the union observers could lodge a grievance in terms of clause 10.9 of the CA when they observed irregularities. Mashala belonged to SADTU, so the SADTU observer would not have reported her. The PEU observer arrived late and was excused from the process.
The Applicant agreed that he was not present when Moshobane was interviewed. He did not know how he answered the questions and did not know how he performed in the interviews.
Lindiwe Mahlangu (“Mahlangu”) testified under oath that she was a member of the SGB. She was not a panel member for the interviews. She had a death in the family at that time, her father passed away. She was not called to the ratification meeting. She was not involved in any other process. She only spoke to the Applicant about not being invited to the ratification meeting, nothing else.
During cross-examination Mahlangu testified that she did not know who the individuals were that according to the Applicant negatively influenced the SGB. She did not know of any such individuals.
Gift Ledwaba (“Ledwaba”) testified under oath that he was the SGB treasurer. He was part of the interview committee. Mahlangu was not part of the ratification meeting. IDSO Mashala did not attend the ratification meeting. The panel agreed and did recommend Moshobane as the 1st preferred candidate based on the results of the interviews and the scores of the candidates. The Applicant was the 4th placed candidate.
Mashala was not present at the ratification meeting, despite her name being reflected on the attendance register.
He did communicate with the Applicant after the ratification meeting. He did not remember speaking to the Applicant about the position. They spoke about corruption in general.
There was confusion about the marks at some stage during the meeting.
During cross-examination Ledwaba testified that the Applicant would not have made it onto the recommendation list as one of the preferred three candidates, irrespective of the alleged changing of any scores. The unions accepted the results and did not declare any grievance. He agreed that it was not correct of him to discuss the recruitment process with a candidate. The Applicant was not his preferred candidate.
Based on the interviews results and the SGB recommendation there was no way that the Respondent could have appointed the Applicant.

1st Respondent’s case

Judith Mashala (“Mashala”) testified under oath that she was an IDSO. She was the resource person in the recruitment process.
Her duty was to monitor & support the school. She testified that she was appointed by the District Director as a Resource Person during the recruitment process. Her functions as a Resource Person are set out in the CA. No one objected to the outcomes of the interviews, including the union observer.
She testified that she would not allow for interview scores to be tampered with or amended. She denied that she put undue influence on the Panel or SGB to disadvantage the Applicant. She testified that she did not attend the ratification meeting because ratification is done by the SGB. She was confused that her name appeared on the attendance register, but she definitely did not attend the ratification.
During cross-examination Mashala testified that she attended the interviews only. She did not have discussions with panel members to change scores. She would not allow marks to be changed. The one union observer came late and said that he was not comfortable to join so late in the process and decided to leave on his own accord.
Bhuti Moabelo (“ Moabelo”) testified under oath that he is the principal of the School and was a panellist. He testified that Mashala, as the Resource Person, requested everyone in the interviews to sign the Confidentiality Forms and highlighted that anyone found to have disclosed information would have committed an irregularity.
He testified that Mashala did confirm nor highlight that all candidates were on an equal footing and that they should not be discriminated against. He confirmed that every member of the SGB was asked whether they accepted the recommendations or not, and they all said they accepted it. No one objected.
During cross-examination Moabelo testified that he did not see Mashala talking privately with anyone. Mashala was not present during ratification, and she must have signed the attendance register by mistake.

2nd Respondent’s case

The 2nd Respondent did not present any evidence and closed his case.

Analysis of evidence and argument

The Applicant and Respondents submitted written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing as reflected in the record of the arbitration hearing. The fact that I did not refer to specific testimony in my summary or award does not mean that I did not consider it. Section 138(7)(a) of the LRA requires me to issue an award with brief reasons.
It is prudent to keep in mind that the parties specifically agreed in a pre-arbitration agreement that the issue to be determined by the arbitrator was whether the process was procedurally fair in recommending Moshobane. Although it was stated that the Applicant felt that he was the best candidate, the substantive fairness of the promotion was not placed in dispute.
I therefore have to decide whether the 1st Respondent’s conduct constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the LRA, and if so, what relief is to be awarded. It is not in dispute that the appointment would have constituted a promotion for the Applicant.
The relevant statutory provision to this matter is section 186(2)(a) of the LRA, which reads 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 dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”.
The Applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2)(a) of the LRA above. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA)1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)2 paragraph 38).
The arbitration of the promotion dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant – see Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) JOL 20811 (CC). As a general rule employers may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision. The arbitrator’s decision is whether the employer came to that decision in a fair manner. The focus in unfair promotion disputes falls much more on the procedure followed by the employer – see Arries v CCMA & others (2006) 27 ILJ 2324 (LC); City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC).
I firstly have to decide whether there was unfair action by the 1st Respondent that resulted in the Applicant not being appointed in the post of HOD, and if so, whether the action falls within the definition of an unfair labour practice as defined in section 186(2) of the LRA.

Substantive fairness

Although the Applicant did not challenge the substantive fairness of his non-appointment specifically, I will deal with his submission that he was the best candidate during the interviews. It is common cause that the Applicant was not one of the 3 recommended candidates on the preference list of the SGB.
The arbitration of a promotion dispute does not entail a hearing de novo, but rather a review of the employer’s decision. In this respect I have regard to the Constitutional Court’s examination of the concept of fairness in the matter of Sidumo and Another v Rustenburg Platinum Mines and others (2007), where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
The Applicant believes that he was the best candidate for the post based on the belief that he performed the best in the interview process. However, he conceded that he did not hear the other interviews, and that it was only his subjective assumption that he performed best. His own witness, Ledwaba, testified that the Applicant would not have made it onto the recommendation list as one of the preferred three candidates, irrespective of any alleged changing of any scores. The unions accepted the results and did not declare any grievance. He stated that the Applicant was not his preferred candidate, and that based on the interviews results and the SGB recommendation there was no way that the Respondent could have appointed the Applicant.
The Applicant carries the burden to proof the substantive unfairness of his non-appointment, and I find on a balance of probabilities that he did not discharge that duty.

Procedural fairness

The Applicant alleged that the panel violated clause 8.1.1 of ELRC Collective Agreement no. 1 of 2021: Recruitment and Placement Procedures for Educators at Schools (“the CA”), in that parents must be one more in the total number of panellists. However, considering the provisions of section 23 of SASA, I find no substance in this allegation.
The fact that some panel members breached the duty of confidentiality in some or other way did not prejudice the Applicant or the process in any material way, and I find no reason to overturn the process. The courts have held that strict compliance with ELRC collective agreements is not necessary. Substantial compliance is sufficient and the courts further held that one does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions. See Observatory Girls Primary School & Another v Head of Dept: Education, Province of Gauteng [2006] JOL 17802, and Douglas HS and Another v Premier Northern Cape and Others 1999 (4) SA 1131 (NC).
The Applicant did not present any plausible evidence that the process of compiling a preference list was not correctly followed by the SGB and Teacher component, or that some SGB members did not support the recommended candidate. His own witnesses confirmed that he would never have been one of the three recommended candidates.
I find no substance in the allegation that Mashala, the IDSO, had undue influence on the SGB because she had a negative attitude towards the Applicant. The Applicant testified that he thought she might have influenced the ratification, but his own witness confirmed that she did not attend the ratification meeting and could therefore not have influenced anyone during a meeting which she did not attend.
The union observer who attended the process accepted the process as fair and correct.
The Applicant also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post – see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27. This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment can be awarded – see KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC). This necessarily means that he must show that not only was he better qualified and suited for the post than a successful candidate who was appointed, but also that he was the best candidate for the position. I find that the Applicant did not show this.
In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.
I find the decision by the 1st Respondent to appoint the 2nd Respondent to be justified in law. It is indeed so that the 1st Respondent retains the managerial prerogative to appoint or not. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. It was stated there that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.
Dissatisfaction or a general perception of unfairness is not sufficient. In casu where there is no obvious or glaring deviation from the prescribed process, I find no substance in the argument that the Applicant was treated unfairly. The 1st Respondent did not act irrationally, capriciously or arbitrarily.
The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the 1st Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly, the Applicant’s claim must be dismissed.
The Applicant is not entitled to relief.