ARBITRATION IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case number: ELRC873-25/26EC
In the matter between
SADTU obo Ndileka Bawuthi Applicant
And
Education Department of Eastern Cape First Respondent
NAPTOSA obo Zolani Ndzungu Second Respondent
Appearances: For the Applicant: Mr Kwezi Jubase, Miss Brenda Madikizela and Mr Lindile Malunguza (SADTU)
For the First Respondent: Mr Siyabonga Gashi, DCES: Employee Labour Relations
For the Second Respondent: Mr Loyiso Mbinda (NAPTOSA)
Arbitrator: Thobela Ncetezo
Heard: 16 July 2026, 20 August and 29 September 2026
Delivered: 09 November 2026
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2(a) – Unfair labour practice relating to promotion.
ARBITRATION AWARD
Details of hearing and representation
- The dispute was scheduled for arbitration on 29 September 2026. The Applicant was represented by a SADTU official, Mr Kwezi Jubase, on 16 July, by Miss Brenda Madikizela on 20 August, and by Mr Lindile Malunguza on 29 September 2026. Mr Gashi, who is employed as DCES: Labour Relations, represented the first respondent, the Education Department of the Eastern Cape. The second respondent, Mr Zolani Ndzungu, was represented by NAPTOSA official, Mr Loyiso Mbinda.
- The parties requested that closing arguments be submitted in writing, the last of which was received on 6 October 2026.
Background to the dispute
- The applicant is a Post Level 1 educator at Ngwayibanywa SSS since 01/02/2008. She applied for the Post Level 2 HOD post (Post 19, Bulletin Vol 2 of 2025) for Maths, Natural Science and Technology, for which she met the requirements.
- On 10 September 2025, she was surprised that a colleague from the same school who did not meet the requirements was shortlisted and eventually appointed.
- She argued that the sifting and shortlisting was flawed, and that of the 5 candidates interviewed there is no ranking record, only the recommended person. Her desired outcome is that the appointment be nullified and the post be re-advertised.
- The first respondent confirmed the post was properly advertised, requiring RQV 13/14, SACE registration and three years’ experience. Eleven applicants were sifted; both the Applicant and the second respondent were shortlisted and interviewed with the same questions. The latter was ranked 1st and recommended for the post based on his qualifications, experience and interview performance.
- The second respondent submitted that the selection was done in good faith and procedurally proper. That having similar qualifications does not automatically entitle the applicant to the post. All candidates were evaluated fairly, and there is no legal basis to challenge the outcome or to re-advertise the post.
Survey of evidence and arguments
Applicant’s case
- She started working as a permanent educator on 01 February 2008. She has taught Physical Sciences at Ngwayibanywa Senior Secondary School from 2017 to date. She possesses a National Diploma in Natural Sciences and an ACE in Professional Education. She majored in Life Sciences and Physical Science. She teaches Life Sciences and Natural Sciences to Grade 8 learners.
- Her academic qualifications are ND: National Natural Sciences, Professional Education, which she obtained in 2010, and Physical Sciences II in 2016 at NMU.
- She’s been working as an Educator at the same school as the 2nd Respondent, who has been teaching Maths Literacy since she was at the school, but she was employed first. She heard that he is qualified to teach Accounting, Maths and Maths Literacy, which Science learners cannot do.
- She did not expect the 2nd respondent to apply as he only taught Maths Literacy from Grade 8-12. She does not remember him teaching Maths, Natural Science, or Technology, but he majored in Maths Literacy.
- Under cross-examination, she testified that she possesses a Diploma in Natural Science and an Advanced Certificate in Professional Development. She is currently teaching Life Sciences and Natural Science.
- She admitted that she has never taught Maths and does not know the 2nd Respondent’s qualifications. Her professional qualifications are ND: Natural Sciences, ACE: Professional Education Development Science and ND: Majors Life and Physical Sciences. She did a short learning programme to enhance her Physics. It was a one-year course.
- She stated that the requirements for the post in dispute are Maths, Natural Sciences and Technology. She applied because she has Natural Science, and electricity is a component of technology in Physics. She accepted that she does not have Mathematics.
- She stated that she is currently teaching Life Science and Natural Science to Grade 8 learners and Life Sciences to Grade 10 learners. In 2025, she was teaching Grade 11 and 12 learners.
- She stated that she is aware that the 2nd Respondent does not meet the minimum requirements of the post in that he does not have Mathematics but Mathematics Literacy. She further stated that, according to his career profile, the second respondent has Technological Design Model I and II. He also has Mathematics for Prospective FET Teachers, which she is not certain should be taught to learners in schools (AB-P23-25).
- She admitted that she was aware that the post was for Mathematics and Technology and not for Natural Sciences but stated that she qualifies for the post as she has subjects as her majors.
- She also admitted that she does not have qualifications in Mathematics and has never taught it or managed its delivery. She further stated that the same panel had shortlisted her and had not challenged the second respondent’s shortlisting. She participated fully during the interview process without raising any objection, even though the interview panel did not follow the Employment process fairly.
- She confirmed that she was ranked No.3 and the second respondent was ranked No. 1 (AB P41) and is not disputing the score and that she was ranked lower, but that the second respondent was not supposed to be appointed. Her challenge is not that she is a better candidate.
- She stated that she is challenging that the incumbent does not meet the minimum requirement in that the advert was for Maths, Natural Science and Technology.
- The candidate with one subject qualifies better because he has a minimum requirement/level to teach at FET or higher school.
- The educator who meets the requirement must also be able to moderate and capacitate teachers under their supervision. She is not disputing that she was not appointed but that the incumbent does not meet the requirement of the position.
- She further stated that the second respondent does not have Mathematics and Technology, in that having passed Mathematics in matric does not qualify one to teach it. She expects that one should have studied the subject for at least two years at the tertiary level, and there is nothing to indicate that the second respondent passed Mathematics at university (AB-P25).
- She further stated that it is not correct that she wants to be appointed, but that the process should start over and ELRC should replace the interview panel. She, however, thinks that she is the best candidate.
- She also stated that the process was flawed because the school Principal served as the resource person and scribe. The secretary should have been a scribe.
Applicant’s first witness
- Avela Tsham testified that he has been a Ngwayibanywa SSS educator of Maths and Physical Sciences since August 2015. He is teaching Physics to Grade 11 learners and Mathematics to Grade 9 learners. At the time the post was advertised, he was a member of the SGB (teacher component).
- He testified that the post in question was supposed to be profiled. It was said to be a surplus post. This was told to the staff in a meeting. They only saw it in the bulletin and heard about it at a staff meeting after it was published.
- The applicant and second respondent were SGB members. The witness was a teacher component of the SGB and part of the shortlisting panel.
- The panel wanted to add Maths Literacy as one of the requirements, but they objected, saying it was corruption to add requirements as a panel. They said Mathematics is the same as Maths Literacy. The Principal said that Maths Literacy is the same as Maths (AB-P30 Para 2). He explained that a learner who does Science subjects does not do Maths Literacy. The post was not accurate because an accurate post is profiled.
- The secretary of the panel was Mrs Maboso, who was absent, so the principal took notes. At the time, they had two departmental heads for science. The advertised post would have been for a third departmental head. At the time the post was advertised, they had a departmental head, but he is now on sick leave.
- He further testified that the second respondent was introduced by the school Principal as a departmental head for General Education and Training (GET) and stated that Grades 10, 11 and12 have been added to the GET.
- Under cross-examination, he testified that the principal said the post is a donation as it came out of nowhere and that they must add Maths Literacy.
- He advised the Principal not to consider Ngwayibanywa applicants, as he seemed to have an interest in the post for one of them. He stated that they must leave it as it would not be right not to have internal candidates. The Principal took notes during the shortlisting and interview process. Miss Mabaso, who was appointed as a scribe, arrived late, after the shortlisting had already been completed.
- He stated that the advert was never profiled by SMT, staff and SGB and is not aware that such is in the policy. He further stated that Maths cuts across all grades but could not say that a departmental head must have a background in Mathematics.
- He was a scorer on the interview panel but is not certain how he scored. He stated that the applicant did not approach him before the interview process, that he knows both of them, and that there cannot be a perception of bias.
- He stated that the post did not mention that the applicant must be a specialist or talk about competence – The post did not say that a person must have a speciality; it states the subjects in the bulletin.
- He stated that he does not know if the incumbent has Mathematics and Technology or that Maths for prospective educators is a teaching subject. He was also not aware that the 2nd Respondent has Mathematics and Technology.
- He stated that, as members of the panel, they did not challenge the qualification of the applicant because they agreed that Maths Literacy be added to the profiling of the post.
- There were rumours that the post is for the second respondent, so he suggested to the panel not to consider Ngwayibanywa applicants.
- He is not aware that Maths Literacy, which he says is a science subject, has no Mathematical area, but only that it is not done by learners who are doing general.
- The Principal, who was not a scorer, stated that the second respondent articulated himself better than other candidates.
- He scored the applicant highest (AB-P41). He did not raise any objection regarding the fairness of the interview process. He was not sure whether corruption was reported. It was corrupt to add Maths Literacy because he wanted to give the post to the Maths Literacy teacher. Adding criteria that were not required is corruption. At the staff meeting, it was agreed that no additional criteria would be added. Only panellists knew about the addition, not the SGB or department. Applicants who were unaware of the additional criteria were disadvantaged. It was added to benefit one teacher.
- He also stated that the applicant has Biology and not Natural Science. She did not do Mathematics in her matric certificate (AB-P16).
First Respondent’s case
- The first respondent’s witness, Mr Mbubuzi Mbobo, testified that he has been a Principal at Ngwayibanywa since January 2025 and was the resource person for the disputed post, for which the applicant and second respondents were applicants. His predecessor, Mr Retya, profiled the post, and he continued where he left off. He confirmed the post’s requirements and stated that the SGB was aware of and engaged with the post, as evidenced by meetings and bulletins advertising the post. There were 11 applications, and 5 were shortlisted. The panel was composed of himself, Mr Tsham, Mr Sambudla, Mr Goje, Mrs Mabaso and observers from SADTU and NAPTOSA.
- Mrs Mabaso, a scribe, did not turn up early on the day of the interview. The panel and union representatives then unanimously decided that he could serve as a resource person and take minutes.
- The suggestion to include Maths Literacy was not followed (AB-page 30 para 5 – sentence 1). They decided to follow what was stipulated in the advert, i.e. Mathematics, Technology and Natural Sciences. The second respondent has Mathematics Literacy and the applicant has Natural Sciences. Therefore, they both possess the needed attributes for the post.
- The second respondent has Mathematics and Technology Design, which is applicable in Grades 8 and 9. He taught Mathematics in Grades 8 and 9 at Smuts Ndamase. At Ngwayibanjwa, he is the only one who teaches Maths Literacy.
- The key roles of the second respondent are supervision and monitoring. He teaches Maths Literacy and currently supervises Maths for Grades 8-12. He denied that Mr Tsham supervises and moderates Mathematics.
- He further testified that the interview process was certified as correct and fair. The unions also validated the process, stating that it was fair and that they signed for it. If the process was not fair, the unions could have cautioned them to start the process afresh.
- Candidates who were shortlisted had Mathematics and Physics, which was not the only requirement.
- Under cross-examination, the witness testified that his role was to provide resources and procedural guidance for the process. During interviews, the panel required him to take notes.
- He stated that the provision that Natural Science must take precedence over Mathematics and Technology is not a policy. The second respondent possesses Mathematics and Technology while the Applicant has Natural Science.
- They included candidates on the shortlist based on their teaching experience. Nothing stated that Natural Science must carry more weight. The panel agreed to the criteria, and no objections were raised during the interview process regarding allegations of unfairness. No concerns about bias were raised. He further testified that nothing was a policy violation during the interview process.
- Under cross-examination, he stated that the post was advertised on Bulletin109 Vol 2 of 2025. He became aware of the need for the post around July 2025. His predecessor, Mr Kreqwa, profiled the post. They discussed the post with the SGB, and thereafter, it was advertised in the bulletin. He stated that the post’s profiling addressed their needs as a school and denied that the post was a donation.
- He stated that Mr Tsham was a member of the SGB, and that was before the profiling of the post and that the post cannot go to the bulletin without being profiled. He explained that the first respondent does not advertise a post in a bulletin without guidance from a relevant department at his school. The school has 6 science teachers.
- They employed the second respondent with Maths Literacy and Accounting. Members of the SGB suggested adding Maths Literacy to the criteria, but they did not follow through. He further stated that the second respondent, who is currently teaching Maths Literacy, has Mathematics and Technology, which he taught when he was a teacher at Smuts Ndamase, and that this is stated in his CV.
- He read the agenda of the interview panel meeting (AB Page 32), which stated that no matters arose, and Mr Tsham seconded the motion.
- He was a resource person and gave procedural guidelines to the panel, as agreed by the panel. This was not reported to his supervisor, as the panel agreed to his role.
- He admitted that the secretary arrived during the ratification process, but he continued to serve as secretary.
- He also stated that the second respondent has Mathematics, which he obtained from University (AB-P23 – 25) and is fit to teach Mathematics to Grade 8 & 9 learners. He stated that Mathematics for Prospective FET Teachers prepares students for maths before they do Maths. He has a background in Mathematics and Technology. He also obtained a distinction in differential calculus, which was done in one semester.
Second respondent’s case
- The second respondent, Mr Zolani Ndzungu, testified that he applied for the post of departmental head requiring a background in Technology, Mathematics, and Natural Science. He qualifies for Technology and Mathematics.
- He was shortlisted, invited for an interview, and selected as a successful candidate because he met the minimum requirements and performed well during the interview. He was given an offer letter, which he accepted. He then learned that the Applicant had challenged his appointment.
- He testified that it was the panel that made an independent decision on the appointment. He was appointed because he met the minimum requirements and performed well. There cannot be an interruption in the process.
- He further testified that he did Technology at university level and qualifies to teach Mathematics. He also participated in in- and out-of-school leadership roles, did Mathematics in Matric (P25), and when he did BEd – FET, he did Maths and Technological Design, which were requirements for the post.
- He admitted that he does not have Natural Science but has Accounting. He stated that the applicant has neither Mathematics nor Technology, but the only relevant subject she offered is Natural Science. The applicant was relevant to one of the three subjects required for the post (offered Natural Science).
- He further testified that he was scored highest and the applicant was scored 3rd. Mr Tsham, who was a teacher component, gave him the lowest score and the Applicant the highest score. Had he refused the offer, the 2nd-best candidate would have been given to him (P41).
- He stated that the Grade Head does not have to teach all the subjects he supervises. The applicant only qualified for NS, and she had one of the three + was relevant for consideration for the post. It was also proper for him to be shortlisted. His experience on committees has prepared him to lead the department. He further stated that being ranked number one means the panellists were impressed by his performance.
- Under cross-examination, the second respondent testified that the post’s requirements were Technology, Mathematics, and Natural Science. In his FET program, his majors were Maths Literacy and Accounting.
- He taught Maths in 2022 at Smuts Ndamase and Technology as an SGB teacher. He is currently a departmental head supervising Mathematics and Science.
- He further stated that the subjects in the advert were Natural Science and Technology, not Natural Technology.
- He stated that he is qualified to teach from the GET phase to the FET phase. Maths starts from the GET phase (Grade 8) – Any teacher who has majored in Maths Lit qualifies to teach Maths from Grade 8 – 11 (AB Page 20). The Maths Lit equipped/prepared him to teach Maths.
- He does not qualify to teach Natural Science, but he does qualify to teach Mathematics and Technology, as he has studied these at university. He majored in Maths, Maths Lit and Accounting.
- He admitted that he failed Mathematics and Algebra in the examinations but passed with distinction at winter school (ABP, page 25).
- He further stated that out of the three subjects in the advert, he qualifies for two. As HOD, he is currently overseeing Mathematics, Natural Science, and Technology (babysitting Science).
- He explained that the principal’s role during interviews was that of a resource person. The panel shortlisted those it thought should be shortlisted.
Applicant’s closing arguments
76 The applicant submitted that the appointment is fundamentally flawed and must be set aside and argued that the second respondent does not possess the required qualifications as stipulated in Bulletin Volume 2 of 2025, Post No 119. This requirement is a clear and binding condition for appointment, which Mr Ndzungu has failed to meet.
77 She further argued that the Principal, Mr Mbobo, acted in a dual capacity both as a resource person and as a scribe. This contravenes the Public Administration Measures (PAM) document, which prohibits the same individual from fulfilling both roles to maintain fairness and transparency in the appointment process. That the post in question was never properly profiled by the relevant structure, the School Governing Body (SGB), as required, thereby violating procedural fairness and relevant departmental norms.
First respondent’s closing arguments
78 The post was for a Departmental Head requiring Maths, Natural Science and Technology. The 2nd Respondent, who majored in Maths Literacy and Accounting, was appointed over applicants with Maths/Physics. The applicant lodged an s186(2) unfair labour practice dispute.
79 The Principal, Mr Mbobo, acted as both Resource Person and Scribe. He is recorded on P30, suggesting that Maths Literature be added because the school has 1 Maths Literature teacher, and admitted this in evidence. It is argued that this influenced the shortlisting and led to an unfair appointment.
80 The first respondent submitted that its conduct constitutes an unfair labour practice and that the applicant seeks review and setting aside of the appointment in terms of Section 193 of the LRA.
Second respondent’s closing arguments
81 The second respondent argued that the applicant had a fair chance in that they were both shortlisted and interviewed.
82 It was further argued that no institution offers Mathematics, Natural Science and Technology as a single qualification; therefore, no one is a 100% match, but overall suitability must be considered rather than an exact match.
83 It was further argued that the second respondent has Grade 12 Mathematics, Mathematics in the 1st and 2nd semester of his B.Ed., Technology Design module, and taught Mathematics before and is now teaching Mathematics Literacy.
84 It was further argued that the applicant has relevant qualifications in Biology/Life Sciences and Physical Sciences, is teaching Natural Sciences, and that, because it is a departmental head post, leadership and interview performance count, not just subjects. Her qualifications therefore provide a strong foundation for the Natural Science component of the post. However, the post was not for Natural Science alone; it specifically included Mathematics, Natural Sciences and Technology.
Analysis of evidence and arguments
85 The dispute before me was referred in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended. The applicant alleged that the first respondent’s act of appointing the second respondent, rather than her, constitutes an unfair labour practice.
86 In disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the applicant to prove that the conduct of the respondent is an unfair labour practice in terms of the above section, which provides that:
“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.
87 The issue to be determined is whether the first respondent committed an unfair labour practice relating to promotion by appointing the second respondent to the position of departmental head instead of the applicant.
88 It is common cause that the post in dispute is for Post Level 2; the minimum requirements in terms of the advertisement included Mathematics, Natural Science and Technology, which the Applicant stated were not met by the second respondent.
89 It was also common cause that out of the three teaching subjects, the applicant possessed only one, namely, Natural Science. She admitted that she did not study Mathematics in matric or at tertiary level; she has never taught both Mathematics and Technology. Her matric and post-matric certificates evidence this.
90 The testimony of the applicant showed that she has teaching experience in Physical Sciences, Life Sciences and Natural Sciences. Even though Natural Science was one of the requirements and her experience in the subject was relevant to the position, the post also entails supervising Mathematics and Technology, and, by her own admission, she lacks experience in these areas.
91 Her lack of experience in teaching Mathematics and Technology, I believe, was a relevant consideration in assessing her suitability for a position involving the supervision of educators for these subjects.
92 I acknowledge that the lack of experience in teaching Mathematics and Technology does not, by itself, establish that the applicant is incapable of supervising educators for these subjects. Still, it is relevant to consider candidates’ qualifications and experience in the context of the responsibilities and selection criteria the employer applies for the position in question. The first respondent did not overlook the applicant. She was shortlisted and interviewed, which, in my view, indicates that the first respondent did not regard her lack of experience and qualifications in Mathematics as grounds for excluding her from the post.
93 The applicant, who was ranked third by the interview panel, did not contend that, in the interview, the second respondent was scored higher, but rather that the latter should not have been appointed because he did not meet the minimum requirements for the post in question.
94 She disputed that the second respondent possessed two of the subjects in the advertisement and stated that he qualified to teach Mathematics and questioned the Technology Design module, which the second respondent passed at university.
95 The second respondent testified that he had studied Mathematics and Technological Design and had previously taught Mathematics in Grades 8 and 9. He further testified that he was currently supervising Mathematics, Natural Science and Technology. His academic record reflects, among other modules, Differential Calculus, Mathematics for Prospective FET teachers at Levels 1 and 2, and Mathematics Literacy up to Level 3. However, his academic record does not indicate that he is a qualified Mathematics teacher.
96 There is no evidence that the second respondent studied Mathematics, Mathematics Methodology/Didactics, or did so during teaching practice in high school. His academic record shows that he studied Algebra and was unsuccessful. He studied Accounting and Mathematical Literacy up to level three. His previous teaching experience in Mathematics was not disputed. This evidence, in my view, provides a basis for assessing his knowledge and experience in Mathematics, but that does not make him a qualified Maths teacher.
97 The minimum requirements in the bulletin are Mathematics, Natural Science and Technology. Neither the applicant nor the second respondent meets the requirements of the post.
98 Furthermore, according to his academic record, the second respondent studied Technology Design, not Technology, as a school subject. He could not provide evidence that the content in Technology Design is the same as Technology, which is a school subject but a university module for teacher training.
99 Some of the candidates who applied for the post have B.Ed. with Mathematics, Life Sciences and Physics but do not appear on the shortlist of candidates who were invited for interviews (pages 30 & 41). There was no explanation for the exclusion of candidates with relevant subject qualifications.
100 An employee challenging a promotional post must prove that they were the best candidate for the post and that the incumbent did not meet the post’s requirements. In this case, neither of them met the minimum requirements.
101 I have also considered the allegations concerning the profiling of the post, the alleged discussion about Mathematics Literacy and the principal’s involvement in the selection process.
102 In his testimony, the applicant’s witness raised concerns about the fairness of the interview process but admitted that he did not object or express any concerns about the fairness of the process during the selection process. It was also undisputed that the trade unions declared the process fair.
103 The Principal denied that Mathematical Literacy was added in the profiling of the post but that the panel followed the requirements of the advertisement. It is more probable than not that Mathematical training was added; if not, the second respondent would not have been considered for the post over candidates who were qualified Mathematics teachers.
104 It is my considered view that the first respondent’s deviation from its own minimum requirements raises serious concerns about the fairness and regularity of the selection process and materially undermines its integrity.
105 Even though closing arguments are not evidence, the first respondent admits in its closing arguments that its conduct constitutes an unfair labour practice.
106 The second respondent’s own arguments that the post specifically included Mathematics, Natural Sciences and Technology contradict his defence that he qualifies for the post, as there is no proof that he possesses Mathematics and Technology, which are required subjects for the post in dispute. He admitted that he does not possess Natural Science.
107 It is for these reasons that I find that both the applicant, Ndileka Bawuti and the second respondent, Zolani Ndzungu, who is an incumbent, do not meet the minimum requirements of the post.
108 I further find that the first respondent committed an unfair labour practice relating to promotion by appointing the second respondent, Zolani Ndzungu, who, in my view, did not meet the minimum requirements stipulated for the post. Although the applicant has failed to establish that she was the best candidate for the position, this does not absolve the first respondent of its obligation to comply with the advertised minimum requirements. The first respondent cannot disregard or relax those requirements in favour of a candidate who does not meet them. The fairness of the appointment process requires that the stipulated criteria be applied consistently to all candidates.
109 In the circumstances, it is my considered view that the appropriate remedy is to set aside the appointment of the second respondent and for the first respondent to re-advertise the post, as both the applicant and second respondent did not meet the minimum requirements of the post.
110 I accordingly make the following award;
Award
111 I find that the First Respondent committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the Labour Relations Act 66 of 1995.
112 The appointment of the second respondent, Zolani Ndzungu, as Departmental Head at Ngwayibanjwa Senior Secondary School, is hereby set aside.
113 The First Respondent is directed to readvertise the departmental head post at Ngwayibanjwa Senior Secondary School and conduct a selection process afresh in accordance with the applicable recruitment and selection requirements, within 60 days of the issue of this arbitration award.
Signature:
Commissioner: Thobela Ncetezo
Sector: Education

