12 October 2022 – ELRC915-21/22NC

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 04 JULY 2022, 24 AUGUST 2022, 25 AUGUST 2022 & 26 AUGUST 2022
Case Number: ELRC915-21/22NC
Commissioner: Moraka Abel Makgaa
Date:
In the matter between: –
Neo Gladys Colane Applicant
And
Education Department of Northern Cape First Respondent
Mthetheleli Jonathan Ngcwecwe Second Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The arbitration hearing was held virtually over a period of four days. The applicant employee was present and represented by Adv Nathan Williams, briefed by MSCH Attorneys, whereas the respondent was represented by Mr Mkhokeli Pino from Mkhokeli Pino Inc.
2 The second respondent was neither present nor represented during the arbitration meeting on 14 July 2022. He was, however, present and represented by Mr Thabiso Natetsang, Regional Secretary of the South African Democratic Teachers Union (“SADTU”) during the last three (3) days of the arbitration hearing. Brian Banga, an Interpreter of the ELRC, was present during the last three (3) days of the arbitration hearing.
3 The parties submitted an indexed and paginated joint evidence bundle made up of 2002 pages. The proceedings were conducted in English and digitally recorded.
BACKGROUND TO THE DISPUTE
4 The factual background to this matter, particularly with regard to both common cause issues and issues in dispute, has been summarised from the parties’ pre-arbitration minutes and evidence (both documentary and oral) led during the arbitration hearing.
Facts which are common cause or not disputed
5 During June 2021 and July 2021 the first respondent issued a Vacancy Circular No.1 of 2021( hereinafter to be referred to as the Vacancy Circular) advertising a number of educator promotional posts, which included a post of Departmental Head for Life Orientation from Grade 7 to Grade 12, post number 202106/088, at Vuyolwethu High School. The applicant was one of the six (6) candidates who were shortlisted and called for the interviews. The second respondent obtained the highest scores during both the shortlisting and interview process, which gave him the highest combined score for purposes of ranking and recommendation for appointment. He was recommended by the governing body as the most preferred candidate, and was appointed by the first respondent to the post in dispute with effect from 01 January 2022.
6 The appointment of the second respondent was preceded by a number of selection processes, and for the present purposes focus will be on the shortlisting, interviews and recommendation of the governing body. Both the shortlisting and interviews were conducted by the interview committee appointed by the governing body in line with the relevant provisions of the South African Schools Act 84 of 1996 (SASA) read with the provisions of regulation 9.2 of the Vacancy Circular.
7 The school principal, in the name of Mr Bontsi who appear to have changed his surname to Mattheus , participated in all the selection processes as a departmental representative and resource person to both the interview committee and the governing body. The teacher unions, which are parties to the Provincial Chamber, viz SADTU and CTU-ATU, were apparently invited to both the shortlisting and interview processes as observers. According to the relevant attendance registers, it was only SADTU which was represented during the two selection processes.
8 The shortlisting process was conducted on 16 August 2021 whereas the interviews were conducted on 26 August 2021. The candidates were allocated scores in accordance with the following four shortlisting criteria: language proficiency, qualifications, experience, extracurricular needs and community involvement. The factors to be considered for scoring the candidates appear to have been developed on the day of shortlisting.
9 According to the minutes of the shortlisting process, candidates were allocated a score of 5 for the following subjects combination : English, IsiXhosa (Eis) Setswana. The score of 4 was allocated for English, IsiXhosa HL (Eis) and Setswana. Scores of 1, 2 and 3 were to be awarded for PL1 educator with three years or more teaching experience, acting as Departmental Head for 12 months consecutively and more, currently Departmental Head: LO and Acted as Departmental Head in LO for 12 months and more respectively. Extracurricular/community involvement was scored as follows: general chairperson with proof ( 5), deputy chairperson with proof ( 4), executive member with proof (3) , mentioned with no proof (2) and Not mentioned (1).
10 According to the information in the hand written notes, the following languages were written without specifying how scoring will be done: English, Setswana and HL/ IsiXhosa HL. English ( E) was scored at 5, English ( e) at 4 , Matric + English ( E), at 3, Matric + English ( e) at 2 and any other was scored at 1. Candidates were supposed to be scored as follows for qualification: M + 5 ( 5 points), M + 4 ( 4) , and M + 3 ( score of 3). ‘Experience’ was scored as follows: acting HOD (5), acting HOD 12 months ( 4), 5 years’ experience (3), 4 years’ experience ( 2) and 3 years’ experience (1). ‘Extracurial/ community involvement’ was scored as follows: chairperson ( general) with proof (5), Deputy chairperson with proof (4), executive member with proof (3), executive member without proof (2) and member (1).
11 The shortlisting and interview scores as well as the ranking order of the candidates can be summarised as follows:
Name Shortlisting score Interview score Combined score Ranking
Mr Ncgwecwe MJ 42 41.2 83.2 1
Ms Mokae KM 40 36.0 76.0 2
Mr Njila K 37 38.5 72.5 3
Rammutle KA 40 30.2 70.2 4
Ms Colane NG 31 36.7 67.7 5
Sola AN 40 26.8 66.8 6
12 Two separate NCK16 documents ( which is about recommended candidates in order of preference of the SGB) were apparently completed and signed on the day of the interviews. The first NCK16 document (hereinafter to be referred to as the Flatela document) was signed by Ms Flatela, as the (acting) chairperson of the School Governing Body (“SGB”) whereas the second NCK16 document (hereinafter to be referred to as the Gaoganelwe document) was signed by Mr Bojang Gaoganelwe, as the chairperson of the SGB. Both the Flatela and the Gaoganelwe documents were accompanied by a brief motivation in respect of each of the three top most candidates recommended for consideration by the SGB.
13 According to the Flatela document and the brief motivation for each candidate, the following were recommended to the SGB as the three top most candidates : the second respondent, Mr Njila and the applicant. The Gaoganelwe document ranked the recommended candidates as the second respondent, Ms Mokae and Mr Njila, but the written. In the motivation, the ranking order in the Gaoganelwe document was changed thereby recommending Mr Njila and Ms Mokae as the second and third choices. The SGB held its formal meeting on 30 August 2021 where the ranking order of the interview committee as reflected in the Flatela document was endorsed by the SGB.
14 The first respondent appointed the second respondent to the post in dispute with effect from 01 January 2022. Aggrieved by this decision, the applicant referred a dispute of unfair labour practice in terms of section 186(2) of the Labour Relations Act 66 of 1995 (“LRA”) to the ELRC. The dispute could not be resolved at conciliation; hence it was referred to arbitration. The matter appeared before me for the first time on 04 July 2022.
15 The second respondent was neither present nor represented. The first respondent’s representative, in any event, made an application for postponement, which I granted. I requested the first respondent to assist the applicant and the ELRC in serving the second respondent on the basis that no one had either the contact number or email address of the second respondent. A written postponement ruling was later issued to the parties.
16 When making the opening statement, Adv Williams made reference to the two NCK16 documents as well as the NCK2 document which is titled “recommendation for appointment as teacher”. The ranking order in the Gaoganelwe document is the same as the one in the NCK2. Adv Williams described the Flatela document as a ‘fraudulent document’ because it was signed by someone who purported to be the SGB chairperson. I enquired from Adv Williams as to what was the point in admitting and leading evidence on what is described as ‘a fraudulent NCK16 document’. I ultimately requested Mr Pino to get further instructions as to whether the impugned document has had any influence in the HOD’s decision not to appoint the applicant. Mr Pino’s feedback was that the NCK16 document which served before the HOD was the one which did not include the applicant as one of the preferred candidates.
17 The parties requested to be given more time to submit their written heads of argument as follows: the applicant’s representative was given until 02 September 2022 whereas the 1st and 2nd respondents were to serve and file their written submissions by no later than 09 September 2022. The applicant’s representative had until 13 September to file their reply. The applicant’s representative requested an extension to 04 September 2022, which was granted.
18 I wish to confirm that I received the written submissions obo the applicant and first respondent only, which I have taken into account . I am indebted to the quality of the submissions made by the two legal representatives.
SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
19 Neo Gladys Colane ( who is the applicant in this case), testified under oath, and her evidence can be summarized as follows. She started teaching in January 1992. She taught at different schools and joined Vuyolwethu High School since June 2005. She taught Life Orientation (“LO”) since it was introduced in 1994, and had so far taught it from Grades 8 to 12. She acted as the Departmental Head for LO for a period of 12 consecutive months, which was from January 2020 until December 2020. She applied for the same post ( hereinafter to be referred to as the post in dispute), was shortlisted and interviewed but she was not one of the candidates who were recommended for appointment.
20 She is well trained in trained in inclusive education. During her acting stint she made a huge impact in the education and life skills of the learners. She had always given herself time to assist learners in different ways, which included inviting professional nurses to come and address learners on issues such as teenage pregnancy, inviting the relevant departmental officials to come and address the learners on the value of LO. Learner population at the school is made up of 60% Tswana speaking and 40% of IsiXhosa speaking learners. English is the medium of instruction at the school.
21 She had about 29 years of actual teaching experience, and had acted in the post in dispute for 12 consecutive months. The second respondent, on the other hand had about 11 years of actual teaching experience. He never acted as a Departmental Head for LO. He never taught LO except that LO is one of the modules he did at the university. It was further testified that the interview committee did not apply the shortlisting criteria and the weightings correctly, and this resulted in the second respondent being unfairly advantaged whereas she was unfairly disadvantaged. Regarding the shortlisting criteria, she testified as follows:
Language proficiency
22 She should have been allocated the same scores with the second respondent on the basis, in her application form, she wrote “Good” for all the three dimensions with regard to English and Setswana, and “Fair” with regard to Afrikaans and IsiXhosa whereas the second respondent’s ratings were also the same except that the second respondent wrote “Fair” for Setswana and “Good” for IsiXhosa. Both of them should have been allocated a score of 5, as opposed to her being given a score of 2.
23 In her understanding the criterion “ language proficiency” as specified in regulation 9.2.7 of the Vacancy refers to the languages which are relevant to the post and the school, which in this case is English, Setswana and IsiXhosa. She further testified that this criterion should be understood within the context of the population profile of the school.
Experience
24 The second respondent should have been allocated the score of 1 by each of the 3 panelists for having had an actual teaching experience of more than 3 years instead of a score of 3 because he had no practical experience in the teaching and learning of LO, either as a teacher or a Departmental Head. The second problem is that the interview committee used a wrong weighting of 3 instead of 2, hence the second respondent got a total score of 27 instead of a score of 6, which means he was overscored by 21 points.
Community involvement
25 In her Curriculum Vitae (“CV”) she mentioned her experience in community involvement even though she did not attach proof thereof, but she was allocated a score of 1. The second respondent did not mention any experience in his one pager CV, but was allocated a score of 2 by each of the panelist instead of a score of 1.
26 The second respondent’s total score was calculated by the weighting of 3 as opposed to 2, hence he got a total score of 18, instead of a total score of 6, which means he was overscored by 12 points. She was the only African female candidate on preference list of the SGB.The other two were African male candidates. The minutes of the SGB do not show that there were any discussions about equity, redress and representivity, because she could have been recommended as the most preferred candidate.
27 By appointing the second respondent, the first respondent was not concerned about the best interests of the learners or the school because he cannot even moderate learners’ scripts. She is frustrated and does not know what to tell the learners because she promised to give them their scripts back but could not do that because they are still with the second respondent. Whenever she tries to negotiate with him, he always accuses her of being evil. He sometimes raises his voice at her in front of the learners. The situation does not improve even if she tries to assure the second respondent that he has not appointed himself. The case has affected her a lot both emotionally and socially. The Department never supported her. She wrote emails to the Department and made several calls which were never responded to.
Cross examination by the first respondent’s representative
28 She conceded that the language of instruction at the school is English. She, however, disagreed with the proposition that language proficiency in this case refers to the level at which English features in a candidate’s qualification. Her view is that she does not have a problem of ‘language proficiency’ because she uses English when teaching learners. She had done all her studies in English. She reiterated the evidence she had already given concerning the population profile of the school in question.
29 She disagreed with the version that the points were allocated on the basis of the relevance of one’s qualification contending that the candidate to be appointed will not be teaching LO only. She conceded that the second respondent’s tertiary qualification is relevant to LO, and that the respondent has LO as one of his modules in his tertiary qualification. She insisted that she had also done LO as one of her modules though it was, at that time, referred to as Career Guidance.
30 She conceded that both herself and the second respondent meet the prescribed minimum requirement of three years actual teaching experience, and that at that level of enquiry it does not matter as to how many years of actual teacher does a candidate have beyond the three years.
31 She believes that she should have been allocated additional points for being an African female candidate. She agreed that by having served as the Secretary of the Anglican Student Society, the second respondent qualified to be allocated scores for community involvement. What she does not understand is as to why was the second respondent allocated a score of 2 whereas she was allocated a score of 1.
32 She accepted the explanation that NCK16 document which reflects her name as the third recommended candidate is only made up of interview scores whereas the other NCK16 document where she does not appear consists of the scores of both the shortlisting and interview processes.
Cross examination by the second respondent’s representative
33 Under cross examination, she conceded that her career guidance course done over six months cannot be equated LO which the second respondent did as one of his major modules. She insisted that the second responded never taught LO for the past 10 or 11 years. She further testified that two weeks ago she got a message that about 130 learners failed LO, and that it was for the first time at the school that learners had to fail LO.
34 She does not have a problem in working under the second respondent because she has recently offered to help the second respondent with moderation of LO, but the second respondent told her that she is evil. He told her that he does not want to associate himself with her, and that she must only communicate with him about work related issues.
35 She went to SADTU Offices several times about this problem, but she was never given a hearing or any feedback. Mr Natetsang instead went to Vuyolwethu Secondary School where he was in the company of the second respondent forgetting that she is also a member of SADTU. She instead got an email that was so degrading, hence she decided to get the services of an Attorney and advocate to represent her.
SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
36 Doni Raymond Mattheus’s testimony can be summarized as follows. He became the principal of Vuyolwethu Secondary School since 2015. He is an ex-officio member of the SGB, representing the Department in all the meetings and activities of the SGB. His role involves guiding the SGB and its sub-committees. He was involved in both the shortlisting and interview processes relating to the filling of the post in dispute as a departmental representative or resource person. His role in the interview committee was that of an observer, which involved making sure that things are done in accordance with the agreed procedures and relevant policies of the Department.
37 The shortlisting process was conducted by the interview committee made up of members of the SGB, which included the chairperson and secretary of the SGB. On the day of the interviews he received a message from the SGB chairperson, Mr Gaoganelwe, indicating that he won’t be able to attend the interviews. He phoned the Circuit Manager to enquire as to whether they should proceed with the interviews or not. The Circuit Manager advised him to co-opt a member of the SGB from the teaching staff, hence he co-opted Ms Flatela in consultation with the SGB chairperson because she was, at the time, a fully-fledged member of the SGB. Ms Flatela acted as the chairperson of the interview committee.
38 Regarding language proficiency, the interview committee looked at the language of teaching and learning, which is English. A candidate who had English only was allocated a score of zero, whereas a candidate who had a combination of English and Tswana or IsiXhosa was allocated a score of 1. A candidate who had English as a major subject in his or her qualification, i.e English ( E), was allocated a score of 5 whereas the one with English as one of the modules, i.e English (e), was allocated a score of 4. The second respondent was allocated a score of 5 because he had English as one of the major subjects in his tertiary qualification.
39 He further testified that a candidate was required to have three years of actual teaching. Having more than three years of actual teaching experience would have served as an advantage but for purposes of allocating scores it did not matter as to how many years of actual teaching a candidate had beyond the years of experience. The second respondent was allocated a score of 3 on ‘ experience’ because when arriving at school he taught LO in the lower Grades, during 2011 and 2012. The five years of actual teaching experience in the hand written notes did not have to be in LO.
40 The second respondent was scored 2 on extra-curricular and community involvement because upon arrival at the school he was involved in football. On his CV, it is stated that he was involved in football, he was the secretary of Anglican Student Society. It is also stated that he was the chairperson of the NSNP. In all instances he did do attach proof thereof, hence he was allocated a score of 2.
41 The first NCK16 document was compiled by the chairperson of the selection committee. It was to be presented to the SGB. The applicant was, according to this NCK16 document and the minutes of the 26 August 2021, ranked as the number three candidates. This NCK16 document was returned to school by the District Office on the basis that it was incomplete as it was made up of interview scores only. The second NCK16 document was completed by him and the SGB chairperson, and resubmitted to the District Office as a matter of urgency.
Cross examination by the applicant’s representative
42 He in cross examination, testified that the minutes of 16 August 2021 show that for a candidate to get a score of 5, he or she must have English, IsiXhosa (Eis) and Setswana, whereas a score of 4 was allocated for English, IsiXhosa and Setswana English, IsiXhosa HL (Eis) and Setswana.
43 He further testified that the second respondent acted as Departmental Head for Geography for 12 months, but he was only paid for 6 months. He conceded that the evidence in this regard is not part of the evidence bundle. He insisted that the evidence is available at school. He conceded that the second respondent’s CV shows that he acted for six months as a Departmental Head.
44 A reasonable panel member would have allocated the second respondent a score of 1 instead of a score 3 for ‘experience. The total score should have been multiplied by the weight of 2 as opposed to a weight of 3. It means that the second respondent should have got a total score of 6 as opposed to a total score of 27 with regard to the ‘experience criterion’. It means that the respondent was overscored by a score of 21. If the score of 21 were to be deducted from the second respondent alone he would have not been the number 1 candidate, but insisted that if the same deductions were to be made to all the candidates the ranking order will change.
45 He further conceded that an incorrect weight for community involvement was used. If the applicant’s acting appointment as the Departmental Head for LO for a period of 12 months could have been taken into account, the applicant would have got a score of 4 from each of the three panelists as opposed to a score of 3, which means the applicant was underscored.
46 He conceded that according to the interview committee’s minutes of 26 August 2022, the applicant was one of the top three candidates who were recommended to the SGB. He further conceded that the minutes reflected the scores of both the shortlisting and interview processes and not only the scores of the shortlisting process. He also conceded that the ranking order in the Flatela document is the same ranking order which is reflected in the minutes of 26 August 2021 and the minutes of the SGB meeting of 30 August 2021, and that there are no SGB minutes supporting the ranking order in the Gaoganelwe document.
47 He further testified that the only reason why the Flatela document was returned to the school for correction was because it only had the results of the interviews. He disagreed with the view that the ranking order will remain the same even after adding the shortlisting scores to the interviews scores. He agreed that he was part of the SGB meeting of 30 August 2021, and that he is the number 6 person on the attendance register ( viz Bontsi DR).
ANALYSIS OF EVIDENCE AND ARGUMENT
48 The applicant’s case, as I understand it, is founded on a belief that the applicant was and still is a victim of several gross irregularities which were committed by the interview committee during the shortlisting process. Besides lamenting over the possible ripple effect of the alleged procedural irregularities, the applicant appears to be of the view that there were other omissions made by both the SGB and the HOD during the subsequent selection processes. This include an alleged failure by both the interview committee and the SGB to provide a motivated recommendation as envisaged by the provisions of the Vacancy Circular.
49 The SGB and the HOD are also alleged to have failed to ensure that the principles of equity, redress and representivity are complied with, as well as failing to ensure adherence to the democratic values and principles referred to in section 7 (1)(a) and (b) of the Employment of Educators Act 76 of 1998 (“ Educators Act”), which provides as follows:
“ 7. Appointments and filling of posts.—(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely—
(a) the ability of the candidate; and
(b) the need to redress the imbalances of the past in order to achieve broad representation”.
50 The applicant and the first respondent differed on the interpretation and/or implementation of the shortlisting criteria, as well as on the calculation of scores which were allocated or ought to have been allocated to the applicant, the second respondent and the other candidates. I wish to return to this aspect of the dispute at a later stage.
51 Before dealing with the controversy relating to the existence of the two NCK16 documents, I wish to indicate that there is no dispute that the applicant was, on the basis of the combined scores, ranked as a number 5 candidate. There are different reasons given by the applicant and the first respondent as to why the applicant was ranked as the third candidate by the interview committee but none of the parties’ witnesses could explain circumstances surrounding inclusion of the applicant as the third candidate in the SGB’s preference list.
52 There appears to be some convergence between the applicant and the first respondent as regards the view that the recommendation contemplated in section 6(3) (c)(i) of the Educators Act was indeed made, and that such a recommendation did not include the applicant. The first respondent’s position, which was first articulated at the beginning of the proceedings after I had enquired from Adv Williams as to what was the point in admitting and leading evidence on what the applicant described as ‘a fraudulent NCK16 document’. This position was also repeated at paras 35.4 and 37 of the first respondent’s heads of argument, where it is specifically contended that the applicant could have not been overlooked for appointment for the simple reason that she was not on the SGB’s preference list.
53 In other words, it is contended that the applicant was not one of the three candidates who were recommended for appointment. This position is in line with Mr Pino’s feedback that the Flatela document did not serve before the HOD. Put differently, the first respondent’s position is that it was the Gaoganelwe document which served before the HOD and not the Flatela document.
54 It appears to me that Adv Williams does not necessarily contest the accuracy, at least at a factual level, of the first respondent’s assertion that the recommendation which served before the HOD did not have the name of the applicant. This is so if regard is had to the applicant’s heads of argument, in reply, particularly at paras 36 and 40 where it is being argued that the applicant was ‘unjustifiably removed from competition by excluding her as one of the recommended candidates, and that such a removal was done on the 11th hour’.
55 It appears to me that the origin of the problem relates to the parties’ understanding of the status of the two NCK16 documents or even on what is understood to be the purpose sought to be achieved by any of the two documents. Before dealing with the question whether there is any merit in the applicant’s argument that the NCK16 document, which is said to have been signed by Ms Flatela, is a fraudulent document, I wish to answer the question whether this document or even the one signed by Mr Gaoganelwe constituted a recommendation contemplated in the relevant provisions of sections 20 of the South African Schools Act 84 of 1996 (“SASA”) and 6(3) of the Educators Act, which provide as follows:
“20(1)(i) The governing body of a public school must recommend to the Head of Department the appointment of educators at the school, subject to the Employment of Educators Act 76 of 1998, and the Labour Relations Act 66 of 1995”.
6(3)(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…
6(3) (c)The governing body must submit, in order of preference to the Head of 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”.
56 Admittedly, there are several features which suggest that the NCK16 document is supposed to be used by the SGB when making its recommendation regarding the candidates to be considered for appointment by the HOD or his or her delegate. This assertion is, firstly, supported by the following headings on the document: ‘rank order of recommended candidates of the SGB’, and ‘ names of recommended candidates of the SGB’. Secondly, the document requires the name of chairperson of the SGB ( and not that of the interview committee), his or her signature and the date on which the document was signed. The second or subsequent pages of the document deal with what is referred to as a ‘ motivation by SGB for each recommended candidate in order of preference’.
57 When these questions are considered on the basis of the objective facts in this case, it appears to me that none of the NCK16 documents at issue constituted a recommendation of the SGB within the contemplation of sections 20 (1)(i) of SASA and 6(3) (a) of the Educators Act. Firstly, both of them were signed on 26 August 2021, which was the date on which the interviews were conducted and concluded. Secondly, the teacher unions, viz SADTU and CTU-ATU, were expected to be part of the meeting of the 26 August 2021. Apparently, it was only the representative of SADTU who was part of that meeting.
58 It is true that the Gaoganelwe document, unlike the Flatela document, is made up of combined scores. Secondly, the applicant was not one of the preferred candidates in the Gaoganelwe document, but it cannot be argued that this document reflects the preference list of the SGB for the purposes of section 6(3)( c) (i) of the Educators Act for the reasons which I have already given. It is my conclusion that, when properly considered, the two NCK16 documents were, for all intents and purposes, about the interview committee’s ranking order of the three candidates for consideration by the SGB. This exercise was, probably, conducted in line with regulation 10.9 of the Vacancy Circular, which in the relevant parts, provides as follows:
“ At the conclusion of the interviews, the interview committee must rank all the candidates in order of preference, together with a full motivation justifying why each candidate is suitable/ not suitable for the post”.
59 The procedure to be followed by the SGB with regard to the candidates to be recommended for appointment is outlined in the provisions of regulation 11 of the Vacancy Circular, which in the relevant parts, provide as follows:
“ 11.1 The School Governing Body must convene a formal meeting to receive the recommendation and motivation of the interview committee.
11.3 The governing body must prepare its own recommendation taking into account the ability of the candidates and the need to redress the imbalances of the past. The governing body must prepare its own motivation justifying the suitability of each candidate and setting out clearly how the appointment of the three candidates it recommends to the Head of Department will promote equity, redress and representivity at the school. The governing body must submit at least three names of recommended candidates in order of preference.
11.4 A separate NCK2 form must be completed by the Governing Body for each recommendation (post) and must be submitted to the respective District Director”.
60 It is common cause that the SGB meeting was held on 30 August 2021, which was approximately four days after the date of the interviews. I am inclined to agree with the applicant’s contention that the Gaoganelwe document raises serious questions relating to its authenticity. These difficult questions are dominated by the fact that the document was signed by the SGB chairperson ( Mr Gaoganelwe), who was on the day of the interviews replaced by Ms Flatela as the chairperson of the interview committee. It effectively means that Mr Gaoganelwe did not have the necessary authority to sign the document as if he was the chairperson of the interview committee on 26 August 2021, because he was not.
61 The explanations given by the principal made the situation even more controversial. Under cross examination he, for instance, testified that both NCK16 documents were completed and signed on 26 August 2021, probably after conclusion of the candidates’ interviews. This version is clearly inconsistent with the version which he gave when trying to explain the circumstances surrounding the existence of the Gaoganelwe document, where he testified that the school’s submission or the Flatela document was returned by the District Office on the basis that the document was made up of the interview scores only.
62 He further testified that it was at that stage when the Gaoganelwe document had to be completed by him (Mr Mattheus) and the SGB chairperson as the resubmission had to be made on an urgent basis. This new evidence is problematic in the sense that if that was the case, the document which is said to have been returned from the District Office would not have been the one which was completed and signed on 26 August 2021 because it would have been before the SGB’s meeting of 30 August 2021.
63 According to the recommendation procedure contemplated in regulation 11 of the Vacancy Circular, particularly sub-regulation 11.5, the SGB’s recommendation must be accompanied by a number of documents which include a schedule of candidates recommended by the interview committee for consideration by the SGB, minutes of the interview committee and minutes of the SGB where the SGB made its own recommendation in terms of section 6(3) (c)(i) of the Educators Act read with the relevant provisions of the Vacancy Circular. Though it is highly improbable that the records of the interviews which were conducted on 26 August 2021 as well the records of the SGB meeting of 30 August 2021 could have not been submitted by the school, there is also no evidence suggesting that these records were indeed submitted by the school, and that they served before the HOD when making the decision to appoint the second respondent.
64 Another reality is that there was no way in which the applicant party could have been able to successfully rebut the first respondent’s assertion that the recommendation which served before the HOD did not include the name of the applicant, unless if the actual decision of the HOD was amongst the documents which were discovered, which does not seem to be the case in this matter.
65 Be that as it may, the ranking order which is supported by the minutes of the interview committee and endorsed by the SGB during its meeting of 30 August 2021 is the one where the applicant was recommended as the number 3 candidate. There is no evidence before me proving or suggesting that there was any other recommendation which was made by the SGB in respect of the post in dispute where the SGB had endorsed a different ranking order. In fact these objective facts were conceded by the principal under cross examination. It is therefore immaterial as to which of the two NCK16 documents served before the HOD because absent endorsement by the SGB the ranking order of the candidates in such a document would not have constituted a recommendation of the SGB within the purview of the provisions of sections 20 of SASA and 6(3) of the Educators Act.
66 It effectively means that the appointment of the second respondent was made inconsistent with the provisions of sections 20 (1)(i) of SASA and 6(3) (a) of the Educators Act. In High School Carnarvon and Another v MEC for Education, Training, Arts and Culture of the Northern Cape Provincial Government and Another [1999] 4 All SA 590 (NC),the court said the following about the exercise of a statutory discretionary power:
“ … a public authority with discretionary power may not simply act as it pleases because of that discretionary power. The discretion is always a limited one which varies according to the language of the empowering legislation. A functionary with a discretion may only exercise that discretion as provided in the empowering statute. If he acts other than as authorised by the relevant statute, then his actions will be ultra vires his powers”.
67 The same legal position was enunciated in Kimberley Junior School and Another v Head of the Northern Cape Education Department and Others , where the Supreme Court of Appeal held that “in administrative law parlance the power of the Head of Department to make an appointment under sections 6(3)(a) and 6(3)(f) of the Educators Act is dependent on the jurisdictional fact of a recommendation by the governing body”. It was further held that “in the absence of the jurisdictional fact of a recommendation by the governing the Head of Department would have no authority to make an appointment”.
68 The above legal position must be understood in relation to the presumption in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others , which was confirmed by the Constitutional Court in MEC for Health, Eastern Cape and Another v Kirland Investments , where Cameron J (in the majority judgment), said the following:
“The essential basis of Oudekraal was that invalid administrative action may not simply be ignored, but may be valid and effectual, and may continue to have legal consequences, until set aside by proper process.
69 It effectively means that the decision of the first respondent which is the subject matter of the present proceedings remains valid unless and until set aside. I do not understand as to how did the first respondent hope to defend its decision without calling any witness(es) either from the District Office or Provincial Office to come and give evidence about the existence of a recommendation of the SGB other than the one which was made during the meeting of 30 August 2021 where the applicant was recommended as one of the three candidates to be considered for appointment by the HOD.
70 One of the reasonable inferences that may be drawn is that such a recommendation does not exist. Another possibility is that it may have been thought that the applicant had failed dismally, to discharge the evidentiary burden in order to establish that the first respondent had committed an unfair labour practice relating to promotion for purposes of section 186(2) of the LRA. In Shauna Patricia Pamplin v Western Cape Education Department and Others, Case Number C 1034/2015 ( delivered on 9 May 2018), the Labour Court per Tlhotlhalemaje J at para 37, said the following about the question of onus in unfair labour practice disputes:
“The circumstances of the litigation in unfair labour practice disputes such as in casu is that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is in the same token, obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for the appointment/non-appointment, to satisfy a tribunal that the appointment/non-appointment was rational and thus fair. The employer must demonstrate that it acted fairly, in good faith, and applied its mind to the selection. A conclusion that an employer acted fairly or in good faith in making an appointment cannot be reasonable nor rational in circumstances where that employer places no such evidence before a tribunal, irrespective of where the onus lies”.

71 Turning to the calculation of the shortlisting scores, it appears to be common cause between the parties that there were glaring administrative errors which were committed by the interview committee, especially with regard to the issue of weightings. According to the provisions of the Vacancy Circular, the scores allocated for ‘experience’ and ‘extra-curricular/ community involvement’ were supposed to be multiplied by a weighting of 2. In the instant case, the weighting of 3 was used for calculating the scores which were allocated to all the candidates with regard to these shortlisting criteria . In addition to the general irregularities, the applicant was the only one whose total score for ‘extra-curricular/ community involvement’ was multiplied by a weighting of 1 instead of 2, hence she got a total score of 3 as opposed to a total score of 6.
72 Regarding the interpretation and/or application of the shortlisting criteria, I do not think it is necessary for me to express any opinion on the parties’ evidence as regards the ‘qualification’ criterion because both the applicant and the second respondent got equal scores of 45, which were never disputed by any of the parties during arbitration . I wish to first deal with ‘experience’ and ‘extracurricular and community involvement’, because I am of the view that they are less complex when compared to the ‘language proficiency’ criterion.
73 According to the paragraph B.3.2.1.1(b) of the Personnel Administration Measures (PAM), 12 February 2016 read together with regulation 7.6 of the Vacancy Circular, the minimum actual teaching experience required for appointment to the positions of a Departmental Head, Deputy Principal and Principal are 3 years, 5 years and 7 years respectively. Both minutes of the shortlisting meeting of 16 August 2021 and the hand written notes suggest that candidates were given scores in line with the following two factors: actual teaching experience and experience for acting as a Departmental Head.
74 One of the differences between the two set of information is that the interview committee minutes provides that a PL1 educator with three years or more teaching experience qualified to be allocated a score of 1 whereas the hand written notes provide for allocation of scores of 1, 2 and 3 for actual teaching experience of 3 years, 4 years and 5 years respectively. It appears to me that the ‘experience’ requirement in the shortlisting minutes is in line with paragraph B.3.2.1.1(b) of PMA, regulation 7.6 of the Vacancy Circular as well as Mr Pino’s proposition that at this stage of the enquiry it matters not as to how many years of actual teaching experience a candidate had for purposes of allocating a score.
75 I am of the view that the breakdown of the actual teaching experience referred to in the hand written notes is not helpful. Firstly, this breakdown cannot be reconciled with the prescribed minimum actual teaching experiences contemplated in PAM. Secondly, it looks like the hand written notes represent a scribbler which may have been used by Ms T Vantyu, the Secretary of both the interview committee and the SGB. Ms Vantyu is apparently the one who compiled and signed the minutes of the interview committee and those of the SGB. I am mindful of the fact that the principal’s testimony is to the effect that the most reliable document is the hand written notes. I do not think the question is that much simple because there is lack of clarity in several respects.
76 According to the shortlisting minutes, a candidate who had an actual teaching experience of 3 years or more qualified to be allocated a score of 1 whereas the one who acted as a Departmental Head: LO for 12 months and more qualified for a score of 4. The objective facts in this case, which have also been conceded by the principal under cross examination, suggest that each of the three panelists were supposed to have allocated the applicant and the second respondent scores of 4 and 1 respectively when it comes to the ’experience’ criterion. The only problem with regard to this criterion is the fact that there is no clarity from both the typed minutes and the hand written notes about circumstances under which a score of 5 was supposed to be given. Unfortunately none of the witnesses could shed any light in this regard.
77 According to the shortlisting minutes of 16 August 2021 and the hand written notes, reliance was made on the candidates’ CVs. If a candidate mentions his or her involvement in extra-curricular activities without any proof to that effect, like the applicant did in this case, he or she qualified to be allocated a score of 1 whereas a candidate who occupies or occupied a position in the executive committee without attaching proof thereof, like the second respondent did in this case, qualified to be allocated a score of 2. It is therefore concluded that there was nothing wrong with the scores allocated to both the applicant and the second respondent in respect of extracurricular activities except that a wrong weighting was used.
78 Regulation 9.2.7 of the Vacancy Circular specifies ‘ language proficiency’ ( relevant to the post and school) as one of the four shortlisting criteria. In order for one to understand as to what is meant by ‘language proficiency’, one would have to make reference to part C of NCK1 document: application for employment as a teacher, in terms of which a candidate is required to indicate “ Good”, ‘Fair” or “ Poor” with regard to ‘speaking’, ‘ reading’ and ‘writing’.
79 According to the shortlisting minutes, candidates where supposed to be allocated a score of 5 for language proficiency in relation to English, Setswana and IsiXhosa (Eis), and a score of 4 in relation to English, Setswana and IsiXhosa HL (Eis). The hand written notes mentions the following languages: English, Setswana and HL/ IsiXhosa HL without attaching any scores to them. The different scores which are listed in the document relate to English, which in the evidence of the principal were allocated in relation to the level at which a candidate passed English either at a tertiary level or at a secondary school.
80 I find the first respondent’s proposition that ‘language proficiency’, in this context, had everything to do with the level at which a candidate has done or passed English, either at a secondary school or at a tertiary institution, and that it had nothing to do with any other language of communication, including Setswana and IsiXhosa, to be problematic. If that was the case, it would not have been necessary for the interview committee to include Setswana and IsiXhosa in as far as the ‘language proficiency’ criterion is concerned.
81 The first respondent’s proposition is also problematic because it does not only render part C of NCK1 irrelevant and unnecessary, but it effectively gives English the status of being a curriculum requirement not different from LO. In other words, it creates an impression which seeks to suggest that the post in dispute required LO and English. ‘Language proficiency,’ in simple terms refers to a person’s ability to speak a language, which in the context of part C of the NCK1 document and the interview committee minutes, covers one’s ability to ‘speak’, ‘ read’ and ‘write’ in as far as English, Setswana and IsiXhosa are concerned. It is possible that the interview committee may have misunderstood the meaning and purpose of this criterion.
82 Notwithstanding the fact that the principal was generally, not an impressive witness, the applicant is, comparatively, at a greater disadvantage for obvious reasons. She was simply trying to interpret documents dealing with issues which were discussed and decided in her absence. It seems to me that the most reliable person who could have testified with some level of authority is Ms Vantyu as she appears to have been the author of both the hand written notes and the various minutes. Perhaps this is an option which the applicant could have explored.
83 I am aware that the fact that there are huge differences between the revised scores of the applicant and the first respondent. I have, because of the aforesaid uncertainties, decided that it is pointless for me to determine as to which revised scores are correct or to even revise the scores myself.
84 It is also not clear as to why Ms Mokae who got the second highest combined scores and ranked as the second choice candidate in terms of the Gaoganelwe document, NCK2 and NCK14 documents, was excluded from the ranking order of the interview committee and from the SGB’s preference list.
85 There is no doubt that the irregularities which were committed during the shortlisting stage were of a material nature and may have been prejudicial to the applicant. I am, however, not persuaded that the available evidence is sufficient enough to sustain a finding of an unfair conduct on the part of the first respondent envisaged in section 186(2) of the LRA.
86 Turning to the fate of the second respondent, as already indicated the applicant’s appointment is the result of an irredeemably tainted process. Secondly, the applicant made several damaging factual allegations against the suitability of the second respondent, particularly in as far as his lack of experience in the teaching and management of Life Orientation is concerned. These allegations were clearly intended to support Adv Williams’ proposition that the second respondent’s appointment could best be described as a ‘ mediocre appointment’. In the circumstances, there may have been little that the second respondent could have done to cure the irregularities committed by the interview committee, and by extension the governing body, but he could have at least defended himself against the allegations that his appointment is not in the best interests of the school and the learners.
87 In the light of the reasons given above, it is concluded that the procedural irregularities committed in this matter were so gross to the extent that the appointment of the second respondent is rendered substantively unfair, and must as such be set aside. It must be borne in mind that the applicant and her representative had repeatedly indicated that the interview process and its outcome are not disputed. There is also no evidence suggesting anything outward about that stage of the selection process.
88 It therefore means that the only process which must be redone by the interview committee, is to score the 6 shortlisted candidates and make a recommendation to the SGB in line with the criteria and guidelines contemplated in the first respondent’s Vacancy Circular. This process must be redone by the interview committee made up of persons other than those who were involved in the nullified process.
89 The representatives of both the applicant and the first respondent have each argued that the losing party should be mulcted with costs. It is trite law that the ordinary rule that costs follow the result does not apply in labour matters. I am of the view that the interest of justice will be best served by making no order as to costs.
AWARD
90 The appointment of the second respondent, Mthetheleli Jonathan Ngcwecwe as the Departmental Head: Life Orientation, post number 202106/088, at Vuyolwethu High School is hereby set aside with effect from the date of this arbitration award.
91 The first respondent is ordered to ensure that the reshortlisting and the subsequent processes are done and concluded within three months from the date of this arbitration award.
92 There is no order as to costs.