BETWEEN:

SIBONGISENI ELLIOT ZUMA “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC32-26/27KZN
Last date of arbitration: 10 September 2026
Date of award: 12 October 2026
Closing Arguments: 22 September 2026

NOZIPHO B KHUMALO
ELRC Arbitrator

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

1. The matter was set down for arbitration in terms of Section 191(1) (a) of the Labour Relations Act (LRA) virtually, via Teams, on 24 June 2026 and 19 & 20 September 2026.
2. The applicant, Sibongiseni Elliot Zuma was represented Mr Nhlanhla Makhanya an official of NEHAWU, whilst Mr Zukile Gagai appeared on behalf of the respondent.
3. The respondent called two (2) witness, Sihle Bill Mazibuko, “Mazibuko” and Mlungisi Majozi, “Majozi”. The applicant was the only witness by his side.
4. The applicant was the only witness on his side.
5. The respondent submitted bundles “A”.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. The applicant was employed as a principal at Ingqungqulu High School since 2016.
7. The applicant was charged with misconduct on allegations soliciting a bribe from unemployed educators.
8. The applicant was served with the notice of disciplinary on 19 August 2024. The hearing took place on 30 August 2024.
9. The applicant was found guilty of misconduct and was dismissed on 19 March 2025.
10. The applicant found his dismissal unfair and referred a dispute to the Council.
11. The Applicant is seeking reinstatement.
12. I must decide whether the applicant’s dismissal was fair or not. Based on the finding, I must decide on the appropriate relief, if any that is applicable.

PRELIMINARY ISSUES

13. There were no pre-liminary issued raised by the parties.

SUMMARY OF EVIDENCE AND ARGUMENTS

Respondent’s evidence and argument

14. The Respondent’s evidence is summarized as follows. In around the year 2023, two (2) educators, Majozi and Mazibuko were advised by their friends who worked as educators at Ingqunqulu High School that there were vacancies available at Ingqunqulu High School.
15. Mazibuko went to Ingqunqulu High School in July 2023 to meet with the applicant regarding the vacancies. Unfortunately, the principal was not available. Mazibuko was given the applicant’s number and he contacted him. The applicant told Mazibuko to leave his CV at the school he will attend to it when he returns.
16. Later during the year, the applicant contacted Mazibuko and requested that he comes to the school the next day so they can discuss the vacancy. He also told Mazibuko to bring R10 000 for “cooldrink” because the SGB of the school does not like people who are not from the area. Mazibuko was from Estcourt. Mazibuko sent R3 000-00 and R2 000-00 via instant cash send to the applicant.
17. In January 2024, Mazibuko received a call from the applicant requesting him to come to the school. Upon arrival, the applicant told him that there is a post available and he can start work. Mazibuko started work but there was no appointment letter. The applicant gave Mazibuko documents to sign which included a Z83 form. He signed the documents more than once because the applicant told him that the documents were required so that he could be paid.
18. In January 2024, Majozi was contacted by the applicant to meet with him regarding a vacancy at Ingqunqulu High School. The applicant was given Majozi’s number by Majozi’s friend who was an educator at Ingqunqulu High School. The applicant told Majozi to bring R5 000-00 because the SGB does not like people who are not from the area.
19. Majozi went to meet with the applicant at Ingqunqulu High School. They discussed the vacancy and he gave the applicant his CV. The applicant transported Majozi to the taxi rank after their meeting. Majozi gave the applicant the R5 000-00 which he had requested just before alighting the applicant’s vehicle.
20. Majozi could not resume work on that day because he still needed to arrange accommodation in the area. Majozi returned the following week to resume duty in February 2024.
21. In April 2024, both Mazibuko and Majozi were told that the department has employed educators who will be taking over their posts. They must go and wait at home while the applicant sorts out their issue. The applicant also told them that should he will inform them should there be any vacancies available.
22. They waited at home, but they could no longer get hold of the applicant because he had blocked them on his phone. They reported the matter to the SAPS and to the circuit office.
23. The applicant contacted them from an unknown number in late 2024 and requested them not to testify against him, he will pay back the money they had given him. He sent the money using an unknown number.

Applicant’s evidence and argument

24. The Applicant testified and his evidence is summarized as follows. Mazibuko and Majozi were volunteers at Ingqulunga High School. They volunteered at the school from February 2024 until April 2024.
25. In April 2024 the department appointed permanent educators who took over the subjects that Mazibuko and Majozi were teaching at the school. Mazibuko and Majozi were displeased by this because some educators who were volunteers like them were among the educators who were appointed permanently.
26. Mazibuko and Majozi were influenced by the circuit manager who has been against the applicant’s appointment as principal to fabricate these allegations against the applicant.
27. The applicant allowed the volunteers to sign the time book because he intended to use it to motivate for their appointment at the school to the department.
28. The applicant did not receive any money from either Majozi or Mazibuko in exchange for employment at the school. The applicant, however paid Majozi and Mazibuko R3 000-00 as a token of appreciation for their hard work at the school.
29. The respondent investigated the matter, but the applicant was not informed that he was under investigation. He was also not interviewed about the matter. He was asked to give a report about the allegations of soliciting a bribe. He only received the outcome of the investigation prior to the first sitting of the disciplinary hearing.
30. The applicant did not receive a notice of intention to suspend prior to his suspension. He also did not receive the notice in terms of collective agreement 3 of 2013. He also did not receive the intention to charge in terms of PAJA.
31. As a result of the allegations, the applicant was hospitalized and is currently under chronic medication.

SUMMARY OF ARGUMENTS

32. The respondent argued that the applicant, while occupying the position of principal, dealt directly with prospective educators and solicited money in circumstances connected to their employment. Such conduct, if established, is plainly improper, disgraceful and unacceptable conduct by an educator and Principal while on duty, falling within section 18(1)(q) of the Employment Of Educators Act. The Labour Court has recognised that section 18(1)(q) addresses conduct by an educator which is improper, disgraceful or unacceptable while on duty. The seriousness is aggravated by the applicant’s position as principal. A principal occupies a position of authority and trust.
33. The alleged conduct did not merely concern a private disagreement between employees. It concerned prospective educators seeking employment in a public school. The misconduct therefore strikes at the integrity of the employment relationship and the proper administration of a public education institution. The dismissal fell within the range of reasonable sanctions available to the employer.
34. The applicant’s complaint is that the investigation should have been conducted differently which is not the same as establishing procedural unfairness. Schedule 8 requires a fair opportunity to know the allegations and respond to them; it does not prescribe a formal criminal-trial procedure.
35. The applicant argued that the respondent failed on the balance probabilities and beyond reasonable doubt to prove that the applicant received R5 000 cash send/ instant cash. The applicant’s name and cell phone number does not appear on any of the proof of payments. There was also no Rica report and no receipts presented as evidence. The respondent’s witnesses also provided contradictory evidence regarding the payments.
36. The applicant argued further that there was a legal effect when the respondent waived his right to call the chairperson to testify on procedural issues. The applicant relied on Swissborough Diamond Mines v Lesotho 1997 where the Court states that hearsay alone cannot prove serious charge. In NUM v CCMA 2014 where the Court stated that employers must not rely on hearsay to dismiss where a direct witness available but not called.
37. The applicant was not served with the notice of intention to investigate as per peremptory provision Of Clause 7.1 and 7.2 Of ELRC Collective Agreement NO. 3 Of 2018 in terms of which the employer must notify an educator in writing of intention to investigate alleged misconduct and give an educator opportunity to respond before investigation is finalized. In terms of notice of intention to charges was not given which is a contravention of collective agreement NO. 3 Of 2018 Clause 8.1. The applicant was not given five (5) days to make representation.

ANALYSIS OF EVIDENCE AND ARGUMENT

39 It is trite that the employer bears the onus to justify the dismissal once the existence thereof has been proven by the employee. In terms of Section 188 of the Labour Relations Act (LRA) the employer must prove that the dismissal was for a fair reason based on the employee’s conduct, capacity or employer’s operational requirements and that it was executed through a fair procedure.

40. Further, in determining the fairness of the dismissal, the Act enjoins me to consider the Code of Good Practice: Dismissal, Schedule 8 to the LRA, to be referred to as “the Code” in this award. In terms of the Constitutional Court judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), I must consider all relevant circumstances in determining the fairness of the sanction of dismissal.
41. The Applicant in this case challenges both the substantive and procedural fairness of his dismissal. In terms of the procedure, the following facts are common cause. The applicant was requested to write a report by the investigating officer. The applicant submitted the report. The applicant was given the outcome of the investigation and notice of disciplinary prior to the disciplinary hearing.
42. The applicant’s complaint firstly, is that he was not notified in writing of the intention to investigate alleged misconduct. Secondly, the notice of intention to charges was not given and there was no five (5) days given to the applicant to make representation.
43. The respondent argued in this regard that the applicant was afforded an opportunity to respondent to the allegations against as contemplated by Schedule 8 of the LRA. The fact that the applicant may have preferred a different investigative process does not, without more, establish procedural unfairness.
44. It is important to mention first and foremost in this regard that collective agreement 3 of 2018 is not applicable as the dispute before me was referred under section 191 (a) of the LRA and not under section 188A of the LRA.
45. In this case the applicant was afforded the opportunity to make written presentation pursuant to an investigation. The applicant was furnished with the investigation report prior to the disciplinary hearing. Although the exact date was not furnished but the applicant in his evidence confirmed that it was a few days prior to the date of the disciplinary hearing. I therefore find in this regard that the respondent complied with the minimum requirements of procedural fairness as contemplated by the Act.
46. With regards to substantive fairness, the following facts are common cause. Mazibuko and Majozi worked at Ingqunqulu High School from February 2024 to April 2024. They were not paid a salary or any remuneration for the period of service. In April 2024, new permanent educators were appointed in the positions that Mazibuko and Majozi occupied and Mazibuko and Majozi were told by the applicant to leave.
47. The applicant’s complaint is that firstly Mazibuko and Majozi were volunteers at the school and were not promised employment. The applicant however did not dispute the respondent’s evidence that Majozi and Mazibuko were made to sign documents which included z83 forms.
48. The only reason why anyone would complete z83 forms is for purposes of securing employment. I therefore cannot accept the applicant’s version that the educators were volunteers at the school. I accept the respondent’s evidence that the applicant’s action in this regard created an expectation of employment to the two educators.
49. Furthermore, the applicant testified that the decision to get volunteers was taken by the school’s SMT, however, none of the SMT members were called to corroborate this version. There was also no documentary evidence to substantiate this version.
50. The applicant also allowed Majozi and Mazibuko to sign the time book so he will be able to use it to motivate for their employment. This created further expectation of employment and could also have given confirmation that employment has been secured.
51. The applicants further complain is that he did not receive any money from either Majozi or Mazibuko in exchange for employment. The respondent’s evidence is that the money was sent via instant cash send to a number different from the known number of the applicant.
52. The applicant did not dispute that he also sent money to Mazibuko and Majozi using cash send from a different number. His evidence is that the money was gratitude for the work that they did at the school. This evidence was contradictory to the respondent’s version that the applicant paid back the money he took from Mazibuko so that he does not testify against him at the hearing.
53. I find the applicant’s version in this regard flimsy, dishonest and misleading. This I say because the applicant paid Mazibuko and Majozi from his own pocket even though they are volunteers at the school. Secondly, he paid the money through cash send using a different number. Lastly the payment was made months later after Mazibuko and Majozi were no longer at the school.
54. I therefore accept the version of the respondent and find its witnesses credible and honest as opposed to the applicant.
55. Considering the above, I find that the respondent successfully proved on a balance of probabilities that the dismissal of the applicant was fair. Consequently, I find that the dismissal of the applicant was procedurally and substantively fair. In conclusion, I deem the following award fair and equitable.

FINDING

56. I therefore find that the dismissal of the applicant was procedurally and substantively fair. The applicant is not entitled to any relief.
    AWARD
57. The applicant’s dismissal was substantively and procedurally fair.

Commissioner: Nozipho B Khumalo
Date : 12 October 2026