Case : ELRC236 – 20/21KZN

Date of Award: 13 March 2026

Panelist :Vuyiso Ngcengeni

Province : KwaZulu Natal
Employee : Bonisiwe Maureen Zikhali
Employer : Department of Education – KwaZulu Natal
Issue : Alleged Unfair Dismissal
Venue : Teachers Training Centre

Employee representative : Adv B Dlamini
Email : advdlamini@mplanet.co.za

Employer Representative : Adv Deshin Pillay
Email : deshin@advpillay.co.za

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was scheduled before me on multiple dates and those are: in 2024 – 20 May, 29-30 July, 20 and 27 September, 29 October and in 2025: 14-15 January, 20-21 March, 06-07 May, 02 and 14 July, 10 September, 09 December and in 2026: 21 January.
2. The arbitration was held at the Teachers’ Training Centre in Durban, under the auspices of the Education Labour Relations Council (the Council) in terms of s191[(1)(5)(a)(i)] of the Labour Relations Act of 1996 as amended (the LRA).
3. The Employee was present at all times and she was represented by Adv B Dlamini and the Employer was represented by Adv Deshin Pillay.
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4. The hearing was conducted in English as well as in isiZulu, with an interpretation being conducted accordingly.
5. The Employer submitted the bundles below –

5.1 Bundle B – Which includes the Notice of the disciplinary hearing, investigation report, the Employee’s Diploma certificate, presiding officer’s report, sanction.
5.2 Bundle B+1 which contains email communication between Ms Jabu Dumisa, from the Employer and Ms Eunice Sebabo, from Lyceum and Rand Afrikaans University (RAU). The emails are from September 2021 and the last being on 23 June 2025.

5.3 Bundle C – Time book / Attendance registers for Emaguqeni Primary School from 08 October 2013 to 20 August 2014.

5.4 Bundle D – Employee’s pension withdrawal application form and the signed Acknowledgement of debt form (AOD).

5.5 Bundle H – The Employee’s academic record from Lyceum College, a letter sent to the college by the Employee’s legal representative dated 18 February 2003certification letter for the Employee having complied with the requirements for the Certificate in Education, the Diploma Certificate the Employee’s attendance register for exams on 11 and 12 October 2002 and in April 2002. G1 – attendance register for 02-04 December 2013, G2 – 05-06 December 2023.

6. The Employee submitted the bundles below –
   6.1 Bundle A – which includes the notice of a disciplinary hearing, charges laid against her, report of the disciplinary hearing, copies of – Diploma Certificate and Certificate in Education.
7. I received all the closing arguments by the 20th of February 2026.

ISSUE TO BE DETERMINED

8. I am called upon to determine whether the dismissal of the Employee was procedurally and substantively fair on the grounds below –

8.1 Procedure –
8.1.1 The Employee alleges that the Employer gave her a short notice, which is three days instead of five days, as a consequence, she did not get a person to represent her in the disciplinary hearing, after her request for postponement was denied.

8.1.2 The Employer failed to allow her time to get a representative during the disciplinary hearing.

8.1.3 The Employer failed to offer her the opportunity to state her side of the case, the presiding officer merely told her that the allegations were true.

8.1.4 The Employer failed to afford her the opportunity to cross examine its witness.

8.1.5 The Employer failed to give her the opportunity to submit factors in mitigation.

8.2 Substance –
8.2.1 She denies that the Diploma certificate she submitted, was fake.

8.2.2 She denies that she acknowledged misconduct as stated in the disciplinary hearing findings minutes and also, she was coerced into signing the acknowledgement of debt form (AOD).

9. The Employee seeks reinstatement as a relief.

BACKGROUND TO THE DISPUTE

10. The Employee commenced employment with the Employer on 01 March 1994 as a post level 1 Teacher at Mbodla Primary school. She was then transferred to Sizaminqubeko school in 1999, which falls underthe Zululand District.
11. She was dismissed on 18 November 2014, subsequent to a disciplinary hearing regarding her qualification. She appealed against her dismissal and in terms of her referral document, she learned of the dismissal of her appeal around November 2019.
12. She referred a dispute to the Council in which she alleged that her dismissal was procedurally and substantively unfair on 17 March 2020 and her late referral was condoned by the Council on 27 April 2021.
13. The Employee in 1998 registered with Lyceum College for a Junior Primary Diploma qualification and she submitted a Diploma certificate issued by the Rand Afrikaans University (RAU). The diploma certificate is date 30 October 2002 and has the student number: 14148838 and a Diploma number: 19542.
14. She received South African Council of Educators Certificate (SACE) in 2003.
15. Around 19 August 2014, the Employer conducted an investigation into fake qualifications across the KZN province. Ms Florence Phindile Zwane, who was employed as the Senior State Accountant was the investigating officer.
16. Subsequent to the investigation, the Employer charged the Employee with the charge below –

“In that on or about 01-01-2006 and at or near Emaguqeni Primary School you submitted a fake Diploma in Education allegedly obtained from Rand Afrikaans University, and this resulted in the adjustment of your salary defrauding the Department an amount in excess of R 344 255,00, thereby, contravening section 18(1)(ee) of the Employment of Educators Act 76 of 1998, as amended.”

17. The Employee stated that she has been unemployed since her dismissal.
18. All witnesses led evidence under oath.
    SURVEY OF EVIDENCE AND SUBMISSIONS
    Employer’s case
    Ms Florence Phindile Zwane (Zwane) testified as follows: –
19. She is employed as the Chief Personnel Officer and assumed this position in December 2021. She was the forensic investigator in the matter at the time, she was a Senior State Accountant, a position she held since around 2005 and she is based at the Employer’s head offices in Pietermaritzburg. Her duties as a Senior State Accountant included verification of documents and investigating fraudulent activities.
20. Her supervisor, Mr MJ Shabalala mandated her to conduct investigations regarding the fraudulent allegations of certificates in the Mkhanyakude District and the Employee was one of the employees involved in the allegations.
21. To verify the Employee’s certificate was not easy because she did not have the personal files of the teachers involved in the allegations, so, she sent a request to the Zululand district for the Employee’s file.
22. She does not know the number of schools she visited, but it was a number of them. She remembers Sizaminqubeko school, where the Employee was based. She was not assisted by anyone during the investigations. the district would call the affected teachers to the circuit office and that is where the interviews took place.
23. During her interview with the Employee, the Employee confirmed to her that the certificate was authentic, even though she (Zwane) questioned it as she already had confirmation from Lyceum College that she did not complete her studies.
24. The copy of the diploma certificate is on page 64 and she found it in the Employee’s personal file and she used the copy to enquire about its authenticity from Lyceum College. She did not contact RAU because at the time, RAU was no longer in place and the documents were with Lyceum College and Lyceum said it had all the documents with it.
25. The Employee told her that the certificate was authentic. When she asked the Employee for the academic record, the Employee said she did not have it as she did not receive it.
26. She then asked the Employee to give her any document, proving that the certificate was authentic and the Employee did not give her any document. She cannot remember if she asked the Employee any further questions.
27. She did not visit any school, the educators were called to the circuit office. She cannot recall if at the time of the interviews, she knew from which school each teacher came from. She prepared the documents on pages 9-10 of bundle A as part of her investigation.
28. On page 4 – bundle B, the name of Emaguqeni Primary school is used, but she cannot remember why she used this school name. she thinks it was a mistake to use the name, as she saw a lot of teachers. However, this does not make a difference because the Employee’s persal number and names are contained in the form.
29. Before she interviewed each teacher, she would be in possession of mtheir files already. The document on page 8 of bundle B, which is annexure B was in the Employee’s personal file. The Employee’s persal number is no 612…..5, Ingwavuma circuit, Sizaminqubeko primary school. She does not recall having received any other file with the same surname of Zikhali.
30. The investigation report is on page 4 of B. As part of her job, when conducting investigations, she does so criminally and internally, so she opened a police docket (page 32-B) regarding the matter.
31. When she testified during the disciplinary hearing, the Employee was present. The presiding officer was Mr Zitha and the Employer representative was Mr Zulu. After that, Zitha and Zulu asked questions to the Employee and she responded. The Employee was also given a chance to cross examine her, after that, she was told to recuse herself from the meeting.
32. She did not remember giving evidence elsewhere again, except in the previous arbitration regarding the same matter in May 2022.
33. When she interviewed the Employee, the Employee never said she was based at Sizaminqubeko, but she also never asked her.
34. After the discovery of the attendance registers for Emaguqeni school, she changed her version and said that it was not an error to have written the name, Emaguqeni school in the records, because the Employee was indeed based at the school at some point during 2014. She, after the cross examination, contacted the Mkhanyakude district and spoke with the principal of Emaguqeni school, Ms Tembe and enquired if she knew the Employee.
35. Tembe confirmed that she knew the Employee and that the Employee had been a teacher at the school Tembe then submitted the attendance registers for the period of August 2014 onwards and she saw that the Employee did not sign 19 August 2024, the day in which she conducted the interview with her. The attendance register is written that the Employee was at the circuit office on the said date.
36. During the interview on 19 August 2014, the Employee never disputed that she was the person whom the documents and she (Zwane) referred to.
37. Cross examination – She is not the one who compiled the charge sheet, the charge emanated from the report she compiled. It is correct that the information in the charge sheet is as per the report she compiled, in which she cited Emaguqeni primary school by mistake.
38. The mistake on the name of the school happened because there were so many teachers that she interviewed from various schools. She cannot recall if she interviewed a teacher from Emaguqeni school.
39. She denied that she may have interviewed another person with the same name, Zikhali, because the Employee was the only person she interviewed with the said name. She could not deny that there may be another teacher with the same surname at Emaguqeni school.
40. She attended the disciplinary hearing as a witness and she does not know the roles held by Zitha and Zulu. The two gentlemen asked her questions but she cannot not remember what questions were asked by whom, because that was long, in 2014. The hearing was held on a virtual platform.
41. She remembers that the Employee asked her questions. She cannot remember who told the Employee to ask her questions.
42. She testified in the previous arbitration, under oath. When she said she did not remember the names of Zitha and Zulu, that was the case, and since then, she asked the office to give her the copy of the report, for her to know their surnames.
43. She maintains that the Employee was given the opportunity to cross examine her. One of the questions the Employee asked her was why was the report written Emaguqeni because she did not teach at that school. She cannot remember the others. She cannot remember what her response was.
44. She admits that she did not say anything during the disciplinary hearing, she sat quietly whilst Zitha interrogated the Employee.
45. On 01 January 2006 is when the Employee was promoted to salary level 7 after she submitted the certificate. She cannot say when did the Employee submit the diploma certificate, but the promotion as a result of the said certificate. There is no other certificate she is aware of.
46. She cannot accept nor deny that the Employee submitted her Diploma certificate in 2003, because she does not have any evidence that the Employee did so. When she was referred to page 59m- B, and to the Employer’s stamp date, she admitted that it is likely that the Employee submitted the certificate in 02 September 2003.
47. The spreadsheet she earlier referred to, relates to the Employee’s service record, which is the same as the promotion record. She knows about the service record, not the promotion record.
48. When it was put to her that the date on the spreadsheet is 2006, whilst the date of submission is 02 September 2003, and that the Employee got promoted in the same year, which is 2003, not 2006, she did not deny that because she did not have such information at the time.
49. She knows nothing about the Employee having submitted her Advanced Certificate in Education (ACE) certificate in 2006. She only considered the Employee’s diploma certificate, not ACE, she did not even see the ACE certificate.
50. She chose not to answer to a question regarding the amount of R 344 254.00 which she claimed was owed by the Employee being wrong.
51. When it was put to her that the Employer never worked at Emaguqeni, she said she is not sure of that, but the name in the documents is that of the Employee. She denies that she made a mistake by investigating the Employee, instead of a teacher by the surname of Zikhali, who was based at Emaguqeni. It cannot be that there was another employee with the same initials and surname as well as the persal number, based at Emaguqeni school. The BM Zikhai mentioned in the reports is that of the Employee.
52. She does not know anything about another teacher by the name of B Zikhali, who was once based at Emaguqeni and who unceremoniously resigned when the investigations started. Shabalala instructed her to investigate Ms BM Zikhali, and she does not know how did Shabalala come to know about the matter.
53. She could not remember if during the previous arbitration, she said they, as the Employer found out about the matter through an anonymous caller. After being shown the transcripts, volume 2, page 12-25, she admitted. One did not just go and investigate, Shabalala instructed her to do so, after the anonymous call. They did not take down the details of the anonymous caller. The caller only talked about a fake certificate. She did not call the anonymous caller back because the line was not working.
54. The anonymous caller spoke with Shabalala and he then told her that the caller said there was a Zikhali at Emaguqeni school who should be investigated for having a fake certificate. She then pulled out the file after Shabalala had given her the persal number, which he got from the caller.
55. She did not request the Employee’s certificate from the school because she had a copy thereof from the Employee’s file which she got from the Zululand District.
56. She then sent the certificate to RAU for verification. It was Lyceum before it became RAU. She sent the certificate to Ms Eunice Sebabo (Sebabo) who was with RAU, but they had all the documents from Lyceum. There were many educators who were investigated and called to the circuit office. She cannot remember whether their circuit manager called the same educators to the office. Those who were suspended were called telephonically.
57. She denies that the Employee was never called to the circuit office, the Employee was called and she came. She saw the Employee and interviewed her. She had a list of the people she was supposed to interview and the Employee was one of them.
58. She called the circuit managers and the circuit managers then called the principals of the affected schools, the principals then informed the affected employees to go to the circuit.
59. The circuit manager would have been told that the Zikhali was based at Emaguqeni and then the Emaguqeni principal would inform the Employee. She knows that the Employee was called because she came to the circuit office. Had the Employee not showed up, she could not have compiled the report without having spoken with her.
60. She denies that the Employee was never called and that she never attended the interview. She cannot recall whether she asked the Employee for her Diploma certificate, at the time, she had the Employee’s copy of the certificate from the file. She does not ask for academic records. She asked the Employee to show her the original certificate.
61. She remembers after being referred to the transcripts that the Employee assured her that the certificate was authentic, but she never asked for the academic record.
62. Sebabo was working for Lyceum and she then moved to RAU with the documents. When she sent the certificate for verification, Sebabo was already at RAU. The certificate is the same as contained on page 59-A or 6 of B.
63. The letter on page 7 – B is signed by Sebabo on 21 July 2014. She cannot deny that Sebabo in the letter was responding to the verification letter she sent to her.
64. When told that she sent the certificate to Lyceum, not RAU, she did not respond. She did not answer as to why she did not send the certificate to RAU.
65. She denied that when she said Sebabo was working for Lyceum when she sent the certificate, she was deliberately misleading the arbitration.
66. She conceded that she referred to the copy of the certificate as being forged, because she could not verify it. She verified the certificate based on the institution that the Employee attended. When she sent it back to the institution as normal, which had issued it, the institution confirmed that the certificate did not exist.
67. She could not personally verify the certificate other than sending it to the institution which is said to have issued it. RAU and Lyceum are linked.
68. She did not comment when it was put to her that it was grossly unfair for her to send the copy of the certificate to Lyceum for verification, whilst she was aware that the certificate had been issued by RAU, which was the relevant institution to verify the certificate.
69. It was not a mistake to write the name Emaguqeni in the documents, as she previously stated. She does not recall the date when she contacted Tembe to find out whether the Employee was ever placed at Emaguqeni. Tembe said there was once a Zikhali at the school, but she has since left the school. She then asked Tembe for any details in this regard.
70. She did not ask Tembe on when did the Employee leave the school, her intention was to establish if the Employee ever taught at the school or not. She did so informed by the questions she was asked during the arbitration.
71. She then obtained bundle C from Tembe, which is the attendance registers for the period 08 October 2013 to 22 August 2014, and she discovered that the Employee had been at the school.
72. She called the employees one by one during her investigation, not as a group because their cases were not the same. When she interviewed them on 19 August 2014, she did not let them sign any attendance register with her. The Employee was at Emaguqeni school on 11 November 2014 (page 11-B).
73. It is not correct that on 08 October 2013, the name of the Employee is the only one written by hand, other names are typed, because on 22 August 2014, also, N Mdletshe is written by hand, as well as on 21 August 2013. She did not ask for the reasons for these hand writings from Tembe.
74. From 02 December 2013 to 05 December 2013, the Employee’s name is not in the documents. The bundle C and Tembe would bring the original documents.
75. It was put to her that the Employee was never placed at Emaguqeni school in 2014 or during any other year and that the signature in the register is not her’s but is forged. She noted that.
76. It was further put to her that the Employee reserves the right to press charges against whoever forged her signature, to which she did not comment.
77. It was put to her that the Employee started teaching at Sizaminqubeko in January 2000 until she was dismissed in 2014 and she has never moved to Emaguqeni at any time.
    Ms Jabu Dumisa (Dumisa) testified as follows: –
78. She is the Deputy Manager – Discipline and Employee Relations, and she was the Employer representative in the previous arbitration, after Mr Mark Zulu (Zulu) had resigned. She was not involved at the internal disciplinary hearing stage, but she manages all disciplinary issues in the province, so she was aware of the disciplinary hearing and she allocated it to Zulu and Mr Themba Zitha (Zitha), whom both are based at the Umkhanyakude district.
79. During the previous arbitration, she intended to call Zwane and Sebabo. Sebabo had the custodian of the learners at Lyceum and she deposed an affidavit saying that the Employee’s qualification is invalid. She also intended to call Mr Sechaba or Lechaba from SACE and Zulu as well as Zitha, to testify on the procedural issues raised by the Employee. She ended up not getting them even after issuing the subpoenas.
80. Zulu has resigned from the Employer, Zitha retired, Sechaba / Lechaba was not available and Mr George Moorosi from SACE legal services came and testified during the previous arbitration.
81. Sebabo was subpoenaed and she sent the qualification to Sebabo and the academic report of the Employee. Sebabo provided her with the academic record and further mentioned that the certificate was not authentic. Sebabo was fearful of her life and she refused to testify, even on a virtual platform.
82. Sebabo then sent an email to her, stating that the qualification was not authentic and the academic record saying the Employee did not pass the qualification.
83. The Employer had opened a criminal case against the Employee for fraud which is contained on page 32 of bundle B1, and the prosecutor refused to prosecute the Employee, saying she has already paid back the money. To her knowledge, the criminal case is still ongoing.
84. Annexure D is the Employee’s application for pension pay out. Annexure A is the acknowledgement of debt (AOD) signed by the Employee on 25 October 2019. She is not aware of any claims by the Employee that she signed the acknowledgement of debt under due res.
85. The attendance registers, annexure C, were requested from the circuit in Umkhanyakude district, from Mr Kalane, and they enquired on whether were there any attendance registers for Emaguqeni school for the period including the investigation period. Kalane then contacted the principal of the school. This enquiry was prompted by the Employee’s denial that she was ever placed at Emaguqeni school as an Educator. Zwane was also party to the request.
86. They have subpoenaed witnesses including Ms Ngwenya who was the prosecutor and Sebabo. They were informed that Sebabo has retired and that the institution is not aware of her residential address and it advised the Employer to subpoena a person who has replaced Sebabo to work with students records.
87. She did not subpoena him because the matter was only set down for one day, so the Employer did not want to incur unnecessary costs. It is possible that the witness may appear on a virtual platform. The others: Sechaba, Zulu and Zitha did not respond.
88. Cross examination – page 9 of bundle B1 is an affidavit, although it is not commissioned, and it may be called a statement, but she sees it as an affidavit as it contains the full names of its author and the date The document was given to the Employer by the institution, stating what is written therein.
89. Sebabo worked at Lyceum College. She sent the copy of the certificate to Sebabo for verification and she also requested the academic record and that was during the first arbitration. The subpoena was very clear on what Sebabo needed to testify on. She did not have the original certificate and the Employee representative kept saying he had it, but he did not give it to her.
90. On 22 September at 09h00, she sent an email to Sebabo and Sebabo responded at 11h43 through an email (page 3 – B-1) stating “kindly be advised that the qualification is not valid and authentic”. She had already sent the email for verification.
91. Again, at 10h20, Sebabo sent another email with attached documents, still saying that the certificate is not valid. Therefore through Sebabo’s statement, and the email responses, she said the academic record and certificate are not valid.
92. When asked why did she send the qualification to Sebabo, who was at Lyceum, not to RAU, she refrred to Sebabo’s affidavit in which she (Sebabo) said that she had access to the records of RAU and Lyceum students. Sebabo has since retired.
93. The information she had at the time was that there was an amalgamation of RAU and Lyceum and that at that stage, the educators who studied with Lyceum, their certificates were issued by RAU, so the certificate was correct to reflect RAU even though the Employee studied with Lyceum.
94. When it was put to her that she made a material mistake by sending the copy to Lyceum which had nothing to do with the certificate, and that had she sent it to RAU, it would have been properly verified, she said there are documents that were served onto the Employer by the Employee, reflecting her student number and her details, all coming from Lyceum, reflecting that the Employee was a student with Lyceum.
95. The Employee was charged for having submitted a fake qualification to the Employer, as a result, that was misrepresentation. The Employer then suffered financial prejudice. There was no need to prove that the Employee had been at Emaguqeni at all, no need for the attendance registers to be submitted.
96. The certificate was properly verified by Zwane.
97. Annexure D is completed not only by people who are going on retirement, but also those who owe the Employer money, for such to be deducted. When one signs the annexure, it does not always mean they are guilty, but in this case, the Employee admitted through the form that she signed on 25 October 2019, that she was fraudulently paid an amount that was not due to her. This was almost five years later.
98. The Employer has no powers to coerce the Employee to sign the document in order to deduct money. She denies that Mr Motha refused to process the form without the Employee having consented to the money owed.
99. She does not believe that the fact that the Employee applied for the pension money almost five years later, shows desperation on her part.
100. The document on page 32 of B-1 is linked to the Employee as it has her name and they retrieved it from the case docket. The fact that it shows Emaguqeni not Sizaminqubeko school is irrelevant as educators are transferred from one school to another on a regular basis. Also, at the time when they opened the case, the Employee had gone back to Sizaminqubeko, so the address is correct.
101. The Employee was moved from Sizaminqubeko to Emaguqeni at some stage. Tembe informed her that the reasons for the Employee to be transferred to Emaguqeni were health related, as the Employee was not well and had difficulties with her voice, and the voice became better after her move to Emaguqeni.
102. The fact that the Employer continued with investigation and discovered some documents long after the Employee’s dismissal, is because they needed to assist the arbitration with information.
103. Regarding the handwritten name of the Employee in the attendance registers, that may be as a result of her not being permanently transferred to Emaguqeni.
     Mr Royal Musawenkosi Dlamini (Dlamini) testified as follows: –
104. He is employed as a Senior State Accountant and has been employed by the Employer for about 20 years in the same capacity. He works in the internal control and risk unit and his duties include investigations and dealing with theft and fraud proceeds.
105. As part of his duties, he was asked to recover the funds by the Employee, hence the acknowledgement of debt. He did not prepare the document, but he was present when it was completed together with the clerk who works at the pension fund office, and the Employee.
106. He brought the document with him, negotiated with the district, such that whenever an employee is expelled, specifically with respect to fake certificates, they must inform him so that he would go and negotiate with the affected employee.
107. He received a call saying there was a teacher who wanted to withdraw her pension benefits, and the name was at first not disclosed. After he was informed about the Employee, he went to the district to negotiate with the Employee on 25 October 2019.
108. He introduced himself to her and informed her that he was assigned to collect money since she had been dismissed. He informed her that in order for the Employer to release the money, she needed to sign the acknowledgement of debt form, but she is not obliged to do so. He also informed her that it would depend on how much money she had in the pension fund.
109. The Employee responded by saying that she had suffered a lot, she needed the money and therefore will sign the document.
110. He did not force her to sign the document. He did not unduly influence her to sign the document.
111. He had no knowledge of the Employer having refused to pay the Employee her pension benefits. He did not receive the letter from the Employee’s attorneys, stating that she was forced to sign the acknowledgement of debt form.
112. The Employee never told her that someone had forced her to sign the document. There was no third person during their engagement. She signed the document because she needed access to the pension money.
113. Cross examination – The first page of bundle D normally goes with the acknowledgement of debt, but it was no in his possession at the time when the Employee completed the Acknowledgement of debt.
114. Mr Motha is the District Director for Mkhanyakude and he had no reason to speak to Motha regarding the issue, as he had said that he had dealt with these issues for a long time, involving many teachers, so there was no reason to contact Motha.
115. The Employee never mentioned to him that Motha was threatening her. When he met the Employee, he had the disciplinary outcome report and the court order stating how much the Employee owed. That is how they collect the money.
116. He knows that the matter against the Employee is about a submission of a fake certificate, but he was not involved in its investigation.
117. It is true that the Employee applied for the pension because she desperately needed the money. He never forced her to complete the acknowledgement of debt form.
     Ms Thandekile Tembe (Tembe) testified as follows –
118. She is the Principal of Emaguqeni Primary school and she has been at the school for more than 20 years. She knows the Employee as she (Employee) was at Emaguqeni school from 09 October 2013 to 22 August 2014.
119. In October 2013, the Employee’s name is written by hand because she arrived late at the school, after the time book (attendance register) had already been prepared with the other educators’ names typed. The Employee came from Sizaminqubeko Primary school, after she had asked to be transferred to Emaguqeni, and she was cross transferred with another educator, Ms DR Mthembu.
120. The tippexing done on 03 February 2014 was done in order to erase the names of Mkhize and Mthembu and write that of the Employee. The names of Mkhize and Mthembu appear on 08 October 2013. Submitting a fake diploma certificate is a serious matter.
121. It is incorrect for the Employee to say she was never placed at Emaguqeni school.
122. Cross examination – She does not know the charges laid against the Employee nor the alleged fake diploma certificate. The book does not have anything to do with the alleged fake diploma certificate and she has never seen the said certificate. She was never involved in the disciplinary matter and she is testifying for the first time in this matter.
123. In November 2014, the Employee was no longer at Emaguqeni school, she had gone back to Sizaminqubeko school.
124. The Employee’s salary was adjusted from 01 January 2006 as indicated on page 5, para 3.1. of bundle C.
125. The original time book contains JB Mthembu on number 6, and JB Mthembu’s maidan surname is Zikhali, and is married to Mthembu. JB Mthembu is no longer at Emaguqeni school and she resigned on 13 January 2014. She does not know the reasons for Mthembu’s resignation, she just resigned.
126. From 08 to 11 February 2013, the tipexed initials are for DR Mthembu, the one who did a cross transfer with the Employee. On 03 to 07 October 2013, it is DR Mthembu’s name and it was a mistake to capture the initials as JB. She does not know why would DR Mthembu sign for JB Mthembu.
127. She agrees that in the copies provided, on 02 to 06 December 2013, there is nothing written next to JB Mthembu, yet in the original, there is a capture stating “other school”. She does not know who wrote “other school”.
128. She is the custodian of the document, however, Ms DK Dube could have written the time book as she (Dube) was the acting Head Of Department during 2014. The copies were made in 2014 from the original book. There is no other time book. She does not know why the capturing of “other school” does not appear in the copies.
129. She denies that she has tempered with the time book in order to protect JB Mthembu. JB Mthembu is not the one who went to the other school with a cross transfer, it is DR Mthembu. JB Mthembu resigned. It is not a gross discrepancy that on 27, 28 and 29 May 2014, the person who signed is NV Mdletshe, it is a mistake and she did not see it.
130. She denies that the Employee was never placed at Emaguqeni, the Employee came to Emaguqeni school from 08 October 2013 until November 2014.
131. When it was put to her that there was a time in 2012 to 2013 when the Employee was seriously sick, to the extent that her sickness not only physically affected her, but also mentally, and for a period of two years, she was bewitched, she said she knew nothing about that, and that when the Employee came to Emaguqeni school, she was well.
132. She did not respond when it was put to her that the Employee was so embarrassed with her condition such that when people talk to her about the things that happened during that time, she cannot remember them. After seeing Tembe in the morning of the arbitration, she then remembered that at some stage, she was placed at Emaguqeni, albeit for a short period. However, the Employee maintains that at all material times, she was employed at Sizaminqubeko school.

THE EMPLOYER ARGUEMENTS

133. It is common cause that the Employee wrote her examinations on the 14 October 2002 at the Lyceum Centre, and her certificate was issued on the 30 October 2002. The Employee’s version was that this certificate was posted and that she could not dispute whether the document was fake or authentic. She simply placed reliance on the fact that she was in possession of an original certificate. The Employee was charged with the submission of a fake certificate and it was clear from the evidence tendered by Zwane and Dumisa that their investigations revealed that the Employee did not complete her studies and that her qualification could not be verified. It was on the basis of the investigation report that the Employer convened a disciplinary hearing, as it was entitled to.
134. Zwane, who was a simple and straightforward witness showed sincereness in her evidence. She made concessions when she had to and conceded that she was confused as to the Employee’s claim that she did not teach at Emaguqeni school. She specifically recalled having questioned the Employee regarding her certificate, the Employee maintained that her certificate was authentic, but that she did not receive an academic record. Zwane testified that she contacted personnel from the Lyceum College which confirmed that the Employee was registered with the College but that the Employee did not complete her studies. The Employee was then obliged to demonstrate that she completed her studies, as the completion of her studies was a material issue in determining whether the Employee was in possession of a valid qualification. The Employee failed to do so.
135. The Employee’s representative sought to argue that the issue of the academic record was not relevant and the review court had made a finding to that effect. This was not correct and misleading as Ex Facie these paragraphs of the judgment, there is no reference to the issue of the academic record in these paragraphs and no finding that it was not a material or relevant issue before the previous arbitrator. It is submitted that this was a relevant issue in the determination of the main issue in dispute.
136. Zwane maintained that the Employee did in fact have the opportunity of cross examining her at the disciplinary hearing, and that she specifically recalled the Employee having questioned her about the school in which she was based and claiming that she did not teach at Emaguqeni.
137. A critical aspect of her evidence was her concession under cross examination when she stated that she cannot comment on whether the certificate was forged as she does not conduct verifications as that is done by Sebabo. The response to this question from the Employee’s representative, Mr Dhlamini was as follows: “I am happy with your answer, so honest, very honest”. It will be submitted accordingly that it was common cause that the credibility of Zwane was unassailable and that her evidence must be accepted in to.
138. Dumisa confirmed that she requested the academic record of the Employee from Ms Sebabo, which was provided, and further indicated that Sebabo confirmed that the Employee’s certificate was not authentic as the Employee had not passed the qualification.
139. Dumisa also corroborated the evidence of Zwane by confirming that they both requested the Time Book, which was then provided from the principal of the school.
140. The Employee’s counsel was unable to dispute the contents of these emails produced by Dumisa, despite having himself elicited this evidence under cross examination.
141. Employer’s third witness, Dlamini stated that the Employee stated that she suffered a lot and that she needed the money and that she will sign the document. This witness confirmed that he did not force, threaten or unduly influence the Employee, and that there was no other person who threatened the Employee at the time she signed the AOD. This witness was also a impressive witness who made relevant concessions when he needed to. The crux of his evidence put paid and destroyed the Employee’s claim of duress.
142. It is submitted that the Employee’s claim of duress must be considered in a serious light. In order to set aside a contract on the ground of violence or fear, our law requires the following elements: Arend and Another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 306

(a) a threat of considerable evil;
(b) that the fear was reasonable;
(c) that the threat was of an imminent or inevitable evil and induced fear;
(d) that the threat was unlawful or contra bonos mores; and
(e) that the contract was concluded because of the duress.

143. There is no evidence that Mota had imposed himself on the Employee and pressurised her into signing the AOD. On the Employee’s own version she wanted to access her pension, and there was no consequent claim that pressure was exerted upon her when she signed the AOD. It is accordingly submitted that the Employee’s weak claims of duress is not only vague, but flimsy, unconvincing and must be rejected.
144. Tembe was equally impressive and consistent in her evidence. For example, when it was put to Ms. Tembe that the Employee was mentally and physically affected for 2 years from 2012 to 2013. Ms Tembe appeared perplexed and responded that she knew nothing about this as the Employee came to her in 2013 and she was fine.
145. The Employee, on the other hand was unfortunately a pathetic witness. Her evidence left much to be desired, and it was clear that she was extremely evasive and contradictory in giving her evidence.
146. It was clear that she sought the protection of her legal representative at crucial times during her cross examination and tailored her evidence in accordance with the meritless objections raised by her legal representative. The most telling aspect of her version changing was when she claimed that she only realized that she taught at Emaguqeni school, when she saw the principal on the morning of the arbitration. This was strange in circumstances were she conceded that she did see Tembe after her departure from Emaguqeni.
147. It was apparent from when she was questioned as to whether there was Didactics English and Didactics Mathematics reflected on the academic record, her evasive response was that she was not sure how it was captured, and that the academic record had many mistakes, which she is only seeing these mistakes now. A very telling aspect of her evidence with regard to the mistakes that she has been now appraised of was her response to a question as to when was the first time she had sight of this document, and her response was that “today is the first time that I have seen this document”. This was contrary to her earlier evidence that she queried this very record with Lyceum through her attorneys.
148. It was obvious that the Employee sought to distance herself from the contents and results contained in her admitted academic record which contained her student number. The Employee was clearly selective as to which results were correct and which were not. Her evidence in this regard was misleading and untenable.
149. The Employee then evasively confirmed that the chairperson did ask her about subjects. When asked why she misled the commission by specifically stating on oath that the presiding officer did not ask about subjects but only asked about fake certificates. Her response was that she forgot about some of the questions that he asked, as this happened a long time ago. It is submitted that the Employee’s opportunistic “loss of memory” narrative is also telling.
150. The Employee then sought to explain the seriousness of the chairpersons recordal that she apologized for her actions and stated that she should have disputed the apologizing claim with the department. She was asked as to why she did not raise the issue of the apology in her appeal affidavit. Mr Dhlamini then objected on the basis that the question was unfair and claimed that the affidavit was drafted by an attorney. The objection was again rightly dismissed and the Employee then conveniently and opportunistically took Mr Dhlamini’s earlier cue by claiming that “it was how that person (her attorney) decided to write it or capture it in that manner”. When she was asked for the fourth time because of her evasive response, Mr Dhlamini had again attempted to come to the Employee’s assistance by suggesting that it is confusing because the affidavit was drafted by an attorney.
151. It is common cause from the evidence of andDumisa that Zwane’s investigations uncovered that there was no evidence on the Lyceum College system which verified that the Employee had completed the course.
152. If the Commissioner is to find that the versions of the Employee and Employer are mutually destructive, as to the issue of whether the Employee submitted a fake qualification, the Commissioner is then obliged to consider whether the Employee has established that she completed her studies, as this is a relevant issue in the determination of the main issue. If that enquiry is considered, then the Employee’s credibility comes into play.
153. The court in NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION v GANY 1931 AD 187 at 199, correctly, with respect, set out how such a situation is to be resolved: “Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the Court of first instance that the version of the litigant upon which the onus rests is the true version, and that in this case absolute reliance can be placed upon the story as told by A. Gany …”
154. Similarly, it is submitted with respect that in casu, that the version of the Employer, on whom the onus rests, is the true version and that absolute reliance can be placed bearing in mind the credibility of the Employer’s witnesses. It is respectfully submitted that the Commissioner can easily be satisfied that the evidence of the Employer and its witnesses were in fact true and that of the Employee false. 130. In African Eagle Life Assurance Co Ltd v Cainer 1980(2) SA 234 (W), the Court had pointed as follows -: “The position is simply that there is no proof, by any criterion, unless one is satisfied that one witness’s evidence is true and that of the other is false…..Where there is no probability there is simply no proof of anything, unless you believe one person and disbelieve the other.” (emphasis)
155. The proper approach in resolving factual disputes where there are two irreconcilable versions is to be found in National Employers’ General Insurance v Jagers 1984 (4) SA 437 (E) at 440D-H; and Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie 2003 (1) SA 11 (SCA) paras 5- 7 at 14.
156. It is telling that, at the disciplinary enquiry, the Employee saw fit to apologize for her actions and asked for a chance to study for her qualifications. It is common cause that the Employee did not challenge this material admission in her appeal against the disciplinary proceedings, in the previous arbitration proceedings or in the previous review proceedings.
157. The Employee’s lack of candour and misrepresentations to her employer goes to the core of the employment relationship and the courts have continuously pronounced on the consequences of dismissal under those circumstances. 13 135. In SA Post Office Ltd v Commission for Conciliation, Mediation and Arbitration and Others supra, Waglay JP held: ‘To place an employee who was guilty of dishonesty back in her position where honesty and integrity are paramount to the execution of duties, is to my mind grossly unreasonable, but more importantly, it cannot be right and proper to reinstate or re-employ a person in a position that was secured by the making of false statements.’
158. In the very recent decision of Lesedi Local Municipality v Mphele, the court correctly commented that: “The misrepresentation of qualifications is a pervasive and menacing evil that greedily devours and indelibly taints our employment landscape. It trivialises our institutions of learning, devalues the sanctity of honest educational pursuits and cheapens legitimate and hard-earned achievements. It can never be excused, rationalised or condoned. It is sickening to the core and detestable in every possible respect. It is not only morally offensive, but is also vocationally revolting. Every attempt to uproot it must be applauded and rigorously pursued. Any attempt to conceal or justify it must be deprecated, not only as reprehensible but abominable too. If not stopped in its tracks, misrepresentation’s cancerous grip will spread, wreaking unimaginable havoc to our economy and our social construct. We live in a world where inauthenticity and fake credentials have become the norm, where quick wealth and instant gratification are more valuable than integrity, where the disgusting trend of augmenting one’s qualifications and achievements has become fashionable. This rot must be resisted and exposed at all costs.”
159. The facts in the present case are similar to that of the decision in Rainbow Farms (Pty) Ltd v Dorasamy NO & others (2014) 35 ILJ,3462 (LC) where the employee claimed to have a BTech: quality management degree and a BTech: business administration degree. Both these degrees were in fact ‘in progress’ thus not fully achieved. The employee was advised to amend her CV to correctly reflect her first qualification. It later transpired that the second qualification was also in progress. When the dishonesty was discovered, she was dismissed.
160. Similarly, the Employee failed to prove that she had passed all her subjects, by the simple production of an authentic academic record. She clearly sought to distance herself from that issue with the meritless claim that it was not relevant.
161. The Employee simply ignored the fact that there was material concessions made during cross examination and that her representative elicited the introduction of material evidence such as the disciplinary sanction, emails and the academic record through the cross examination of the Employer’s witnesses.
162. It is submitted that the Employee sought to raise the issue of hearsay without proper recourse to the law on hearsay. The Employee’s objections to the introduction of material documentation by claiming hearsay was especially telling in circumstances where such documentation was damning in effect.
163. It is submitted that the Employee was a very unsatisfactory witness who fabricated her evidence as she went along. She effectively conceded to lying on affidavit and was opportunistic in claiming that she was bewitched. There was no explanation as to why she persisted in her claim that she did not teach at the Emaguqeni school, when the Time book disclosed her signature which she would have recognized well before seeing the principal and which she admitted was her signature.
164. The Employee’s version that there was a conspiracy against her by all and sundry, that being Zwane, Dumisa and Tembe is highly untenable and must be rejected. The opportunistic claim of duress was also not established and also falls to be rejected.
165. It is accordingly submitted that the Employee’s dismissal was both procedurally and substantively fair and the referral falls to be dismissed with costs.

The Employee’s case
The Employee testified as follows: –

166. She commenced her employment on 01 January 1994 at Mbodla primary school and at the time, she had a Standard 10 (matric). She then went to Sizaminqubeko primary school where she remained until her dismissal in 2014.
167. She started studying at Lyceum college for a Diploma in Foundation Phase (Junior Primary Diploma in education) around 1997 or 1998. She completed the Diploma in 2002 and she then registered with SACE and got the SACE certificate. The copy of the Diploma certificate on page 64 – B is the correct one made from the original she displayed in the arbitration. The copy of the Diploma was received by the Employer in March 2003.
168. After getting the Diploma, she wanted to register advanced certificate when she was required to submit the certificate, which she did to the University of Zululand and then her registration was accepted. The Diploma was a pre-requisite for the Advanced certificate.
169. The Diploma certificate was issued by RAU since Lyceum College merged with RAU and the Lyceum college was closed, so by the time she completed her studies, the certificate was issued by RAU. Having received the Diploma certificate, she submitted it to the Employer and the Employer raised her salary.
170. She then completed SACE forms to ensure that the Diploma certificate is authentic. This was her registration with SACE to get the SACE certificate. SACE registered her in 2003, after she submitted the requirements which were her identity document and the Diploma certificate. She also has an Advanced certificate in education.
171. From 2011 to 2012, she fell ill, and as a result, she would take leave and go back to school and fall ill again. She was suffering from loss of voice and she would use a sign language, and at times, there would be loud voices coming out of her. She was not mentally well. This lasted for two years and in 2013, she became better.
172. He apologises to the Council, because when she saw Tembe, it dawned in her mind that she knows Tembe and had spent time with her, and that is when she realised that the signatures in the time book are hers, because during her illness, she would forget some instances until something triggers her memory.
173. She has never met Zwane, she has never been called to the circuit office.
174. She does not know why the register reflects some teachers signing in spaces belonging to others, but in her spaces, she signed correctly. She has never met BJ Mthembu and she heard that Mthembu’s maidan surname is Zikhali.
175. The fact that she ended up with the allegations regarding her Diploma certificate haunted her, as she shares her initials with Mthembu. She has never been employed at Emaguqeni school, she was at the school for a short period and when she became better, she went back to Sizaminqubeko, as Emaguqeni is far from her home than Sizaminqubeko.
176. She submitted her Diploma certificate on 02 September 2003, not 2005. There is nothing in the certificate that speaks about Lyceum college.
177. When she applied for her pension pay out, she encountered problems and she was told that if she did not agree and sign an acknowledgement of debt form for the money to be deducted, she would not get the money. She then informed her attorney about that, which led to the letter (F) being written on 07 September 2019. Her salary was stopped in January 2015.
178. When she requested the Employer for the pension pay out, she had been unemployed for almost five years, with no income.
179. The contents of the letter, bundle F contains her instructions to her legal representative. She denies that she signed the documents voluntarily, she was forced to sign it, because she needed the money and she did not know what to do, and that was when the Employer told her to sign the document if she needed the money. She could no longer be able to live, together with her kids as they were still at school.
180. Her name does not appear on the document (D2). She was never charged in 2022, nor at any other time. It is correct that Captain Buthelezi at some time summoned her to his office in 2015. Buthelezi asked for her certificate and she gave it to him, he then called Lyceum college and the college verified that the certificate was authentic, and he told her to go.
181. Buthelezi then called the Employer and informed it to reinstate her, but the Employer did not do so. After the call by Buthelezi, she went to the school, Sizaminqubeko to report for duty and the principal told her to go home and get a letter from the Employer first. The Employer and the school never called her back.
182. There is a difference between C and G1-G2, which is that on C: nothing is written with regard to Mthembu’s whereabouts, and on G1-G2, it is written “other school”. She thinks the school is protecting Mthembu because they could not just say “other school” without mentioning it.
183. Since Mthembu’s maiden surname is similar to her’s, it is possible that this case is actually about Mthembu, not her. The fact that there is the writing of “other school” in the original time book, which does not appear in the copies submitted tells her that the Employer is trying to hide something.
184. The notice for the disciplinary hearing was directed to Emaguqeni, when she was not at Emaguqeni school on 13 November 2014. At the disciplinary hearing, Zitha was the presiding officer and he was the only one speaking and asking questions. He asked if she was teaching at Emaguqeni and she said no, she was teaching at Sizaminqubeko.
185. Zitha then said even though that was the case, the persal number in the notice was hers so she was the correct person. He asked her if she was represented and she told him that since there was a short notice, she could not get someone to represent her.
186. Zitha then said the disciplinary hearing would continue even though she was unrepresented. He asked her where did she study for the Diploma and she told him that it was with Lyceum but the certificate was issued by RAU. Zitha told her that the certificate as fake, to which she said she had no knowledge of such, and that she accepted the certificate as it was issued by RAU.
187. Zitha did not afford her the opportunity to present the original certificate to him, even though she had it with her, together with the Advanced certificate in education and the SACE and matric certificates.
188. She asked that the disciplinary hearing be postponed as she did not have a representative, and Zitha refused and said the matter was proceeding and will be finalised during that day.
189. Zitha asked her why did she say she studied with Lyceum, and yet the certificate was issued by RAU, to which she explained that after Lyceum was closed, all the students who had not completed their studies had their certificates issued by RAU. He then told her that because she submitted a fake certificate, she had defrauded the Employer and he said the findings of the hearing will be out within five days. This did not happen and she received the outcome around January 2015.
190. Zitha did not give her the opportunity to ask questions. No witness testified on behalf of the Employer, Zwane and Zulu were quiet. She was not happy that Zitha refused to postpone the hearing to allow her time to get a representative. The disciplinary hearing notice was insufficient as she was given three days, instead of five.
191. She did not submit a fake certificate from RAU. Zwane never asked her for the original certificate and the Employer has never asked her for the same. The Employer dismissed her without ever asking her for the original certificate. it was incorrect for Zwane to send the copy of the certificate to Lyceum for verification instead of sending it to RAU, which is the issuer of the certificate.
192. The constant mentioning of Emaguqeni school in the documents is concerning, given that there was a JB Mthembu at Emaguqeni, who resigned without stating the reasons for doing so, and then next to her (JB Mthembu) name, it is written “other school”, and the year in which she resigned is 2014, the same year is 2014 and the “other school” is not mentioned. In 2006, JB Mthembu was already employed and she was JB Zikhali at the time, and the fact that she resigned during the period of investigating the certificates makes it possible that she (JB Mthembu) was the one with a fake certificate.
193. Her dismissal added to her suffering which started from her illness in 2012, which humiliated her amongst her family, friends and colleagues. That led to the passing of both her parents in the same year of her dismissal, as they suffered from stroke. Her salary was stopped and she was paying a bond for a house, which ended up being repossessed by the bank. She seeks reinstatement with all the years she has been without pay.
194. Only one charge was placed before her, and it is about the allegation that she submitted a fake diploma certificate. There is nothing in the charge that says she did not complete her qualification. The reason for her dismissal is that the Employer said she submitted a fake certificate.
195. The Employer talked about her certificate being fake, but it did not substantiate such an allegation. The Employer did not provide any reason nor evidence as to why Sebabo did not come to testify. The Employer also did not provide any reason nor evidence as to why Zitha did not come to testify.
196. As reflected on page-55-A on clause 2.1, par 5 “she then entered a plea of not guilty”. She pleaded not guilty to the charge. She appealed because she did not plead guilty to the charge as written on par 3.2.7 that “I again herewith deny any question that I made a voluntary admission of guilt at the hearing”.
197. No one from RAU or Lyceum testified on bundle H, which is a copy. On pg 4 of this bundle is a confirmation letter, confirming that she met the requirements for the Diploma in Education. The letter contains the student number: 14148838 and it has her name.
198. On pg 5 is the copy of the diploma certificate, with the same student number as that in the confirmation letter, together with her names and her identity numbers. The confirmation letter is from Lyceum and the certificate was issued by RAU.
199. No one came from SACE, Lyceum or RAU to testify that the certificate she submitted was a fake. Before the Employer dismissed her, no one from it had ever seen the original certificate, and no official has ever requested to see it.
200. Cross examination – she wrote the letter to Lyceum college through her legal representative. She complained regarding many issues that were happening when they were writing exams, including the fact that sometimes, she would be allocated two different student numbers, sometimes one would be marked absent when she was present, sometimes the statement would reflect “query” when she does not know what that query is. The student number contained in the document is hers. The document sent to the college is dated 18 February 2003.
201. She got the response to the letter on 20 February 2003 from Ms Eunice Sebabo, confirming that she had met all the requirements for her qualification on 30 October 2002.
202. A copy of her diploma certificate is on page 5 of bundle H. On page 6 if proof regarding the venue and on top, is her persal number, confirmation that she was present during the exams on 11 and 14 October 2002. English appears on both days. She wrote English in April 2002, failed it and she then wrote it in October 2002. It is the same English subject that she complained about to the college, English 1 should be English 3, and also, it reflects “query” as well as marking her as absent when she was present.
203. When the report says her conduct was satisfactory, it means she met all the requirements.
204. Zitha was the presiding officer. Zitha never asked her any question about her academic report, all he said was that she submitted a fake diploma certificate and that she did not complete the requirements for the certificate. Zitha never asked for the original certificate from her. Zwane and Zulu never said anything.
205. She never placed her academic record in front of Zitha. She informed her representative about everything that transpired in the disciplinary hearing and also asked him to confront Zitha about things he mentioned in the report. Zitha did not testify. In her charge, nothing speaks about the academic record, all it says is that she submitted a fake certificate. The academic report should have been sourced from Sebabo and no one has testified on it.
206. At the disciplinary hearing, Zitha did not allow her to say anything, even after she asked for adjournment so that she could get a representative. Zitha was telling her what happened and what would happen and he did not give her the opportunity to explain. All she said was that she needed someone to represent her.
207. She registered with Lyceum in 1998 and studied until 2002, which is five years. She registered for the subjects that appear in the certificate, which include English, Maths, Education, Zulu and Natural science. She sometimes failed other modules until she completed in October 2002.
208. Bundle H is her academic record, despite the errors contained and she referred it to her legal representative through Scorpion. She did not mention anything about her being absent from examination in the letter. Amongst the issues she needed clarity on is the English which reflects that she achieved 46% and had failed it. There are many errors and it might be that she did not articulate herself well in the letter. She passed Didactic English, Maths, Environment and Helath, Education.
209. She regards the omissions as serious mistakes, that is why she raised them, and she is now picking up some of the mistakes. She sees the document for the first time as she testifies in the arbitration and she did not notice some of the errors previously.
210. Her original Diploma certificate was posted to her after completion of her studies and payment of the required fee. She was not invited to the graduation ceremony because at the time, she had not fully paid the fees.
211. After writing each exam paper, it would take not more than 3 weeks for her to receive the results, which sometimes would be posted or be communicated to her telephonically. With regard to English 3, she phoned the college and the college informed her that she had failed, hence she wrote the supplementary exam. When Lyceum closed, all the students were transferred to RAU. The diploma certificate was posted to her and upon receiving it, she believed that it is authentic.
212. Zulu was the Employer representative and Zwane was the Employer witness. She denies that she was found guilty, it is Zitha who told her that he found her guilty.
213. One of the complaints she had was that she was not afforded sufficient time to prepare for the disciplinary hearing and also to ask witnesses to testify on her behalf. The presiding officer was bias and he did not even give her the opportunity to have a representative.
214. She had 20 years of teaching at the time. She mentioned in the disciplinary hearing that she was teaching at Sizaminqubeko primary school.
215. At this arbitration, she mentioned an issue of the salary adjustment done in 2006 and she said iy should have been dome in 2003 when she submitted her Diploma certificate. In 2006, another salary adjust was done for the advanced certificate in education. She mentioned these issues in the disciplinary hearing as well.
216. She mentioned in the disciplinary hearing that she was registered with Lyceum and that she passed the subjects, and those which she failed at the first stage, she would re-write them and pass. Zitha asked her about the subjects, but she cannot recall if he asked her about English as a subject. Zitha asked her about the certificate which he alleged was fake, not about the subjects.
217. She mentioned in the disciplinary hearing that she attended workshops organised by the Employer, as a teacher. She does not remember telling the Zitha that she wanted a chance to study for her qualification. She never told the Employer to take back the money paid to her for the diploma certificate.
218. She was given three days to prepare for the disciplinary hearing and she mentioned in the disciplinary hearing that she did not have a person to represent her and that she needed to have a representative.
219. The affidavit on page 35-A was written by her. She cannot recall whether she was in possession of the minutes of the disciplinary hearing when she wrote it, because she did not receive the outcome report of the disciplinary hearing on time.
220. She received the dismissal letter on 29 January 2015. It is correct that she provided the details contained in the affidavit to her legal representative at the time (page 32-A) and that led to her legal representative writing a letter to Lyceum to furnish her with results.
221. She does remember slightly that Zitha asked her questions about the subjects. She did not lie, this happened long time ago and she may have forgotten some of the questions that Zitha asked her. She was dismissed not because she passed or did not pass the subjects, she was dismissed for allegedly submitting a fake certificate.
222. The presiding officer did not give her the opportunity to submit her mitigating factors, all he did was ask her when did she start working and whether she attended workshops. This was before he found her guilty. Zulu never said anything during the disciplinary hearing, only the presiding officer was talking until the hearing was concluded.
223. Her diploma certificate was original and she took it to SACE for registration and that is how it was confirmed that it was original. There is no other place other SACE, to which she would have submitted the certificate for authorisation.
224. She does not even know what NPA stands for, as it appears in her affidavit for condonation. It is the person who wrote the document and the manner in which he wrote it captured the acronym NPA.
225. During the first arbitration held in 2022, a witness from SACE was called and they confirmed that the certificate was original. The fact that she has the certificate and SACE also submitted its own certificate that confirms that the certificate is authentic.
226. When she completed the application, she had the certificate with her, the same certificate that she brought to the arbitration when it started and it is written SACE.
227. It is correct that she said that she has never been at Emaguqeni before, but she later changed this and admitted that she had been placed at the school before. She was bewitched while she was at Sizaminqubeko and that is when she first became ill, that was around 2012-2013. At the time, she would just hear a lot of noise and voices in her ears, she could not speak and she lost her voice. That continued until 2014, but then she became better in 2014 as her voice was well and she could speak.
228. She admits that when she moved to Emaguqeni, she was much better, and they then sent her back to Sizaminqubeko. It was in October 2013 when she moved to Emaguqeni school, until August 2014. She had a good time at the school and it was at this school that she fully recovered. She had agood relationship with the principal, Tembe. She did not keep in touch with Tembe after she left but they would sometimes meet in town and she would remember that Tembe was her ex-principal.
229. When she said she had never been at Emaguqeni was because she would forget some details and would remember them at a later stage. She agrees that the fact that she had taught at Emaguqeni is not a minor thing, but as she has said that at times, she had memory loss, she would forget things and this was exacerbated by the fact that she was dismissed. When the issue arose, it confused her especially when the year mentioned is one which she was not at Emaguqeni school.
230. She disputes that the Employer has proven that she had submitted a fake diploma certificate. She did not admit being guilty. Everything that is written in the disciplinary hearing report is what Zitha was telling her. Also, Zitha did not come to the arbitration to testify on his report.
231. Zitha did not know her, so there is nothing that she knows, which may make to say he had something against her. She was never called to be investigated, no one from the Employer approached her. She was only called to the disciplinary hearing.
232. In the disciplinary hearing, they were against everything she said. She told them that she did not have a union representative, and that there was no interpreter, but they said the hearing must continue.
233. She admits that in the manner in which they did things, she felt they were oppressing her, because they did not agree to anything she was saying, which is that she did not have a representative from her union and there was no interpreter, also, they did not give her the opportunity to state her version.
234. Asked if she told them that she had 20 years of teaching experience, she said they asked her when was she employed, and they counted from there.
235. She denied having told them that she wanted opportunity to work to get good results. She never said she wanted a chance to study for her qualification, because she already had it, and she had even added on top of that by the ACE.
236. They asked her if she attended a number of workshops. She never apologised to the Employer for her actions, because there was nothing that suggested that she was guilty, and they did not even take the certificate which she had in her possession.
237. She never asked the Employer to take back its money, due to the certificate that she submitted, because she did not agree that the certificate was fake.
238. She agrees that these allegations above are quite serious, that is why she referred the matter to the Council, and if one looks at the time the matter took, that took long such that she ended up writing to the Employer to take money. That was because she saw that it was taking long and it was becoming difficult. She asked for assistance for legal wise to assist in writing the letter to the district manager, so that she can access her pension fund money. The Employer did something that it was not supposed to do.
239. When her representative wrote the affidavit for her, he wrote it in the manner that he did, but there is nowhere, where she conceded to what Zitha said. If she recalls well, they wrote the affidavit afterwards with Khumalo (ex-legal representative), after a long time when nothing was happening, Khumalo passed, and then she got Dlamini to represent her.
240. Dlamini said, since she has financial problems, they should write a letter to the district so that she can obtain some money from the pension fund to survive. That is when the Employer took some money from her pension because they said she could not take some of her pension money if she is still indebted to the Employer.
241. Zitha did not offer her the opportunity to state her version and that has been her testimony throughout. Zitha only told her that she will get the outcomes within 5 days.
242. When she was referred to P34- A clause 3.1.15 which reads: “My legal rights were grossly violated when the Presiding Officer asked me against my better judgement to take the stand and testify to defend myself in the absence of any representation. This is a guaranteed right in terms of our SA Constitution” and asked why did she lie to this arbitration by saying Zitha did not give her the opportunity to state her case, she said these are points written by her legal representative, which means he worded them in the manner that he did, what she says is that she had no representative on that day, so the decision which was to be taken was to be taken with her being unrepresented.
243. She read the document before signing it, but it has been long since that time. It is not true that she was offered the opportunity to state her case. It was an error by her representative to say she was offered the opportunity to testify and defend herself, when drafting the affidavit. She read the affidavit but she guesses that she did not fully understand the way it was written.
244. It was a mistake where she conceded to something that is not true. At that time, it was after she had fallen ill and she was still not good in terms of her health, hence she made mistakes such as signing the affidavit when it stated something that is not the true representation of what transpired.
245. When asked whether it was correct when she stated in the affidavit that she was given an opportunity to take the stand, testify and defend herself, she said that was correct.
246. At no stage did she plead guilty. Zitha did not offer her the opportunity to state what she would have stated, so Zitha made the conclusion himself. Zitha asked which institution she attended, and she mentioned it. The rest he told her that her, including that the certificate was fake. She can’t recall other aspects, but he kept emphasising that.
247. Zitha asked whether she passed English 3 when he was looking at the copy of the certificate he had. He was reading through all the subjects in the copy. She does not remember him asking her how did she pass English 3 when she could not pass English 1.
248. The copy of the diploma certificate in the bundles is exactly the same as the original certificate she has, which is signed on 30 Oct 2002.
249. If she recalls well, she would write an exam and when she has failed, she would right again. Exams took place during April and October, if she fails in October, she would write again in April. since there were queries, Scorpion (legal insurance) to write a letter and ask what English query mean as that was not clear whether it was a pass or a fail. Lyceum then responded to the letter she wrote on 18 Feb 2002 (page 3), then Lyceum responded and emphasised the 30th Oct 2002. Also, at that time, Lyceum had already closed down and the info had been transferred to RAU and it was RAU that was issuing the certificates.
250. The diploma certificate from RAU is M+3 as she did modules 1,2 and 3.
251. As she stated in the letter on page 3 (H), it used to happen that she was allocated an incorrect student number, and she had been allocated three student numbers since her registration with the institution in 1998, she raised this to the Scorpion. So she does not know what then would the marks reflect, that is why when the institution corrected its fault, they wrote the letter in page 3.
252. Sometimes she would call the institution and they told her that she had passed. There were many errors that happened and she wrote the letter wanting them to rectify them. She cannot say she wrote the letter in relation to English module 1, because she wrote it after the exams she wrote in October 2002, it could be a mistake that the institution wrote English 1.
253. On page 32 – A is where she raised the presiding officer’s bias. The presiding officer did not look for anything that showed why she said she passed, he never requested anything from her that is linked to Lyceum. He did not ask her about English3, he told her that she did not pass it.
254. The presiding officer was the one who was telling her how everything transpired, telling her that she did this and that. The manner in which he was asking her, was such that he was telling her how everything happened.

THE EMPLOYEE ARGUMENTS

255. In terms of item 5 of the Disciplinary Code and Procedures for Educators, as contained in the Employment of Educators Act76 of 1998, an educator [must] be given written notice at least five (5) working days before the date of the hearing. It is submitted that the Employer deliberately contravened the Disciplinary Code when it gave the Employee only three working days to attend the hearing with the intention to make sure that she did not prepare adequately for the hearing.
256. The Employer deprived the Employee of the right to be represented during the internal disciplinary hearing proceedings by refusing to adjourn the matter so that the Employee could secure the services of the Union representative.
257. It is submitted that the dismissal of the Employee was procedural unfair in so far as the right to be represented is concerned. The Presiding Officer refused to adjourn the hearing for the Employee to arrange a representative.
258. The Employer further deprived the Employee her right to cross-examine the witness, Zwane. The Employee was denied the right to question the witness called by the Employer. The Employee was therefore denied her right to cross-examine the witness before being found guilty.
259. The Employer violated the right of the Employee to put her side of the story by not allowing her to testify, but instead was dictated to by the Presiding officer, Zitha. The Employer should be found to have failed to follow the proper procedure in find the Employee guilty and thereafter dismissing her.
260. The Employee was denied her right to be provided with an interpreter because, in terms of paragraph 5 of the notice to attend, she was supposed to inform the Employer within 3 working days of receipt of the notice. However, the notice was only 3 working days, and could therefore not in a position to arrange the interpreter.
261. It is submitted that the dismissal of the Employee was procedural unfair.

SUBSTANTIVE FAIRNESS

262. In terms of section 188 of the Labour Relations Act, the onus is on Employer to prove on a balance of probabilities that there was a fair reason to dismiss the Employee. It is submitted that, in the circumstances, the Employer has failed to prove that there was a fair reason to dismiss the Employee from work.
263. The evidence led by the Employer’s witnesses was woefully inadequate and failed to discharge the onus borne by the Employer that the Employee’s dismissal from work was for a fair reason and does not fall within the purview of section 188 of the Labour Relations Act 66 of 1995 (“LRA”).
264. The Employer dismally failed to produce evidence that proves that the Employee
     committed forgery. The case against the Employee was based on hearsay evidence.
265. The Employer received an anonymous call made an anonymous person that there was a Zikhali at Emaguqeni Primary school who had a fake Diploma certificate. The Employer then went on witch-hunt and eventually made the Employee a sacrificial lamb without conducting thorough investigation with RAU; and not with Lyceum College because the issuer of the certificate was RAU and not Lyceum College.
266. The Employee averred that there was a possible “mistaken identity” in this case because of the following reasons:

303.01 The charge refers to an educator who was teaching at Maguqeni Primary School.

303.02 It is a known fact now that on or about 1 January 2006, the Employee was teaching at Sizaminqubeko Combined Primary school. And that she submitted her Diploma certificate whilst at Sizaminqubeko school.

267. There was an undisputed submission by the Employee that there was another Ms BJ Zikhali who was at Emaguqeni Primary school who resigned unceremoniously in 2014 from the Department of Education. This version was corroborated by Ms Tembe. In addition to that, there is unexplained tampering with the Time-Book next to the name of the same Ms BJ Zikhali.
268. Zwane testified that the investigation against a Ms Zikhali at Emaguqeni Primary school was triggered by an anonymous call to the Department of Education. Both the charge letter and the Notice to attend do not contain names of the educator concerned, but only contain the initials.
269. It is submitted that the Employer grossly erred in drawing a conclusion that the Employee had submitted a fake certificate without asking her to submit an original certificate to compare the two, a copy and the original. The conclusion drawn by the Employer is malicious and was without any basis in law and in facts.
270. The Employer solely relied on the Report of the Outcome of the Disciplinary Hearing allegedly written by Zitha which found the Employee guilty of forgery. Zitha refused to testify and did not give reasons for not testifying and that renders the Outcome Report of the Disciplinary Hearing a hearsay evidence.
271. Section 3(4) of the Law of Evidence Amendment Act 45 1988 defines hearsay evidence as “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”.
272. In this instance, the probative value of the Report of the Outcome of the Disciplinary Hearing depended upon Zitha and not upon anybody else. It is submitted that the refusal of Zitha to testify left the Employer with no fair reason to dismiss the Employee. The dismissal of the Employee should therefore be declared to be unfair.
273. In Exxaro Coal (Pty) Ltd v Chipana and Others (LAC) (Case no: JA161/17) (2019), the Court held that it is accepted that section 3 of the LEAA essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interests of justice requires its admission. Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all.
274. It is common knowledge that the evidence that was adduced by Zwane emanated from hearsay evidence in the form of anonymous call as defined in terms of section 3(4) of the LEAA.
275. It is further submitted that if one removes the hearsay evidence of Zwane based on the anonymous call by anonymous caller, there is no shred of evidence left against the Employee. It is submitted that it is not in the best interest of justice to accept the hearsay evidence adduced Zwane.
276. It is common cause that the charge of which the Employee was found guilty of, is
     defined as the making of a false document with intent to defraud, resulting or calculated to result in some prejudice to another R v Muller 1953 (2) SA 146 (T); S v Dreyer 1967 (4) SA 614 (E)
277. What is worth noting is that both the letter of confirmation and the Diploma certificate bear the same student number, the same names and surname and the same ID number. It is submitted that it was improbable for the Employee to have forged all these documents in such a meticulous manner.
278. The Employer failed to point out at the forged parts of the Certificate. On that ground alone, the dismissal of the Employee should be declared both substantively and procedurally unfair.
279. Throughout the entire arbitration proceedings, the Employer failed to discharge the onus to prove that the Employee knowingly falsified the certificate to deceive the Department of Education. Instead of proving forgery, the Employer resorted to challenge the Employee whether she completed the qualification or not by cross-examining her on a copy of the academic statement.
280. The precise charge against the Employee is that she allegedly submitted a fake Diploma in Education allegedly obtained from RAU. The charge has nothing to do about whether the Employee completed her studies or not.
281. In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 32, the LAC held that the employer is bound by the election it has made in drafting the charge and stated as follows:
     “It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal”.
282. In Fidelity supra, at paragraph 33, the LAC further held that:
     “The appellant seems no longer to continue to justify the dismissal on the basis of the allegations of misconduct of which the third Employer was found guilty and for which he was dismissed. In these circumstances the appellant must be taken to no longer rely on the reasons for dismissal which were given at the time of the dismissal. If it was still relying on them, they would have formed part of its argument on appeal. Those reasons were not part of the appellant’s argument on appeal. In the light of the above, the appeal falls to be dismissed on this ground alone, namely, that the reasons for dismissal which the appellant relies upon to justify the dismissal are not the reasons for which the third Employer was dismissed at the time.
283. In Fidelity supra, at paragraph 34, the LAC held that:
     “Ordinarily this conclusion should mark the end of this judgment”.
284. It is submitted that, in the circumstances, the versions of the Employee should prevail over those of the Employer. The versions of the Employee were never challenged and therefore remain uncontroverted.
285. During the cross-examination of the Employee, the Employer representative mainly questioned her on the copy of her academic record (Bundle “H”), acknowledgment of debt document (Bundle “D”), as well as on the Outcome of the Disciplinary Hearing.
286. Bundle “H” constitutes hearsay evidence because there was no one from Lyceum College who testified on the document. The document was not original and was not confirmed by anyone from Lyceum College. The document was irrelevant as it does not relate to the charge of “forgery”.
287. The Outcome Report also constituted hearsay evidence in view of the fact that Zitha, the writer thereof did not testify. In fact, none of the Employer’s witnesses testified on the Report.
288. Bundle “D” is irrelevant to the charge against the Employee.
289. Ms Zwane’s testimony was riddled with inconsistences, evasiveness and hearsay
     evidence.
290. It is humbly submitted that the dismissal of the Employee by the Employer should be found to be both procedural and substantively unfair as the Employer failed to discharge the onus, on a balance of probabilities, to prove that the Employee committed the misconduct outlined in the charge.
291. The dismissal of the Employee, Ms Bonisiwe Maureen Zikhali, by the Employer, the Department of Education KwaZulu-Natal, is declared to be substantively and procedurally unfair.
292. The Employer should be ordered to reinstate the Employee, to a date no later than 1 February 2015 and to her R6 203 964.00, as back pay. The Employer should also be directed to pay back the Employee, an amount of R344 255.00 with 12% interest, being an amount that was deducted from her Pension Fund interest by the Employer.
293. The amount is made up Salary Range Notches for the period between 1 February 2014 and 1 April 2026. The calculations of the Salary Notches are attached hereto. The calculations include annual bonuses for the past 11 years. The Salary Range Notches were obtained from the Department of Education – KZN on 13 February 2026.

ANALYSIS OF EVIDENCE AND ARGUMENTS

294. It should be noted that much of the cross examination was initially premised on the fact that Zwane had made an error by stating that the Employee was based at Emaguqeni primary school, when the Employee’s position had been that she had never been placed at the said school.
295. However, after the discovery of the attendance registers for Emaguqeni school which showed that the Employee had indeed, been based at Emaguqeni school from 09 October 2013 to 22 August 2014, the narrative took a U-turn and Zwane changed her version to say, it was not an error to have written the name, Emaguqeni school in the records, because the Employee was indeed based at the school at some point during 2014. This about turn, culminated in the matter being common cause that the Employee was teaching at Emaguqeni during the period stated afore.
296. I am cognisant of the fact that the evidence went beyond the alleged fake certificate, into the SACE certificate which is not part of the charge nor the reason for her dismissal. As a result, I will not consider the SACE certificate in this determination.
297. The Employee’s submission in her closing arguments, such that Zwane’s evidence is hearsay and must be dismissed is misleading. Zwane was the investigator in this matter and the evidence she presented is based on her interaction with the subjects she interacted with, and in this case, when she interviewed the Employee, she already had the Employee’s employment details as well as the rejection of the Employee’s Diploma certificate.
298. Zwane testified that after she had the list of the suspected fraudulent or fake certificates, she through the circuit managers, invited the Employee, amongst others and held the interview with the Employee on 19 August 2014.
299. Zwane further testified that during her interview with the Employee, the Employee confirmed to her that the certificate was authentic, even though she (Zwane) questioned it as she already had confirmation from Lyceum College that the Employee did not complete her studies. The Employee told her that the certificate was authentic. When she asked the Employee for the academic record, the Employee said she did not have it as she did not receive it.
300. Zwane said she then asked the Employee to give her any document that to prove that the certificate was authentic and the Employee did not submit any document.
301. It is therefore clear that the Employer relied on the validation exercise carried out by Zwane regarding the authenticity of the Employee’s certificate, which was found to be unauthentic. The period in which the investigations took place is vital in this matter, which is 2014 – 2015.
302. Zwane conceded under cross examination that when she referred to the copy of the certificate as being forged, that was because she could not verify it based on the institution that the Employee attended, which is Lyceum college, because the same institution informed her that the certificate did not exist.
303. Although the Employee denied that she has ever been called to the offices on 19 August 2014 for the interview with Zwane, the evidence presented by the Employer is consistent with Zwane’s testimony, in that the report she wrote clearly identifies the Employee together with her persal number. A persal number is a unique number, which is not allocated to more than one person in the public service. Also, in the attendance register, bundle C, on 19 August 2014 is not signed by the Employee, instead, it is written “Circuit office”.
304. The evidence therefore supports Zwane’s testimony in this regard that on 19 August 2014, the Employee was not at the school. The logical probability in this case is that the Employee was at the circuit office to attend the interview with Zwane. The Employee’s denial of ever having met Zwane is inconsistent with the known facts and is therefore unacceptable.
305. The Employee denied that she had submitted a fake Diploma certificate and submitted that it was incorrect for Zwane to have sent the copy of the certificate to Lyceum for verification, instead of RAU which issued it.
306. The above point does not move the needle at all, because it is common cause that Lyceum and RAU had merged and that same goes to the documents forming part of the two institutions. It would therefore make no difference whether the Employer sent the copy of the certificate to RAU or Lyceum. The Employee herself has failed to send the same certification for verification in any of the two institutions.
307. The Employee further stated that Zwane never asked her for the original certificate and the Employer has never asked her for the same, and yet, went on to dismiss her. I need to mention that the aforementioned has become mute, given the fact that the copy of the Diploma certificate that Zwane had at the time of the investigation, is the same copy that is contained in the documents submitted in the bundles which served in the disciplinary hearing in November 2014, as well as in the subsequent proceedings until the conclusion of the arbitration in February 2026. The Employee has conceded that the copy is the same as the original certificate she has.
308. The time lapsed since August 2014 to February 2026 is a very lengthy period, as it covers more than 11 years, yet, the Employee has still not furnished the Employer with any other document to substantiate her claim that the certificate is authentic. This is one very big mystery.
309. All that the Employee relies on, is the fact that she has the original certificate, something which is not in dispute. The Employer has received her certificate, and upon receipt of the anonymous tip-off, undertook an investigation and upon Lyceum’s response, stating that the Employee did not complete her studies and therefore the diploma certificate could not be verified by the institution, the Employer concluded that the certificate was fake.
310. Ordinarily, the Employee, being the one who stood to lose when the allegation was made by the Employer in August 2014 already, she would have been expected to contact RAU or Lyceum for verification of the same diploma certificate. There is no evidence at all to suggest that the Employee even attempted to do the aforementioned.
311. The certificate’s authenticity could not and cannot rely on whether she has the original certificate or not. Its authenticity lies on whether it was issued authentically by the institution that allegedly issued it. The institution that would have issued the certificate would ordinarily have records and be able to furnish the Employee with same.
312. The Employee had been aware that the Diploma certificate’s authenticity was disputed and that Lyceum, as indicated on page 7 of bundle B, in which Mrs Eunice Sebabo states –

312.1 As the Student Support Manager at Lyceum The College for Higher Education, Private Bag x32074 Braamfontein, Johannesburg, 2017.

312.2 Have been mandated to deal with the request from the Department of Education, Kwazulu Natal in respect of the authenticity of the Diploma in the name of BM Zikhali.

312.3 I have full access to the records of the College, and still acts relating to student administration would in cases come to my attention, and all records which are kept are available to me.

312.4 My mandate is to comment on both the authenticity of the Diploma as well as the result of the record search.

312.5 I cannot find any evidence on the Lyceum College system to verify that the above mentioned student had completed the course at the former RAU and therefore cannot verify the authenticity of the Diploma in question.

313. The email referred to above contained the Employee’s initials and surname, and the student number: 14148838, which the Employee confirmed to be correct. It was signed by Sebabo on 21 July 2014.
314. It has to be borne in mind that the Employee was charged for submitting a fake Diploma certificate, and this is what she was found guilty of and ultimately dismissed for.
315. The Employee stated that Zitha asked her where did she study for the Diploma and she told him that it was with Lyceum but the certificate was issued by RAU, and he told her that the certificate was fake, to which she said she had no knowledge of such, and that she accepted the certificate as it was issued by RAU.
316. The Employee, under cross examination mentioned that sometimes she would call the institution regarding her examination marks or queries. The Employee was therefore fully aware of the institution that she would call, and the fact that after being informed that her certificate was found to be fake, she suddenly chose not to call the institution that issued it, is highly curious.
317. Furthermore, the Employee’s evidence under cross examination, when she said that her diploma certificate was confirmed by SACE that it was original and that there was no other place other than SACE, to which she would have submitted the certificate for authorisation is strikingly bizarre, given the fact that in her own evidence, the certificate was issued by RAU, not SACE, and it stands to reason that RAU must have authenticated the certificate, not SACE.
318. The Employee’s failure to submit any evidence that she has liaised with RAU regarding the authenticity of the certificate is telling, as that would have been the most logical thing to do.
319. Even after being aware of the response from Sebabo, the Employee still opted to not take any action regarding her diploma certificate’s authenticity, which in and of itself is very odd. The Employee’s reliance solely on the changes that took place which led to the merger of the two institutions does not make the diploma certificate to be authentic.
320. Further, the Employee testified that her name could have been brought into this whole issue by mistake, and that the investigation should have been against Mthembu, whose maiden surname is similar to her’s. She based this submission on the fact that Mthembu had resigned from the school around the same period and also, on the fact that in bundle G1-G2, next to Mthembu’s row there is no signature and that it is written “other school” which is not mentioned.
321. The foregoing lacks plausibility and I cannot see how does it advance her own case. Anything could have happened that led to Mthembu’s resignation but in the absence of evidence, that remains in the realm of speculation. When Zwane came to the district to interview the Employee, she had the Employee’s details, not those of Mthembu. The Employee’s reference to Mthembu is therefore nothing but an attempt at diverting the focus and scrutiny from the disputed authenticity of her diploma certificate, which was submitted by herself.
322. The Employee has been persistent in her denials and appeared to have pinned her hope in that by simply denying everything, then the charge would fail to stick.
323. In Compass Group Southern Africa (Pty) Ltd v CCMA and others (JR 633/16) [2018] ZALCJHB 49 (handed down on 9 February 2018) the Court pointed out that “once the Employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the Employee to prove his own defense. If the Employee then fails to put up a defense or fails to prove his defense, the Employer’s prima facie proof of misconduct becomes conclusive proof and the Employer has then discharged the overall onus that always rested with it.”
324. As I have already indicated elsewhere above, the details that Zwane had when investigating the matter are those of the Employee. I have noted numerous denials made by the Employee and they include the below:

324.1 She denied that she was investigated by Zwane. Yet, she stated that Zwane did not even take her original certificate during the meeting held at the district offices, the same meeting which she denies ever partaking in.

324.2 She denied that she has ever been placed at Emaguqeni school, and this denial was persistent throughout the proceedings, only to recant after seeing her name and signatures on bundle C. Under cross examination, the Employee conceded that she had at some points met Tembe in their local town of Jozini and that when they met, they would greet each other chat, and that during such unplanned meetings, she would know that she knew Tembe from Emaguqeni school.

324.3 For her then to persistently deny ever being at the school, and then raise the fact that she had not been well during the year 2011-2012, which led to her memory lapse is untenable and contrary to her admission that she had met Tembe in town a few times and that she would recall that she was once at the school.

325. The numerous denials therefore by the Employee point to a well-orchestrated approach employed by the Employee throughout these proceedings, which was meant to obfuscate and deny anything in an attempt by her to escape culpability of the charge.
326. Whether the Employee was based at Emaguqeni or not, or whether she was actually based in an office is a very tiny element of the charge, as that does not invalidate the allegation that the diploma certificate submitted to the Employer by herself, was fake. She needed to respond to the alleged fake certificate and she failed to do that, notwithstanding the long number of years she had to do so.
327. I also had regard to the Employee’s own evidence when she testified that her illness lasted for two years and that in 2013, she became better. It must be noted that the Employee was at Emaguqeni school from October 2013 to August 2014, which on her own version, is a period which she was better. This further indicates that her denial of ever being placed at Emaguqeni was a lousy attempt to obfuscate and mislead the arbitration.
328. She has deliberately relied on bare denials, one after another, with the hope that the charge would fade into thin air. To this end, the Employee’s responses therefore failed to prove her defence.
329. Dlamini testified that during his meeting with the Employee, he informed her that he was assigned to collect money since she had been dismissed and that in order for the Employer to release the money, she needed to sign the acknowledgement of debt form, but she is not obliged to do so, which the Employee denied and said she did not sign voluntarily, but she was forced to sign because she needed the money and she did not know what to do.
330. The Employee’s submission above is plausible, given the financial condition she found herself in at the time, however, the above evidence is only relevant to the extent that the Employer mentioned that the Employee has, during her submission, admitted to having submitted the fake diploma certificate, which she denied. Nothing further turns on the aforementioned.
331. Regarding the procedural fairness, the Employee’s evidence that in the disciplinary hearing, Zitha was the only one speaking and asking questions, and that he asked if she was represented and she told him that since there was a short notice, she could not get someone to represent her and he refused and the disciplinary hearing continued even though she was unrepresented, was not disputed.
332. In addition, the Employee’s testimony that Zitha did not give her the opportunity to ask questions and also, that no witness testified on behalf of the Employer as Zwane and Zulu were quiet is consistent with Zwane’s response under cross examination, when she conceded that she did not say anything during the disciplinary hearing. This supports the Employee’s evidence, which is that Zitha did the talking and told her what happened and then found her guilty.
333. In spite of the painstakingly long and robust cross examination, the Employee maintained on several responses that she was not given the opportunity to state her case in the disciplinary hearing. I am aware that she, once admitted to having been provided such opportunity but she immediately reverted back to her evidence that she was not.
334. The Employee’s evidence that she was supposed to be given five days at least, yet, she was only given three days, and also, that the presiding officer denied her the opportunity to be represented is uncontradicted.
335. It would appear that the presiding officer was hasty, as she submitted that he denied her postponement application and told her that the matter was to be finalised on the same day.
336. Considering the seriousness of the allegations, it is not clear what the rush was for the presiding officer to only be interested in finalising the matter on its first day, even if that meant foregoing the two aforementioned fundamental tenets of justice.
337. The Employer has therefore failed to follow the fair procedure and the disciplinary hearing was a sham.
338. Having considered all the evidence, I am satisfied that the Employer has on balance of probabilities, substantiated the allegation that the Employee’s Diploma certificate is fake.
339. The dismissal in this regard is an appropriate sanction, as the submission of the fake certificate by the Employee is a form of dishonesty and misrepresentation by herself. She did so in order to falsely present herself as a qualified educator and also to benefit from the financial increment that accompanied submission of the fake diploma. This goes to the heart of the employment relationship.
340. That said, it is my view that the dismissal of the Employee was procedurally unfair and substantively fair.
341. In the analysis, the fact that the Employee was denied an opportunity to have a representative in the disciplinary hearing, that she was denied to have the applicable five days, before the disciplinary hearing was held as well as her right to state her own case justify compensation for the unprocedural fairness.
342. That said, I believe that one months’ worth of the Employee’s monthly salary is just and equitable in this regard and that is R 19 051.25.

AWARD

343. The dismissal of the Employee, Ms Bonisiwe Muareen Zikhali by the Employer, the Department of Education was procedurally unfair and substantively fair.
344. The Employer is ordered to compensate the Employee with an amount of R 19 051.25 (Nineteen Thousand and Fifty One Rands, Twenty Five Cents) and to do so by no later than 06 April 2026.

Vuyiso Ngcengeni
Panelist / Commissioner