IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION
HELD IN POLOKWANE

CASE REF NO: ELRC391-25/26LP
Commissioner: Moraka Abel Makgaa
Date: 13 October 2025

In the matter between:

SEKWADI CHOENE HAWARD APPLICANT

And

EDUCATION DEPARTMENT OF LIMPOPO RESPONDENT

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was set down for arbitration on 02 September 2025, and concluded on 15 September 2025. It was heard at the Provincial Offices of the Respondent, at Cnr Hospital & Biccard Streets, Voorwaartz Building, Polokwane in Limpopo Province.
2 The Applicant was present on both days. He was represented by Mr Wittes Zwelibalele Martin, a Full-Time Shop steward of the South African Democratic Teachers Union (“SADTU”) whereas the Respondent was represented by Ms Nthabisheng Rasebotsa, who is employed by the Respondent as its Assistant Director: Grievances & Disputes Resolution. Ms Rasebotsa was accompanied by Mr Ramuhala TS, an Intern attached to the Respondent’s Grievances & Disputes Resolution.
3 The proceedings were conducted in English, and were digitally recorded.
ISSUE TO BE DECIDED
4 I am required to determine whether or not the Applicant qualified to be appointed as a Marker for the May/June 2025/06 NSC and SC Examinations. If yes, I am required to determine the appropriate remedy.
BACKGROUND TO THE DISPUTE
5 The factual background as well as the material facts in this matter are entirely common cause, and have been summarised from both the parties’ signed pre-arbitration minute and evidence presented during the arbitration hearing.
6 The Applicant is a permanently appointed educator of the Respondent. He was originally attached to Matshware Secondary School until the end of December 2024. For the purposes of the present dispute, the Applicant was teaching Physical Sciences in Grade 12. He was appointed as the Senior Marker for marking of the 2024 end of the year Grade 12 final examinations.
7 From 01 January 2025 the Applicant was appointed as the deputy principal of Ginnah Park Primary School, which, just like Matshware Secondary School, falls under the Waterberg District of the Respondent.
8 The Applicant was appointed as a Marker for May/June 2025 Grade 12 National Senior Certificates (“NSC”) examination, but the appointment letter was withheld after it was realized that he had been appointed as the deputy principal of a Primary School.
9 The Applicant referred a dispute of interpretation and/or application of a Collective Agreement to the ELRC for conciliation. The dispute was conciliated by my colleague, Commissioner Retief Olivier. The matter could not be resolved at the conciliation stage. It was referred for arbitration, and served before me on 02 September 2025.
POSTPONEMENT OF THE PROCEEDINGS, 02 SEPTEMBER 2025
10 At the commencement of the proceedings Ms Rasebotsa indicated that the Applicant was intending to bring a postponement application based on the fact that his union representative, Mr ZM Wittes, was absent on account of ill-health. This was confirmed by the Applicant.
11 The Applicant indicated that he only became aware of his Representative’s non-availability in the morning of the day of arbitration. Ms Rasebotsa confirmed that she had been timeously made aware of the Applicant’s Representative’s whereabouts and reasons thereof. She further submitted that the Respondent was not opposing the postponement application.
12 I granted the postponement because I was satisfied that the Applicant managed to furnish an adequate explanation of the facts and circumstances justifying a postponement application from the bar. I also took into account the fact that the Applicant’s Representative had the courtesy of engaging the Respondent’s Representative about reasons why he would not be able to attend the arbitration meeting.
13 The matter was postponed to 15 September 2025 per agreement of the parties. I also gave a directive that the Applicant’s Representative must serve and file the sicknote before close of business on 02 September 2025. At the commencement of the proceedings on 15 September 2025 both Mr Wittes and Ms Rasebotsa confirmed that my directive was complied with.
14 Ms Rasebotsa submitted two separate bundles of documents which are marked as bundle “R1”, made up of 31 pages, and bundle “R2”, made up of 23 pages. The Applicant party did not submit a bundle of documents.
RECUSAL APPLICATION
15 At the commencement of the proceedings Ms Rasebotsa indicated that she had prepared a bundle of documents which would be submitted regarding an application for my recusal which the Respondent had filed with the General Secretary of the ELRC. I have issued a ruling setting out my reasons for not recusing myself. See my ruling dated 05 October 2025 in this regard.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
16 Sekwadi Choene Haward, who is the Applicant in this matter, testified under oath. His evidence can be summarised as follows. He testified that he should have been allowed to go for marking because he met all the criteria listed in paragraph 5.5 of Circular 15 of 2024 and in clause 6.2.6 of Collective Agreement Number 1 of 2009 of the ELRC Limpopo Provincial Chamber (“Collective Agreement 1 of 2009”). During 2024 he was teaching Physical Science, paper 1 in Grade 12.
17 Under cross examination, he testified that during November/December 2024 he was appointed as a Senior Marker. He further testified that he was informed that the reason he could not be issued with the letter of appointment for marking of the May/June 2025 Grade 12 examination was because he was no longer working at a Secondary School, but was working at a primary school. He conceded that he is currently not teaching Physical Science within the FET Band.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
18 Mongwe Dingane William’s testimony, which was given under oath, can be summarised as follows. He is employed by the Respondent as the Circuit Manager of Palala Circuit. He identified the document at page 19 of bundle “R1” as the appointment letter for the Applicant to serve as a Marker for the 2025/06 for the 2025/06 NSC and SC Examinations.
19 He further testified that he withheld the appointment letter and ultimately returned it to the Provincial Department of the Respondent because of the fact that the Applicant had been appointed as the deputy principal of a primary school, and was no longer teaching Grades 10 to 12. He further testified that if the Applicant was appointed at another High School he would have been eligible for appointment as a Marker.
20 Under cross examination, he disagreed with the proposition that clause 6.5.1 must be interpreted to mean that a prospective Marker must either meet both requirements or any of the two requirements in clause 6.5.1. He insisted that the prospective Marker must meet both two requirements in clause 6.5.1.
21 He further testified that the document on page 22 of bundle “R1” was the letter which he wrote to inform the District Director that the Applicant no longer qualified to teach as a Marker because of the fact that he had been appointed as the deputy principal of Gina Park Primary School in Warmbaths Circuit.
22 He further testified that the issue of withholding an appointment letter for an educator who moved from a secondary school to a primary school did not start with the Applicant. He further testified that there were instances where educators who moved from a secondary school to another secondary school were allowed to go for marking.
SUMMARY OF THE PARTIES’ WRITTEN SUBMISSIONS
23 The nub of the submissions made on behalf of the Applicant is to the effect that the Applicant qualified to be appointed as a Marker for the May/June 2025 Grade 12 Examinations, Physical Sciences Paper 1, because of the fact that the Applicant taught the same subject in Grade 12 in the previous year, which is 2024. The second reason was based on the fact that the Applicant was appointed as a Senior Marker during the Grade 12 October/November 2025 Grade 12 Examinations for the same subject.
24 Ms Rasebotsa for the Respondent submitted that the Applicant was disqualified solely because of the fact that he was, at the point of the issuing of the appointment letter, promoted to the position of deputy principal at a Primary School. Simply put, it was contended that the Applicant was disqualified because of the fact that he was no longer working at a Secondary or High School. It was also contended that the Applicant was disqualified because of the fact that he was no longer teaching the subject for which the withheld appointment letter was issued.
ANALYSIS OF EVIDENCE AND ARGUMENT
25 Section 24(1) of the Labour Relations Act 66 of 1995 (“LRA”) provides as follows:
“Every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either section 142A or 158 (1) (c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration”.
26 Clause 12 of Collective Agreement Number 1 of 2009 provides as follows:
“DISPUTE RESOLUTION
Any dispute about the interpretation or application of this agreement shall be resolved in terms of the dispute resolution procedures of the Council”.
27 Clause 68 of the ELRC Constitution: Part C, Dispute Resolution Procedures (Basic Education and TVET), 25 July 2023 deals with interpretation and application of Collective Agreements, and it provides as follows:
“A party to a dispute about interpretation or application, or non-compliance with any Collective Agreement including the provisions of the BCEA may refer such dispute to conciliation and arbitration in terms of these procedures”.
28 As stated at paragraph 4.2 of the parties’ signed pre-arbitration minute, the parties’ dispute revolves around the interpretation of the provisions of clause 6 of the Collective Agreement, particularly clause 6.1.5, which provides as follows:
“6. SELECTION CRITERIA
6.1 MARKERS
A prospective marker should satisfy the following requirements:
6.1.5 must have taught the subject and paper the previous year in Grade 12 and/or currently be teaching the same subject within the FET band”.
29 I have for purposes of convenience decided to refer to the first part of clause 6.1.5 as the first selection requirement and to refer to the second part of clause 6.1.5 as the second selection requirement. In other words, the condition that a prospective marker “must have taught the subject and paper the previous year in Grade 12” would be referred to as the first selection requirement whereas the condition that a prospective marker “must be currently teaching the same subject within the FET band” would be referred to as the second selection requirement.
30 When properly construed, the parties’ dispute is about the meaning which should be attributed to the conjunction “and/or”. Ms Rasebotsa, in her written closing arguments, has correctly made reference to the case of Brink v Premier of the Free State Province and Another .
31 I am persuaded that the case of Brink v Premier of the Free State Province and Another is the relevant authority which can be relied on for purposes of interpreting clause 6.1.5. My respectful opinion is that Ms Rasebotsa has fallen short of applying the legal principles in the Brink case to the facts of this matter.
32 In Brink v Premier of the Free State Province and Another, the Supreme Court of Appeal dealt with a dispute involving the interpretation of clause 2 of the lease agreement between Loïs Brink and the Free State Provincial Government. Clause 2 of the lease agreement, in the relevant part, reads as follows:
“The LEASE is for a period of five (5) years from 1 October 1997 to 30 September 2002, with the proviso that the LESSEE shall have an option to extend the lease period for a period of five (5) years with a second option of 5 years on the same and/or new conditions as will be mutually agreed, excluding a further right to renewal…”.
33 The Supreme Court of Appeal, in a unanimous judgement written by Ponnan JA, said the following:
“[12] The first difficulty in the interpretation of the relevant words in clause 2 is created by the use of the expression ‘and/or’. Those words must in the context of the clause be read disjunctively as well as conjunctively. If that is done, then it is clear that what the clause envisages is a second option to renew on either:
(a) the same conditions; or
(b) new conditions; or
(c) a combination of (a) and (b).
[13] The qualifier ‘as will be mutually agreed’ follows syntactically on the reference to the conditions upon which the lease agreement may be extended for the second time, which may be the same or new, or a combination of both the same and new conditions. In other words, the phrase plainly qualifies both ‘the same and/or new conditions…”
34 My understanding is that conjunctive interpretation refers to a situation where the clauses, conditions or requirements in a particular provision should be read as being linked and simultaneously necessary. In other words, a conjunctive interpretation is adopted in a situation where all the listed conditions or requirements must be met simultaneously.
35 The Respondent’s defence appears to be, primarily, based on the conjunctive interpretation. It is, for instance, contended that the requirements in clause 6.1.5 must be fully met by the prospective Marker.
36 It is specifically contended that the prospective Marker must have both taught the subject and paper the previous year in Grade 12 and currently teaching the same subject within the FET band (See page 2, bullet points 3 and 5 of the Respondent’s written submissions).
37 The Applicant is also criticized for interpreting clause 6.1.5 by dividing it and selecting part of clause 6.1.5 which refers to the relevant teaching experience acquired by the prospective Marker during the previous academic year (See page 2, bullet point 4 of the Respondent’s written submissions).
38 It is also contended that the Applicant was disqualified from being appointed as a Marker because of the fact that the school at which he is currently teaching does not have Grades 10, 11 and 12 (i.e. the FET band), and the fact that Physical Science is not being offered (See page 3, bullet point 1 of the Respondent’s written submissions).
39 The high-water mark of the Respondent’s argument is simply to the effect that both the first and second selection requirements in clause 6.1.5 must be met. It is specifically contended that the Applicant’s disqualification was based on the fact that he did not satisfy the second selection requirement. It is clearly admitted that the Applicant satisfied the first selection requirement.
40 I am of the view that in order for the Respondent’s construction to be correct, clause 6.1.5 should read as follows:
“A prospective marker should satisfy the following requirements:
6.1.5 must have taught the subject and paper the previous year in Grade 12 and currently be teaching the same subject within the FET band.
41 When properly construed, the crux of the Respondent’s defence is simply to the effect that educators employed in primary schools are under all circumstances excluded from being considered for appointment or for being appointed as Markers for Grade 12 National Senior Certificate Examinations.
42 The Respondent’s preference of the approach in terms of which there is an absolute bar on the appointment of teachers working in primary schools seeks to suggest that clause 6.1.5 should be couched as follows:
“A prospective marker should satisfy the following requirements:
6.1.5 must have taught the subject and paper the previous year in Grade 12 and must still be teaching at a Secondary or High School and/or currently be teaching the same subject within the FET band”.
43 The Applicant, on the other hand has clearly preferred the disjunctive interpretation which advocates for a situation where one or more of the conditions or requirements listed in clause 6.1.5 would suffice.
44 I am also of the view that there is merit in the approach preferred by Mr Wittes for the Applicant in terms of which the following two options are proposed. In as far as the first option is concerned, it was suggested that clause 6.1.5 should be interpreted by including the word “and” and by excluding the word “or”. The second option should include the word “or” and exclude the word “and”.
45 It is my considered view that the first and second requirements envisaged by clause 6.1.5 must be read conjunctively and disjunctively. In other words, the first requirement must either be read on its own or conjunctively with the second requirement. Simply put, the conjunction “and/or” in clause 6.1.5 should be construed to mean that the prospective marker should satisfy the first requirement or the second requirement or both the first and second requirements.
46 In the premises, it is my conclusion that the Applicant qualified to be appointed as a Marker for the 2025/06 NSC and SC Examinations because he satisfied the first requirement envisaged by clause 6.1.5 of Collective Agreement Number 1 of 2009.
47 In the circumstances, by withholding the appointment letter on page 19 of the Respondent’s evidence bundle, the Respondent had acted in contravention of clause 6.1.5 of Collective Agreement Number 1 of 2009. The Applicant is therefore entitled to the relief he is seeking.
48 According to paragraph 5.2 of the signed pre-arbitration minute, the Respondent’s representative was required to deal with the calculation of quantification in the event of the matter being decided in favour of the Applicant.
QUANTIFICATION
49 On 15 September 2025 the Respondent’s representative submitted that the information obtained from the relevant section of the Respondent is to the effect that had the Applicant been allowed to go for marking he would have been paid R13 644.89 (Thirteen Thousand Six Hundred and Forty-Four Rand and Eighty-Nine Cents Only).
50 The Applicant and his union representative have not challenged the correctness of this amount or submitted a contrary amount. There is therefore no reason why I should not accept the Respondent’s version as being correct.
AWARD
51 The Respondent, Limpopo Department of Education, is ordered to pay the Applicant, Sekwadi Choene Haward, R13 644.89 (Thirteen Thousand Six Hundred and Forty-Four Rand and Eighty-Nine Cents Only).
52 The above amount must be paid to the Applicant by no later than 31 October 2025, and shall earn interest as contemplated in section 143(2) of the LRA from the date of this arbitration award until the date of final payment.
DATED AND SIGNED AT POLOKWANE ON THIS 13TH DAY OF OCTOBER 2025

MORAKA ABEL MAKGAA
ELRC PANELIST