Case: ELRC 426 – 22/23KZN
Date of Award: 13 October 2025
Panelist: Vuyiso Ngcengeni

Province : KwaZulu Natal
Employee : PSA obo FN Mthembu
Employer : Department of Education – KwaZulu Natal
Issue : Section 191 – Alleged Unfair Dismissal
Venue : Pinetown

Employee representative : Ms Zinhle Manyoni
Email : zinhle.manyoni@psa.co.za

Employer Representative : Mr Itumeleng Makhooe
Email : Itumeleng.Makhooe@kzndoe.gov.za

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was scheduled before me on a number of days, the first being the 25th of January 2025 and the last day being the 22nd of August 2025. The arbitration was held at the Employer’s premises in Pinetown, 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).
2. The Employee was present at all times and she was represented by Ms Zinhle Manyoni from PSA, and the Employer was represented by Mr Itumeleng Makhooe.
3. The hearing was conducted in English as well as in isiZulu, with an interpretation being conducted accordingly.
4. The Employer submitted one bundle referred to as A which consists of the disciplinary hearing records as well as those of the investigation undertaken. These records include payment cheques made by the school to recipients including Mr NC Nzama (Security), Mr NR Shangase.
5. The Employee submitted bundles B and it consists of the appeal documents and her termination of employment indicated on a PERSAL printout.
6. I received all the closing arguments by the 10th of September 2025.

ISSUE TO BE DETERMINED

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

7.1 The Employee alleges that the Employer failed to respond to her appeal, before terminating her salary.

7.2 That the Employer failed to afford her sufficient opportunity to cross examine Employer’s witnesses,

7.3 That the Employer prevented her from consulting with her witnesses prior to the disciplinary hearing.

7.4 She denies being guilty of any of the charges.

8. The relief she seeks is that the Employer should be ordered to reinstate her with full back-pay and also, pay her for travelling to work from July to August 2022.

BACKGROUND TO THE DISPUTE

9. The Employee commenced employment with the Employer on the 12th of January 1981. In 2012, she assumed the position of being a Principal on post level 4, at Ukukhanyakokusa Primary School (the school).
10. She was dismissed on 23rd June 2022 and at the time, she earned R58 396.25 per month. In addition, she received a housing allowance of R1 500.77. She appealed on 27 June 2022 and received no outcome
11. She continued to work post her dismissal, until 15th August 2022 when she realised that her salary was stopped without having received the appeal response. She then referred the matter to the Council on 7th September 2022, alleging that her dismissal was procedurally and substantively unfair. A certificate of non-resolution was issued on 25th September 2025 and the matter was then set down for arbitration on multiple dates, with the last date being the 22nd of August 2025.
12. The Employee was charged and found guilty of the charges below –

12.1 That on or around October 2013 and at or near the School you misappropriated monies belonging to the School Fund Account amounting to R 70 096.14 and in so doing, you contravened Section 18(1)(b) of Employment of Educators Act, 1998 (the Act).

12.2 That on or around October 2013 and at or near the School you misappropriated monies belonging to the School Fund Account amounting to R 113 946.28 and in so doing, you contravened Section 18(1)(b) of the Act.

12.3 That on or around 31 May 2013 and at or near the School you misappropriated monies belonging to the School Fund Account amounting to R 1 000 and in so doing, you contravened Section 18(1)(b) of the Act.

12.4 That on or around 30 May 2013 and at or near the School you misappropriated monies belonging to the School Fund Account amounting to R 12 000 and in so doing, you contravened Section 18(1)(b) of the Act.

12.5 That on or around 18 December 2014 and at or near the School you misappropriated monies belonging to the School Fund Account amounting to R 2 000 and in so doing, you contravened Section 18(1)(b) of the Act.

12.6 That on or around 18 December 2014 and at or near the School you misappropriated monies belonging to the School Fund Account amounting to R 20 800 and in so doing, you contravened Section 18(1)(b) of the Act.

12.7 That on one or more occasions whilst you were Principal of the school you failed to adequately perform one or more aspects of your duties as stipulated in the South African Schools Act, 1996 (Act 84 of 1996) as amended (SASA) in particular Section 16A (2) which stipulates the principal must, inter alia:

(a) Assist the governing body with the management of the school’s funds, which assistance must include –
(i) The provision of information relating to any conditions imposed or directions issued by the Minister, the Member of Executive Council or the Head of Department in respect of all financial matters of the school, and

(ii) The giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school.

(b) Take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by governing body of the school, and/or

(c) Report any maladministration for mismanagement of financial matters to the governming body of the school and to the Head of Department
In so doing, you contravened Section 18(1)(a) of the Act.

13. As the investigation began regarding the allegations against the Employee, the Employee was no longer at the school, subsequent to her re-deployment on January 2019 to the Teacher Development Centre. Mr Msimanga was then appointed as the Acting Principal.
14. All witnesses led evidence under oath.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employer’s case
Mr Nhlanhla Silvester Mshibe (Mshibe) testified as follows: –

15. He is an educator and started at the school in 2002 and continues to be based at the very same school.
16. He was responsible for receiving and distributing stationery at the school. During 2014 and 2015, he did not receive the stationery, which he expected to receive. It was the Employee’s responsibility to procure the stationery as she was the Principal.
17. In 2015, he did not see the stationery at all. If the Employee says the stationery was stolen, then at least she would have seen it, because he did not. Usually, the Employee would sign for the stationery and then show it to him to distribute.
18. He is not sure whether there was any other person tasked with distributing the stationery, other than himself. It was his responsibility to do so and he was assisted by learners.
19. In 2015, they were lucky to have left overs of the stationery from 2014 and they utilised such and also requested parents to buy additional stationery, to top up.
20. It is not true that Khoza and Gumede were responsible to distribute the stationery. At some stage, the Employer accused him of stealing the stationery and keeping it at the house of one of his relatives.
21. Mshibe testified that he had never witnessed any sewerage spillage at the school, he only learned about monies having been used for the spillage during the investigations.
22. Also, he knows nothing about the geyser repairs costing R 28 000 and only discovered such during the investigations. When he and Mr Shangase (his colleague) checked and saw that the trap door leading to the geyser was so small such that it could not be removed with removing the ceiling. They determined that there was nothing done, and also, there was no invoice for the ceiling.
23. The security guard, Mr Nhlanhla Nzama (Nzama) earned R 1500, and in a particular month he was paid R 1000 more and he (Nzama) then paid that money to the Employee’s Standard Bank account. Nzama mentioned that he paid the money into the Employee’s said account.
24. Normally, the stationery was kept at the school in the computer room. He disputes that 2014 stationery was stolen because the Employee told them that it was at her office when it got stolen. When they asked her what was the stationery doing in her office, as well as when was it delivered, she told them that it was stolen the previous day. That was in January 2015.
25. Cross examination – Sadtu came twice to the school to investigate, and during the second visit, he was asked to attend the meeting because he already had issues with the Employee. He was not party to the meeting that led to the charges against the Employee being proffered.
26. The learners at the school did not receive stationery in 2015, but the money was paid to the service provider in 2014 for the 2015 stationery. Usually, the service provider would deliver stationery to the school in October of the previous year, in this case, 2014, but none was delivered.
27. He knows nothing about the SADTU letter (page 13). He was just a level 1 teacher, and he was not part of management. All he knows is that for 2015, there was no stationery.
28. The Employee addressed the staff at the school and told them that stationery was stolen. He thinks Nzama earned R 1 500 per month and in the specific month, he was paid R 2 500, and he said he paid R 1000 to the Employee.
29. It does not matter that Nzama said in his statement on page 25-A that he had earned R1 200 per month, in May 2013, he was paid R 1 000 more and he paid such to the Employee.
30. He does not know anything about the repairs allegedly done at the school as well as the alleged geyser leak.
31. There was no repair done to the ceiling and the geyser and Mr Dindi, the SGB treasurer denied that such happened in his statement. Also, everything happened in December when the school was in recess. It will not be possible to see the repairs in the ceiling board in 2018/2019, if such was done in 2014.
32. He denies that there was a sewer blockage at the school. The sewer pipe goes through the school grounds and no diggings were done on the grounds, had this happened, they would have known and witnessed the diggings and none of that was visible. No digging took place in December 2014, they would have noticed such in January 2015 when the schools resumed.
33. There is no way that there would have been a sewer blockage on 18 December 2014 when there were no learners at the school, that is impossible. Even if it happened before the school recess, they would have known, as the learners stopped attending school at about the 1st of December 2014. So the repairs would have been conducted before the recess. It is known that toilets are closed when there is a blockage and no toilets had been closed.
34. There has never been a break-in in the computer room, since the one of 2012, as the security to the room was since tightened.

Mr Richard Simphiwe Msimanga (Msimanga) testified as follows: –

35. He is the current principal at the school. He joined the school in 2000.
36. When the Employee became the principal at the school, he was a level one educator at the school. When she arrived in 2012, her relationship will all staff members was good, but when there was a post of the deputy principal advertised when she was the principal, he applied for the post and some educators did not like that. The educators then became divided into three groups.
37. He was promoted and became the deputy principal under her leadership and their relationship at the time was good.
38. The stationery is delivered every year to the school during October, and the service provider gets paid. In the following year in January when the schools open, the stationery is then handed to learners.
39. During 2014, there was no stationery delivered and when January 2015 came, they were supposed to hand it to learners and they were told that there was no stationery. Parents then had to buy the stationery.
40. Mshibe was responsible to distribute the stationery, even when the Employee arrived at the school in 2012, Mshibe was in charge of such and it was him who would decide on how he delegates such a duty.
41. He denies that Gumede and Khoza were responsible for distributing the stationery, Mshibe was responsible for that. Mshibe did not distribute the stationery in 2015 because there was no stationery, and that is when the Employee accused Mshibe of stealing the stationery.
42. The volunteer who handles the cooking at the school reported that the police visited her home, because the Employee said Mshibe stole the stationery and kept it in her house. The volunteer is the relative of Mshibe.
43. Msimanga has never witnesses sewerage at the school, he only saw that in the records when he took over after the suspension of the Employee. That was the first time that he saw that there was money paid for spillage. He saw it when Shangase asked him about it.
44. He also testified that he had seen for the first time when Shangase was perusing the documents that during December, there was money paid, around R 28 000 for the geyser. He knew nothing about the geyser repairs and the ceiling which was allegedly removed. Nothing had been done and the trap door was still intact. For one to go to the geyser, they need to go through the said ceiling and also, if there was spillage from the geyser, the ceiling would have been affected by the water. There was no evidence of that.
45. He did not see any invoice of the ceiling, as it would have been taken out after being destroyed by the geyser if it has burst.
46. Nzama was earning around R 1 500 and in one particular month, which is around May, he was paid R 1 000 more which he said in the meeting that he had to deposit the R 1 000 to the Employee’s account.
47. Normally, the stationery was kept at the computer room throughout the previous years. He does not agree that the stationery was stolen, because the Employee told that the stationery was delivered in January 2015 to her office and it was stolen.
48. The computer room has computers and lot of other things, he does not know why was the stationery delivered into her office.
49. Cross examination – SADTU came to the school and requested the Employee to attend the meeting and she did not, then the educators raised issues in the meeting, some were against the Employee and some were on her side. The site committee is responsible for calling the meeting. He was not art of the site committee.
50. SADTU came twice to the school, but it was not part of the other meeting where the charges are said to have emanated from.
51. The learners did not receive the stationery in 2015, but the money for such was paid into the school’s account around October 2014. The stationery was supposed to be at the school in 2014 for the stationery to be distributed in 2015 January, that never happened.
52. When the Employee was asked why was the stationery not delivered in 2014, she said she was scare that the stationery would be stolen.
53. Nzama earned around R 1500, but whatever he earned in May 2013, it had R 1 000 more which had to be deposited into the Employee’s bank account. Whether Nzama earned R 1 200 or not, there was a top up of R 1 000 to be deposited to the Employee.
54. If the ceiling board was replaced in 2014, it was not possible for him to recognise such 2019. However, he disputes that there was a geyser leakage because they would have known about that. Mr Dindi, who was the treasurer mentioned in his statement that he knew nothing about the geyser and ceiling repairs. Dindi would have reported back to the teachers’ component as he was representing them at the SGB.
55. The school’s sewerage pipes cross the play grounds and lead to the road, there was no blockage there. He disputes that there were excavations conducted, at not stage were the learners stopped from playing on the grounds because there were excavations or diggings.
56. There have never been any diggings as school, otherwise they would have witnessed the diggings, yet the grass was as intact as it was ever since the Employee arrived at the school. Around December, there are no learners at the school, there is no way that there would have been a blockage on 18 December 2014, when the schools were closed, but even that was the case, they would have noted such. Only the Employee knows about the diggings. There was no toilet blockage at the school.
57. At no stage were the learners’ toilets ever closed. They would have been told if such ever happened.
58. There has never been a break in, in the computer room at the school. There was once a break-in when Mhlongo was a principal and after that, they tightened security in the computer room in 2011. Ever since then, there has never been a break in.

Mr Phumelela Horatius Nkosi (Nkosi) testified as follows: –

59. He is employed as the Chief Education Specialist for the circuit management and he knows the Employee as a former principal at the school. He was involved in the issues regarding the Employee since the school falls under his management.
60. His office received complaints from the educators and the community regarding how the Employee managed school finances.
61. After the meetings with the school and the SGB, they recommended that a forensic investigation be conducted. As part of internal controls, they also conducted their own investigations. One of the issues was that the school had no stationery that was purchased for 2015 and there was no report for the stationery having been bought and stolen. No case was opened if it was stolen.
62. He is the one who conducted a handover process from the Employee when she was displaced from the school during the investigations and therefore, he is not aware of any documents that would have been left at the school. She handed the documents over to him. Any documents that would have been at the school would be the same that she handed over to him.
63. Cross examination – SADTU was one of the stakeholders which was not happy with the management of the school, and it concurred with what was raised by the SGB, parents and educators at the school. The letter came from the school.
64. There was a series of incidents of instability at the school and as a norm, he visited the school and met with the stakeholders.
65. An acting principal was appointed and the handover was done and as usual, he finalised the process and handed over the documents from the Employee to the acting principal.
66. Regarding the R 2 000 (page 32-A) that the investigations pointed out it was unaccounted for, that is part of the summary, and is not a finding. It came after the internal control investigations, no evidence was provided to negate that conclusion.

Mr Andreas Shangase (Shangase) testified as follows: –

67. He is employed as the Deputy Director – Forensic and he was mandated by the Employer to investigate the allegations at the school, levelled against the Employee. The Employee co-operated with the investigations, although on the arrival of the investigation team at the school, she was no longer at the school, after being deployed to the Teacher Development Centre.
68. The allegations were broad in nature and included that she had operated school funds without the SGB, signing alone, taking unilateral decisions without authorisation from SGB and making unauthorised payments. Also, there was an issue of the stationery not supplied to learners.
69. The School Management Team (SMT) disputed that there was a stationary procured for the school for 2014-2015 financial year. Since the Employee was no longer at the school, the investigating team was assisted by the acting principal, Msimanga who took them through the documents. They analysed the documents which contained invoices and delivery notes, amongst others.
70. As they analysed the documents, they were guided by bank statements, income received and expenditure, the people that were paid including the service providers and educators travelling claims for attending workshops.
71. Regarding the service providers for the stationery, they found out that it did not deal with stationery in 2014, there were no supporting documents for the purchase thereof. They engaged the Employee and she said after her being forcefully removed from the school, she left with nothing and therefore they sabotaged her as Msimanga did not want her. She gave them the name of the service provider.
72. As they were analysing the bank statement, they were tallying it with the payment vouchers and the only link they had was the counterfoils. There would be the name of the company and the amount paid which they would use to tally against the bank statements.
73. On the second bullet on page 3 para 3 of bundle B is Bashukuze Shuku Plumbers which was paid R 20 800 for allegedly replacing the geyser and repairing toilets. They made numerous calls to the company but could not find any evidence of the alleged service provided. They looked at where the geyser could have been replaced and could not find any evidence of repairs. They enquired on the educators and they said no ablution work was done at the school and also, Nzama said there was no work done at the school.
74. They conducted an inspection and found no sign of tampering with the geyser as well as on the ground.
75. The third bullet on the same paragraph on page 3-B states “Cheque no: 2889 on amount of R 75 403.00 made payable to Phothwe (Pty) Ltd, invoice does not have a VAT number, no description and the quantity of the teaching material supplied to school. There is no evidence to suggest that the teaching material was supplied to school”.
76. There was no teaching material purchased, the material available was the surplus from the previous year. If the Employee said there was material purchased and yet her colleagues said there was not, then it was up to her to provide evidence as to who was responsible for the material. There was no material delivered to the school.
77. The Employee advised them that there was stationery material that was stolen, yet there was no case opened, and in the normal situation, there would be a case opened. In his interviews, including with the Employee, she is the only one who said there was stationery received, the SMT, Nzama and other educators disputed that.
78. Regarding the train trip, the school had surplus of R 4 700 from a fundraising meant for a trip, yet there were no receipts or documents, so they could not establish any basis of who paid, etc. This money was not in the school account, no total number of learners who paid was provided to support the allegation. The money was not reflected in the account.
79. The Employee was making decisions by herself in respect to school funds as a principal, she was an ex-official in the SGB, members of the SGB had to authorise payments and she had to approve, and that did not happen. Even budget was not in place. She was making unilateral decisions without ensuring that funds are paid to the intended recipients.
80. There is an amount that she claimed for travelling and she paid herself without the approval of the SGB. Also, she paid a salary to Nzama and in return, she demanded that he pay back R 1000 to her, which he did. Nzama earned R 1 200 per month and in May 2013, he was paid R 2 200 and he had to pay R 1 000 to the Employee, after she gave him a Standard Bank account belonging to her.
81. Cross examination – The letter from SADTU letter contains of known names of its members, so there was no reason for him to doubt its authenticity, as SADTU is a stakeholder at the school.
82. They relied on the South African Schools Act to look at compliance, so they did not need an accounting officer or principal to be present, however, when they needed explanation, the entire analysis and issues where they need clarity on were provided to the Employee to respond.
83. He did not receive or use any documents other the SADTU letter attached.
84. On page 4 of bundle B, it is clear that there were two payments made in respect of the stationery.
85. Renovations at the school are alleged to have been done during the recess, also there are other purchases made at Makro, outside of the school days, also where the Employee used the school money to fill up her petrol, etc. So the transgressions cannot be tied only to the school days.
86. They conducted investigations fairly, interviewed people, received statements and heard all the versions and then established facts which are that: the Employee operated alone, she spent money inappropriately as supported by the bank statements, no service was provided, yet money was spent.
87. As reflected in the investigation report on page 7 of bundle A (investigation report) on the top three bullets, Nzama in addition to the R 1000 he said he paid to the Employee, also denied being aware of the sewer blockage or the Service Provider repairing the sewer. Nzama also stated that he was not aware of geyser leaking or the installation of the geyser at the school.
88. They afforded the Employee the opportunity to respond and she could not provide substantive evidence, then they recommended disciplinary action to taken against her.
89. The Employee had an opportunity to provide evidence that that there were plumbing and geyser repairs that took place at the school, even though they waited for a long time for her to do so, she failed to provide any evidence and therefore they concluded that these alleged services were not done.
90. They did not make a finding regarding the allegations of the unavailability of the list of the learners who paid for the train trip, because this allegation was not supported by those who raised it. The complainants could not submit any list from the learners indicating how much they paid.
91. Regarding Nzama’s salary, he found that there was no contract of employment, but checking through his bank account, he found out that indeed, Nzama earned R 1 200 per month and that on May 2014 he earned R 2 200 which he said he paid R 1 000 to the Employee. They did not demand proof regarding Nzama’s payment of the R 1000 to the Employee, but having put this to her, they expected her to come clean.
92. Regarding the delays in investigating the issues amount to about six months, there were a number of schools to investigate within Mafukuzela circuit, so understanding the massive work they had, they have capacity challenges at his level, however, there were a number of visits they made to the school as well as to the educational centre in kwa Mashu and they did not find her. At some point, she was ill and did not answer any telephone calls.

THE EMPLOYER ARGUEMENTS

93. There are improbabilities of the Employee’s testimony, ie how come all educators missed uncompromising stench. On return in January 2015 there was no evidence of excavations. Also Shangase the investigator who conducted an inspection in loco. The probabilities were in the Employer’s favour.
94. She could not answer questions relating to work during December 2014 excavations. When asked about this, she was dumfounded for a while until she eventually said she was volunteering. Nor could she elaborate on possible accidents and injury on duty.
95. She did not put to Mshibe and Msimanga that they used the stationery left over, which is a lie. Only during her case did she allege that Mshibe and Msimanga stole the stationery.
96. The Employee said stationery was delivered to school to Nzama in 2015 and that she called Nzama because he was on-site and she was no longer in school. There was no way under the sun she would still preside over the daily operational matters of the school when she was removed from school. The Acting Principal invariably takes over the school. This is a poorly crafted fabrication.
97. She received a tip off from Mrs Hlombe that Mshibe and Msimanga were taking stationery to Mshibe’s sister’s home days after it was brought to school. A search warrant was issued. But SAPS could not search a locked room. This is improbable. She did not insist on breakage because she knew no such material would be found. It did not exist.
98. As critical and damning as the above seemed, and showing defence, the above was not put to the witnesses, who were no longer available to speak for themselves to the conduct that implicate them. This would be a daring dismissible misconduct.
99. The LTSM was distributed by senior HOD, the late Mr TP Gumede assisted by Master Teacher and Senior Teacher. Under cross examination she said it was distributed by Gumede, assisted by Mr RTT Mzila, Mrs Zwane and Mr Hlangu. Lies have short legs. When she put the version to Msimanga she quoted Ms Khoza, the administration clerk as having assisted Gumede. When this contradiction was chsllenged, she replied that she could not remember having said that. When she was told in no uncertain terms she did, there was no further comment.
100. In her appeal she stated that the sanction was too harsh. See page 43 paragraph 1. On page 44 bold type written paragraph 7 she prayed for 1(one) month suspension without pay or any action short of dismissal. But she did not conceed that she acknowledged that she was guilty. She denied the undeniable, this dented her credibility. She was hopeless as a witness and her evidence was not convincing.
101. She identified Messrs Msimanga and Nkosi as persons who connived against her because of hatred. When they were testifying, she withheld putting this point to them. She knows that she is fabricating to hide from accountability.
102. Nzama would not have seen the repairs as his shift was from 18h00 to 06h00. Neither would he have smelled the stench of the sewerage spillage. When showed how improbable it was for a security guard to miss the stench, the excavation, the sewerage spillage, she fabricated and said she used to drive to school at night and not find Mr Nzama. This was clearly an afterthought. If Mr Nzama would not be at work at night she would have applied consequence management on him.
103. The blockage took place during July/August 2014. The spillage was alongside the fence. Water collected at the playground. Alongside the fence was an afterthought alignment. Water collection at the playground was not threshed out with Msimanga who testified that learners were not disturbed with their play.
104. Xulu could not remember the year of the stench. During cross examination, after he was guided, he remembered that it was in summer months because of the strong smell. He stated from September, October and November.
105. When confronted with the contradictory version of the Employee when she alleged that the spillage started in July. He visibly showed anxiety for having to contradict her.
106. When the improbability of the fact that none of the educators and learners at Ukukhanyakokusa School smelled the stench, neither was the stench smelled by the security guard of the school was put to him, he hid by saying he could not speak for them.
107. Cele testified that the toilets were pit latrines when the Employee joined the school and that she changed them to a flush system. Shortly thereafter there was a blockage and she had to replace the pipes. This was a pure fabrication, it is unlikely that pipes have to be removed shortly after they are installed. The fact that the Employee changed the pit latrines to flushing was only his.
108. He corroborated the evidence of the Employee. But that was manufactured evidence. He did not remember the year nor the period it took. This was not surprising.
109. Cross examination solicited that the Employee did all that project after 3 months of joining the school. It also did not take long for the pipes to block. The sewerage overflow went to the neighbouring school. The replacement of the pipes happened in the neighbouring school. This was a contradiction with both the Employee and Mr Xulu testimony. The name of the school was Phembeleni School. At this stage he was corrected by the Employee to say it was Muzomusha School.
110. During cross examination, Chili revealed more than what was said under examination in chief. The boys were asked to off load. He took a second trip. He did not mention the second trip during cross examination and not in examination in chief. When contradictions between his evidence and that of the Employee, which is that the Employee said she was no longer in school and she made a call to Nzama to receive the stationery. He said he was the one telling the truth therefore the Employee was fabricating.
111. The case of the Employee was literally baseless. She was clutching at straws. Termination and dismissal can happen at different times. Termination is the administrative process of effecting dismissal. The objectivity of Preethpaul was not a requirement. The matter started de novo.
112. The Employee’s case was characterised by contradictions even of her own testimony. The witnesses she brought were extremely poor. On the contrary those of the Employer were credible and reliable.
113. The Employee’s case was also characterised illogic. Nzama would not accept stationery as he was not the accounting officer. The Employee would not preside over the daily operational matters of the school as she was no longer in school. Telephoning Nzama to receive stationery was a big fat lie.
114. Mr Xulu’s evidence was contradictory with that of the Employee. Xulu came to save her.
115. Messrs Mshibe, Msimanga, Nkosi as well as Ntshangase were unassailable as witnesses. Several of critical aspects of the Employee’s case were not put to them for contestation. In contrast, the Employee dented her credibility, she could not bring herself to identify family or friend.
116. The Employee discovered page 27 to 36 to show the suffering she endured. This was irrelevant and only sought to solicit your sympathy Mr Arbitrator.
117. It is in the light of the afore-going, the Employer prays that the application be dismissed.

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

118. She had been employed by the Employer for 41 years. The charges against her are far from being true, because she managed the school funds with the SGB finance committee and she did so for the school needs. It is not true that she mismanaged the school finances.
119. When the charges were handed to her in August 2019, she went through them and got confused and shocked at the wording on each one of them, even the dates as some related to a Sunday, which is not a school day. She waited for the disciplinary hearing for clarity.
120. A number of mistakes were done in the disciplinary hearing, charge number 7 was withdrawn and at a later stage, an addendum was given to her, being charge number 9. She then understood that she was left with 8 charges, but when the outcome was delivered, it contained 9 charges which again, made her confused and concluded that the Employer was just fighting her with the charges.
121. During the disciplinary hearing, she pleaded not guilty to all of them, presented evidence and called witnesses to prove that all the issues mentioned did occur. The Employer called 9 witnesses, but in the arbitration, it called 4 and she does not know why the other 5 were not called, especially Mr Prisproul who was the Employer representative in the disciplinary hearing.
122. The complaints emanated from the SADTU members. Nkosi said it emanated from educators at the school, yet he did not say who those are. There are other educators who belong to NATU, not all educators belong to SADTU.
123. The SADTU letter said it is the treasurer who alleges that she flouted Public Finance Management Act rules (PFMA), yet on the other hand, they said it emanated from SADTU members, which is confusing and shows that this is just about fighting her. She could not find any tangible evidence supporting all the allegations levelled against her.
124. Shangase said it was a SADTU member, Nkosi said it was the educators from the school, SADTU said it is its members, and this was confusing. On the summary, it said it was the treasurer of the SGB (page 11). There is no mention of the stakeholders who had complained about her, except the SGB and SADTU.
125. The train trip was organised for 07 November 2014 (Friday). Before it took place, the school collected R 100 from each learner in October 2014. Before the trip took place, the school held a meeting to plan the budget and when some staff members said they needed liquor to be bought, she refused. On the 11th hour, one educator sent her a message, saying she was scared of coming to the school and told her that the trip might be cancelled, and further, that she (Employee) might be alone as none of the staff might go because she had told them that she would not allow liquor to be consumed in the presence of learners.
126. At that stage, buses and the train had already been organised and the times planned. So she requested parents to accompany learners to the trip and about 20 of them came, so if parents were against her, they would not have come.
127. The money for the train was collected in October and all of it was deposited into the account of the school, each day when it was collected, with the last day being the day of the trip. The monies used were withdrawn from the school funds account in a form of cheques to pay for the buses, food for learners and the trip. No money was accepted from the learners.
128. After a week subsequent to the trip, she analysed the receipts and since it was a fundraising event, she concluded that the school had raised R 4 700. She then called the organisers and informed them of the amount raised. The amount was in the bank.
129. There is no R 2 000 that she could not account for, only a fool would say that. She was the one who was in possession of documents, so she would not have said R 2 700 was raised, not R 4 700. To say she misused R 2 000 is just a lie.
130. For the statement to say the meeting was on 9th November is incorrect as that was a Sunday. She called the organisers during the second week after the trip and told them about the R 4 700.
131. There were two buses that ferried learners from the school to Bridge city for the train and back. Transnet also reserved two coaches for the learners. The number of the learners was known, it is just that it happened long time ago and she cannot remember how many were they.
132. She never asked Nzama to deposit R 1 000 into her bank account. Nzama’s salary was R 1 500 per month but during the Easter holidays of 2013, the SGB had received complaint that during the 10 days recess, learners would come to the school to chase doves, throw stones and break windows. Since Nzama’s normal shift was from 06h00 to 18h00, the SGB requested him to work from 18h00 to 22h00, an additional 4 hours which then led to his additional compensation of R 700 on top of his R 1 500, making R 2 200.
133. It is not true that he was paid R 1 200 per month, also that he paid her R 1 000. Nzama was not even sure as to what account did he pay the R 1 000 to, so he could not prove such an allegation, young as he is in comparison to her, which she finds unbelievable.
134. There was a building called multi-purpose building which accommodated learners with special needs, it was discovered mid-year in 2014 that there was a problem with the toilets for the learners. Attempts were made to unblock the toilets, also it was discovered that where the building’s toilets joined each other, sewerage started spilling on to the ground. The sewerage started to affect the nearby school called, Umzomusha school.
135. The SGB then concluded that the whole pipe system needed to be attended to when the school was in recess because the toilets had to be closed, as the school was not in good financial standing to afford mobile toilets, and also, it would not be good to dig in the presence of about 900 learners, as some are young and that would be dangerous.
136. Further, a ceiling board was leaking in the same building, so it had to be repaired, electrical plugs were also not functioning, so much that an electrical extension was being utilised to get electricity into the building.
137. The repairs took about 2 weeks to be finished, which was before Christmas. Some pipes were removed and others put in to accommodate larger amounts of sewerage. The old removed pipes were still lying on the ground when the schools reopened in January 2015.
138. At the end of 2012, the school procured stationery and it was delivered to the school early in 2013. The stationery for 2014 and textbooks were delivered in 2014, but there was a problem with the stationery. The stationery was kept in Msimanga’s office and he reported to her that an unopened box of 72 pages of exercises book was stolen. She in turn reported the issue to the SGB. Msimanga also wanted that the school should give the responsibility to distribute the stationery to his brother, which was declined.
139. The lost stationery was not accounted for, so the SGB resolved that the stationery should be kept in Mr LS Sithole’s home, who was the SGB member. So it was delivered as such in January 2015.
140. It is incorrect to say the learners were given stationery that was left over in 2014, there was no such. The stationery was delivered in January 2015 in the presence of Nzama, who was on site since she was no longer at the school. She phoned Nzama and informed him to receive the stationery.
141. She then received news that Nzama and Mshibe were removing the stationery from the school to Mshibe’s sister’s house. She opened a case of theft against the two. The police took her and two SGB members to Mshibe’s sister’s home, which is about 800 meters from the school, to search for the stationery. During their search, there was a room which they could not access, as there was no key. Also, the educator who had tipped her could not accompany them as she said Msimanga was beating them, so it was difficult for her to testify, but Mr Cindi, who transported the stationery would come and testify.
142. The stationery for the 2014 – 2015 financial year was procured correctly and the charges number 1 and 2 are incorrect. The stationery was bought once, not twice as alleged on the last paragraph on page -B.
143. Because Msimanga had reported that an unopened box went missing and there was no break in information in his office, so the SGB decided that the stationery be delivered in 2015. Ever since she came to the school, the senior head of department, Mr PTP Gumede (Gumede) was responsible for the stationery and he would collade information and bring it to her for the SGB. He would do so together with other heads of department and master teachers. She does not remember Mshibe being part of the process.
144. The SGB has a finance committee and that is made of the Chairperson, the Treasurer and herself and they are responsible to draw up the budget and present it to the SGB and the parents. When the funds have been utilised, such would be presented in the monthly meetings the committee had and at the end of the year, there would be a report to the parents. The three finance committee members are also the signatories and the treasurer also performed the role of being an internal auditor.
145. Towards the end of August 2014, Msimanga was the SGB member, Nkosi told him that since he was now the deputy principal, he should no longer serve in the SGB on behalf of the teachers. Mr Dindi then became the SGB member.
146. When the handover took place, Nkosi, Messrs Mhlaba and Mr Magasela who are SGB members were present and Nkosi informed her to hand over the documents to Magasela, not Mhlaba.
147. The disciplinary hearing outcome was communicated to her in June 2022, containing 9 allegations whish was a surprise to her since charge no 7 was withdrawn. That means the issue was based on feelings, not facts. Also, since she had brought witnesses to the hearing, it meant that her witnesses’ testimony was not considered, and the presiding officer only considered the Employer’s evidence.
148. Msimanga threatened her witnesses such that Mahlobo (who is now late) ended up leaving the venue without testifying and refused to continue fighting with Msimanga.
149. She appealed against the sanction but did not receive response, and she only realised in August 2022 that she was dismissed when she was not paid, and that depressed her as she had hoped that the appeal was going to allow her case to be reviewed. This affected her financially and emotionally, and left her with emotional scars. She could see deep rooted hatred against her.
150. The whole process was not dealt with fairly, it was not based on fairness but feelings and it was a way of getting her out of the system. She does not know why did this have to happen. Preethpaul kept on victimising her in the disciplinary hearing and preventing her from speaking to people she wanted to speak to as her witnesses. Preethpaul also in the disciplinary hearing reprimanded her for having talked to her witnesses.
151. The fact that she was once shot made her to have flash backs because it happened whilst she was the principal and when she had the problems with the teachers, that made her to think she might be in danger again.
152. At no stage were the school funds misappropriated during her tenure at the school. The money for the trip was collected from the learners and every cent was deposited into the school’s bank account.
153. Cross examination – Even though in her appeal against the sanction, she said the reason for that was that the sanction of dismissal was too harsh and asked for a sanction short of dismissal such as one-month suspension without pay, she does not agree that she was accepting the findings of the disciplinary hearing. She said it was too harsh because nothing from her evidence was taken into consideration by the presiding officer. She did nothing wrong at the school and she utilised the money appropriately.
154. The outcome of the disciplinary hearing was based on the feelings of the people who connived against her, and they include Msimanga and Nkosi.
155. She is happy that the process started afresh at the arbitration as the truth would come out.
156. She expected Preethpaul, the Employer representative in the disciplinary hearing to take what she said, into consideration, and he was not interested. He was scolding her as if she was a child, he did not even want her to go to the school to access her witnesses. When she wanted to go to the school, he told her to go to the union.
157. It is a serious allegation to say that Msimanga intimidated witnesses and he should have been disciplined for that. She blames Preethpaul because he should have given guidance as to what should happen. She wanted him to come to the arbitration so that she could tell him how much he hurt her when he denied her to go to the school and meet her witnesses.
158. Some educators were unhappy when she arrived at the school, because there were practices that she changed upon her arrival, such as learners who were guarding the gate. Those educators are the same who wrote the letter, and they include Dindi, who was forging her signature to sign reports and send them to Old Mutual, trying to get money. She charged him and he resigned before the matter was concluded.
159. Parents were happy with the train trip of the learners, if they were not, they would not have accompanied the learners.
160. The R 4 700 was money that was left as the balance from the contributions of the learners towards the trip, after expenses were paid and it was deposited into the bank. It was therefore the total amount fundraised by the event.
161. It is true that Spoornet gave them a discount for the trip. She verified the records to determine how many learners had paid. She called the trip organiser, Mrs Malinga and Mr Sandile Ndlovu to a meeting to see if she was mistaken, as they part of the fundraising committee.
162. She did not tell Nzama to deposit any money into her account. She does not recall telling him to do that and nothing was to be paid by Nzama into her bank account. In the disciplinary hearing, she spoke about Nzama owing her R 700, which he still owes her to date.
163. Nzama would not have seen the geyser repairs and the excavation that had taken place to replace the pipes at the school, because his shift was from 06h00 to 18h00, so he would not have seen that. She cannot force him to say he saw these activities at the school. At some stage, she drove to the school at night and found Nzama not present and they quarrelled about that.
164. She is not fabricating the story of the repairs at the school. The blockages, the stench and the excavation happened. It is not possible that there could not be a blockage when learners were throwing things into the toilet.
165. If there has been an excavation in 2014, it would be difficult to note that four years later. Shangase went to the school in 2018.
166. The blockage was something that was on ongoing and from around July 2014, she bought the steel rod used to throttle and open the blockage, yet it continued, including solid waste and went to the playground. It contained unbearable stench.
167. When it was put to her that educators would have smelt the stench, she said it a bit farther from where the educators could smell it, because it was along the fence. Learners did smell the stench because it went to the playground.
168. Educators smelled the stench, however, it would be difficult to get them to support this fact, because Msimanga threatened and beat the educators. Msimanga can deny that the excavation and geyser repairs took place, all he wants, but it remains the truth.
169. Dindi was a treasurer for a short time and Nkosi was the circuit manager.
170. When it was put to her that Dindi was not aware of these repairs, she said he hardly attended the meetings. Regarding Nkosi, she said he was responsible for the circuit and was not based at the school.
171. She and the SGB did not need Nkosi’s permission to carry out the projects of the repairs. It was not necessary for the infrastructure unit at the district to know about the projects.
172. These projects took place immediately after school closed in December 2014, and as the principal, she had to be present. She was not paid for being at work during the school recess.
173. It is a lie to say there was a stationery left from the previous year to be distributed to learners, no school can have so much stationery such that it could be distributed in the following year.
174. Msimanga knows that he kept the stationery in his office, which is the reason for parents to keep it. If this was not put to Msimanga, it must have been an oversight.
175. She did not answer when asked whether did she think about a robbery or fire that might take place at the private residence when she decided to have the stationery placed in such a residence.
176. She denied that the stationery was not bought and stated that there was no misappropriation of money.
177. Mshibe was not distributing stationery to the learners, the heads of departments did so, being led by Mr Gumede and assisted by Mzila and Zwane. She would distribute it and in that process, she would be assisted by Khoza.
178. In January 2019, she was no longer at the school and she called Nzama to receive the stationery because he happened to be the person nearer to the school. The fact that she was no longer at the school did not mean that some educators were not communicating with her.
179. When asked as to why did she not inform Msimanga that she had been informed about the delivery of the stationery to the school, as she was no longer at the school, she did not reply. It is not true to say there was no stationery bought, the stationery was bought.
180. In 2014, the stationery came to the school and was delivered straight to Sithole’s house by the supplier. The stationery that was stolen from Mshibe’s house in January 2015 was the same stationery, as some of it was transported from Sithole’s house to Mshibe’s. The tip-off she received regarding the aforementioned was from Ms Hlombe, an educator. The stationery was stolen and that happened once.
181. The stationery came from Sithole’s house to the school and it was stolen before it could be distributed, some days after delivery. She was not present when all this happened and she learned about it through the tip-off.
182. Mhlongo NC was paid R 70 096.14 by crossed cheque. She does not recall having said that Mhlongo was paid by cash, in the disciplinary hearing.
183. Nkosi requested financial records and she told him that some of them were still with the uaditors. She brought the documents with her as she had them with her, from the auditors. She then gave the documents to Mr Magasela, an SGB member who was also a teacher assistant.
184. When asked what made her to hand over financial records to a teacher assistant, and not the acting principal, she said she presumed that Magasela was an SGB member, who could have been a treasurer. This is not fabrication, but is the truth.
185. Sithole, Khoza and herself were the signatories at the time. It is correct that Mr Mahlobo was later made to be the signatory, but there was a problem with his signature as it was not consistent and the bank kept declining it. He was then removed as the signatory.
186. It was one cheque that she signed to pay herself. She was not oaying herself, but she was recouping her own money which she had used for the school needs.
187. She never gave a statement to Shangase because when he came for the first time, she was not present, during the second time, she wrote the response but when she was trying to hand it over to him, they kept missing each other.

Mr Mensi Welcome Xulu (Xulu) testified as follows: –

188. He was the principal of Mzomusha Primary School and has now retired. The school is next to Ukukhanyakokusa school (the school) and they are separated by fence.
189. He had a problem with the school which was caused by the sewerage spillage from the school to his school, that is Mzomusha. He cannot remember which year did he experienced this problem, but it continued for a long time.
190. The spillage made conditions at Mzomusha very difficult, as it was smelling and since Mzomusha is on the lower side, the spillage would go all the way down.
191. Since there was a gate separating the schools, it was easy for him to go the school and speak to the Employee, as the principal. The spillage ended at some point, after he has had multiple interactions with the Employee.
192. After about two or more of complaints regarding the spillage, he saw people moving around the school, but the issue was not resolved. He does not remember the year when the spillage ended. He told the Employee that she did well.
193. Cross examination – He does not recall the year of the spillage. He would see the sewerage coming from into his school. He cannot say what solved the spillage, but he could tell that something was done, but since he was not inside the school, he could not tell.
194. He was not working at the school, but the problem would not have ended without something being done, so something was done. The spillage took place every year, but he did not note it down as to when did it exactly happen.
195. He would say it happened during summer, around September, October or November, because the stench was very strong around that time. When the schools opened, he noticed that the stench was no more.
196. All that he did was to go to the Employee to complain about the sewerage. He disputes that the issue of the sewerage is a fabrication, it is the truth.
197. When asked whether he was aware that no educator from the school has testified that he or she smelled the stench, he said he would not respond to that since he was not based in the school and said he did not find that strange.
198. The teachers and kids at his school came to him, to complain about the stench. He was the principal Mzomusha, he would not have brought others with him, as he represented the school.
199. Even though he does not remember the month in which the stench started, but it smelt stronger.
200. He was not aware of the excavation at the school, because he was at home when it happened, as the schools were closed.
201. At Mzomusha, he used to do everything he needed to do without informing Nkosi, including renovations.

Mr Muzikayifani Ngongonyane Cele (Cele) testified as follows: –

202. He is employed as the General Worker at the school since June 2012. Pipes were installed at the school by the Employee, but he does not remember the year.
203. The toilets at the school had no pipes, and those that had pipes, the pipes were not in good condition. They had pit-latrines before the Employee came to the school. The Employee came with the idea of fitting pipes.
204. There was a sewerage spillage which used to flow to Mzomusha school, as the toilets would be blocked. When the Employee came to the school, the spillage was sorted out as she installed flushing toilets.
205. The geyser burst and the ceiling was board fell down. He works outside, when the geyser burst, the people who work inside cleaned the area.
206. He does not remember how long did it take to have the problems he stated, resolved.
207. Cross examination – In the past, the school had pit latrines and the Employee changed them to flushing toilets, within three months after she came to the school.
208. After the flushing toilets were installed, it did not take long for them to be full. He does not thing the blockage and the bursting of the geyser were in the same year. He cannot remember all the details because it has been long ago. If he was educated, he would have documented everything.
209. The Employee bought pipes for the repairs which had to be joined with those of Mzomusha school and at the sceptic tank. No pipe is leaking now.
210. He would come and be part of the people who worked on the pipes, he was just assisting them.
211. The flushing toilets and the fixing of pipes happened as a result of the Employee.

Mr Muzikayifani Welcome Chili (Chili) testified as follows: –

212. He is self-employed and knows the Employee as the ex-principal of the school.
213. He has a bakkie that he uses to do deliveries. During sometime in 2015, when he was walking in the street, a man who introduced himself as Mr Sithole asked him to collect boxes from his home. He then drove into his yard, and they loaded the boxes together (with Sithole). Sithole told him that the boxes were going to the school, and pointed out at the school.
214. He delivered the boxes and a gentleman who introduced himself as Nzama received the boxes, at around 14h00. Sithole paid him R 300 cash for the job. He then proceeded with his journey to Ntuzuma.
215. Cross examination – It is true that Sithole just randomly stopped him, Sithole was driving a Nissan Hardbody when he stopped him. Sithole told him that he was an SGB member.
216. They loaded the boxes and they drove, he was following a car which Sithole said was the school principal’s car. Sithole was with the principal, so it was two cars that were following the principal. The principal was the Employee.
217. Sithole was left behind in his house, he did not go to the school. When he arrived at the school, Nzama and the boys offloaded the boxes from his car. He then went back to Sithole’s house for the second load.
218. He collected the second load, because the bakkie wad full during the first load. He was paid R 300 for both trips.
219. When it was put to her that the Employee said she was not at the school, and she phoned Nzama, he said the Employee was with Sithole and he was following her. He is the one who is telling the truth.
220. There was stationery as he had mentioned.
     THE EMPLOYEE ARGUMENTS
221. Based on the procedural challenge, the Employee filed her appeal in June 2022, which was within the prescribed period. The Employer failed to communicate the outcome of appeal and as well as the implementation of the internal disciplinary sanction within a prescribed period as conferred in the disciplinary prescripts of the department, hence the Employee continued working under the impression that she had appealed the matter, and as such the employer employee relationship automatically continued.
222. Mr. Commissioner please note with caution that the failure of the Employer to communicate the appeal outcome to her justified that on principles, the Employer waived the rights to dismiss her, further abandoned and surrendered the rights to implement the sanction of the Chairperson in disciplinary hearing, and as submitted herein, the dismissal was procedurally unfair.
223. On substantive issues, it is common that the onus to prove that the dismissal of Employee was fair on the balance of probabilities principle always rests with the employer/respondent, and thereafter the onus to rebut evidence of the employer and prove that the Employee was unfairly dismissed shift to the employee.
224. It is common for a primary school to have toilet blockage as leaners (especially grade R-3) are prone to flushing plastic bags, newspaper, and other objects which cause blockage.
225. The employer failed to collaborate the evidence of its own witnesses, considering contradictions of the versions of Mshibe and Msimanga regarding distribution of stationery to learners. Msimanga said at no stage where there was a geyser leak, diggings, toilet blockage, no repairs done within the school and he further stated that in his entire life he never experienced toilet blockage at the school.
226. The evidence of the Employee is that in his time of employment and his life in school he never experienced toilets blockage at the School was driven by intention to mislead the tribunal and to implicate her to the charges. It is known that and common that in a Primary school, learners are that of a very young age and they can play with any objects and put them in toilets and cause blockages. In this regard the evidence of the principal, Msimanga must be dismissed.
227. Msimanga in his statement does not seem to be a principal or rather a credible witness who has studied financial records to determine how much the security was earning, as a result, when he was questioned, he stated that whatever amount he was earning in his response during the cross examination. This statement and response that were given to prejudice and to implicate the Employee to the charges unfairly so.
228. Msimanga’s testimony was driven by dislike, hatred and factionalism within the school. The inconsistency of Msimanga proves on the balance of probabilities that this matter was manufactured and fabricated.
229. The stationery was received by an admin clerk and the school principal, at no stage where Mshibe receive the stationery and it was distributed by the HOD’s.
230. Nkosi being the Chief Education Specialist in charge of the whole circuit failed to seek clarity of this SADTU letter, and the person holding a high position he could have assist this tribunal in clarifying this SADTU letter issued as it was address to Nkosi (CES), this in a clear prejudice towards the Employee. Nkosi further stated that state holders and the community were against the Employee but he failed to give substantial evidence for the tribunal to understand what he meant to say.
231. Nkosi could not explain to the tribunal if he was able to understand the SADTU letter. During the cross-examination, he distanced himself from insufficient information from the SADTU letter, yet the letter was addressed to him. He escalated the matter to the Head Office in hands of Mr Shabalala who reportedly passed on and ended up in the hand of Shangase (Deputy Director Internal Control and Risk Management). He considered SADTU letter as substantial evidence for a misconduct with all discrepancies found in the SADTU letter.
232. Nkosi testified that there was R2000.00 from the train trip that was not accounted for however he had ample time between 2015 and 2020 to check the records about this missing R2000.00. He should have instructed the finance committee to give him a report regarding this R2000.00 stated missing according to the statement.
233. Furthermore, Nkosi did not attach written complaints from the parents, SGB and community. In the report generated by him, it stated that the complaints emanated from the School’s educators. There are more than one trade union at the school, in his report he did not clarify which other trade union raised complaints.
234. A question throughout the arbitration and at disciplinary hearing continued to grow as to who the complainant is, since the investigation report stated that a SADTU member complained, but the name of the individual was never disclosed. The question was posed as to who the complainant was, but Nkosi could not provide the name of the complainant, instead he said educators were called to testify in the disciplinary hearing, but the investigation report says a SADTU member.
235. It was evident that during the physical inspection it transpired that the Employee is operating the school accounts without the authorisation of the governing body, and she mismanaged some of the school funds, she made number of odd payments without following due processes.
236. The above is not true, before any cheque is drawn, firstly, there would be a payment advice which is signed by Chairperson, Secretary and the school principal then the cheque presented to the finance committee, thereafter the cheque is drawn and signed by any two of the three signatories.
237. There was no way that the Employee managed finances all by herself, proof there off can be evidenced by copies of payment advice and cheques in the charge sheet. Also, the budget was approved at the budget meeting, and the audited financial statement was signed by Chairperson and the Treasurer. Therefore there was no credible evidence to suggest that the Employee had made payments unaccounted for.
238. When Shangase was asked about the SADTU letter, namely why he did not read carefully and pick up serious mistakes before compiling the investigation report. Shangase said, he was given a mandate from the Department to investigate, and he further stated that because there was official, he knows from SADTU, the Department had no reason to question the mistakes and the letter from SADTU. He accepted the SADTU letter as authentic.
239. The above response by Shangase prima facie prove that there was not due diligence when this matter was investigated, the intention here was to ensure that Mthembu is subjected to a disciplinary hearing and dismissed irrespective whether there was overwhelming evidence or not.
240. Therefore, the department failed to comply with the procedural principles that the discipline shall be a corrective measure, not punitive. This evidence of Shangase was an admission to confirm that the dismissal of the Employee was well orchestrated by the Department.
241. Shangase was given a name of the service provider, but he was unable to recall the name of that service provider with no proof of payment. The payment that was made had no invoice or a delivery note The counter foil has Name of a company and the amount paid.
242. Bashukuze Shuku plumbers attended to the repairs of the geyser and toilets. There was no tampering and people around not remember doing so.
243. During the inspection of plumbing digging Shangase mentioned that there was no trace. signs of the work done. Educators and all people interviewed including Nzama (Page 23 employer bundle) said he has no knowledge of the sewer blockages during the period of December 2014.
244. The inspection was conducted after years, so it was impossible to see the fresh marks of excavations on the surface and the fitment ceiling board as well and the geyser, plug repairs. The Department delayed doing inspection so they would have a good reason to dispute the work done.
245. There was a surplus amount of money of R2 000.00 which was not accounted for. According to Shangase report. The principal receipted the amount of R4 700 which was the amount collected day after day during the train trip preparation. There was no amount of money which was not accounted for during the preparation of a train trip. All monies collected were receipted. The Employee analysed the receipts and expenditure for the train trip and concluded that R4 700.00 was fundraised.
246. All monies collected for the train trip was collected on different days and it was deposited in the school fund account till. The monies used were withdrawn in school account was in the form of cheques no money was handled direct from the learner and used for the trip.
247. The Employee has been in the department of education for 41 years. She testified on mismanagement of school funds, because he managed school funds together with the SGB, Finance Committee of the SGB (Finance Committee) to the best of her ability, no school funds were misappropriated during her era, she further stated that it is not true that she mismanages school funds.
248. Her viewpoint on charges levelled against her, changes handed over to her in 2019. She was shocked of the wording on each charge and the dates on the charge sheet some related to Sunday of which is not a school day and the amount that where written was shocking, lot of mistake were corrected in such a way that charge seven (7) was withdrawn because there were lot of confusion it even confused the Department Representative(Mr Preathpaul) it ended up being scrapped off from the charges.
249. The Chairperson was not neutral and had an intention to implicate the Employee together with the Departmental Representative and it evidence that Chairperson go as far as to misdirect himself in that the Employee was found guilty in all charges levelled against her whereas one of those charges was withdrawn (charge 7) at the disciplinary hearing.
250. This is a concreate evidence to prove the hatred and biasness against her. This is not an error a reasonable Commissioner may overlook as it has negative impact when a decision was taken against her.
251. It is not true that Mr Nzama deposited R1000.00 to the Employee’s account to prove that he was lying, he could not remember if he deposited the money to Standard bank or Nedbank account. This inconsistency renders his evidence fabricated and unreliable and was driven by personal dislike and work factionalism.
252. The problem with learner toilet mid-year in 2014, the attempt was made to unblock the learner toilets. It was discovered that at connection of the sewerage works pipes that where the problem found. The School Governing Body decided that sewerage pipes should be dig out so the work was done during the school holidays as the school had not sufficient funds to hire mobile toilets for nine hundred learners again mobile toilets would have exposed learners to health hazards.
253. It was discovered that the pipes at the intersection was small hence there was serious problems of sewerage works. The small pipes were taken away and after diggings in January pipes were still on the surface after the work done.
254. The Employee’s witnesses came and testified. Not even one witness misled the tribunal as such their evidence was trustworthy and reliable. There were no contradictions on their testimony, and it was collaborating each other.
255. The Employee amplified to the tribunal that stationery was not bought twice. In early 2013, for 2014 stationery was delivered in November. The stationery that left over in 2014 last box disappeared and it was reported. Box of 72 went missing no one knows what happened. Stationer was purchased and kept in Mr Sithole’s place. There was no left-over stationery from 2014 because box of 72 pages was stolen from the school, it disappeared and the Employee reported the matter to the School Governing Body.
256. The Employee’s case was unfairly delayed by the Department. The Employee communicated settlement agreement request in writing to the Department, the Department never responded. The ELRC set down the matter, the Department came to request for postponement. Her matter had more than one Department Representative, the Department had an intention to prejudice her case.
257. The Employee severely suffered as a result of the prejudice from the Department of Education. Her policies lapsed, her funeral cover lapsed, because she could not make prior arrangements with service provider as the implementation of the sanction was not communicated to her. If the implementation of the sanction was communicated prior arrangements with insures would have been made with insurances up until she resumes her payments. She had to maintain municipal services with no salary, her medical aid was cut off in that situation she was hospitalised and she had to pay medical cost.
258. The Employee’s son had to abandoned his studies at the Durban University of Technology because of her salary that was terminated without notification, the future of her son was jeopardised if the sanction was communicated she would have approached the University for the arrangement of the study fees. Capped leave day of her forfeited because of unfair dismissal.
259. Xulu’s evidence was credible, reliable and corroborated the Employee’s testimony. At no stage Xulu contradicted the Employee or contradicted himself in his testimony.
260. The testimony of Cele was trustworthy and reliable. He never contradicted the Employee and Xulu. What transpired and we made Commissioner aware was that Cele was on medication after a severe injury so his memory did not serve him well, be that as it may he managed to give right answer during and after re-examination in his testimony.
261. Witnesses supporting the Employee’s version: Xulu, Cele, and Chili all confirmed that the services were render: the purchase and delivery of the stationery, excavations at school, geyser installation and ceiling board repairs. The Employee herself was a credible and consistent witness, providing clear testimony without contradictions.
262. The Employer’s witnesses’ testimony was shown to be inconsistent, biased, and in some cases driven by personal dislike and staff factionalism.
263. The Employer’s evidence demonstrated that the in fighting in the department of education that involved SADTU as a union are true and factual. It is known that SADTU as a union dictates terms in Department of Education and decides who should be dismissed and remain in the system, as a result the respondent or investigator failed to discharge their duties adequately due to the influence of SADTU irregular letter.
264. The evidence should be led based on the rules of the department breached by employee. It is submitted that there was almost nothing based on the due process in relation to allegation levelled against the Employee.
265. The Employee has a trusting personality that why was entrusted with responsibility to head the school. It is therefore and accordingly submitted that she be not found guilty of any allegation as the evidence tendered by the Department as responded thus far does not prove any substance of the allegations.
266. Further, the evidence on all allegations has failed to satisfy the elements needed to make such charges stick on the Employee, in that charges can only be proven once a standard test satisfying the necessary elements has been established. The Employer made a gross mistake to do most inspection way after the alleged misconduct occurred. The act of the employer prejudice fairness.
267. It was recognised that employer facts finding mission exercise failed to establish and to collaborate evidence that was sourced from all 4-employer witness.
268. A finding of guilt against the employee and any sanction thereto would be hostile to the provisions and the objective of the constitution and LRA as it would be a direct assault on the employee’s right to fair labour practices.
269. It is prayed that the employee be acquitted of the charges and be found not guilty substantively as evidence of the employer rather responded failed to prove the allegations on the balance of probabilities, for there cannot be of a probable value to be attached to the evidence brought by the department. The Employee be compensated from the date of dismissal to the period of her exit in the department.
     ANALYSIS OF EVIDENCE AND ARGUMENTS
270. The dismissal of the Employee resulted from the Employee having been found guilty of the charges mentioned elsewhere above. It is common cause that the Employee pleaded not guilty to the said charges and maintained such a stance during the arbitration.
271. That said, the Employer needed to lead evidence to prove the validity of the charges, and in doing so, it called four witnesses. The Employee, also had the duty to defend herself from the allegations and in her attempt to do so, she led evidence and called three witnesses.
272. The documents contained in the bundles submitted are not disputed by either of the parties, and very important amongst them is the investigation report which includes findings made which led to the formulation of the charges.
273. Mshibe and Msimanga testified that the stationery for the year 2015, which should have been delivered to the school around October 2014 was never delivered. They both stated that the never saw the stationery, and that even though the Employee said the stationery was stolen, at least they would have seen it but they never did.
274. The Employee denied that the stationery for the year 2015 was not purchased and submitted that the stationery was delivered in January 2015 in the presence of Nzama, who was on site since she was no longer at the school. She stated that the company phoned her for the delivery and she in turn phoned Nzama and informed him to receive the stationery.
275. She then received news that Nzama and Mshibe were removing the stationery from the school to Mshibe’s sister’s house. She then opened a case of theft against the two
276. The stationery alluded to above is that of the school and as such, there would be basic process that would be followed in purchasing same. That process will be entail exchange of documentation, as the expenditure involves public funds.
277. Be that as it may, the Employee failed to submit any document which indicates firstly, that the stationery was ordered from Mhlongo NC as she said and that would include the itemised record depicting the items, costs and quantities, and secondly, records indicating that the stationery was duly delivered. She could not submit any documents in this regard.
278. The Employee’s submission that she telephoned Nzama to receive the stationery is also not backed up by either Nzama nor any document from him, despite her serious allegation which is that an unknown source informed her that Nzama and Mshibe removed the stationery from the school to Mshibe’s sister’s house. The absence of any documentation supporting the purchase of the stationery is in my view, telling.
279. Firstly, for the stationery to can be removed from the school, as she stated, it needed to have been received, and there is no evidence that the stationery was received by the school.
280. Further, what is even more fascinating is that the Employee failed to put it to Mshibe that actually, her unknown source informed her that he (Mshibe) and Nzama were seen removing the stationery from the school.
281. In her attempt to support her submission that Mshibe and Nzama removed the stationery from the school, the Employee called Chili who said that when he was walking in the street, a man who introduced himself as Mr Sithole asked him to collect boxes from his home. He then drove into his yard, and they loaded the boxes together delivered them to the school. Under cross examination, he said as they drove to the school with the boxes, he was following two cars, Sithole’s and the Employee’s and further, that Sithole was with the Employee.
282. What stands as a startling contradiction between the aforementioned is that the Employee’s evidence is that she said by January 2015, she was no longer at the school, and this is common cause. It therefore remains unclear as to what was the purpose of calling Chili, whose evidence clearly did not assist her. This conflicting evidence raises a red flag.
283. One more improbable account of the Employee’s testimony, arising from the afore, is the mindboggling call she said she made to Nzama to receive the stationery. This is so because she was no longer at the school and Msimanga was the acting Principal. Under normal circumstances, the Employee would have simply directed the call from the stationery provider to the school, either to an educator or SGB members, even the Circuit office, simply because she was suspended. Further, she knew that she had Mr Preethpaul to contact on matters relating to the school and she could have given his number to the service provider of the stationery to contact.
284. With so many options at her disposal, it remains incomprehensible as to why she chose to phone Nzama and during the arbitration, she failed to call him as a witness. In Nzama’s statement which is on page 26-27 of bundle A, there is no mention of him having received a stationery after being directed by the Employee. No wonder then when she was asked as to why did she not contact Msimanga, who was the acting principal, she chose not to respond.
285. In Emfuleni Local Municipality v SALGBC and others , the Court outlined the steps that the Commissioner should follow in evaluating conflicting versions before him/her as follows:

a) In misconduct disputes the Employer need only show that, on all the evidence presented by both parties, its version is more probable than the Employee’s version.

b) While the overall onus never shifts from the Employer, the need to present or counter evidence may rest on different parties.

c) Once the Employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused Employee to prove otherwise.

d) An Employee is not entitled to the benefit of the doubt as to the convincing nature of his/her explanation. On raising a particular defense, an evidentiary burden falls on the Employee to establish that his/her version is likely. It is not necessary for the Employer to adduce evidence to disprove positively a defense, especially if the defense is within the unique knowledge of the Employee.

e) An Employer must prove its own case on a balance of probabilities. If it does so, it therefore flows that the Employee’s case is false.

286. That said, the Employee’s version of the stationery having been stolen is incredulous in many aspects as already enunciated above.
287. The Constitutional Court held the following about the importance of cross examination “If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.”
288. The Employee failed to put such version to the Employer which further strips it of any evidentiary value and the Employer was entitled to the assume that its version, on the stationery never delivered to the school as undisputed.
289. On the alleged sewer and geyser projects, Shangase averred that during the investigations, they enquired on the educators and Nzama and the educators together with Nzama said no such projects were undertaken at the school. Shangase further averred that they then looked at where the geyser could have been replaced and could not find any evidence of repairs, also no evidence of the sewerage project having taken place.
290. He submitted that they then made numerous calls to Bashukuze Shuku Plumbers which was paid R 20 800 for allegedly replacing the geyser and repairing toilets, but they could not find any evidence of the alleged service having been provided.
291. Mshibe and Msimange stated that they knew nothing about the geyser repairs costing R 28 000 and only discovered such during the investigations when they perused the documents together with Shangase. They further mentioned that they conducted some assessment and determined that there was nothing done, and also, there was no invoice for the ceiling.
292. Interestingly, both Mshibe and Msimanga denied ever seeing any sewerage spillage at the school and said they only learned about monies having been used for the spillage during the investigations.
293. During Shangase’s cross examination, he stated that the Employee was provided an opportunity to provide evidence that that there were plumbing and geyser repairs that took place at the school, and that even though they waited for a long time for her to do so, she failed to provide any evidence and therefore they concluded that these alleged services were not done. The Employee did not dispute this evidence.
294. On whether there was a spillage and stench at the school, the Employee mentioned that during mid-year 2014, it was discovered that there was a problem with the toilets for the learners. Attempts were made to unblock the toilets, also it was discovered that where the building’s toilets joined each other, sewerage started spilling on to the ground. The sewerage started to affect Umzomusha school. The SGB then concluded that the whole pipe system needed to be attended to when the school was in recess because the toilets had to be closed.
295. Xulu submitted that at some point, in a year which he could not recall, there was a stench caused by the spillage at the school and that he would from time to time speak to the Employee regarding same. After some two months or so, it ended and he congratulated the Employee for a job well done.
296. Although the above version was never put to the Employer’s witnesses, I find it inherently bizarre that no other educator from the school knew about the spillage and the stench, so much that the Employee had to call Xulu, who was not based at the school, and when this was put to him, he was quick to exonerate himself by saying he was not based at the school. This at the back of him having said the stench was very strong.
297. It has to be borne in mind that the issue of the stench and the spillage is actually supposed to be the cause of the alleged expenditure that was carried out by the Employee, which has not been substantiated, and in and of itself is not part of the charges laid against her.
298. For a very strong stench as described by the Employee and Xulu, to have existed for a long time, meaning a number of months, and yet, only her and Xulu knew about it and also smelt, is untenable.
299. Further, the Employee said the SGB made the decision to make the repairs during December 2014, yet, she could not provide any evidence in this regard, not even minutes of the SGB or a member thereof with such knowledge. Cele’s testimony failed to advance the story of the geyser repairs on behalf of the Employee just on the ground that his version was also not put to the Employer and it therefore was untested.
300. On the R 1 000 that the Employee is alleged to have been paid by Nzama, Shangase said the Employee paid Nzama R 2 200 and she then demanded that he pay to her account R 1 000, which he did. During cross examination, he mentioned that having gone through Nzama’s bank account, he found out that indeed, Nzama earned R 1 200 per month and that on May 2014 he earned R 2 200. They did not demand proof regarding Nzama’s payment of the R 1000 to the Employee, but having put this to her, they expected her to come clean.
301. The Employee denied that she instructed Nzama to deposit R 1 000 into her bank account, and also receiving such money. She also denied that Nzama’s salary was R 1 200, and said it was R 1 500 per month. She did not dispute that he was paid R 2 200 in May 2013, but said there was an extra R 700 for the extra hours Nzama worked during the Easter holidays.
302. Nzama was not called as a witness by either of the two parties, despite the glaring issue of the alleged R 1 000 payment. I further had regard to the fact that no proof was submitted in this regard, as Shangase himself said they did not demand proof of the R 1 000 alleged payment to the Employee, in expectation that she would come clean. This charge is therefore unsubstantiated.
303. Regarding the train trip, Shangase stated that the school had surplus of R 4 700 from a school fundraising trip, yet there were no receipts or documents, so they could not establish any basis of who paid, etc. He further stated that the said money was not in the school account.
304. Shangase made it clear during cross examination that the R 2 000 which he said they could not account for, did not lead to them making a finding, simply because there were no records of how the money was paid and by how many people, etc.
305. The Employee disputed that there were no records, and bizarrely, she said she was in possession of documents and yet, she did not point out what documents was she referring to. The conclusion therefore is that there were no documents for the fundraising trip.
306. Furthermore, Shangase stated that the Employee was making decisions alone with respect to school funds and that even though the SGB had to authorise payments, that did not that did not happen and she was making unilateral decisions without ensuring that funds are paid to the intended recipients.
307. It is important to mention that one of the charges allude to the fact that the Employee signed a cheque in which she was the payee, and this was not disputed, instead, she said that she had to do so as she was repaying herself for the monies that she had utilised for the school. Again, she did not provide any evidence for such money, and this whilst she was aware of the gravity of her action as articulated in the charge.
308. In Compass Group Southern Africa (Pty) Ltd v CCMA and others , 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.”
309. One overriding feature of the investigation report is that it refers to payment vouchers, cheque numbers, amounts paid to whom, date and for what service. All the payments information as per the undisputed evidence of Shangase, was extracted from the school’s bank account. The report therefore, as it is, is credible and the Employer had succeeded in putting a prema facie proof to support the charges, which means the Employee needed to prove her defence.
310. The issue of the investigations having been conducted around 2018-2019, when the alleged sewer blockage and diggings were done in December 2014 could have affected the physical evidence that may have existed if the projects alleged by the Employee were indeed conducted.
311. However, I find it incomprehensible that not a single educator, other than the Employee, could be able to hear the strong stench as well as identify the diggings having been done at the school, including the geyser repairs. These educators include Msimanga and Mshibe, whom each, had been at the school for more than 15 years as of the time the assessments were conducted.
312. In addition to the foregoing, there are no documents to support that these projects which were allegedly approved by the SGB were actually carried out, and not a single SGB member was called by the Employee to testify, whom would have had knowledge of the projects.
313. The amount of the monies utilised for these unsubstantiated projects paints a picture of the Employee as having operated as a sole pilot, and making payments without the knowledge of the School Management Team as well as the SGB. She did not dispute that even Dindi, who was the SGB treasurer was not aware of the alleged projects.
314. The Employee had the first opportunity to present her side of the story in 2019, before the investigating team could conclude the investigations and make findings and she did not submit any response.
315. There is no evidence presented at the arbitration, which indicates that she was denied access to any information she may have required, for her to clarify what happened to these payments, including collation of records or documents from the service providers, even though Shangase indicated that they made multiple attempts to the alleged service providers in an effort to obtain documents and they were unsuccessful.
316. The Employee on the other hand has not tendered any evidence that seeks to demonstrate that she has made any efforts to obtain these missing documents, despite her being faced with such serious charges.
317. The Emfuleni case above dictates that an ‘Employee is not entitled to the benefit of the doubt as to the convincing nature of his/her explanation. On raising a particular defense, an evidentiary burden falls on the Employee to establish that his/her version is likely.’
318. The Employee’s submission therefore, which is that the allegations are based on feelings and not facts cannot stand. This defence is hollow and unconvincing, as the charges were substantiated. Subsequent to the Employer’s evidence, it was perspicuous that a case had been made and she had then assumed the evidentiary burden to defend herself.
319. I find it curious that the Employee did not provide any evidence that she has attempted to get the necessary documents to defend herself, this after about six years since 2019.
320. It is difficult to imagine that the Employer, having discovered suspicious expenses amounting to R 259 445.42 could have chosen not to pursue the matter, simply because the Employee did not respond.
321. The charges therefore, with the exception of the alleged R 1 000 paid to Nzama, have been substantiated on the balance of probabilities.
322. The Employee’s procedural complaints appear to be mainly on the Employer’s failure to respond to her appeal. It has been established and is undisputed that after lodging her appeal, there was no response from the Employer. She did not take this particular issue amy further, during the cross examination of the Employer’s witnesses.
323. The prejudice on her side is that she continued to work on July and partly August 2019, and as such, was not paid some of what was supposed to be paid to her, including the travelling for the said period.
324. The point of her not being afforded sufficient time to cross examine the Employer’s witnesses was not explored in her own testimony and neither with those of the Employer, therefore nothing really turns on to this issue.
325. Regarding her access to the school in preparation for the disciplinary hearing, she did not dispute that when Preethpaul instructed her not to go to the school, he referred her to contact her trade union, for guidance.
326. Most importantly, as I have alluded to elsewhere above, there is no evidence submitted by the Employee which indicates that she was denied any access either to documents nor witnesses. Likewise, there is no evidence of any prejudice suffered, except the issue of July and August 2019.
327. To the extent that the Employee was entitled to a travelling allowance for the period indicated above, she could pursue such payments from the Employer utilising the internal policies or other relevant forums with jurisdiction.
328. Despite the Employee’s very long service, I am of the view that the magnitude of the unauthorised expenditure involved in this matter justifies dismissal as an appropriate sanction. In my view, the trust relationship with the Employee had broken down.

AWARD

329. The dismissal of the Employee, Ms FN Mthembu by the Employer, the Department of Education was procedurally and substantively fair.

330. The application is dismissed.

Vuyiso Ngcengeni
Panelist / Commissioner