13 October 2026 – ELRC283-26/27LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN Polokwane on the 04 August 2025

Case Number: ELRC283-26/27LP
Date of Award: 12 October 2026

In the matter between: –

Trifly Matakala Applicant

And

Limpopo Department of Education First Respondent

Khensani Masete Second Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

The hearing was held on the 16 September 2026, at Foskor Primary school, in Namakgale village, Phalaborwa in Limpopo Province.
The Applicant, Ms. Trifly Matakala represented herself in the proceedings. Ms. Nthabisheng Rasebotsa, an employee relations offficial, represented the Respondent. The second Respondent, Ms. Masete Khensani, attended the proceedings without participating by either adducing evidence or cross-examining witnesses. She stated that she will abide by the decision of the Commissioner.
Both parties submitted bundles of documents which were admitted into the record for what the purported to be. The Applicant submitted two bundles, which were marked as “A” and “A1”, containing some seventy-nine (79) and two (2) pages respectively. The Respondent submitted two bundles which were marked as bundle “R” and “R1” containing some seventy-five (75) and four (4) pages respectively. a written bundle of documents which was admitted as evidence, marked as “A”. The Respondents did not submit any bundles of documents into the record.
The proceedings were digitally recorded.
Both parties undertook to address me in written closing arguments to be submitted by the 23 September 2026. Same was considered in this award.

THE ISSUES IN DISPUTE
6. Firstly, I must determine whether the Head of Department (“HOD”) committed an unfair labour practice by refusing to appoint and/or deviating from appointing the Applicant in line with the recommendation of the School Governing Body (“SGB”). If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

The Respondent advertised a permanent CS1 teaching position on the 24 February 2026. The position called for suitably qualified candidates teach English and Xitsonga.
The Applicant applied, and was shortlisted and interviewed for the positon together with three (3) other candidates.
Subsequent the interviews, the SGB recommended the Applicant for appointment. However, the Department Head deviated from that recommendation, and instead appointed the incumbent, Ms. Masete Khensani.
The Applicant, aggrieved by the decision and/or deviation, filed a referral for unfair labour practice relating to promotion.

THE SUCCINCT AND RELEVANT SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

TRIFLY MATAKALA
11. Ms. Matakala testified under oath that she had previously worked at Mhalamhala Primary school having being appointed on four consecutive fixed-term contracts from February 2023 to December 2026. She testified that when the opportunity for permanent employment came in the form post 04 advertisement, she applied, and was shortlisted and interviewed by the SGB.
12. Following the interviews, she was ranked no.1 candidate by the interview panel and recommended for appointment to the Head of Department by the SGB.
13. Subsequently, the HOD refused to appoint her, and instead appointed candidate no.2, the incumbent, Ms. Masete KE.
14. The Applicant testified that she was suitably qualified, armed with a SACE certificate, a Bachelor of Arts degree majoring in Translation and Linguistics. She testified that the advertisement, which appears on pages 13 of “R” did not specify any degree but for any relevant REQV13 qualification. She further testified that her BA Arts qualification read together with her postgraduate certificate in education meet the REQV13 requirement.
15. She further testified that the HOD acted unfairly, and subsequently committed an unfair labour practice by deviating from the recommendation of the SGB which recommended her for appointment.

JACK NKUNA

Mr. Nkuna testified under oath in English. The succinct summary of his testimony was that he was the Chairperson of the SGB and a member of the interviewing panel that shortlisted and interviewed the Applicant. He further testified that the Applicant met all the necessary requirements for the post, being the relevant qualification, the SACE certificate and the postgraduate certificate in education. He further testified that the Applicant had previously worked at the school, and performed well. He testified that the Applicant was ranked no.1 suitable candidate by the interview panel and was recommended for appointment as the most suitable candidate of all other candidates that applied. He further testified that as the SGB they were aggrieved by the deviation to appoint the Applicant in line with the recommendation of the SGB and felt undermined.

PETER ZAZAMBANA CHABANGU

Mr. Chabangu testified under oath in English. The succinct summary of his testimony was that he was the Deputy Principal of Shiphamele Primary School and served as the Chairperson of the interviewing panel. He testified that the duty of the panel was to identify suitable candidates in terms of curriculum needs of the school, shortlist, interview and recommend suitable candidates for appointment to the HOD. He testified that as the interview panel, they had no policies or guidance that precluded them to shortlist, interview and subsequently recommending the Applicant for appointment with her Bachelor of Arts degree plus post graduate certificate in education. She testified that the Applicant was considered for appointment because she had English and Xitsonga as subjects in line with the advertisement for post 04 as advertised by the school. He further testified that he had not been contacted about the deviation and/or the reasons thereof, but later heard from the SGB. He testified that it was unfair for the Respondent not to consider the Applicant because of the postgraduate certificate in education.

THE SUCCINCT AND RELEVANT SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
MAKONDELELA MARGARET MACHUMELE
18. Ms. Machumele testified that she works for the Respondent as the District Director. She testified that the role of the SGB was to recommend suitable candidates for appointment to the HOD, who appoints based on recommendation in consideration of other factors after verifying the process followed by the SGB. She testified that upon receiving the recommendation of the SGB, they discovered that the recommended candidate, being the Applicant, did not possess the relevant Bachelor of Education degree with teaching subjects in English and Xitsonga. She further testified that the second most suitable candidate recommended for appointment by the SGB, being Ms. Masete KE, has the Bachelor of Education with the relevant subjects of English and Xitsonga. She further testified that the HOD then deviated and provided reasons in writing to the SGB, and proceeded to appoint the incumbent on the basis that she was the most suitable candidate than the Applicant.

ANALYSIS OF EVIDENCE AND ARGUMENTS
19. The issues for determination are simple and straightforward. I must determine whether the Respondent’s decision to deviate from the SGB’s recommendation to appoint the Applicant and/or refusal to appoint the Applicant amounted to an unfair labour practice against the Applicant.
20. The facts in this case are largely common. The Applicant was shortlisted, interviewed and recommended to the appointing authority for appointment. Subsequently, the Respondent deviated and appointed the second Respondent, namely, Ms. Khensani Evidence Masete. It is common cause that the Applicant was ranked number one (1) by the interviewing panel, followed by the second Respondent at number two (2). It was also common cause that the Applicant holds the Bachelor of Arts in Xitsonga and English together with certificate for postgraduate in education. The second Respondent has a Bachelor of Education in Xitsonga and English and has been teaching longer than the Applicant. Put differently, the second Respondent has more teaching experience than the Applicant.
21. The Applicant’s case was simply that the refusal to appoint her in line with the SGB recommendation amounted to an unfair labour practice relating to promotion.
22. The Respondent, on the contrary, argued that the SGB ought to not have shortlisted the Applicant in the first place, in that she did not meet the minimum requirements in that she did not possess a teaching qualification, alternatively, that the Respondent was entitled to appoint any suitable candidates recommended by the SGB.
23. Section 6(3) of the Employment of Educators Act which reads as follows:
“(b)The Head of department may only decline the recommendation of the governing body of the public school or the council of the further education and training institution, if-
(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed
(ii)the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators
(iv) sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence
(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1) of the Act.
(c) If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department”.
24. In this case, the HOD declined the recommendation of the SGB in that the Applicant did not hold a teaching qualification. The Applicant conceded during cross-examination that her Bachelor of Arts in Xitsonga and English was not a teaching qualification. The Applicant argued that the advertisement did not specify that the qualification required was that of Bachelor of Education in Xitsonga and English. This submission is without merit and defies logic.
25. The Respondent’s shortlisting form which appears on page 16 of “R” clearly specifies that candidates with a “highest academic qualification in the learning area/subject” must be shortlisted. The Applicant’s case was that her Bachelor of Arts read together the postgraduate certificate qualifies her for the teaching position. She, however, could not show with proof the basis for that submission. On the facts, it was clear that the Applicant lacked the relevant teaching qualification.
26. The Respondent. Having declined to appoint the Applicant, proceeded to appoint the second Respondent, who was ranked number two (2) by the interviewing panel. The same SGB, recommended the second Respondent for appointment as the second preferred suitable candidate. The reasons for the deviation directed at the SGB appears on page 64 of “R”. Paragraph number two (2) read thus, “This communique serves to inform you that your recommended candidate cannot be approved for appointment on post no.4, because, candidates ranked no.1 has BA in translation and linguistics which is irrelevant qualification for teaching, based on paragraph no.4 of the approval for advertisement of the post, dated 23 February 2026.
27.The question is whether that conduct of the employer is enough to warrant interference with the prerogative of the employer to appoint a candidate of their choice?
28. In my view, the emphatic answer is no. The LAC in the Ncane v Lyster NO and Others held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides.
29.In this case, the Respondent was within their rights to deviate from the recommendation of the SGB in preference on the most suitable candidate in the form of the second Respondent, Ms. Masete. Ms. Masete met the minimum requirements for shortlisting, and was also recommending for appointment by the SGB.
30. The incumbent, Ms. Masete, was cited in the proceedings, and attended the hearing but rightfully so chose not participate by adducing any evidence or cross-examining the Applicant.
31.In the circumstances, the Applicant’s case falls to be dismissed.
32.I make the following award: