--- title: "13 October 2026 – ELRC472-26/27GP" description: "Case Number: ELRC472-26/27GP Panellist: Joseph Mphaphuli Date of Award: 13 October 2026 In the dispute between: Sadtu obo Soyizwaphi Mzimkhulu (Union/Applicant) And Sedibeng Tvet College (Respondent) 1. Details of hearing and representation 1.1 The hearing took place at the Respondent’s…" url: "https://elrc.org.za/docs/13-october-2026-elrc472-26-27gp/" updated: "2026-10-13" category: AWARDS --- # 13 October 2026 – ELRC472-26/27GP Case Number: ELRC472-26/27GP Panellist: Joseph Mphaphuli Date of Award: 13 October 2026 In the dispute between: Sadtu obo Soyizwaphi Mzimkhulu (Union/Applicant) And Sedibeng Tvet College (Respondent) 1. Details of hearing and representation 1.1 The hearing took place at the Respondent’s premises in Vereeniging. The proceedings were conducted in terms of Section 191 of the Labour Relations Act 66/1995. The hearing took place on the 22nd of September 2026. Mr. Olifant, the Deputy Principal, appeared for the Respondent. The Applicant was represented by Mr J. Malesa, a Union Official. The proceedings were digitally recorded. Parties agreed to file closing arguments by 29 September 2026.The closing arguments were taken into account in arriving at the award 2. Issue in dispute 2.1 I had to determine whether the Applicant’s dismissal was substantively fair or not and make an appropriate award. 3. Background to the dispute 3.1 The Applicant has been in the service of the Respondent for a period of twenty-four years. The Applicant was a senior lecturer and was remunerated at R43 334.75 monthly. The Applicant was dismissed on the 08th of July 2026. Dismissal was for a reason related to the Applicant's conduct. The Applicant sought reinstatement as a remedy. 4. Survey of evidence and argument Respondent’s case 4.1 Mrs Lizette Pretorius, H.O.D NCV and National Certificate Vocational in the Business Studies Division, Sedibeng Campus, testified in the Respondent’s case. She was responsible for managing and leading the team of senior lecturers and lecturers in her division. She had to ensure that assessments are completed according to the assessment schedule. Students write assessment, marks are captured, scripts are moderated and the captured marks are verified against the scripts. 4.2 She was familiar with the Applicant. She had known the Applicant since the year 2015. The Applicant was a senior lecturer at the time of her appointment. As a senior lecturer the Applicant was tasked with the management of his division. The Applicant was responsible for making sure that marks are captured, moderation is done and verification of marks after each assessment in his division. 4.3 The Applicant was charged with altering marks on the marked script without supporting evidence. In the case of student Lethuka IL, the student was allocated ten marks for a question that was only worth a total of five marks. The Applicant gave another student four marks for a question that was worth two marks. The Applicant awarded twelve marks when the total marks in terms of the question were five marks. The student Mokgadi was allocated six marks for a question worth five marks. 4.4 Student Lethuka was allocated fifty marks after an alteration of an eighteen mark. The student was allocated six marks for a question worth three marks. In the case of Student A Smith the mark initially allocated was thirty-eight which was later changed to fifty, to mention just a few examples. 4.5 Moderators were responsible for moderating the scripts of examiners. A moderator will return the script in the event of discrepancy of 5% or more to the examiner for correcting the discrepancies. The scripts in respect of the assessments in question were not moderated. The Applicant's assessment scripts were not given to the allocated moderator who was known to the Applicant. The Applicant did not see to it that the marks were captured or that the scripts were passed to her despite requests to that effect. She had no information about the Applicant's ill health, and no certificate of ill health was ever presented to her. The repeater group of students some of whom benefitted from the Applicant’s generosity, were allocated to the Applicant in the ordinary course of duty and responsibilities. 4.6 The Applicant’s conduct had the potential of ruining the institution’s reputation and damaged the employment relationship extensively and beyond repair. Applicant’s case 4.7 The Applicant was only allocated his full complement group in January 2024. He understood a Icass built group to be repeat students. Repeat groups do not attend classes. He first heard about the repeat group in July 2024 and became aware that he would be required to mark their scripts and the students' administration. He received a document appointing him for the responsibility of taking responsibility for the repeaters and the approved payment. 4.8 He was allocated four groups of full-time repeaters constituting fifteen students. He did not have the capacity to take over the responsibility of the group due to being overwhelmed by work for full-time students. He took the responsibility as a matter of following the HOD instruction. He was not in a good mental state at the time as he was suffering from depression. He did not believe that he was given enough time to do administration for the repeaters including the marking and capturing of repeaters‘ scripts. He was not given enough time. He did not have knowledge that there was a moderator by the name of Jebu. He was at the time, suffering from depression which has been the case since 2015. 4.9 The post moderation process allows the moderator to revert back to the marker to revise the marks in case of discrepancies. He has been in the service of the Department, that is, Sedibeng College for twenty-four years. He has never heard that scripts have not been moderated. 1. Analysis of evidence and argument 5.1 The Respondent’s case was that the Applicant made himself of guilty of misconduct. The misconduct was serious enough to warrant a dismissal in the first instance. The misconduct had the potential to tarnish the reputation of the institution and the Respondent cannot, in the light of the misconduct reconcile with the Applicant for a continued employment relationship. In a case where the existence of a dismissal is not in dispute, the onus to establish the fairness of the dismissal and the fairness of the pre-dismissal procedure rests with the party that effected the dismissal. 5.2 The fairness or otherwise of a dismissal is determined with reference to Section 188 of the Act wherein provision is made that a dismissal is only fair if it is for a fair reason and effected in accordance with a fair procedure. Fair reason for a dismissal implies, with particular reference to misconduct dismissal, the existence of misconduct, and the fairness of the reason, that is misconduct, as a reason to dismiss. 5.3 Misconduct is only a fair reason to dismiss on account of the seriousness of the misconduct, in a case of a single incident of misconduct or in the case of a less serious misconduct, due to the fact that the affected employee has a history of misconduct or is a habitual or serial offender to the extent that his or her inability to conform to workplace standards has become evident. The Respondent only called one witness to testify in its case. The Respondent's testimony in short was that the Applicant failed to execute his duties as expected by allocating a number of students marks that were not compatible with the questions, failed to subject his scripts to the scrutiny of the moderator, failed or ignored the memorandum for guidance in marking scripts and that the Applicant's conduct was grossly irregular and glaring. 5.4 The Applicant was also the only witness in his case. The Applicant did not dispute that the marks allocation in the identified scripts that served as evidence at arbitration were not the allocated marks or that the marks were inconsistent with the questions and the memorandum. The Applicant and his representative steadfastly argued that the conduct was not deliberate or intentional but ordinary mistakes influenced by ill health, to wit, depression, work overload, loss of focus and fatigue.it was also the Applicant’s argument that the scripts in question were the scripts of part time students who were additional to his full time students and that the Applicant was coerced to do the marking of the part time students without remuneration. 5.5 The charge against the Applicant read: NOTICE OF FORMAL DISCIPLINARY HEARING ‘You are hereby notified to attend a disciplinary hearing in terms of the paragraph 7.1 of the Disciplinary Code of Conduct for the Public Service Resolution 1 of 2003 as amended. Allegation one It is alleged that on or around September 2024, you fraudulently altered the marks of the following candidates in that you have increased their marks without the supporting evidence, while you knew or ought to have known that it is wrong for you to do so’. 5.6 It must be stated and noted at the outset that the large part of the Applicant's testimony was new evidence and no version pertaining to the Applicant's testimony on the critical aspects of the Respondent's witness testimony was put to the Respondent's witness. The Respondent's witness's testimony that there was a moderator appointed, was not disputed, that the moderator was known to the Applicant and that the moderator served both part time and full-time students was not contradicted or disputed and no alternative version was put to the witness. 5.7 Court decisions in particular the matter of ABSA Brokers (Pty) Ltd v Moshoana NO and others [2005] 10 BLLR 939 (LAC), the Court stated that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examine but, indeed, also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may, in general, imply an acceptance of the witness' testimony. 5.8 The Labour Court decision in Klaas and another v Eskom Holdings Ltd and others (JR 251/2011) [2016] ZALCJHB 152 (handed down on 19 April 2016), was that appropriate / or considerable weight should always be placed on uncontested evidence. In the case of NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC), the Court set aside an award where the Commissioner found for the Employee on facts that were not put to an Employer’s witnesses. 5.9 There may be no legal duty for an employee to prove that a dismissal was not fair. An employee however is duty bound to rebut the evidence of an employer where there is a case to answer. Failure to do so simply reinforces or buttress the Respondent's case. There was no dispute and no alternative version that was put to the Respondent's witness regarding the Applicant's failure to respond to the Respondent's witness to submit the scripts. The email to request same read: ‘’Good day Mr Soyizwaphi, I am aware that some repeater students for Operations Management L2 did attend your classes prior to the appointment of Ms Mamba (tutor for Operations Management L2R). Kindly assist with the following regarding the Operations Management L2 Repeater students: Submit ALL scripts of assessments completed with you to my office (Assignment 1, Test 1 and Assignment 2). Submit ALL ISAT scripts for the repeaters to my office. Also assist Ms Mamba with test 2 which still need to be conducted. Kindly note that tutors are not allowed to mark, thus you need to assist with the marking of repeater students. Would appreciate if all evidence can be with me by Thursday, 8 August @ 12:00. Would like to capture ALL ISAT marks and assessments completed. And ensure that assessments not completed can be finalised before students write Internal Exams. Your cooperation would be highly appreciated. Regards, Lizette Pretorius’’ 5.10 It was also not disputed that the marks allocation and alteration were done without any supporting evidence to justify same. The Respondent profoundly denied any knowledge of the Applicant's indisposition and that no documentary evidence was placed at the Respondent's disposal. 5.11 The Applicant's failure to give a plausible explanation for his conduct and the far reaching and unsolicited excuses ranging from depression, work overload, being coerced to do the part-time students script marking, the absence of a mark moderator could not belie the Respondent's version herein above recorded. As already indicated elsewhere herein above, the Respondent's version was largely uncontested, probable, reliable and capable to prove the existence of the misconduct. 5.12 The Respondent succeeded in discharging the onus to prove the existence of misconduct and the fairness of the misconduct as a reason to dismiss due the gravity of the misconduct. Accordingly, the dismissal met the threshold established in Section 188 of the Act. There was no evidence led on the procedural fairness of the dismissal. 1. Award 6.1 The dismissal was substantively and procedurally fair 6.2 I dismiss the application for an alleged unfair dismissal. Signature: Commissioner: Joseph Mphaphuli