ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC543-25/26MP

GODFREY MPHO MANZINI APPLICANT

And

EDUCATION DEPARTMENT OF MPUMALANGA 1st RESPONDENT

NORMAN MAKAMU 2nd RESPONDENT

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was finalized at Bohlabela District Offices (Maviljan A Bushbuckridge) on 23 March 2026.
1.2. Both parties attended the proceedings. The 1st respondent was represented by Mcmillan Shabangu, the 2nd respondent was represented by Mabelane J.T, union official from SADTU, while the applicant was represented by Isaac Matimba Khoza, union official from PEU.
1.3. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the decision of the 1st respondent to appoint the 2nd respondent to the position of Deputy Principal at Nkwenkwezi Primary School was procedurally and substantively fair.
2.2. If the appointment of the 2nd respondent was procedurally and substantively unfair, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
3.1. The applicant viewed the appointment of the 2nd respondent as procedurally and substantively unfair and prayed that the appointment be set aside and the position be re-advertised.
3.2. The following issues are common cause:
a) that the applicant and the 2nd respondent both applied for the vacant post in the open vacant list for the position of Deputy Principal at Nkwenkwezi Primary School.
b) the 2nd respondent was appointed to the position with effect from 01 August 2025.
3.3. Prior to the commencement of the proceedings, the applicant submitted bundles of documents marked RR1 and RR2, the 1st respondent submitted a bundle of documents marked R1, and the 2nd respondent submitted a bundle of documents marked A1.
3.4. The applicant closed his case after testifying and calling one witness, while the 1st respondent closed its case after leading the evidence of three witnesses. The 2nd respondent did not lead any evidence or call witnesses.
3.5. The applicant and the 1st respondent submitted written closing arguments on the agreed date and time, while the 2nd respondent did not submit closing arguments.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant’s witness, Shadrack Sibuyi, testified that he is employed as departmental head at Nkwenkwezi Primary School. The position of Deputy Principal at the school was advertised during November 2023. After applying for the position and being shortlisted, he was invited to attend the interviews on 14 August 2024. On 14 August 2024, the interviews proceeded and were finalized. Immediately after the interviews and before the appointment of the successful candidates, the whole interview process was set aside because the process was disputed successfully. The second shortlisting for the same position was held on 31 October 2024, but he was not shortlisted. After not being shortlisted for the second interview, he lodged a complaint and submitted it to the district office on 11 November 2024. Although he never received any response from the district office, the second interviews never proceeded. During August 2025, he was surprised when the school principal introduced the 2nd respondent as the school’s new deputy principal.
5.2. The 1st respondent did not cross-examine the applicant’s witness.
5.3. Under cross-examination by the 2nd respondent, Shadrack Sibuyi testified that he had issues with the second shortlisting because he was not shortlisted despite that he had been shortlisted during the first shortlisting. He disputed the second process only on the basis that he was not shortlisted. The first interview process was nullified after it was successfully challenged by other candidates. The second interview never proceeded. When the 2nd respondent was introduced to the school, he was still waiting for the new date of the interviews. The appointment of the 2nd respondent must be set aside because he was appointed based on the process that was nullified.
5.4. The applicant, Godfrey Mpho Manzini, testified that he has been at Nkwenkwezi Primary School since 2018. During November 2023, position Deputy Principal was advertised for the school. He applied but he was not shortlisted for the interviews. Immediately after the interviews, his union, PEU, lodged a grievance with the district office. The interviews proceeded despite the union’s grievance. On 14 October 2024, he received a message that the interviews that were held on 14 August 2024, has been nullified. On 31 October 2024, he received a phone call informing him that he had been shortlisted for the same position and that he should attend the interviews on 07 November 2024. On 06 October 2024, he received a phone call informing him that the interview scheduled to proceed on 07 November 2024, has been cancelled. The school principal of Nkwenkwezi Primary School also called an urgent staff meeting and informed them that the interview scheduled to proceed on 07 November 2024, has been cancelled because of the influx of disputes received by the district office. On 07 November 2024, the interviews never proceeded. When the 2nd respondent was introduced to the school as the new deputy principal on 01 August 2025, he was still waiting for the new date of the interviews for the same position.
5.5. The 1st respondent did not cross-examine the applicant.
5.6. Under cross-examination by the 2nd respondent, the applicant testified he did not have issues after being not shortlisted during the first shortlisting. During the first shortlisting, he was not shortlisted despite meeting all the minimum requirements for the position. The 2nd respondent was appointed by the 1st respondent but the process of appointing him was seriously flawed.

THE 1st RESPONDENT’S CASE
6.1. The 1st respondent’s first witness was Mercy Nxumalo. She testified that she is employed by the 1st respondent as a Labour Relations Officer. The first interview process that was held on 14 August 2024, was disputed by PEU and the school SGB. After conducting the investigation, she found that the whole process was seriously flawed, and she recommended that the whole interview process be nullified. Her recommendation that the first interview process be nullified was approved by the district director, M.L Goba.
6.2. Under cross-examination by the applicant, Mercy Nxumalo, testified that her recommendation for the first interview was implemented because the second shortlisting was conducted. The second process was also disputed before the scheduled interviews. She was surprised when informed that the 2nd respondent had been appointed to the position because according to her knowledge she was waiting for the circuit manager to bring back the file for re-advertisement. If the 2nd respondent has been appointed based on the outcome of the first interviews process, the appointment would be null and void.
6.3. Under cross-examination by the 2nd respondent, Mercy Nxumalo, testified that when she conducted the investigations, she discovered that the SGB did not sign the interview documents. When the 2nd respondent was appointed, she was never consulted. Her recommendation that the first interview process be nullified was never challenged and set aside.
6.4. The 1st respondent’s second witness was Sipho John Mdluli. He testified that he is the deputy chairperson of Nkwenkwezi Primary School SGB. On 14 August 2024, the union, PEU, disputed the shortlisting process but the Department’s official insisted that the interviews should proceed. Immediately after the interviews, the school SGB lodged a grievance with the district office. The interviews that were held on 14 August 2024 were nullified and the process started afresh. The second shortlisting went very well but the interviews never proceeded because the second shortlisting process was disputed. While waiting for the outcome of the disputed second shortlisting, they were surprised when informed that the 2nd respondent has been appointed to the position of deputy principal of the school. After the interviews on 14 August 2024, the SGB was never given an opportunity to make recommendations.
6.5. The applicant did not cross-examine the 1st respondent’s second witness.
6.6. Under cross-examination by the 2nd respondent, Sipho John Mdluli, testified that during the first shortlisting, he was the only member of the SGB present. The Department’s representative had imposed the shortlisting and interview panel on them. As the SGB of the school, they never accepted the outcome of the first interview process.
6.7. The 1st respondent’s third witness was Thathego Msimango. She is employed as an educator at Nkwenkwezi Primary School, and she also serves as the secretary of the school SGB. She was not part of the first shortlisting and interviews process. She was informed that the first interviews process has been nullified and that the process must start afresh. The second process was also not finalized. The SGB’s expectation was that the post would be re-advertised. The school SGB never recommended the appointment of the 2nd respondent.
6.8. The applicant did not cross-examine Thathego Msimango.
6.9. Under cross-examination by the 2nd respondent, Thathego Msimango, testified that the SGB never met after the first interviews to make recommendations. The first process was nullified, and the second process never proceeded to its finality.

THE 2ND RESPONDENT’S CASE
7.1. On 31 October 2025, immediately after the 1st respondent closed its case, the 2nd respondent indicated that he is not going to lead any evidence but will call one witness. On the day in question, the 2nd respondent’s witness did not testify because there was no interpreter and the matter was adjourned.
7.2. On 23 March 2026, the 2nd respondent, his representative and the witness defaulted. The Council tried several times to phone the 2nd respondent and his representative, but their phones went unanswered.
7.3. After a no-show by the 2nd respondent, his representative and the witness, i then decided to use the discretion accorded to me by Section 138(b)(i) of the Labour Relations Act 68 of 1995 as amended, to continue with the arbitration in the absence of the 2nd respondent and his representative and issue an award.

ANALYSIS OF EVIDENCE AND ARGUMENTS
8.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision to appoint the 2nd respondent to the position of Deputy Principal was procedurally and substantively unfair.
8.2. The Employment of Educators Act of 76 of 1998 section (6)(3)(a) provides that: “Any appointment, promotion or transfer to any post on the educator establishment of a public school or further education and training institution, may only be made on recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be,……
8.3. In Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC), the Court held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes unfair labour practice.
8.4. In this matter, it is undisputed evidence of the applicant, the applicant’s witness and the 1st respondent’s witnesses that the first interview process was nullified and that the second process was halted immediately after the shortlisting process and that the second interviews were never conducted.
8.5. The 1st respondent and the school SGB supported the applicant’s case and distance themselves from the irregular appointment of the 2nd respondent. It is undisputed evidence of the deputy chairperson and the secretary of the school SGB that the SGB never recommended the 2nd respondent. It is also the version of the 1st respondent’s Labour Relations Officer that if the 2nd respondent was appointed based on the outcomes of the first interview, his appointment is null and void.
8.6. From the undisputed evidence submitted, the appointment of the 2nd respondent is not in line with the Employment of Educators Act no 76 of 1998 and violates the applicant’s right to be given a fair opportunity to compete for a post. Further, the appointment was seriously flawed and based on irregular process.
8.7. The 2nd respondent did not lead any evidence or a version put to the applicant, the applicant’s witness and the 1st respondent’s witnesses that fair procedures were followed before his appointment.
8.9. In the circumstances, I conclude that the applicant has proven on balance of probabilities that the decision to appoint the 2nd respondent to the position of Deputy Principal was procedurally and substantively unfair.

AWARD
9.1. The appointment of the 2nd respondent, Norman Makamu, to the position of Deputy Principal is nullified with effect from 01 May 2026.
9.2. The 2nd respondent must revert to the position he occupied prior to the irregular appointment on 01 August 2025.
9.3. The 1st respondent, the Education Department of Mpumalanga, is further ordered to re-advertise the post. …………………………………………………..

ELRC COMMISSSIONER: NICHOLUS SONO
10 April 2026