15 July 2026 – ELRC1039-25/26MP

Case Number: ELRC1039-25/26MP
Panellist: Joseph Mphaphuli
Date of Award: 15 July 2026
In the Arbitration between:

Mkansi Robert
(Union/Applicant)

And

Mpumalanga Department of Education
(1stRespondent)

Patrick Siwele
(Second Respondent)

Details of hearing and representation.

1.1 The arbitration hearing was scheduled in terms of Section 191 of the Labour Relations Act 66 of 1995 (the LRA). The hearing took place at the head office of the Department of Education in Mpumalanga, on the 29 and 30 of June 2026. Mr McMillan Shabangu, Labour Relations Practitioner in the service of the First Respondent, appeared on behalf of the First Respondent. The Second Respondent was represented by Mr Kabelo Lekitlane, an official of trade union SADTU. Mr David Khoza, Legal Practitioner, appeared on behalf of the Applicant. The parties consented to legal representation. The parties’ closing arguments submitted on 09 July 2026 were taken into consideration in arriving at the award.

1.2 The proceedings were digitally recorded.

Issue in dispute.

2.1 I had to determine whether or not there was an unfair labour practice, and if so to make an appropriate award.

Background to the dispute.

3.1 The Applicant has been in the service of the Respondent for a period of about eighteen (18) years. The Applicant was employed as Deputy Principal at a monthly salary rate of R45 000.00. The Applicant wished to be appointed to the position of Principal effective from 02 December 2025.

Survey of evidence and arguments.

Applicant’s case.
4.1 Mr Mkansi, the Applicant, gave evidence that he was employed at Malwana Primary School in Bohlabela District, Mpumalanga. He applied for a Principal post in March 2025. His application was not successful even though he got the highest score during the interview.

4.2 The Applicant was aggrieved following the appointment of the Second Respondent, notwithstanding the fact that the Applicant received the highest interview score.

4.3 According to the District Director, the Applicant lacked in experience and management acumen. The Applicant did not, however, agree with the Director’s assessment.

4.4 He could not make sense of the Director’s assessment that he lacked in experience when he had previously acted in the position. The Applicant strongly lamented the Director’s deviation from the recommendations of the interviewing panel, Circuit Manager and School Governing Body.

           1ST Respondent’s case.

4.5 Dr Khathutshelo Samson Khomola, the District Director, testified in the Respondent’s case. He rose from a Teacher, Deputy Principal, Principal, Circuit Manager, Chief Education Specialist to a District Director in the Bohlabela area. He has been in the service of the Department for thirty-seven (37) years.

4.6 Posts are advertised in the normal course of events and deputising is allowed without appointment when the occupant is out of office for reasons related to sickness, for example: Candidates for vacancies go through interviews and are recommended for appointment. The three best candidates will be appointable.

4.7 He was delegated by the Head of Department to approve any of the recommended candidates. He was not expected to close his eyes and sign the approval of a recommended candidate.

4.8 He observed that the Applicant, who was candidate number 1 did not have a qualification in management and administration. Candidate number two had a full qualification in management, an advertised requirement.

4.9 He observed that the Applicant did not at any time act as a principal. The Applicant has indicated in the curriculum vitae (CV) that he once acted as a principal. His enquiry showed that this was not the case.

4.10 The Applicant only deputised for the principal who was ill but was never appointed as the vacancy had not arisen at the time.

4.11 He further observed that the Applicant had embellished his CV by stating that he once acted for Mr Randela, he was Chairperson of Manyeleti Circuit, which he was not. Finally, he found that the Applicant misrepresented himself as a member of Council,Eqlinton (induna).

4.12 It was his view that had the Applicant not embellished his C.V, he would not have been shortlisted in the first place.

4.13 His reasons for approving the Second Respondent were communicated to the School Governing Body. These being that:

I. The successful candidate has qualifications in Management.

II. The successful candidate has more experienced than the Applicant.

4.14 The Applicant was qualified as a curriculum specialist whereas the Second Respondent had better credentials namely, administration and management, the primary requirements for the principal position.

4.15 The Applicant has also misrepresented himself when issuing a letter appointing the Second Respondent as an acting Deputy Principal when he did not have powers to appoint.

4.16 He found it irregular for the Circuit Manager to have presented the Applicant as an acting Principal.

4.17 The fact that the Applicant was described as an Acting Principal by the South African Democratic Teachers Trade Union ( SADTU) in its testimonial when in fact that was not the case, was a distortion of the truth.

4.18 He did not deviate from the recommendations of the interviewing panel and the SGB but performed an oversight duty vested in him through delegated authority.

4.19 He was not bound by the recommendations and have advised the concerned parties why he appointed the Second Respondent ahead of the Applicant.

Analysis of evidence and arguments.

5.1 The Applicant’s case was founded on the provision of Section 186(2)(a) of the LRA, in particular, regarding promotion. The relevant provision reads: “unfair conduct by the employer relating to the promotion of an employee …’’

5.2 The parties concluded a pre-arbitration minute, whereby parties agreed on the following as common cause factors, that:

I. A Principal post was advertised.

II. Both the Applicant and the Second Respondent applied for the post.

III. Both the Applicant and the Second Respondent were shortlisted and interviewed.

IV. The Applicant’s interview score was the highest score followed by the Second Respondent.

V. The interviewing panel, School Governing Body and the Circuit Manager recommended the Applicant to be appointed to the advertised position.

VI. The Second Respondent ranked second to the Applicant.

VII. The Acting District Director at the time approved the appointment of the Second Respondent.

5.3 The parties described the dispute to be determined by the arbitrator as, whether:

a. There was justification for the Acting District Director to deviate from the recommendations.

b. The Acting District Director acted within his scope of authority or exceeded his powers.

5.4 The referring party otherwise known as the Applicant Party, bore the onus to prove that there was an unfair labour practice as contemplated by Section 186(2)(a) of the LRA. Like in the case of dismissal disputes, proof is on a balance of probabilities.

5.5 The Applicant was the only witness in his case. The essence of the Applicant’s testimony was that he was employed as a Deputy Principal. The Applicant had previously acted as Principal in the position forming the subject of the contest. The Applicant had serious and deep reservations about the Acting District Director’s deviation from the recommendations of the interviewing panel, School Governing Body and Circuit Manager , all of which was that he was suitable for appointment.

5.6 The First Respondent also called only one witness to testify in its case. The Second Respondent did not tender evidence in the matter. Dr Khathutshelo Samson Khomola was the only witness in the First Respondent’s case.

5.7 Dr Khomola’s testimony in brief was that he was the Acting District Director, at the time, who approved the appointment of the Second Respondent Mr Patrick Sewele. The three candidates recommended for appointment stood an equal chance of being appointed to the vacant post. The language used by Dr Khomola was that the candidates ranked number one to number three were all appointable, meaning that the number one ranking was not necessarily guaranteed appointment.

5.8 Dr Khomola strongly felt that the recommendations were based on false and unverified information favouring the Applicant. Dr Khomola firmly believed that the role players in recommending the Applicant for appointment did not do due diligence and this failure led to recommendations that were not backed by facts.

5.9 Parties used a common bundle to support their arguments, making extensive reference to documents contained therein. Principally, reference was made to the testimonials, curriculum vitae, post profile for short listing of candidates, Circuit Manager’s recommendation, Personnel Administrative Measures (PAM) and the Employment of Educators Act 76 of 1998 (EEA).

5.10 Paragraph two of the correspondence from the Circuit Manager addressed to the District Director dated 29th of August 2025 unreservedly supports Dr Khomola’s argument that all the three contestants were appointable to the advertised position.

5.11 Paragraph two herein above referred to reads: “The candidates listed here qualify for appointment as per SGB recommendations.” The candidates in question in their order of preference were the Applicant, the Second Respondent and one Hlongwana T.J.

5.12 The Applicant stated in his curriculum vitae under extra-mural activities that he was a member of Council, Eglington (Induna) and that he was acting Principal of Malwana Primary School as well as being chairperson of Manyeleti Circuit, all of which was intended to enhance his chances to be appointed on false credentials.

5.13 Paragraph one of the testimonial emanating from SADTU dated 24th April 2025 inaccurately presented the Applicant as acting Principal of Malwana Primary School where the vacancy arose. Dr Khomola’s testimony that the Applicant was at no stage appointed as acting Principal and that appointments were not made verbally but in writing was not disputed. It was equally not in dispute that there was no written appointment for the Applicant to act as Principal at Malwana Primary School.

5.14 It is worth noting that Dr Khomola’s testimony that the Applicant’s alleged leadership roles lacked substance, was not at all contested or disputed or even countered. Similarly, there was no dispute that Dr Khomola enjoyed the Head of Department’s delegated authority when exercising his powers. This fact is re-enforced in the pre-arbitration minute where such is not recorded as a subject of contestation.

5.15 Clause B.5.5.3 of the Personnel Administrative Measures (PAM) for the Department of Education makes the following provision: “Despite the order of preference, the Head of Department may appoint any suitable candidate on the list.”

5.16 The list herein referred to is the list submitted to the Head of Department by the SGB and in order of preference, being:

I. The Applicant

II. The Second Respondent.

III. Hlongwana T.J.

5.17 Further provision in terms of Section (6) (b) of the EEA vindicates the Acting District Director’s decision. Section 6 (3) (b) makes provision that “The Head of Department may only decline the recommendation of the governing body if:

I. ‘’the candidate does not comply with any requirement collectively agreed upon, or determined by the Minister for the appointment, promotion or transfer’’.

5.18 Dr Khomola’s testimony was conclusive in proving that the Applicant did not meet the minimum requirements for shortlisting. This is in view of the fact that the Applicant had embellished his CV. The interviewing panel and the SGB were persuaded to shortlist and recommended the Applicant on the strength of a falsified CV.

5.19 I find substance in Dr Khomola’s testimony that the Applicant did not meet the minimum requirements for shortlisting taking into account that the Applicant did not meet the leadership criteria, did not at any stage act in the advertised position and had less or no managerial and administrative skills, training or exposure.

5.20 It becomes evident when one recalls the provision of the PAM with particular reference to clause B.5.4.9 which reads: “an educator who has been acting in the advertised post for twelve months or more, and has applied for the post must be shortlisted’’, played a big role in the Applicant’s shortlisting. This is further evidence that the interviewing committee and the SGB were hoodwinked by the litany of misrepresentations contained in the Applicant’s CV and testimonials.

5.21 Dr Khomola’s testimony was sufficient to prove that the Applicant did not deserve the accolades showered on him by the interviewing committee and the SGB, all of which were based on dubious information.

5.22 One should also highlight that the claim that the Applicant acted as Principal, unsubstantiated as it is, could not, even if it was factual, advance the Applicant’s case for appointment.

5.23 Jurisprudence is to the effect that acting does not guarantee promotion when the post becomes vacant. The Labour Court decision in the matter of Eskom Holdings SOC Ltd v Govender, case N0 JR265/20 delivered in November 2023, expressly pronounced on the matter stating that: “Recruitment and appointments are exclusive preserves of the employer. When an employer appoints one of its employees to act in a vacant position, there is no automatic obligation to permanent appointment.”

5.24 The Applicant did not help its course by largely not contesting or disputing the essential and critical aspects of Dr Khomola’s testimony, particularly where it concerned the embellished CV. The effect thereof being that the Respondent’s version was fortified.

5.25 The Labour Court decision in the matter of Klaus and Another v Eskom Holdings Ltd and Others (JR251/2011) (2016) ZALCJHB 152 makes the point that considerable weight should always be placed on uncontested evidence. Such is the case in the current matter.

5.26 The matter of Pamplin v Western Cape Education Department (C1034/2015) (2018) (ZALCCT) sheds some light on the establishment of the burden of proof. The court emphasised that whilst in an unfair labour practice disputes relating to promotion, the onus is on the employee to demonstrate that the failure to promote was unfair, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise.

5.27 The evidence at my disposal showed that the First Respondent acted fairly. The First Respondent’s actions were supported by the applicable legislation and regulatory instrument as well as being aided by the false representation in the Applicant’s CV.

5.28 Dr Khomola did not act arbitrarily in exercising the powers to appoint but acted on objectively determinable facts to arrive at his decision.

5.29 The Applicant failed to discharge the onus of proof on a balance of probabilities.