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16 September 2025 -ELRC932-24/25MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION MEETING HELD IN Polokwane on the 04 August 2025

Case Number: ELRC932-24/25MP

Commissioner’s name: Thapelo Mathekga

Date of Award: 10 September 2025

In the matter between: –

NATU obo Lindelani Ligege Applicant

And

Mpumalanga Department of Education First Respondent

Lindiwe Mbowane 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

  1. The hearing was held virtually on the 25 July 2025.
  2. The Applicant was represented by Mr. Sibusiso Shakwana, a union official from NATU, while the Respondent was represented by Mr. McMillan Shabangu. Mr. Joseph Malope from SADTU represented the Second Respondent, Ms. Lindiwe Mbowane.
  3. The Applicant submitted 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.
  4. The proceedings were digitally recorded.
  5. Both parties addressed me in oral closing arguments at the end of the proceedings. Same was considered in this award.

THE ISSUE IN DISPUTE

  1. Firstly, I must determine whether the School Governing body recommended the incumbent for appointment to the Head of Department, and secondly, I must determine whether the Respondent committed an unfair labour practice against the Applicant by appointing the incumbent without the recommendation from the School Governing Body. If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

  1. The Respondent advertised the position of Department Head under the Insikazi circuit through a vacancy list for Mlilo primary school. The vacancy list was issued in November 2024 under reference number 62032-1163.
  2. The School Governing Body subsequently shortlisted and interviewed candidates for appointment.
  3. Flowing from the interviews, the incumbent, Ms. Lindiwe Mbowane was appointed as the successful candidate.
  4. The Applicant, Ms. Lindelani Ligege, referred an unfair labour dispute alleging that the School Governing Body had not recommended any candidates for appointment, and a result the appointment of the incumbent was unfair and irregular.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
Bheki Malomane

  1. Mr. Malomane testified that he was a member of the SGB, and was the scriber for the interviewing committee that conducted interviews on the 30 July 2024.
  2. He testified that his duties as a scriber included filling up forms and compiling the file for consideration by the SGB.
  3. He further testified that at the end of the interviews, the interviewing panel ranked three (3) candidates, with Ms. Ligege ranked number one (1), followed by Ms. Mbowane at number two (2) and could not recall the name of the third candidate.
  4. Mr. Mbowane further testified that the SGB never met to consider the interviewing panel’s report in order to consider it for the purpose of recommending their preferred candidates for appointment to the Head of Department.
  5. Mr. Mbowane testified that he was not aware of the letter appearing on page 55 of the Applicant’s bundle, purportedly written by the SGB.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

  1. The Respondent did not call any witnesses to testify. However, Mr. McMillan Shabangu, the Respondent representative, submitted that an investigation was conducted into the recruitment process, and that all members of the SGB distanced themselves from the recommendation letter appearing on page 55 of the Applicant’s bundle.
  2. Mr. Shabangu further conceded in closing arguments that the process was irregular, and ought to be set aside on the basis that there was not recommendation to the Head of Department by the SGB.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. The issues for determination are simple and straightforward. Firstly, I must determine whether the SGB met and considered the interview panel’s report for purposes of recommending to the Head of department for appointment, and whether such failure amounted to an unfair labour practice against the Applicant.
  2. The Applicant called only one witness, Mr. Malomane. His evidence was brief and straight to the point. In a nutshell, he testified that he was a member of the SGB, and was part of the interviewing committee. He testified that the SGB never met to consider the report nor recommended any candidate for appointment. It was not clear from his evidence why the SGB never met nor recommended any three (3) candidates or any candidate for appointment.
  3. This evidence was not challenged by the Respondents. Mr. Shabangu confirmed that the SGB never met, and conceded that the process followed was irregular.
  4. Mr. Sibusiso Shakana, the Applicant’s representative, referred me to a case of Kimberley Junior School and another v Head of the Northern Cape Education and others (278/080 [2009] ZASCA 58; [2009] 4 All SA 135 (SCA) 29 May 2009. In this case, the court was confronted with a matter bearing similar facts in that the Head of department appointed a candidate without any recommendation from the SGB. The court held at paragraph 19 that “in the absence of the jurisdictional fact of a recommendation by the SGB the HoD had no authority to make an appointment. Or – in the language of s 6(2)(a)(i) and s 6(2)(f)(i) of PAJA – absent any recommendation by the SGB, the HoD was not authorised by the empowering provision to make an appointment”.
  5. 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”.
  6. In this case, the SGB never made any recommendation to the Head of Department. While it was not established by the Respondent’s investigation as to identity of the person or persons who wrote the recommendation to the Head of Department under the pretext of the SGB, it was not in dispute before me that the SGB never recommended any candidate for appointment.
  7. Accordingly, the appointment of the incumbent, Ms. Lindiwe Mbowane did not comply with the provisions of section 6(3) of the Employment of Educators Act.
  8. The Applicant was shortlisted and ranked number one (1) by the interviewing committee. She too remained hopeful of promotion from this process. The conduct of the Respondent, by appointing the incumbent without following provisions of section 6(3) of the Act constituted an unfair labour practice against the Applicant.
  9. 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?
  10. In my view, yes. 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.
  11. In this case, there were no reasons furnished for the appointment Ms. Mbowane without any recommendation by the SGB. Further, it was the Respondent’s own submissions that the investigation established irregularities in the appointment of the incumbent.
  12. The incumbent, Ms. Mbowane, was cited in the proceedings, and attended the hearing but chose not participate by adducing any evidence or defending her appointment.
  13. Both Mr. Shabangu for the Respondent and Ms. Shakana for the Applicant conceded in their closing arguments that the appointment of Ms. Lindiwe Mbowane should be set aside. Further, Mr. Shakana conceded that for the same reasons that the appointment of Ms. Mbowane should be set aside, the Applicant too cannot be appointed or promoted to the position of Departmental Head.
  14. In the circumstances, I make the following award.

AWARD

  1. I make a declaratory order that the appointment and/or promotion of the incumbent, Ms. Lindiwe Mbowane was arbitrary, irregular, irrational, and substantively unfair.
  2. The promotion of Ms. Mbowane must be set aside immediately.
  3. There is no order as costs.

Commissioner Mathekga