Panellist: Nolundi Shezi
Case Number: ELRC762-25/26KZN
Date of Award: 17 August 2026

In the matter between:

Bhekinkosi Desmond Tembe Applicant

and

Department of Education KwaZulu Natal First Respondent

Bongani G. Msimango Second Respondent

APPLICANT’S REPRESENTATIVE Mr SGE Mdunge (NATU)

FIRST RESPONDENT’S REPRESENTATIVE Mr MC Sibanyoni (ER Specialist)

SECOND RESPONDENT’S REPRESENTATIVE Mr T Khumalo (SADTU)

Details of Hearing & Representation

1. This matter was initially scheduled for arbitration on 27 February 2026, due to the second Respondent not formally joined to these proceedings, the matter was adjourned as SADTU official insisted that the joinder ruling needed to be issued by the Education Labour Relations Council (ELRC). A directive was issued and the parties were directed to conduct a pre-arbitration conference and forward signed pre-arbitration minutes to ELRC.
2. The matter was then rescheduled for arbitration on 13 to 14 April 2026 and 27 to 29 May 2026, and remained part heard. It was only finalized on 27 July 2026. For April and May 2026, the matter was heard at Masibumbane High School at Ulundi, Zululand District. And for 27 July 2026, the parties agreed that it should be conducted on MS Teams, a virtual platform.
3. The Applicant, Mr B.D. Tembe, was represented by Mr S.G.E. Mdunge, NATU official. The first Respondent, Department of Education KZN was represented by Mr M.C. Sibanyoni, ER Specialist. Whilst the second Respondent, Mr B.G. Msimang, was represented by Mr T. Khumalo, SADTU official.
4. The matter was digitally recorded. The parties agreed that the submitted bundle of documents be used as common bundle for these proceedings. Ms Anathi Nyamazana provided interpretation services.
5. The parties were directed to submit written closing arguments by the 3rd of August 2026. They all complied with this deadline.

Issue to be decided

6. The issue to be decided is whether the non-appointment of the Applicant to the principal post, Post No. 2079 of HRM Circular No. 20 of 2024, constitutes an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act, No. 66 of 1995, as amended (“the LRA”) and, if successful, to determine the appropriate relief.

Background

7. The Applicant applied for a vacant Principal position, which was announced in HRM Circular number 20 of 2024, post number 2079. He was shortlisted and interviewed during the initial process. It was submitted that he was informed by his union official that he was ranked number 1, however, there were no recommendations made by the School Governing Body (SGB) of Felifa High School to the Head of Department for the initial interviews.
8. There was a grievance lodged with District Grievance Committee (DGC), which gave a recommendation that the initial selection process be redone, the recommendation was approved and the process was redone from the shortlisting stage. The for the second process of interviews the second Respondent to this dispute was successful and appointed as principal of Felifa High School, the position is currently holding.
9. The Applicant contends that the conduct exhibited during the selection process for the Principalship position at Felifa High School constitutes an unfair labour practice as defined by the Act. Specifically, his claim is premised upon the directive issued to repeat the selection process, which resulted in interference with the composition and functioning of the selection panel.
10. The relief sought by the Applicant is an order to set aside the appointment of the second Respondent and that the first Respondent be directed to finalize the appointment process by utilizing the results from the initial process.

Preliminary issues

11. On the second sitting of these arbitration proceedings, 14 April 2026, the Applicant’s representative filed an application for submission and admission of their bundle, which was going to add pages 27 to 38 to the existing bundle. The parties were allowed to make oral submissions which were digitally recorded.
12. The two Respondents did not oppose the application. The application was successful and additional documents were allowed and admitted being part of the bundles (as agreed by the parties).
13. On 27 May 2026 the second Respondent’s representative filed an application for additional evidence, voice recording, alleged between the SGB member and the Applicant. Although permission was granted, however, the issue of admissibility of such evidence could not be dealt with as they were no copies provided to these arbitration proceedings on this day.
14. It is important to note that the timing of this application was of a concern as the Applicant and his first witness had already completed their evidence. It was his last witness who was still on a stand. However, in spite of this concern the second Respondent’s representative was still allowed to file his application.
15. The copies in a form of a memory stick were only provided on 29 May 2026. The Applicant’s representative raised a concern that they were not given enough time to listen to the said voice recording and to prepare their response.
16. The matter was then adjourned and rescheduled for 27 July 2026. On this day, the parties were allowed to make oral submissions in relation to the admissibility of this evidence, which were digitally recorded.
17. The application failed on basis of legality: the person alleged gave the voice recording was not part of the conversation and the people involved in the conversation did not give permission for their conversation to be shared. It was therefore inadmissible.
18. The voice recording did not pass the authenticity requirements: since it was unconstitutionally acquired the witness was not going to be able to prove the originality of the recording and to prove whether it was edited or not, cut or tempered with.
19. The issue of relevance: there was no logical connection found, that is, sensible rational link to a disputed fact. Furthermore, with regard to the issue of probative value, no information or evidence provided that the voice recording was going to alter the probability of the fact’s existence.
20. In conclusion the application did not meet all the requirements: legality issue on how the evidence was obtained, authenticity requirement and relevance, it failed the test for the logical connection and probative value.
21. Ruling: the voice recording did not pass the admissibility test, that is, it was not admitted as additional evidence for these proceedings. The application failed.
22. Another preliminary issue related to the letter produced by one of the Respondents’ witnesses, Mrs Dlamini. The parties were allowed to make oral submissions.
23. It was discovered that the letter she referred to was not for the first process but was for the second process. Due to the dispute related to the first process of the interview, it was not relevant for these proceeding.
24. Ruling: Mrs Dlamini’s letter was not admissible and could not be added as addition evidence/ document.

Survey of Evidence and Argument
The following is the summary of the parties’ evidence, but not verbatim testimonies as recordings are available on request from the Council.

Applicant’s case

25. The Applicant testified under oath that he was appointed Head of Department (HOD) since 2019. The position of principalship at Felifa High School became vacant when Mr Mlambo left. The two HODs (Mr Msimango and himself) were given an opportunity to act as Principal.
26. The Circuit Manager appointed Mr Msimango to continue acting as Principal, he was told he fell short of PPN (i.e. he was a surplus teacher). However, he did not leave the school, he continued with his duties. For peace’s sake, he did not file any grievance.
27. He never said anything until the vacant post was advertised and he applied. He was called for an interview, and he was happy with the manner the process was conducted. He was then informed by his union official that he passed the interview.
28. Whilst he was waiting for the formal results, he heard that there was a grievance lodged. He was then informed that the process would start afresh, he was shortlisted again. The second interview had a different panel and there were no reasons provided on why the panel had changed.
29. The new interview panel had a new scorer who was not there at the beginning. The panel consisted of Mr Zulu, Mr Siyaya and Ms Khuzwayo, and the new scorer was Mrs Dlamini.
30. The difference made by the inclusion of Mrs Dlamini was that for the first process he was ranked number one whereas for the second process he was ranked number 3. Therefore, he concluded that the inclusion of Mrs Dlamini was to eliminate him, as she belonged to a certain union. The role she played during the interview she was one of the scorers. Ms Khuzwayo (SGB chairperson) ended up not scoring. He believed that Mrs Dlamini’s inclusion was for the wrong reasons.
31. He was challenging the process followed on how she was added, believed it was wrong. The way she was appointed, and the presence of the Circuit Manager was clear to him that there were other intentions.
32. The union official observed the interview processes and had the responsibility to report back to the union chairperson.
33. During cross-examination the Applicant testified that when the post became vacant, he was no longer a surplus teacher. He never received any letter from the Department informing him that he was a surplus or not.
34. The difference between him and the other HOD was that he was more experienced than him and conceded that he was senior to him in terms of the years of experience and he is older than him.
35. He submitted that he was informed by his union about the outcome of the first interview. He gave him feedback as his representative, and he had a right to know about the outcome of the process. His representative was present at the interviews as the union observer.
36. The union official did not call him; he was the one who went to their offices. He brought the results to the office (scores were at the office), as for ratification they had decided who was recommended (not appointed). When he went to their office, he found the issue being discussed by the executive.
37. He had no interest in the panel for the first process, but he was confused when seeing the new member of the panel for the second process. He had no preference.
38. He was shortlisted for both processes, and the questions were similar for both processes. Therefore, he was expecting the same outcome. The Department used the Resolution at which the answers were based. He was prejudice in that for the first process he was ranked as a first candidate whereas for the second process he was ranked third.
39. He believed Mrs Dlamini was there to eliminate him because of the manner she was scoring. He did not see the scores but opting not to respond further on how she was scoring. He believed if she was not there, he was going to be ranked number 1. There were three people doing the scoring during the interview, the others were Mr Zulu and Mr Dlamini.
40. He would not respond to the question whether he preferred the chairperson of the SGB over Mrs Dlamini. It was not up to him who decided on the scoring, but did not mean he was happy with whoever is nominated.
41. He associated the outcome of the with a specific union because he did not belong to Mrs Dlamini’s union. He knew which union the other scorers belonged to.
42. He conceded that Mrs Dlamini was part of the first process, however, there was no proof in a form of a letter that she was appointed by the SGB.
43. When asked questions of clarity the applicant stated that the reason the first process was replaced by the second process of the interview was because SADTU had lodged a grievance on behalf of Mr Msimang.
44. It was given that the Departmental nominee interfered with the process. He conceded that he understood why he was subjected to the second interview. He was informed by the chairperson of the union that he was ranked first.
45. He believed the Respondent committed unfair labour practice because it allowed Mrs Dlamini whose appointment was not done properly. He did not know how the Department nominee interfered with the process. Nowhere it was stated/ written that the interview committee should be disbanded.
46. The Applicant’s first witness, Ms Lindiwe Busisiwe Mtshali, testified under oath that she was no longer the member of the SGB; however, she was still a member during the first process of the interview.
47. There was a meeting on 04 November 2024 the chairperson of the SGB, Ms Thembisile Khuzwayo, informed them about the post that needed to be filled. She suggested that they select principals from the nearby schools to be included in the interview process.
48. They secured three principals and letters were written to them. They never called the principal from Zihlalo School. She was going to be called if one of the principals became unavailable, but they got all of them.
49. After the first interview they were all called by the interview committee informing them that they had completed the interview process. Mrs Zulu explained that they had completed the process and asked for the SGB comments.
50. The panel gave them marks ranging from the person who got the highest mark, Mr Tembe was first, second Mr Nxumalo, Mr Msimango was third and Mr Mbatha was forth. One of the SGB members shouted at the SGB chairperson saying that she did not do what she was supposed to do, she did not do the job that she was tasked to do.
51. Mrs Zulu responded and asked what they were supposed to have done. She asked if they would sign off the interview report, two members of the SGB refused to sign, Mr F.P. Buthelezi and Mr B.S. Mnyandu. After they finished they all departed.
52. Mr Buthelezi’s explanation was that they were expecting Zihlalo principal to have been included since Mr Ntombela was no longer available.
53. They received letters that they were called to an urgent meeting by the circuit manager on 07 February 2025. They were expected to be addressed by the circuit manager, and for her to announce the successful principal, from the recommended candidate.
54. According to marks they knew who a successful candidate would be who obtained the highest scoring, and that was Mr Tembe.
55. Mr Buthelezi raised a concern that they were not satisfied that Zihlalo principal was not part of the panel. Mrs Zulu explained why she was not called; there was no letter as Mr Ntombela was still around.
56. At the meeting the circuit manager stood up to address them. The chairperson explained the process and she apologized. The circuit manager was shouting at them and said they were not united, if they were, they could had resolved the issue.
57. She believed the principal terminated her contract because of the NATU meeting where she was called as a witness to testify for their grievance.
58. During cross-examination Ms Mtshali submitted that she did not remember anything about the Schools Act and Provincial Gazette 18 of 2018. She did not remember the functions of the SGB.
59. She was a parent in terms of the three types of parents (Parent A, B & C) as she had a child by the name of Thandokuhle Xulu who was at the school. She joined SGB whilst her child was at school. She was aware that she would be required to step down when her child finished school.
60. She was a guardian to Nonhlonipho Mngomezulu who was registered by her at the school.
61. She submitted that the SGB was not divided as they did not have any candidate preference but just wanted the vacant principal position to be filled.
62. During the ratification process it was Mrs Zulu who presented on behalf of the interview committee. They had disagreements and Mr Buthelezi was pointing fingers at the chairperson, hence it was Mrs Zulu who did the presentation. Their difference was about the outcome of the interview.
63. She submitted that the chairperson was trained to do the scoring whereas Mrs Dlamini was not trained.
64. Mr Ntombela’s letter of withdrawing from the interview panel was brought by the circuit manager. They were sitting outside; she did not see Mrs Dlamini as she arrived late.
65. The circuit manager, Mrs Shandu, told them she was called by the SGB, and she told them the chairperson was not supposed to do the scoring, and she did not even understand English well.
66. She then told them to select the right manager but not to select a person that would destroy the school. She then concluded that it meant Mrs Shandu knew who that right manager was, but they believed that all candidates had the capacity of leading the school.
67. They felt threatened because of the manner at which the circuit manager was addressing them. How she spoke was clear she came to give them an instruction. They felt intimidated when she said they should appoint a person who was able to lead the school.
68. She had the information who was top of the list during the ratification process, they had identified the first up to the fourth candidate. She had no preference but only wanted that the school principal be appointed.
69. The reason why the SGB invited principals from the nearby schools to assist with the interview process was because they could not do the job alone. Mrs Dlamini did not have a letter because the other three principals had confirmed their availability.
70. When asked questions of clarity she stated that it was the first incident that they would be called to a meeting by the circuit manager after the interviews.
71. After the first interviews they were called for a briefing by the interview panel which told them they had done their job and asked for their comment. They were informed who was the recommended first candidate.
72. The Applicant’s second witness, Ms Thembisile Khuzwayo, testified under oath that at the time the principalship position became vacant she was the chairperson of the SGB. She was trained to participate in the interview and selection process.
73. After training she became the chairperson of the interview committee (IC). She called the SGB after training and informed them about the vacant position and that they would need to appoint the panel for the interviews.
74. It was clear that the SGB would not do that job alone, and she suggested that they should invite the nearby principals closer to their school to assist with the process. The reason being the SGB did not have prior knowledge of appointing a principal.
75. Mrs Dlamini was coopted in case one of the selected principals became unavailable. She was made to be a standby or substitute.
76. Before the day of the interview, they received a letter from Mr Ntombela from Tholukukhanya school that he was no longer available to assist with the interviews and requested to be excused due to illness and he was not going to be available the whole year. The letter came with the circuit manager, Mrs Shandu.
77. Mrs Shandu was not part of the interview panel, she had sent Mrs Zulu to stand in for her, who represented the Department.
78. On the day of the interview Mrs Dlamini came to assist as it was agreed that she would assist if one of the principals became unavailable. They wrote her a letter, but she did not sign it, nor came with it for signature.
79. The other principals had signed their letters. She had called Mrs Dlamini, but she did not sign her letter, she did not call her to be part of the panel. By the mere fact that she had not written or sign the letter for Mrs Dlamini, she had arrived on her own without being invited.
80. When they discovered that the letter Mrs Dlamini heard was not signed, she was asked to recuse herself. The person who was leading the discussions was the Department nominee.
81. Mrs Zulu asked her if she could score, her response was because she attended training, she could score. She did not see anything wrong with the scoring as she had attended the training.
82. The shortlisting and interview panel was the same people. For the first meeting they called the SGB to give a report back, but there were problems.
83. She explained to the SGB what transpired and she read the scores: top candidate was Mr Tembe, second Mr Nxumalo, third Mrs Msimang and fourth one was Mr Mbatha. Some of the SGB members were not happy about the results, even refused to sign the register.
84. One of the SGB members Mr Buthelezi was very angry and pointed a finger at her. He said they sent her but she did her own thing. She was confused as she was not given any name they wanted. This was the reason they requested assistance from the neighboring school principals.
85. When they finished, they gave papers to Mrs Zulu, Departmental nominee. The principal was not appointed; they received a letter from the circuit manager inviting them to a meeting. When she arrived, she said she was called by the SGB but did not know the reason. She was confused as she did not write a letter inviting the circuit manager.
86. It was Mr FP Buthelezi who sent the letter to the circuit manager outlining that he was not happy with the manner the chairperson had handled the process. He even said she did not do what they wanted her to do.
87. She was asked to explain why Tholukukhanya principal was not part of the panel. The secretary was in hospital, then Ms Dlamini was acting on behalf of the secretary. Ms Dlamini taught her how to do the scoring.
88. The circuit manager asked her why she scored because she did not know how to score. Ms Dlamini could not be a scorer and secretary at the same time.
89. The reason there was a second process was because the circuit manager had advised them to re-start the process. She was told that she was not capacitated to do the scoring. She was not coerced to do the scoring but did it voluntarily as she was trained.
90. She attended and testified during the grievance hearing lodged by Mr Msimang. She could not remember if she said could score or not.
91. The members of the panel for the second process were: Mr Zulu (Dikana school), Mr Siyaya (Mpumelele school) and Mrs Dlamini (Zihlalo school).
92. It was not true that she could not score because she did not understand English. It would be wrong for a person to say she was not a scorer. The circuit manager interfered with the first process.
93. The decision that Mrs Dlamini should be excused because she did not have a signed letter was a joined decision, which included the observers. It was not true that she could not score. There was no SGB meeting to discuss whether Mrs Dlamini should be co-opted, she arrived uninvited.
94. When the SGB received the outcome of the second interviews they were happy, Mr Buthelezi even said to her she did well. The only change for the second interview panel, was that Mrs Dlamini was included. According to her the first process went without any glitches.
95. During cross-examination Mrs Khuzwayo testified that that she was trained by the inspector together with Ms Dlamini.
96. She believed the minutes of the meeting held on 04 November 2024 were authentic. The reason they were looking for people with special skills to assist them was because they needed to ensure that everything was done correctly as they were used to recruitment and had interview experience.
97. Some members of the SGB could not trust that they had the right skills, hence they sourced the expertise from the neighbouring schools’ principals. All members of the SGB agreed that they should source these skills.
98. She did not doubt herself as a chairperson, but she wanted the process to be done clean and thorough.
99. Mrs Dlamini from Zihlalo school was a reserve or on standby in case one of the principals who had confirmed became unavailable. Mr Ntombela wrote a letter withdrawing from the process. The letter came with the circuit manager, she was disappointed
100. She phoned Mrs Dlamini in presence of the circuit manager, but she did not write her a letter. Ms Dlamini was the one who wrote a letter to Mrs Dlamini, and she had sent it for her signature. Mrs Dlamini came with the letter during the shortlisting process.
101. She asked Ms Dlamini if the letter was signed as she did not sign it. She only saw a letter during the shortlisting process, and it was not signed. She had signed letters of the other co-opted principals.
102. She corrected her version that Mrs Dlamini came on her own without being invited as she had called her in the presence of the circuit manager. For the first interview Mrs Dlamini was called by her, but she did not call her for the second interview.
103. Mrs Zulu had asked her if she was able to score as the other person was no longer available, and Ms Dlamini could not score as a secretary, and she responded positively.
104. She stated that she could not remember herself saying that she was coerced to do the scoring, in fact she did not say she was coerced.
105. The SGB was not happy with the chosen person, but at the same time they did not sit and agree whom they wanted for the position. They had to accept the successful candidate.
106. She did not present the DGC report to the SGB, nor she told them that they needed to restart the process.
107. She chaired the interview process because Ms Dlamini was not available (as seconded to be the secretary). She decided to do the scoring, as there was nothing else, she was doing. He had no personal interest; they needed the school principal to be appointed.
108. It was not true that she said during the grievance hearing that she did not understand English, and that she refused to score but coerced.
109. She was trained to be the chairperson of the interview committee (IC). She did not ask the person who trained her if she could chair and score at the same time. She conceded that scoring was not part of the duties for the chairperson, but she decided she should score.
110. When going to the interview she was not supposed to score but because of the situation she chose to be a scorer as things were not going as they planned.
111. The EHR documents were completed for the first process and given to Mrs Zulu who was present at that time. Mrs Zulu said she would take them with her. She agreed that there were responsibilities she did not do, including taking the documents to the Department as the chairperson.
112. She did not have any issues with the appointed principal.
113. It was not true that she was influenced by NATU official, Mr Mbatha, to do the scoring, but he asked her if she could do the scoring. She admitted that she could score.
114. She took part at the first grievance hearing, SADTU grievance, the circuit manager and Mrs Zulu were also present. She remembering explaining what happened during the first interview process. She was not aware that the meeting was recorded.
115. The people who were present during the discussion that Mrs Dlamini should not take part because her letter was not signed were, Mr Gumede (SADTU official), Mr Mbatha (NATU official) and Mrs Zulu, Mr Siyaya and Ms Dlamini. However, she did not make any ruling as the chairperson of the IC, she could not remember who did, but they were all present.
116. She conceded that the process was influenced by the unions, as they were all discussing.
117. She was confused with the DGC’s decision that the process needed to be re-done, she did not know what it is that she did that was wrong. However, she conceded that she was no longer confused considering that Mr Mbatha suggested that she should score.
118. She conceded that she did not inform the SGB members that she was coming to these proceedings to be a witness for the applicant.
119. It was not true that when the Applicant entered the interview room she stood up, but she only stood up because she was not sitting properly, she was fixing her chair, she was not standing for him.
120. It was not true that when Mr Msimango was doing the presentation she felt asleep, as she could not remember herself sleeping. She only apologized for scoring, for the mistake she made by calling number 4 instead of number 3.
121. She remembered showing the scores to SADTU against her scores. She was not influenced by the union official, but it was her decision.
122. When asked questions of clarity Ms Khuzwayo stated that the normal procedure for the vacant post, was for the SGB to have a meeting and discuss that post.
123. It was her first time being involved in such interview, she did not know if it was the normal procedure that she had to sign all letters for the panel. The reason there was an issue about Mrs Dlamini was because the circuit manager had told her she should sign all letters.
124. The reason she decided to do the scoring was because the process of appointment of the principal was going to be delayed. She was aware that she had such powers as she attended training.
125. The people who did the scoring for the first interview process was Mr Siyaya, Mr Zulu and herself. The role of the circuit manager was to oversee the process that it was run effectively and that the panel was complete.
126. The normal procedure if the panel member withdrew was to send a letter, but for Mr Ntombela it came with the circuit manager.

Respondents’ case

127. The first Respondents’ witness, Ms Sukelaphi Bonakele Shandu, testified under oath that she is a circuit manager for the Ceza Circuit. The roles and responsibilities when the NSP had been advertised was to ensure that Felifa SGB was capacitated, the selection panel has professional personal and the process runs efficiently.
128. The interview committee (IC) for the Felifa had to attend training, the secretary was booked off sick, then Ms Dlamini was requested to take minutes. Also to ensure that the IC had been trained to answer questions to assist that the third party did not interfere with the process.
129. There were grievances filed by SADTU and NATU. For the shortlisting process both unions were represented. The Felifa school was one of the schools under her supervision, therefore, all correspondence came to her office, also the outcome of the grievances also came to her office.
130. She had to communicate the outcome of the grievances, in that circumstance the interview process had to be redone. She was part of the DGC hearing, and her role was to serve as a witness of the process, for the first seating of the interviews Mrs Zulu testified on what happened.
131. The findings of DGC that the resource person delegated her functions to the chairperson and the influence of unions was found not be correct.
132. During the DGC hearing the chairperson, Ms Khuzwayo, declared that she could not score and said she was coerced to do it. She feared the unions, who forced her to be a scorer.
133. The chairperson knew she could not score; she could not do the calculations. She was not appointed as a scorer. That was the reason they co-opted principals of other schools. The chairperson requested to chair the process and to explain her role as that process was new to her.
134. The role of the chairperson being called to the DGC as a witness was to explain what happened. She explained but could not understand what was happening which was proof that she was incapable.
135. The first process was found to be unfair as Mrs Zulu was not supposed to allow the unions to take over and influenced Ms Khuzwayo to a scorer.
136. According to the report she received Mrs Dlamini came during the shortlisting process; she was advised to stay outside up until the IC meeting told her to leave.
137. Mr Ntombela sent a letter withdrawing from the interview process to her office, reason being the school had a vice principal who was also a candidate for the interviews.
138. She was not involved in the replacement, the SGB had their meeting and selected four co-opt principals. She requested the names, but it was the SGB which took the decision.
139. For the second process she was the resource person. For shortlisting they started by signing the confidentiality forms, the chairperson took over. There were no problems until all four candidates were informed and communication went out the same day. No one identified any flaws, including the observers.
140. The interview process went well, questions were formulated and all participants asked the same questions (only three candidates attended the second process). The results were, 35.99% for Mr Msimang, 31.32% for Mr Nxumalo and 25.98% for Mr Tembe. There were no challenges or irregularities raised for these results.
141. During the ratification meeting she was part of the meeting, Mrs Khuzwayo presented the results, and the SGB appreciated everything and thanked members. The EHR 11 and 12 documents were signed and submitted and the SGB did not raise any concerns.
142. There were signs of non-cooperation between the successful candidate and the applicant at the school which was observed by the SMT members. They were not working as a team, when the principal was not at the office the report given to the visiting officials was negative, which came as a surprised to her as she had visited the school and there were no issues.
143. She sat with them to work on human relationships, and she capacitated the principal on how to deal with relationships at the workplace and provided him with documents. According to her observation there was a slight improvement.
144. During cross-examination Ms Shandu testified that for the first process what she said was reported to her by the delegates. Her role for the first process was to capacitate the SGB and the interview committee.
145. Ms Dlamini was not supposed to be trained as the scorer, it was the SGB which requested that she should be trained but she was not given that function. It was not true that she was trained to be a scorer but on how to take minutes.
146. At the meetings she attended her role was to represent the Department as a circuit manager. She was still standing on her version that Ms Khuzwayo had an issue with English, she also could not understand calculations.
147. It was not her responsibility to ask the SGB if they had their preferred candidate. They were shouting at each other; she reprimanded them, but she would not have any influence.
148. She conceded that the findings were not sufficient to order a redo recommendation, however, there was an undue influence that took place.
149. The chairperson was not capable, the situation forced her to do the scoring. The report that she got from Mrs Zulu was different to the version that the applicant’s representative was putting to her. Mrs Zulu and Ms Khuzwayo came to give a report of what had happened.
150. For the second interview process they accepted the results. Mrs Dlamini was part of the second interview process, as the SGB had agreed that she would be a standby co-opt if any of other principals became unavailable. It was the chairperson who called Mrs Dlamini.
151. She could not comment on the recommendations made by the DGB as she was also part of the process, however, she believed they had considered all facts before concluding that the interview process should be redone.
152. When asked questions of clarity Ms Shandu stated that when there is a bulletin for a vacant post of the principal there would be communication with the SGB regarding the training of the IC. They would also need to decide if they were capable of doing that particular work.
153. The SGB would have to decide if it need its members to attend the workshop. This was the normal procedure to ensure that the selection process had professional expertise. They would provide training to bridge the gap.
154. The SGB confirmed that they could not do the work, hence they co-opted principals from neighbouring schools. The chairperson was not trained to do the scoring, but she requested her to provide clarity on her role as the chairperson.
155. Based on the DGC findings and recommendations the first interview process had to be redone. They found that there was undue influence by the resource person and unions. They also found the inability to score by the chairperson.
156. There was misunderstanding between the two union observers, one for chairperson to do the scoring whereas the other was against it. The unions were not supposed to appoint the scorer. The chairperson was not forced but influenced by the union.
157. The purpose of the ratification process was for the IC to give feedback to the SGB about the process and to give results. SGB may make recommendations. There were no challenges highlighted for EHR 11 & 12 documents. Felifa vacant position was the first principal post for the chairperson.
158. The second witness, Mr Melusi Duncan Mdlalose, testified under oath that he is the Deputy Chief Education Specialist for Zululand, responsible for governance and management.
159. The role of the District Grievance Committee (DGC) is to listen to grievances lodged within the district. They would conduct a hearing; both parties would be given an opportunity to state their case.
160. At the conclusion of the hearing, they would discuss the facts in detail and came out with the findings and make recommendations. The findings and recommendations would be given to the chairperson the aggrieved party and respondent. The district director would sign out the findings.
161. Their finding was that the allegations of undue influence were confirmed. The resource person refused to allow the co-opted member of the SGB (Mrs Dlamini). She refused that Mrs Dlamini participated on the process because of the unsigned letter.
162. Her action was found to be ultra virus as she was not supposed to return anybody[Ma1.1], this was not her duty. During cross-examination at the hearing, she conceded that she was the one to take the documents for submission to the circuit manager, which was also not her duty, but the duty of the chairperson of the SGB.
163. The chairperson assumed the duty of the scorer and submitted that she was forced to do it, the union observer instructed her to score. She indicated that she was not capable for that task, including the English used during the interview. She said this by her own mouth.
164. The interview process was found to be substantively unfair. It was recommended that the process should be redone from the shortlisting stage. It was also recommended that the circuit manager was not supposed to delegate her role but should handle the process herself, as she had the task of capacitating the IC.
165. They received two grievances from the two unions, SADTU and NATU. First grievance was from SADTU. It was recommended that the second grievance be dismissed, as there was a standing recommendation that the process should be redone.
166. The recommendation that the process should be redone was not about the appointment but was about the selection process which needed to be redone. At that stage there was no body that was recommended.
167. Prejudice was not always the only criteria to arrive at the decision if the process was found to be unfair. All factors had to be taken into consideration, and all stages had to be considered: setting up of the IC by the SGB, shortlisting stage and the interview stage.
168. During cross-examination Mr Mdalose testified that the reason the second grievance was dismissed was for them to uphold their recommendation for the first grievance which was made on merits. The second grievance was also dismissed on merits.
169. The recommendation was submitted to the office of the District Director to make a decision. He conceded that the DGC emanates from Collective Resolution of 2008, that it was HOD to take the decision.
170. His submission that the interview process was found to be substantively unfair based on that there was undue influence on this process. That is, the resource person went beyond her powers by disallowing the co-opted member not to participate and the chairperson was coerced to do the scoring.
171. This was not a fair process as the interview process had to be clean for it to be fair. The DGC looked at that the removal of Mrs Dlamini resulted to the chairperson to be a scorer, as indicated she was not competent to perform that task.
172. The resource person was not supposed to take the powers of the SGB. He did not have any legal point to substantiate this point as he was taken off guard, needed to be given opportunity to prepare himself.
173. He disagreed with the statement that the issue of prejudice should be addressed in any hearing. If the chairperson testified that she was not coerced, which was something she testified with her own mouth at the DGC hearing, she would not be telling the truth. Because she said that in isizulu “waphoqwa” (direct translation she was forced).
174. When asked questions of clarity Mr Mdlalose stated that it was the office of the District Director which took the decision about the recommendations made by the DGC. That was the normal procedure.
175. He was not sure if the findings were bindings to the parties, but they were emanating from the hearing where everybody was involved. Both Mrs Zulu and the chairperson appeared before the DGC.
176. The NATU grievance was about them wanting the process to proceed and not redone. The recommendation was for the process to be redone from the shortlisting stage.
177. The third witness, Mrs Rebecca Dlamini, testified under oath that she is currently employed by the Education Department as principal at Zihlalo Primary School.
178. She was called by the chairperson of the SGB who asked her if she was available to be part of the process. She explained that at that stage she was going to be a reserve person if there another person who was not available.
179. After the call she was asked where she was as they needed to bring the letter. She was at Madaka Primary to make copies, she received the letter and signed acknowledging receipt. The letter had a date.
180. She then received a call reminding her that she should arrive at Felifa at 9h00. She arrived at the school and waited in a classroom. They requested letters and ID copies. Mr Zulu did not have a letter and indicated that he forgot it.
181. They continued with the process, minutes later Mr Mbatha (NATU observer) requested minutes and he stopped the process. He said she should leave he was aggressive and fighting with SADTU observer who reminded the chairperson about their role and duties.
182. Mrs Zulu requested her to wait outside, she waited until 2pm. She saw a person coming from the photocopying machine and asked her if she could ask people in the room how long she was supposed to wait. Mrs Zulu then told her to leave; they would contact her if needed.
183. She left the first process at that stage. Mr Mbatha objected to her participation. The minutes read before they started showed how she was nominated but Mr Mbatha said it was not proper to discuss the issue in her presence.
184. She was shocked as it was the first time she observed what was happening. Mrs Zulu was representing the Department and standing in for the circuit manager. It was Mr Mbatha who directed her to leave and he was threatening everybody, but Mrs Zulu also told her to leave.
185. Before she was told to leave, she was given a role to be a scorer. She received training during the principals’ workshop. Second one they were called by the circuit manager for training.
186. She was experienced for that task as she had done it several times and she had been a principal for 13 years. She had participated in similar processes before.
187. When the chairperson called her, she told her she did not have the required experience to conduct this process.
188. It was not true that she was not invited, she would not have come without being invited. She had knowledge, she received a letter which she signed acknowledging receipt and the chairperson contacted her.
189. She asked why the observer was dominating the process; hence the other observer approached the chairperson reminding her to about the duties and roles of the observers.
190. During cross-examination Mrs Dlamini testified that she received a letter whilst she was at Madaka Primary days before the process started. The letter was signed, with the date, the venue and it was written her name. If the letter was not signed, she would not have come.
191. She was fortunate that the minutes were read whilst she was still there. It was mentioned that the other person withdrew which was the reason why she was co-opted. The teacher who came to deliver a letter to her at Madaka was a young male teacher.
192. On the day she was at Felifa the chairperson arrived late; they were all already present. She found them waiting to be directed on what to do. Therefore, she could not distance herself and say she did not sign the letter.
193. There were three scorers present, Mr Siyaya, Mr Zulu and herself (Mrs Dlamini). The chairperson already explained she had no knowledge and experience for scoring.
194. She disputed the version that the secretary came with the copy of her letter as untrue. The person who made such allegation failed to mention that Mr Zulu did not have the letter, but the other two scorers had their letters. Nobody commented anything about Mr Zulu not having the letter, but they just proceeded.
195. How she was treated was unprofessional she was asked to wait outside for a long time without being provided with a chair. They had a break whilst she was waiting, they brought food. She was not even given water to drink whilst waiting outside.
196. She called the circuit manager who was at the meeting but eventually picked up the call. Mrs Zulu said she would be contacted when needed.
197. When asked questions of clarity, Mrs Dlamini stated that she could not get a copy of the first letter as it was with circuit manager.
198. She was a scorer for the second process, only three candidates attended the interviews. Both the applicant and Mr Msimango participated on the second interviews.
199. For the scoring process it was expected of the Panel to ask questions that were formulated and how the candidates should respond to the questions. They were given score sheets. All the candidates were asked the same questions. Each scorer scored each candidate, the results were based on the tallying of all three scorers
200. During the first process the chairperson did not say anything to her but they had a conversation prior to Mrs Zulu telling her to step outside.
201. The first letter she received was written Ms Khuzwayo’s name, who introduced herself as the chairperson of the SGB.
202. Mrs Zulu did not tell her what the meeting’s resolution was but only apologized and told her that she would be contacted, there was no explanation nor feedback just an apology.
203. The fourth witness, Mr Felamandla Phillip Buthelezi, testified under oath that he is employed by the school as a security guard, and a member of the SGB. He took part during the meeting where the chairperson introduced the issue of a vacant principal position.
204. They agreed that they should appoint principals as co-opts because they had no knowledge. They had to decide what would happen if one of the nominated principals was sick, they then suggested that the principal of Zihlalo be made a standby.
205. The secretary suggested that they should prepare letters inviting the principals to the process. They anticipated to begin the process on 15 January 2025. They were informed that the secretary of the SGB was not feeling well, Ms Dlamini was then nominated for that role.
206. The shortlisting process was scheduled to take place on 17 January 2025 and the interviews 24 January 2025. They saw the principal of Zihlalo on the day of the shortlisting, but the chairperson did not tell them anything, they just saw her arriving.
207. Mrs Dlamini went to where the IC was meeting, then he saw her coming out of the room and waiting outside, again the chairperson did not say anything to them. He saw Mrs Dlamini leaving. The chairperson did not even tell them about Tholukukhanya principal who had withdrawn from the process.
208. He was present during the ratification process when the IC was giving a report to the SGB. He denied that the allegation that he was angry. They were called in to be informed about the outcome of the interview and given opportunity to ask questions. That was the only time they got the explanation about the Zihlalo principal and why she left.
209. The chairperson had told them she knew nothing about scoring hence they co-opted principals from neighbouring schools. But to their surprise she was scoring. The chairperson was asked why she did not consult the SGB, by adjourning the process to give an update to the SGB.
210. When asked why she did not inform them that Thulokukhanya principal was no longer available her response was that she was scared, the unions were intimidating her. She had told them she could not score, however, if she had told them that she was able to score they could have given her a go ahead.
211. The chairperson conceded that she was the one who contacted the principal from Zihlalo school (Mrs Dlamini). She told them she did not receive training.
212. It was not true that when they received the result sheet for the second process, he showed excitement.
213. During cross-examination Mr Buthelezi testified that he signed at the meeting confirming his attendance for the meeting that was called by the chairperson.
214. It was true that when the three principals were called they all confirmed their availability. The SGB was not happy of the non-inclusion of Mrs Dllamini.
215. He was present during the ratification process, and he was among those who opted not to sign ratification form. The reason he did not sign was because the chairperson became a scorer without telling them and that Mrs Dlamini had agreed to participate if one of the principals became unavailable.
216. Mrs Dlamini’s absence resulted to the chairperson who had told them she could not score ended up scoring. The people who were nominated where then shot as Mr Ntombela withdrew.
217. It was not true that the chairperson received training for scoring. They would not have coopted other people if she was able to score. He was specific about Mrs Dlamini because they had agreed that she would be a standby if there was a person not available.
218. It is true that he has the machine cutting the grass at the school, but even the previous principal asked him to cut the grass for the school. He cut the grass even when Mr Mnisi (the applicant was acting principal).
219. When asked questions of clarity Mr Buthelezi stated that he had been a member of the SGB for 15 years. He had never been involved in the process of appointing the principal before, this was his first time.
220. The chairperson had told them she could not do the scoring, nor did she tell them that she attended training as a scorer. She had indicated to them that she could not do it, hence they coopted other principals.
221. He had only worked with the chairperson for a year; she took over after her predecessor had passed on. She did not tell them anything about the issue of an unsigned letter.
222. The second Respondent, Mr Bongani Goodwill Msimang, testified under oath that is currently employed by the Department of Education as a principal.
223. He submitted that the post was declared vacant when the former principal retired in January 2024. He acted as a principal January to February 2024, then there was resolution taken by the circuit manager, Mr Zungu, that the Head of Departments (HOD) will rotate as acting principal.
224. On 20 February 2024, Mr Zungu called a meeting informing them that Mr Tembe was a surplus educator, he then automatically became the candidate for acting as he had 30 years’ experience as an educator. He had been and HOD since 2007.
225. The post was advertised and he applied as he believed he had the potential. His problems started after he was shortlisted. He was invited for the first process of the interview, after that he received a call from his union, SADTU, informing him about alleged irregularities that took place.
226. He believed he had a right to file a grievance in terms of the LRA. He did not get a position; he then lodged a grievance. He was told his grievance was successful, the recommendation was that the process would be redone.
227. He was shortlisted again and invited to the interview. He was successful, he received the appointment letter end of September 2025 and resume his work as principal on 01 October 2025 at Felifa High School. Since then, he had been working very well with his colleagues, but with little challenges.
228. He had slight problems with the applicant; they had a discussion that they needed to put their differences aside for the work progress. There was an incident where misinformation was provided to the finance committee whilst he was not at the school. He called the circuit manager who advised him that as a leader he needed to learn to resolve issues.
229. During cross-examination Mr Msimango testified that even though they signed confidentiality clause, SADTU also represented his interest.
230. He considered himself as the right person for the position as he had vast experience, and he had been an HOD since 2017. He believed he should get the job on merits; hence they had to attend interviews.
231. When asked questions of clarity Mr Msimango confirmed that he was appointed from October 2025 for the post No. 2079 HRM circular No. 20 of 2024.
232. DGC found irregularities on their findings, the chairperson automatically became a scorer that day, the IC (Mrs Dlamini) member was disqualified, and the Department nominee did not perform her duties, where she also automatically became the chairperson and interfered with the process.
233. Based on those facts they decided to lodge a grievance. He was not told about the results, but he was only told about irregularities. The grievance was related to the first sitting of the interviews. He was told the process would be redone and the SGB would be working with the circuit manager.
234. He was told there would be a shortlisting process again. He was shortlisted and invited to an interview. He got a letter that he was appointed.
235. He believed he was the right candidate for the post. He believed in himself and met the minimum requirement for the job, considering 30 years of experience, started teaching in 1996 up to he became an HOD. Since 2017 he had experience for a management position. He believed he was qualified to become a principal.

Closing arguments
The following is the summary of the Parties’ closing arguments as submitted to the Council:

Applicant

236. The applicant’s representative, Mr Mdunge argued that it is the applicant’s case that the first recruitment process was substantially compliant with the applicable procedural requirements, it produced a lawful and favourable outcome for the applicant. The subsequent decision to order a redo of the process was irrational, procedural unfair, and unsupported by evidence of material prejudice.
237. The principal issues for determination were whether the first appointment process was so materially irregular that it justified being set aside, whether Mr Msimang established actual prejudice or bias arising from the SGB.’s chairperson participation as a scorer, whether the Department’s nominee’s ruling that the reserve scorer should not participate constituted an interference.
238. Whether the decision to order redo was rational, fair, and evidence-based, whether the applicant suffered prejudice when a completed process that favoured him was disregarded.
239. Section 186(2)(a) of the LRA does not confer a right to promotion but it does, however, confer a right of a fair process, a rational decision, and conduct that is not arbitrary, capricious, mala fide, inconsistent, or procedurally defective in a material respect.
240. A completed process should not be undone unless a genuine, material, and proven irregularity is established. The law does not demand absolute mechanical compliance with every procedural step. It requires substantial compliance with the purpose of the procedure, together with fairness.
241. Mrs Dlamini was identified only as a reserve if one of the co-opted members became unavailable. Her status as reserve did not automatically make her a member of the panel, nor did it entitled her to participate in a lawful and properly established substitution. She failed to produce the copy of the letter at the arbitration. Her failure confirmed that her authority to participate undermined the contention that she had been lawfully substituted into a panel.
242. The Departmental nominee allegedly interfered with the process when she made a ruling that the reserve scorer should not participate was misplaced. Her ruling was not interference, but a lawful and rational exercise of procedural oversight intended to preserve the integrity of the process.
243. The chairperson’s participation as a scorer did not, without proof of prejudice, invalidate the process. The proper enquiry was not whether the process was perfect in form, but whether it was fair in substance.
244. He further argued that the SGB was trained, a panel was selected, co-opted members accepted participation, shortlisting and interviews were conducted, the Departmental nominee was present, trade union representatives were present, and the results were tabled before the SGB. This constituted substantial compliance.
245. Mr Msimang did not discharge the burden as per page 9 of the bundle and evidence led at the arbitration that he suffered prejudice, bias, or any material disadvantage as result of the chairperson’s participation as a scorer.
246. One of the stated reasons buy the grievance committee was that the chairperson scored although she allegedly did not understand English. That allegation was disproved during the arbitration, the evidence showed that she could read and understand English.
247. Mr Msimang’s case effectively depended on Mrs Dlamini’s inclusion, she later scored Mr Msimang highest, which support the inference that the drive to place her on the panel was aimed at influencing the result in Mr Msimango’s favour rather that correcting a material procedural unfairness.
248. The applicant suffered real and material prejudice in that a completed process that had favoured him was set aside without a lawful, rational, or evidence-based reason. He was thereby deprived of the benefit of a process that had reached finality and was entitled to be respected unless a material irregularity was proven.
249. The first Respondent’s conduct undermined the integrity of the recruitment process, introduced inconsistency, and permitted a completed outcome to be revisited on the basis of unproven and immaterial complaints. That conduct falls squarely within the meaning of an unfair labour practice.

First Respondent

250. The Frist Respondent’s representative, Mr Churchill Sibanyoni argued that any matter referred as a dispute in terms of section 186(2)(a) of the LRA, the applicant must prove that he deserves to be the one appointed (refer to Adams v General Public Service Sectoral Bargaining Council and others (C839/2019). The applicant in this case only lamented on the presence of Mrs Dlamini in the panel but failed to prove that he was a deserving candidate compared to the other two.
251. In South African Law, for allegations falling under this section, the onus lies with the applicant party to prove if there was any unfair conduct by the employer. The SA courts have pronounced the issues of employer prerogative in appointments. They indicate discretionary powers of the employer to appoint through its own processes.
252. However, if such processes are manipulated arbitrary, it becomes the responsibility of the applicant to prove such, through adduce of evidence. They must prove the selection process were not conducted in good faith.
253. The Applicant has failed dismally to prove that the conduct of the employer was unfair, arbitrary and manipulative of the process.
254. In the matter of Sun International Management (Pty) Ltd v CCMA and others (LC) jr 939/14. 18/11/2026), Le Grange J, noted that in promotional disputes it is not enough to merely show that there was a breach of protocol or procedures in the recruitment process. It is also necessary for an applicant to show that the breach of the procedure prejudiced him.
255. The Applicant had failed to prove that he would have been a preferred candidate if Mrs Dlamini was not coopeted in the interview committee. It is absurd that he makes allegations of influence and interference whereas the evidence provided proves that the attempts to interfere and influence the processes were on his side and the first Respondent fairy dealt with the matters.
256. There was no evidence that the results of the interviews were going to be in favor of the Applicant even if Mrs Dlamini was not there.
257. The following undisputed scores, which is common cause, clearly concluded that even if Mr Msimango was not in the interview, the applicant would still not be a number 1 candidate. Mr Msimango scored 35.99%, Mr Nxumalo 31.32% and Mr Tembe (the Applicant) scored 25.98%. The gap is too wide for the Applicant to contend that he should have been the one appointed to the position.
258. In Ngcobo v Standard Bank of South African and others (D439/12), it was held that there is no right to promotion, only a right to be given a fair chance to compete for a post, unless there is a statutory right in the contract.
259. The Applicant conceded that he was given an equal opportunity to contest for a position of principalship. The corollary of this principle is that if the decisions are rationally justified errors in the process of evaluation do not constitute unfairness justifying interference with the appointment.
260. The Applicant failed to prove that the alleged interference actively prejudiced him. Not just a minor rule broken. Moreover, he was not subjected to any unfair labour practice. In this regard.
261. “Because of many School Governing Bodies struggle with governance guidelines, the appointment systems become breeding grounds for patronage, nepotism and corruption, including selling of posts”, Professor John Volmink (2016):
262. He argued that he quoted Prof. Volmink because on the grounds that the current is proof of SGB manipulation on the processes, smell of corrupt relations between some SGB members and unions. The lies that were evident in the testimony of the SGB chairperson are indicative of a ploy with the Applicant to manipulate the processes so that their candidate was appointed. The matter should not even come to arbitration because it lacked evidence that would show the conduct of the employer as unlawful.
263. The Applicant’s witnesses failed to indicate unfairness in the shortlisting, interview stage and in the final appointment of the second respondent.
264. In this matter the following factors have been proven:
     (a) It is improbable that there was any undue influence or interference by the Department of Education (first Respondent).
     (b) There was gross evidence of unreliability, biased testimony and contradictions from the side of the applicant’s witnesses, especially the chief evidence leader, Ms Khuzwayo.
     (c) Misdemeanour of the witnesses is paramount on this matter, the collusion between the union and some SGB members to manipulate the processes and lodge this dispute is gross abuse of resources.

Second Respondent

265. The second respondent’s representative, Mr Khumalo, argued that the Applicant’s case appeared to be founded principally on the contention that the initial interview was properly conducted, that he performed well and was ranked favourably. The evidence instead revealed that several areas of uncertainty and irregularity surrounded the constitution and functioning of the interview committee.
266. The evidence before the administration demonstrated that the DGC had a reasonable ground for its decision. It also considered that the evidence that the SGB chairperson has participated in the scoring despite concerns regarding her own admission that she had been pressured by the union representative. The DGC concluded that the shortlisting process had been compromised. In those circumstances, directing that the processes be redone was not irrational.
267. In Ndlovu v CCMA and others (2000) 21 ILJ 1653 (LC), the court dealt with the principles of applicable promotion disputes. It was ruled that an employee does not acquire automatic right to promotion merely because he or she believed that he or she was the best candidate.
268. In this case Mr Tembe assertion that the first interview went well or that he was ranked first, cannot by itself establish unfairness in the decision of the DGC. He must therefore establish the existence of conduct relating to promotion which was unfair.
269. Mr Tembe is effectively seeking to have the outcomes of the first process restored despite the DGC having identified irregularities and directed that the process be redone.
270. The central issues in this matter are not simply whether the Applicant performed well in the first interview, the real issue is whether the decision of the DGC to direct the process to be redone was unfair or based on improper consideration. The evidence demonstrated that the DGC did not make a decision without factual basis. Several concerns emerged during the first process, particularly the shortlisting stage.
271. He submitted that the Applicant has failed to establish an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA. The decision to redo the process should not be characterized as a decision taken to prejudice the Applicant. On the contrary, it was a decision to restore fairness.

Analysis of Evidence:

272. In terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, (the LRA) an Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving-
     (a) unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
273. Clause 3.3 of the Advertising and Filling of Educator Posts, Chapter B of the Personnel Administrative Measures (PAM) of the Employment of Educators Act 76 of 1998 (the EEA) was applicable during the shortlisting and interview processes for the post, No. 2079 of HRM 20 of 2024.
274. Clause 3.3(b) of PAM of the EEA, states the Interview Committee shall comprise (public school):
     • One department representative as an observer and resource person
     • The principal of the school (if not a candidate/ applicant)
     • Members of the school governing body
     • One union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
275. The above clause provides clarity of the role of the Department representative (nominee) as an observer and resource person. This means he/ she does not take an active role. In this case, the evidence that Mrs Zulu was the one who asked the Mrs Dlamini to stay outside, as testified by Mr Mdlalose she refused the coopted participation on the process. Furthermore, by asking the chairperson of the SGB if she could score was stepping outside of clause 3.3(b) of PAM.
276. The same clause provides that union representatives shall be observers of the process of shortlisting, interviews and drawing up of preference list. The evidence that NATU official, Mr Mbatha, directed that Mrs Dlamini leave the room, stopping the process and asking the SGB chairperson if she could score was stepping outside the parameters of an observer.
277. Ms Khuzwayo also testified that she was intimidated and scared of the unions (there were two unions present), clearly indicate that the unions were active participants and not observing as required.
278. Based on the above, I find difficult to understand the argument and conclusion by Mr Mdunge that the first process to have been run successfully, even stated on his argument that recommendation by DGC for a redo of the process was irrational and not evidence based.
279. The panel for the Interview Committee (IC) for the post in question was a bit different in that the SGB due to limited skills and experience, decided to co-opt principals from neighbouring schools to assist with the process. They agreed to co-opt three principals who were going to be scorers. Mr Buthelezi’s version that the chairperson had informed the SGB that she could not score remained unchallenged.
280. It is important to note that this dispute has been filed in relation of the first interview process of the post in question. There is no evidence before me that the Applicant is challenging the recommendations made for the second interview process and the decision taken by the Department thereafter. In summary, the second interview outcome is not in dispute.
281. Ms Shandu’s testimony was that after the second process was completed there were no identified flaws by the SGB include the observers. It is important to note that Mr Mdunge was one of the observers for the second process. Furthermore, Ms Shandu testified that there were no challenges or irregularities raised for the results of the second process, the SGB did not raise any concerns. This version remained unchallenged.
282. Section 6(3)(a) of the EEA states, subject to paragraph (d), any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution…that recommendation may only be made from the candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.
283. Although in paragraph 274, it is mentioned that members of the SGB form part of the interview committee, they had decided that the chairperson would represent the SGB in IC, and she was the chairperson of the IC.
284. During the ratification meeting of the first interview process the SGB was divided, they did not agree to the outcome, hence, two of their members did not sign the ratification form. Therefore, I disagree with Mr Mdunge’s argument that the process was completed as there were no recommendations made by the SGB as indicated under section 3(a) of the EEA for first interview process.
285. It is the applicant’s case that he was informed by his union when he went to their offices that he was ranked number 1 for the first interview process. Whether the union had legal ground to inform the candidate about unconfirmed results, considering that the observers sign declaration of confidentiality form (EHR 12), is not a discussion for this forum. However, one may not ignore that the Applicant was informed about the results in spite of the fact that SGB was divided, it was not unanimous decision by all members of the SGB (as it was the case at the end of the second process).
286. Clause 3.4 of PAM of the EEA states:
     (a) The employing department must make the final decision subject to:
     (i) Satisfying itself that agreed procedures were followed; and
     (ii) That the decision is in compliance with the Employment of Educators Act of 1998, the South African Schools Act, 1996 and the Labour Relations Act, 1995.
287. Section 6(1)(b) of the EEA states, subject to provisions of this section, the appointment of any person, or the promotion or transfer of any educator in the service of a provincial department shall be made by the Head of Department.
288. This section confirms the first Respondent’s argument that the appointment or promotion remains the prerogative of the Employer. For the first interview process, there were no SGB recommendations submitted to the Head of Department for consideration for the appointment. Therefore, the first process was not a completed process as argued by the referring party.
289. The Applicant also testified that the interview panel for the second process was changed in that Mrs Dlamini was added. I will agree with the first Respondent’s argument, that there was evidence presented in these proceedings on how her exclusion would have benefitted him or confirmed his suitability for the position.
290. His conclusion was that the inclusion of Mrs Dlamini was a plot to eliminate him because she belonged to a certain union. However, there were three co-opted principals. It is not clear how she was going to eliminate him (as alleged) if she was not the only member of the IC tasked with scoring.
291. Furthermore, he challenged the manner that the procedure followed to include her was incorrect, but Mrs Dlamini was excluded in the first process (she was told to leave as she did not have a signed letter). Again, it is not clear what procedure of her inclusion the Applicant is challenging. Her signed letter was not accepted as evidence as it was for the second process, and they were challenging the first interview process.
292. In Arries v CCMA & others (2006) 27 ILJ 2324 (LC) which was also referred to in the decision of City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), it was held that in deciding whether an employer acted fairly, in failing or refusing to promote, it is relevant to consider the following factors:
     (i) whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
     (ii) whether the employer’s decision was arbitrary, or capricious, or unfair; or
     (iii) whether the employer failed to apply its mind to the promotion of the employee; or
     (iv) whether the employer’s decision not to promote was motivated by bad faith;
     (v) whether the employer’s decision not to promote was discriminatory;
     (vi) whether there were insubstantial reasons for the employer’s decision not to promote;
     (vii) whether the employer’s decision not to promote was based upon a wrong principle;
     (viii) whether the employer’s decision not to promote was taken in a biased manner.
293. The Applicant ’s claim is centred around the following:
     (i) The inclusion of the Mrs Dlamini who belong to a certain union and who was appointed to eliminate him. The procedure to appoint her was incorrect.
     (ii) The premise upon the directive issued to repeat the section process, which resulted in interference with the composition and functioning of the selection panel.
     (iii) The chairperson was relieved of her scoring duties, and a panel member was included without proper option or formal participation in any meeting.
294. It is important to note that none of the factors mentioned under paragraph 292 were issues for this arbitration. The evidence that successful candidate, Mr Msimango scored 35.99%, second candidate scored 31.32% and the applicant scored 25.98% remained unchallenged. There were not scores or evidence presented in these proceedings for the first process confirming his number 1 ranking.
295. When the process was redone, all candidates were shortlisted again, they were subjected to the same process and asked the same standard questions. There were three scorers, Mr Siyaya, Mr Zulu, and Mrs Dlamini. If his performance exceeded the other candidates during the interviews, the other two scorers would have allocated higher scores for him compared to Mrs Dlamini (being a minority).
296. The Applicant’s evidence did not cover elements of procedural and substantive fairness.
297. At no stage he testified that he believed he met the minimum requirements for the position, believed that he was qualified and had vast experience compared to the other candidates.
298. Ms Khuzwayo’s evidence in relation to whether she was trained to do the scoring or not had a lot of inconsistencies in her evidence. There were contradictions/ different versions on what she said when testifying before the DGC, during her evidence in chief, cross-examination and re-examination. Her story line kept on changing. All this tested the credibility and reliability of her evidence as a witness.
299. In Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT 13, the Court emphasised that whilst in unfair labour practice disputes relating to promotion, the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation by the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.
300. The applicant conceded the second process went well. Mrs Shandu also testified that the results for the second process were presented to the SGB, both the IC and SGB were satisfied with results. I believed the SGB submitted its recommendations to the Head of Department, hence the successful candidate was appointed. I believe the Employer has successfully presented evidence that the process was conducted fairly and in good faith during the promotion exercise.
301. In Mashaba v University of Johannesburg and others [2023] 2 BLLR 119 (LAC), the Labour Appeal Court confirmed that the discretion of an employer to promote is not assailable, unless it is exercised capriciously or is vitiated by malice or fraud.
302. The LAC in Department of Rural Development & Agrarian Reform, Eastern Cape v GPSSBC and others (2020) 41 ILJ 1321 (LAC) held that the Courts and Commissioners should be reluctant to interfere with an employer’s decision to refuse promotion. Only when the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the employer failed to apply his / her mind to the promotion or acted in bad faith, should there be interference.
303. I note the Applicant is seeking an order to set aside the appointment of the second Respondent. Furthermore, that the first Respondent be directed to finalize the process by utilizing the results of the initial process. As indicated above, there were no recommendations made by the SGB for the initial process as guided by section 6(3)(a) of the EEA, therefore, the commissioner does not have powers to make a ruling for the results that were not ratified and no recommendations sent to the Head of Department.
304. I am mindful that the power to exercise a discretion to appoint is the managerial prerogative of an employer and cannot be lightly interfered with. In this case, I believe the SGB made recommendations, which were approved by the Head of Department, hence, the appointment. Therefore, I am not convinced that interference is warranted.
305. In the circumstances, I am not convinced that the Applicant has presented sufficient evidence proving that there were any irregularities in the selection process and that the first Respondent committed any unfair labour practice in appointing the second Respondent.
     Award
306. The Applicant failed to discharge the onus on him to prove that the first Respondent, Department of Education KwaZulu Natal committed an unfair labour practice in terms of section 186(2)(a) of the LRA, by appointing the second Respondent, Mr B.G. Msimang, for the Post No. 2079 HRM Circular No. 20 of 2024.
307. The application is dismissed.
308. No order as to costs is made.

Dated at Durban this day of the 17th of August 2026

Commissioner Nolundi Shezi