17 August 2026 -ELRC95-24/25KZN

IN THE ELRC ARBITRATION
BETWEEN:

SADTU OBO ALFRED SB MNTAMBO APPLICANT

AND

DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1ST RESPONDENT
MUSAWENKOSI S SANGWENI 2ND RESPONDENT

ARBITRATION AWARD

Case Number: ELRC95-24/25KZN

Date of submission of closing arguments: 04 August 2026

Date of Award: 17 August 2026

NTOMBIZONKE MBILI
ELRC Arbitrator

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing commenced on 23 October 2024, proceeded on 26 June 2025, 04 August 2025, 06 November 2025, 07 November 2025, 02 February 2026, 03 February 2026 and was finalised on 16 July 2026.
The arbitration was initially held physically at the Dundee office of the Kwazulu-Natal Department of Education office and proceeded as an online hearing thereafter.
Initially, the Applicant was represented by Mr. Sello Mmolotsi from SADTU. Mr. Msele joined as the Applicant’s representative during the final hearing session. The first Respondent was represented by Mr SC Ngcobo, and the second Respondent was represented by Mr SJ Khoza from SADTU.
Bundles of documents were submitted on behalf of the Respondents and the Applicant respectively. ISSUES TO BE DECIDED
The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in Section 186 (2) of the Labour Relations Act 66 of 1995 (the LRA) relating to Appointment/Promotion.
I am required to decide whether the scores were changed during the shortlisting and the interview processes.
I am also required to determine whether there were procedural irregularities in terms of the Second Respondent’s appointment and whether the Second Respondent was fairly invited to the interview.

BACKGROUND

Post number 1650 was advertised in HRM Circular Number 20/34 of 2023. The post description pertains to the principal position at Ngwebini Primary School.
Both the Applicant and Second respondent were shortlisted and interviewed for the position.
The Applicant ranked in forth position and the Second Respondent was appointed at Ngwebini Primary School to the post of Principalship.
The Applicant contended that the procedures were flawed due to the following reasons: his scores were altered during the interview, CVs were scored without being read except for his, the Second Respondent was not initially shortlisted but was later invited for an interview, and the interview committee praised the Second Respondent for his strong English language skills.
The Applicant tendered score sheets pertaining to both the shortlisting phase and the interview process and submitted that the said documents were handed to Mr. Hadebe, who served as the SADTU union observer during the proceedings, by Mr. Manqele, the designated resource person.
The First Respondent raised an objection to the admissibility of the Applicant’s score sheets, contending that they were fabricated and did not originate from the Department. In support of its objection, the First Respondent filed its own set of score sheets, asserting that those constituted the authentic records of the proceedings. Both sets of documents were provisionally admitted into evidence by the forum, subject to final determination on their evidentiary weight. Consequently, both parties undertook to call the respective authors of the score sheets to testify in order to establish the authenticity and verification of the documents in dispute.

SUMMARY OF ARGUMENTS
The Applicant’s case

Mr Alfred Mntambo

The Applicant testified on his own behalf. He stated that he has worked at the Department of Education for 30 years.
He submitted that during the shortlisting and interview process, Mr. Sifiso Hadebe represented SADTU, as an Observer. He informed him that there were irregularities in the way the processes were conducted in both processes.
He stated that Hadebe told him that the Second Respondent was not shortlisted and therefore should have not been part of the candidates which were interviewed.
The witness was referred to bundle B, page 32. He stated that the document was a shortlisting assessment sheet of his CV. He stated that he was unaware of the reason he was not scored in the personality and human relations category.
He was referred to bundle B, page 33. The submitted that this was his shortlist score sheet of which the score was tempered with. He said that for leadership he originally received a score of 10, but it was changed to 8.
On bundle B page 34, he complained that the scores for all the categories were the same, which gave the impression that the scorer did not consider or read his CV.
On bundle B page 48, the score sheet for the Second Respondent is shown. The Second Respondent noted that they received identical scores, which is unusual since candidates typically have different scores due to differences in their CVs.
Bundle B page18, one of his score sheets for the interview assessment, he submitted that he was scored 10 for leadership, 6 for original ability and experience, 12 for professional development and 5 for leadership. The panellist on page 17, scored him 8.66 for leadership, which was an unusual score. He believed that this type of scoring was a clear indication of foul play against him.
Bundle B page 14 is Second Respondent’s interview score sheet. The witness stated that he scored higher compared to the Second Respondent’s interview score sheets and therefore should have been ranked first.
He mentioned that Hadebe told him that he raised the issue of the scoring with the panellists and it was not addressed. The witness submitted that according to Hadebe, only him, Ngema, Sibiya, and Langa were invited to the interviews, however the Second Respondent also appeared and was interviewed.
Under cross-examination the witness stated that he had experience as an interview committee member and was requested to sign a confidential form.
The witness stated that he was given the score sheets by Hadebe, who received it from Mr. Nqele, the resource person.
He submitted that the Union lodged the grievance on his behalf on 13 October 2023 and that the application was dismissed. He argued that the Union did not lodge the grievance on their own accord but was instructed by him to file on his behalf.
The witness was referred to Bundle A page 24 and requested to do a comparison between that page and Bundle B page 17. The witness stated that both documents are the interview score sheets. He submitted that the sheet in Bundle A page 24 is fully filled out and signed by members of the interview committee, except Hadebe. Bundle B page 17 is incomplete and has no signatures.
He was accused of submitting fabricated score sheets in bundle B that were not the originals filled out by the panellists. He claimed he could not confirm the accusation as he didn’t create the documents and wasn’t present during their completion.
He submitted that he believed that he was the best candidate for the position because he prepared for the interview and his performance at the interview outweighed the other candidates.
He claimed that six candidates were shortlisted but only five were interviewed, because the sixth candidate excused himself from the interview process.

Sifiso Hopewell Hadebe

Mr Hadebe stated that he is the Principal of Maholela Primary School. He has been employed with the Department for 19 years.
He submitted that he was deployed by SADTU to be an observer in the recruitment process of the Principalship post HRM 20 of 2023.
He submitted that he had concerns regarding the shortlisting and interview processes. He mentioned that interview committee member Ngema had to recuse himself from the proceedings, due to his wife being one of the candidates to the post. The process collapsed and did not continue. Later that day he received a call from the secretary of the committee informing him that Mr. Zwane would be replacing Mr. Ngema as a panellist. He asked for Mr. Zwane’s credentials to confirm his eligibility as a panellist, but unfortunately, he did not receive any documentation from him. Subsequently he raised an objection to the committee, however he did not receive a satisfactory response.
He testified that 62 applicants applied for the post and the committee agreed that due to the high volume of applications only question 1 and 3 of the applicant’s CV’s will be considered and all the applicants will be scored 4 points for question 2 and 4. He once again objected to the suggestion of the committee, but the process continued, without his objection being addressed.
He argued that the selection of 6 applicants for interviews went against the policy which specifies only 5 should be chosen. The committee explained that due to three applicants scoring 24 points each, they had to deviate from standard practice.
He claimed that the Second Respondent was not part of the shortlisted candidates due to not meeting the minimum score of 24 points. However, during the interview, the committee insisted that he was indeed shortlisted and eligible for the interviews.
He also mentioned that panelist Ntombela complimented the Second Respondent for his fluency in English, while not giving similar praise to the other candidates. He continued to state that Ntombela’s comment influenced the other panellists to give higher scores to the Second Respondent, ultimately leading to the Second Respondent being ranked first. He clarified that he did not see the panellists changing their scores to favour the Second Respondent. After completing the interviews, he asked the resource person for copies of the score sheets, and they were provided to him as requested.
He was referred to Bundle B page 57, clause 8.2 of HRM Circular 20 of 2023, the procedure manual, which states that only five candidates per post should be shortlisted for interviews. Despite bringing this up, the committee ignored his input and the resource person failed to advise the panellists about the breach of clause 8.2.
He submitted that he did not sign the required documents because he disputed the manner which the processes were conducted.
During cross-examination, the witness verified that focusing solely on questions 1 and 3 of the candidates’ CVs did not unfairly disadvantage any of the candidates. He could not recall saying that the Applicant’s CV was the only CV where all questions were reviewed and considered.
He mentioned that he was unaware that the interview committee only receives five days’ notice before the start of shortlisting process, after which they can establish their own procedures for the process. He argued that after the process was adjourned, they should have received three days’ notice before reconvening.
He was referred to Bundle A page 32, the schedule for the shortlisted applicants, which the Second Respondent was part of. He said that there was another document which he signed that recorded the shortlisted applicants, which did not include the Second Respondent.
The witness refuted the claim that he had signed page A29, which contained the Second Respondent’s shortlisting assessment.
He clarified that the interview committee decided to shortlist six candidates instead of five because three candidates achieved identical scores and all had to be included.
He was asked where he obtained the score sheets from bundle B pages 14 to 50, as the First respondent claimed to have never provided him with those documents. He explained that he received them from the resource person, Mr. Manqele after the interviews were finalized and that he suspected that Mr. Ntombela’s interviews scores had been altered, despite not witnessing the initial scoring from Mr. Ntombela. He denied that the score sheets on bundle B pages 14 to 50 were fabricated and did not belong to the Department.
He reiterated that after the panellists had scored the candidates, they verbally announced their scores as agreed upon, and the individual scores were added together.
The witness was shown pages 28, 29, and 30, all of which bore his signature. He acknowledged that his signature appeared on pages 28 and 29 but denied signing page 30, which is the Second Respondent’s score sheet, even though all three signatures were identical. He further submitted that he did not report the forgery of his signature to the Department or file a case with the South African Police Service. Instead, he submitted an affidavit to the Union for this hearing.
The witness stated that he had no personal stake in the matter, and he did not have any conversations with Mr. Ngubane and Mr Ntombela about supporting the Applicant for the position or trying to influence the interview process.

Mr. Thandekhaya Patrick Sibisi

The Applicant called Mr. Thandekhaya Patrick Sibisi as the third witness.
He submitted that he was employed by Ingwebeni Primary School as a Security Officer since 01 April 2009. He further submitted that he was also member of the School Governing Body (SGB).
He stated that his duties consisted of patrolling the property and safeguarding the schools’ assets and employees and ensuring that everything is in order.
He refuted the claim of a school burglary, asserting that as head of security, he would have been informed of any such incident.
He clarified that he was not informed about the interview committee changes and mentioned that the ratification process was not conducted and that the interview committee did not formally inform the SGB regarding the outcome the interviews.
During questioning, he stated that the School Governing Body (SGB) is responsible for selecting the interview committee. When directed to page 18 of bundle A, the minutes of the approval process, he verified that it appeared the proper process was followed.
He was directed to bundle A page 20, a list of recommended candidates and their ranking signed by the SGB members. He confirmed the attendance of the members on the document and argued that Zwane was not present.
He explained that the Union, SADTU, asked him to provide an affidavit distancing himself of any knowledge of the school burglary to avoid potential arrest. Sello wrote the statement for him, which he then copied onto an affidavit.

Ms. Khumbilile Loviniour Sibiya

She testified as the fourth witness, stating that she was the Head of the Foundation Phase at Ngwebini Primary school. From 01 August 2023 to 08 June 2024, she served as the acting Principal.
Ms. Sibiya mentioned that she was a candidate for the principal position and ranked second in the interview.
During her tenure as acting Principal, she was not informed about a burglary or missing documents at the school. She also clarified that she did not know who kept the score sheets for the shortlisting and interview process and had not received any requests for sheets.
She stated that the SADTU approached her to write an affidavit concerning the school burglary and missing documents. She clarified that she wrote the affidavit voluntarily and explicitly stated that she had no knowledge of the burglary.
The witness was questioned if she agreed to write a statement and testify at the arbitration in the hopes that the appointment of the Second Respondent would be revoked, allowing her to be next in line for the post since she ranked second. She denied this claim and clarified that she accepted not being chosen for the position.

Respondent’s Case

Mr Brian Nhlanhla Mdlalose

The respondent called Mr. Brian Nhlanhla Mdlalose, the Deputy Director of Human Resource Management, as their first witness, whose duties encompassed employee relations, human development, performance management, and health and wellness.
He testified that the School Governing Body (SGB) is responsible for appointing replacements for unavailable interview committee (IC) members, and that the IC may agree on new timeframes, deviating from the initial procedure manual if necessary. Regarding objections, he stated that an observer must specify how their member would be prejudiced.
He confirmed that immediately after interviews, panellists announce their scores for the secretary to capture, and he dismissed the Applicant’s complaint about his CV being read differently, noting the Applicant actually benefited by being shortlisted. While the manual prescribes five shortlisted candidates, he justified the IC’s decision to shortlist six due to a three-way tie, seeing no issue with the deviation.
He also outlined that observers must report irregularities to their union, which can then escalate to the Department, and that score sheets are handed to the SGB post-interview, requiring a formal request and order for access. Finally, he emphasized that the IC reports to the SGB and would not act unilaterally without consulting it.

Bheki John Ntombela

The witness, a Principal at Phakathwayo Secondary School since 2002 and a panellist for the disputed post.
He testified that on the first day of interviews, Ngema recused himself because his wife was a candidate, so the panel adjourned to allow the SGB to find a replacement. The Chairperson later appointed Mr. Zwane, and Hadebe agreed to proceed the next day without objection.
He stated that the shortlisting criteria were agreed upon and applied equally to all applicants, including the Applicant, and they had pre-decided that ties would result in both candidates being invited. He argued that the IC, composed mostly of Principals, would never act improperly by inviting a candidate that was not shortlisted to be interviewed.
He clarified that the comment about the Second Respondent speaking good English was made informally after interviews, not during scoring. He noted that Hadebe only expressed dissatisfaction with the recommended candidate afterwards, repeatedly questioning the panel’s choice. Hadebe’s objections only emerged when he refused to sign the final score sheet, claiming his signature was unnecessary.
He submitted that the IC had no motive to tamper with scores and refuted that score sheets were given to Hadebe, stating they went directly to the secretary.
Regarding the six shortlisted candidates, due to a three-way tie, he maintained that no one was disadvantaged, Hadebe raised no objection, all documents were signed by members.
He confirmed attending the ratification process, though not all SGB members were required to be present, and he could not recall exactly who attended.

Mary-Jane Busisiwe Mbatha

She submitted that she was the Chairperson of the Interview Committee and testified that Zwane was appointed as a replacement panellist after an original member recused himself because his wife was a candidate, and she confirmed that Zwane was qualified and had attended panellist training with her.
She maintained that the SGB held a meeting before appointing Zwane. After the process, Hadebe approached her insisting that the Applicant should have been recommended.
She confirmed that the ratification process occurred, though Sibisi did not attend due to personal reasons, and she was unaware that scorers and the observer had to be invited. Referring to bundle A page 33, she verified that the Second Respondent was shortlisted and that the IC legitimately used its discretion to shortlist six candidates due to a tie.
She rejected any claim of being rewarded for appointing the Second Respondent, reiterating that he was properly shortlisted.
She noted that Hadebe’s objections came as a surprise given the collaborative and positive atmosphere throughout, and that Hadebe refused to sign the final score sheet, stating his signature was unnecessary.
She added that Hadebe was never given the score sheets by the resource person or secretary.

Ayanda Buthelezi

She served as Educator and Scriber. It was reported that Ngema recused himself because he knew one of the candidates. The process was postponed, and later that day she was told that Zwane would replace Ngema.
Due to the large number of applicants, the IC agreed on selection criteria to read some of the questions and allocate the same marks to all the applicants on other questions. Three candidates scored the same, and it was agreed that all three would be shortlisted. She confirmed that the Second Respondent was shortlisted.
Referred to bundle A pages 27–31, she clarified that the score sheets bore Hadebe’s signature.
She stated that once panellists calculated and added their scores at the interview process, the scores were announced, and she wrote them down.
She rejected the claim that the resource person gave the score sheets to Hadebe, because she kept the sheets herself and handed them over to the school for safekeeping.
She stated that Sibiya, District Head, approached her and requested for the candidates’ score sheets, which were kept in the storeroom. She lacked authority to give the sheets to her and asked Sibiya to enter the storeroom on her own and take the documents. The score sheets thereafter went missing and said that she knew nothing about a break in at the school.
She submitted that Sibisi is an SGB member who also provides transport to learners. He is normally busy, which she suggested could explain his non attendance at the ratification process.
Under cross examination, she confirmed her scribe duties were to take minutes. She acknowledged that she did not minute Hadebe’s refusal to sign, attributing this to a lack of training in minute taking and to it being her first time acting as scriber. She added that no one complained about the minutes.
She submitted that the minutes are a summary and a true reflection of the proceedings. She confirmed that six candidates were shortlisted, including the Second Respondent.
She confirmed that a register was signed at the ratification process but could not recall which members were present.

Analysis of the Evidence

Before assessing the evidence, I must establish the applicable legal test. In Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie and Others 2003 (1) SA 11 (SCA), the Supreme Court of Appeal held that a tribunal’s decision on credibility must be based on: (a) the witness’s candour and demeanour; (b) the inherent probability or improbability of their version; and (c) the consistency of their version with the proved and undisputed facts.
The above approach, reinforced in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E), requires me to consider not only credibility but also the probabilities, weighing the totality of the evidence. Where versions are mutually destructive, I must apply the test from SFW Group, asking which version is more probable and consistent with the objective documentary evidence and the surrounding circumstances. I have applied these principles throughout this analysis.
The foundational principle is that there is no automatic right to promotion; an applicant has a right to a fair opportunity to compete for a post see in this regard the case of Noonan v Safety & Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC).
The onus rests on the Applicant to prove, on a balance of probabilities, that an unfair labour practice occurred. See the case of Solidarity obo Burger v SAPS and Others C242/2023 [2025] ZALCCT 51 (9 July 2025). A selection decision is only arbitrary if it has little or no rational basis. Mere mistakes in evaluation do not constitute unfairness unless bad faith, bias, or discrimination is proven. See the case of Noonan v Safety & Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC). I have applied these principles to the evidence presented.
The Applicant testified that he was the most qualified and experienced candidate. His case rested on allegations that Mr Hadebe informed him of procedural irregularities, including that his scores were altered, that his CV was the only one fully read, and that the Second Respondent was not initially shortlisted.
He relied on score sheets in Bundle B, which he claimed were obtained from the resource person via Mr Hadebe. His evidence was undermined by several factors. First, his claim that he was “the best candidate” was subjective and unsupported by objective evidence, especially given that he was ranked fourth in the interview process.
Secondly, he conceded under cross-examination that he did not witness any score changes and could not confirm the authenticity of the score sheets in Bundle B, as he did not create them.
Thirdly, his reliance on hearsay from Hadebe weakened his direct testimony. He presented no independent evidence of bias or deliberate manipulation by the panel. It is inherently improbable that a panel of seasoned professionals would risk their careers to manipulate scores for an unknown candidate.
The objective documentary evidence from the Respondents consistently showed the Second Respondent was shortlisted.
The Applicant’s version relies on the assumption that the panel acted dishonestly, which is a serious allegation not supported by convincing proof. His evidence is rejected as it is largely speculative, hearsay, and inconsistent with the objective records. He failed to discharge the onus of proving an unfair labour practice.
Mr Hadebe testified that he observed numerous irregularities. He stated that the committee decided to only read certain sections of CVs, they shortlisted six candidates instead of five against policy.
He went on to state that the Second Respondent was not shortlisted, and panellist Ntombela improperly praised the Second Respondent for his English fluency. He also claimed his signature was forged on the Second Respondent’s score sheet.
His credibility was severely damaged during cross-examination. He conceded that focusing on only certain sections of the CVs did not unfairly prejudice any candidate. More critically, he denied signing page 30 (the Second Respondent’s score sheet), despite acknowledging that the signature appeared identical to his signatures on other pages he admitted were genuine. When confronted with this forgery accusation, he admitted that he did not report it to the Department or to the police but merely filed an affidavit with his union. This is a significant and unexplained omission that gravely undermines his reliability.
It is highly improbable that a union observer would have his signature forged on a score sheet and do nothing about it other than mention it in an affidavit for this hearing. His failure to act at the time suggests his concern was not as serious as he now claims. Furthermore, his version that the Second Respondent was not shortlisted is directly contradicted by the documented records, which he conceded he had seen after the event.
His evidence is rejected as unreliable, marked by material inconsistencies and an improbable failure to act on a serious allegation of forgery. His version does not withstand scrutiny and is outweighed by the consistent evidence of the panellists.
Mr Sibisi testified that he was not informed about the interview committee changes, that the ratification process did not occur, and that he had no knowledge of a school burglary.
He also stated that the union asked him to provide an affidavit denying knowledge of the burglary. His evidence was tangential and not central to the core dispute about scoring and shortlisting. His credibility was weakened by his acknowledgment that page bundle A page 18 (the minutes of the ratification process) appeared to indicate the proper process was followed. His claim that the ratification process did not occur was undermined by the testimony of multiple witnesses who confirmed it did happen, and he conceded that he did not attend due to personal reasons.
As an SGB member, he would have been expected to attend the ratification process, and his failure to do so explains his lack of knowledge. His evidence is partially accepted, but not material.
His evidence regarding the burglary is accepted in that he had no knowledge of it. However, his claims about the ratification process are rejected as they are based on his own absence, not on any demonstrated irregularity.
Ms Sibiya testified that she was a candidate for the position and ranked second. She confirmed she had no knowledge of the burglary or missing documents. She also stated that she wrote an affidavit voluntarily denying any knowledge of the burglary.
She was a straightforward and credible witness. Her evidence was consistent and she had no apparent motive to fabricate. However, her evidence was also tangential to the central dispute as she could not confirm or deny the scoring allegations, as she was not part of the interview committee.
Under cross-examination, she credibly refuted the suggestion that she testified to improve her own chances of appointment. Her version is consistent with the objective evidence. She had no personal interest in the outcome other than as a candidate, and her denial of any knowledge of a burglary is consistent with the other evidence.
Her evidence is accepted, but it does not materially advance the Applicant’s case, as she lacks direct knowledge of the disputed scoring and shortlisting events.
Mr Mdlalose testified on the general procedures for appointments, explaining the roles of the SGB, the interview committee, and observers. He justified the decision to shortlist six candidates due to the three-way tie, and stated that observers must prove prejudice to sustain objections, and confirmed that score sheets are handed to the SGB after interviews.
His evidence was clear, measured, and consistent with the HRM policy documents. He had no direct involvement in the disputed processes but provided authoritative context.
There was no challenge to his professional expertise. His explanation of the six-candidate shortlist is logical and consistent with the need to treat all candidates fairly when scores are tied. His evidence is accepted. His evidence on policy and procedure is credible and provides a rational basis for the panel’s decisions.
Mr Ntombela testified that the process was conducted fairly. He went on to state that Mr Ngema recused himself, Zwane was properly appointed, criteria were applied equally, the Second Respondent was shortlisted, and scores were announced openly.
He denied that Hadebe objected during the process, stating that Hadebe only raised concerns when he refused to sign the final sheet. His evidence was consistent, detailed, and unrebutted on key points. He had no apparent motive to lie.
His description of the process was corroborated by other panellists and the documentary evidence. It is inherently probable that a panel of experienced Principals would follow established procedures. The claim that they would surreptitiously invite a non-shortlisted candidate is highly improbable. Hadebe’s stated “forgery” claim, which he did not pursue, further supports the panel’s version.
His evidence is accepted. His evidence is credible, consistent, and aligns with the probabilities.
Ms Mbatha confirmed Mr Ntombela’s evidence, adding that Zwane was qualified and that the SGB met before appointing him. She stated that Hadebe’s objections came as a surprise and that he refused to sign the final score sheet, claiming it was unnecessary. Her evidence was firm, consistent, and corroborated by other witnesses.
She had direct knowledge of the proceedings as Chairperson. Her account of Hadebe’s conduct (objecting only after the result was known) is consistent with his pattern of behaviour. As Chairperson, she would be in the best position to observe the proceedings. Her version that Hadebe did not object during the process and only refused to sign afterward is more probable than the Applicant’s claim that Hadebe objected throughout. Her evidence is accepted. Her evidence is reliable and consistent with the objective facts.
Ms Buthelezi testified as the scribe. She confirmed the recusal of Mr Ngema, Zwane’s appointment, the agreed criteria, and that the Second Respondent was shortlisted. She stated that she kept the score sheets and handed them to the school, and that she later allowed Ms Sibiya (the Applicant’s witness) to enter the storeroom where the sheets were kept, after which they went missing.
Her evidence was critical because she was the custodian of the score sheets. Her admission that she allowed an unauthorized person (Sibiya) access to the storeroom without supervision is a significant failing. However, she was honest about it, and there was no evidence of bad faith or deliberate destruction of documents.
Her explanation that Hadebe’s refusal to sign was not minuted due to her inexperience is plausible. The fact that the score sheets went missing after Ms Buthelezi gave Ms Sibiya unsupervised access to the storeroom is more probable than the Applicant’s claim that the Respondent deliberately withheld them.
Ms Sibiya was the second-ranked candidate and had an interest in the outcome. Her evidence is partially accepted. Her evidence of the process is credible and accepted.
Her handling of the score sheets is noted as a serious administrative failure, but one that does not amount to an unfair labour practice, as there is no evidence of intent to prejudice the Applicant.
The Applicant’s claim that his CV was the only one read is unsubstantiated. Mr Hadebe conceded that he was unable to recall making this statement. The Respondent’s witnesses consistently testified that agreed criteria were applied equally to all applicants. The deviation from the prescribed limit of five shortlisted candidates was adequately explained by the panel: a three-way tie for scores required inviting six candidates to ensure fairness. This was a rational decision in the context of the process and does not constitute an irregularity.
The core dispute regarding the Second Respondent’s shortlisting status is resolved by the evidence. The Respondent’s documentation confirms he was shortlisted. The Applicant’s assertion relies on hearsay from Hadebe, whose credibility has been fatally compromised. His claim that the Second Respondent was not shortlisted is rejected.
The Applicant’s allegations of score tampering are not supported by reliable evidence. The Respondent’s version, that scores were announced openly and recorded by the scribe before being handed to the SGB, is consistent and credible.
The Applicant’s reliance on disputed score sheets from an unverified source is insufficient to prove foul play. There is no credible evidence that panellists changed scores to favour the Second Respondent.
The Respondent provided a rational explanation for the loss of documents (the school burglary). The Applicant has not proven this loss was deliberate or in bad faith, so no adverse inference is drawn against the Respondents.
The comment regarding the Second Respondent’s English fluency was described as an informal remark after interviews, not part of the scoring. There is no evidence it improperly influenced the panel, and Hadebe did not witness any score alterations.
The appointment process was generally fair. The panel was properly constituted, its members were qualified, and objections raised by the observer were noted. The deviation to shortlist six candidates was rational and did not prejudice any candidate.
The Applicant’s case rests almost entirely on the testimony of Mr Hadebe, whose credibility has been fatally compromised. His claims are inconsistent, inherently improbable, and unsupported by objective corroboration. The panellists, by contrast, provided a consistent, coherent account of the process that aligns with the documentary evidence and normal practice.
The quality of the Respondent’s evidence is superior because it is consistent across multiple independent witnesses, it is corroborated by documentary records (e.g. the shortlisting list), it provides a rational explanation for the deviations (the three-way tie), and it does not require the assumption of a grand conspiracy.
The Applicant’s version on the other hand requires the tribunal to believe that a panel of experienced, professionals, along with an observer, colluded to manipulate scores and forge signatures, all for no apparent personal benefit. On the balance of probabilities, this is far less plausible than the Respondent’s version of a properly conducted process with minor administrative errors.
The Applicant has failed to discharge the onus of proving that the First Respondent committed an unfair labour practice. The allegations of procedural irregularities, score tampering, and unfair invitation of the Second Respondent are not established on a balance of probabilities.
The Respondent’s decision to appoint the Second Respondent, who scored highest in the interview process, is rationally justified. There is no evidence of bad faith, bias, or discrimination as required by Noonan v Safety & Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LAC). The administrative errors, such as the loss of documents, are regrettable but do not amount to an unfair labour practice as they were not deliberate and did not materially prejudice the Applicant. See in this regard the case of MEC for Education: KwaZulu-Natal v Khumalo (2014) 35 ILJ 613 (CC).
The Applicant had a fair opportunity to compete, and the process was, on the whole, substantively and procedurally fair.