ARBITRATION AWARD
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (NORTHWEST PROVINCE)

Case No: ELRC 804-25/26NW

In the matter between

SADTU obo KEHILWE SEKATI Applicant

and

DEPARTMENT OF EDUCATION: NORTHWEST PROVINCE 1st Respondent

LERATO KULA 2nd RESPONDENT

ARBITRATOR: Monde Boyce

HEARD: 26 February 2026, 27 & 28 May 2026

CLOSING ARGUMENTS: 08 June 2026

DATE OF AWARD: 18 June 2026

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This matter was set down for arbitration on 26 February 2026. The matter was however not finalised on that day and was rescheduled to proceed on 27 and 28 May 2026. Both parties attended the proceedings on the above-mentioned dates with Ms B Malinga, a SADTU trade union representative representing the applicant while Ms M Cindi, a labour relations official in the department, represented the 1st and the 2nd respondents.

[2] Both parties submitted bundles of documents, and no issues were raised, and bundles were accepted as what they purport to be. During the pre-arbitration engagement, parties agreed that most material facts were common cause with the only issue in dispute being that of whether the 1st respondent’s decision not to appoint the applicant as recommended by the School Governing Body (SGB) and instead appointing the 2nd respondent to the position of principal was unfair and constituted unfair labour practice as envisaged in section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). To the extent that was the case, evidence was limited to only answering the above question. A total of five witnesses, the applicant included, testified during the proceedings. There was a request by the parties to submit written closing arguments, a request I granted directing the parties to file their closing arguments with the Council by no later than 08 June 2026. Both parties duly filed their submission by 08 June 2026.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the respondent’s decision not to follow the SGB’s preference in its recommendations and of instead appointing the 2nd respondent, Ms Lerato Kula, as principal of Maquassi Hills English Secondary School, was unfair and constituted unfair labour practice envisaged by section 186(2)(a) of the LRA, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant is Ms Kehilwe Agness Sekati who is currently employed as deputy principal at Kgatelapele Secondary School and has been in the department’s employ for twenty-eight years. A position of principal at the Maquassi Hills English Secondary School was advertised. The applicant was one of the candidates who were shortlisted, interviewed and recommended for appointment. The applicant was however not appointed, but the employer instead appointed the 2nd respondent to the position. Aggrieved by this decision, the applicant referred an unfair labour practice to the ELRC (Council) for conciliation. The dispute could however not be resolved at conciliation, and the applicant referred the dispute for arbitration. She seeks to have the appointment of the 2nd respondent set aside as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicants’ evidence

[5] The applicant’s testimony was that she possesses a Secondary Education Diploma, Certificate in Education in Mathematics, Science and Technology, Advanced Certificate in Advanced Education majoring in HIV/Aids, Physical Education and Recreation and Professional Management.

[6] Regarding management experience, she started as the head of department in Business Commerce and Management in 2000 at Kgatelapele Secondary School. In 2013, she was appointed as the deputy principal at Maitemogelo Secondary School. She resigned in 2016 and in 2022, she was appointed as the deputy principal at Kgatelapele Secondary School. She has a combined total of eighteen years’ experience in management. She also was elected as a SADTU shopsteward and later a Treasurer of the Wolmaransstad SADTU branch. She later became the chairperson of the Wolmaranstad COSATU local branch. She also served as a board member of the Nic Wodeinstein Hospital in Wolmaranstad.

[7] She applied for the position of Principal Post Level 4 advertised through Circular 15 of 2025 at Maquassi Hills English Secondary School. She was one of the candidates shortlisted for the position and she and the other shortlisted candidates went to an interview. Two weeks after the interviews, she learnt from one of the SGB members that a recommendation was changed in favour of the 2nd respondent and that she and the 2nd respondent achieved the same scores and that she was recommended for appointment. The SGB member also told her that the Circuit Manager called a meeting where the Circuit Manager instructed that the recommendation be changed to have the 2nd respondent appointed to the position.

[8] She lodged a grievance on 30 September 2025, but she did not receive any response from the district. She learnt on 02 October 2025 that the 2nd respondent had been issued with an appointment letter. After the appointment letter was issued, she approached the regional structure of the trade union SADTU which advised her to lodge a dispute with the Council. It was only after she lodged the dispute that she was called by the district review panel which resolved that the matter would not be deliberated on because the matter was already before the Council.

[9] The interview panel was comprised of nine members with two observers from organised labour. The questioned were aligned with advertised requirements. She was informed that the SGB deliberated on who to appoint between her and the 2nd respondent who obtained the same score. Although the officials of the department deliberated, the SGB also deliberated on who should be appointed and resolved to recommend her for appointment, and the SGB wrote a letter to the Head of Department (HOD) on 13 September 2025 to that effect. She was informed that the department deviated from the recommendation that was made by the SGB. There were no written reasons for the deviation from the department’s side, but she heard from the SGB member, Mr Tshabalala that the deviation was informed by her and the 2nd respondent’s school performance and that the Kgatelapele Secondary School was one of the underperforming schools in the region. Performance of the schools was not a requirement for the post. Performance was used as the criteria to effect the appointment.

[10] She believed that that the Circuit Manager’s involvement in later deliberations was a conflict of interest in that he had been part of the interview panel as a resource person. She did not identify any defects in the original interview process.

[11] After the interview panel changed its recommendations, no new interviews with new scoring sheets were completed. The resource person played a major role in effecting the changes to the recommendation made because he used his position as Circuit Manager to coerce the SGB in changing the recommendations. She also believed that Mr Mgoje’s also bringing SGB members who were not members of the interviewing panel was deliberate. In her view, the original recommendation by the SGB was procedurally fair. She does not believe that the SGB acted independently when it changed the recommendations because everything was discussed in front of the Circuit Manager. The decision has affected her professionally in that she is now demoralised and has lost faith in the system.

[12] Mr Maper Johannes Tshabalala was called as the applicant’s first witness. He is currently the deputy chairperson of Maquassi Secondary School’s SGB and has held this position since 2025. He was part of the consultative meeting that took place on 29 September 2025. The meeting was called by the Circuit Manager. The minutes are a true reflection of what happened on that date. There were no objections that were raised when the minutes were captured. The minutes contained on page A5, A6, A8 and A9 of the applicant’s bundle are not the same as the ones contained on page R42 and R43 of the respondent’s bundle. During the meeting of the 29th of September 2025, Mr Mogoje delivered a message to the effect that the SGB must change its recommendations to recommend Ms Kola who was already a principal.

[13] He asked Mr Mogoje to give the SGB space to caucus, but other SGB members refused. His view in the meeting was that the school needed someone who was going to be able to take the school forward and that Ms Sekate would be able to take on the challenge. Kgatelapele had a bigger number of learners than the school Ms Kola was at.

[14] The role played by Mr Mogoje in the interviews was that of resource person. A resource person is not allowed to influence the SGB’s decision. Mr Mogoje should not have made utterances to the effect that he agreed with the panel. The SGB felt that it was being compelled to align with the instruction by the department. Members of the panel had to declare any conflict of interest and Mr Mogoje had declared that he did not know anyone, but he was cited as a reference in Ms Kola’s curriculum vitae. The SGB had already recommended the applicant before the interference by the department. He did not agree with the shift in the order of preference on recommended candidates because the panel had already recommended. What would be a fair and correct outcome in his view was where the department would have gone with the SGB’s recommendation on preferring the applicant for appointment.

[15] The second witness called by the applicant was Mr William Gaorutwe Kunene. He testified that he sat as an observer during the recruitment process concerning the post at issue on behalf of the CTU-FTU. The role of the SGB in the recruitment process is that of ensuring a proper process is followed. The SGB is required to shortlist a maximum of three candidates and a minimum of three candidates. Because of the nature of the post, it was mostly the officials of the department that did the scoring. The SGB must, after scoring of the candidates, recommend candidates to be appointed. It is the prerogative of the department to appoint. They have the right to appoint any of the three candidates, and the recommendations of the SGB are taken into account. If the department moves away from the recommendations, the department should have a strong motivation on appointing a candidate not recommended by the SGB.

[16] The role played by a resource person is that of advising the SGB in terms of the policy. The resource person plays no other role other than that of advising on policies. R24 and paragraph A8 on “Recommendation by Panel and SGB” suggested that there was a tie in scores and that the SGB recommended that Ms Sekati be appointed. Mr Mogoje supported the decision of the panel. Mr Mogoje was the resource person and was not supposed to have agreed with the recommendations of the panel. Where there is a tie, the SGB must recommend a candidate. He would not say Mr Mogoje influenced the panel. He was present up to a point where the SGB was given an opportunity to make its recommendations. According to the panel, Ms Kola was preferred by the panel as she already held a position of principal. According to him, the interviews went well. The SGB is required to make an independent judgment, and in his view, the SGB did just that.

[17] He has never heard of a case where interviews are held, and recommendations made and thereafter a meeting gets held. Where the department departs from the recommendations of the SGB there has to be reasons. There are no reasons spelt out on A4 on why Ms Kola had to be appointed. Where a recommendation is made and where an appointment is done, reasons must be given as to why there was deviation.

[18] Ms Boitswarelo Mpethi was called as the applicant’s third and last witness. She testified that she participated in the recruitment process as the trade union SADTU observer. As she observed the process, the process was held in a fair and orderly manner. She was present from the start till the end of the interviews. Post the interviews, she played no role.

The Respondent’s Evidence

[19] The 1st respondent called Mr Micheal Mogaki as its first witness. He testified that he is currently employed as the circuit coordinator in the district. He was the chairperson of the panel for the advertised post. Where three candidates are recommended for appointment, the district director as the delegated appointing authority would exercise her discretion on who should be appointed. In cases where there is a tie, the district director would apply her mind considering all the factors. The district director wanted to know who to appoint between the applicant and the 2nd respondent. As she applied her mind, she spoke to him and he advised her to look at other issues that could assist her in coming to a more objective decision. At the end, it was the decision of the director to engage the SGB in order to establish how they decided to recommend the applicant.

[20] The reason for the consultative meeting was because the district director wanted the SGB to explain why their recommendation was different from that of the panel that conducted the interviews. After the meeting, the SGB changed their position from recommending Ms Sekati to appointing Ms Kola as recommended by the panel. The district director looked at all the minutes and the experience of the two candidates and found that the 2nd respondent had experience as a principal as she was a principal of a small school and performed well.

[21] The 2nd respondent did not lead evidence.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[22] The test for unfair labour practice relating to promotion is settled, and courts have, in various judgments, that the decision to appoint or promote candidates is the prerogative of the employer and that the only instant where such decision should be interfered with is where they are found to be arbitrary, grossly unreasonable, irrational or mala fide. This principle was asserted in the earlier case of Goliath v Medscheme (Pty) Ltd , a judgment mostly referred to by other courts in subsequent judgments on promotion disputes. In that case, the court held that:

“Inevitably, in evaluating various potential candidates for a certain position, the management of an organisation must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion” (Own underlining for emphasis)

[23] The Labour Appeal Court in Ncane v R Layster NO also confirmed the principle in Goliath that the evaluation of suitability of candidates for promotion may not necessarily be without flaws. In the above cited case, the court held that:

“When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides”. (Own underlining for emphasis)

[24] As regards onus, it is trite that an employee who alleges unfair conduct of an employer, must discharge the onus. In other words, it is up to the employee to show, by way of evidence that the conduct complained of constituted unfair labour practice. It is once the employee succeeds in discharging the onus that rest on her that an employer is required to defend its decision by leading evidence showing that its decision was fair and did not constitute unfair labour practice.

[25] With above considerations in mind, I now proceed to deal with the claim and contention by the applicant that she was subjected to unfair labour practice. I hasten to mention that the trite principle on fairness is that an employee must have been afforded a fair opportunity to compete for an advertised position. Serving before me in the present case is not an instance where the applicant alleged that the process leading up to her recommendation of her and the 2nd respondent was unfair. On her own version and that of her witnesses, the applicant agreed that the process was fair, and that the only issue she had was that she believed that the appointing authority unfairly interfered with the recommendations of the SGB.

[26] The applicant based her argument on the grounds that the resource’s person’s stating that he agreed with the interviewing panel was improper, that the circuit manager’s subsequently holding the meeting with the SGB after its recommendations, and considering the performance of the schools that the applicant and the 2nd respondent are based at as a criteria constituted interference that rendered the appointment of the 2nd respondent unfair. I must mention that it is not in dispute that the applicant was not the only candidate recommended for appointment. She (applicant) and the 2nd respondent actually made scored a tie and made it to the final list of candidates recommended for appointment. The very SGB, irrespective of its preference on the list sent to the appointing authority, put up both the applicant and the 2nd respondent as appointable and recommended both of them. In terms of the applicable prescripts in particular the ELRC Collective Agreement 3 of 2016 on promotions disputes, emphasis is made that the SGB’s recommendations be taken into account or considered by the appointing authority, the very prescripts place no obligation on the HOD to appoint a candidate that the SGB would have preferred in terms of the recommendations.

[27] Up until the time the appointment candidates were recommended for appointment, evidence showed that the panel followed a fair process. The question that then begs an answer is that of whether the respondent, in exercising its prerogative, decided to appoint the 2nd respondent and not the applicant, acted unfairly. It is my finding that the respondent did not act unfairly. The grounds for the challenge of the appointment of the 2nd respondent all fall to be dismissed. Firstly, the statement during the meeting of the interview panel by the resource person, Mr Mogoje, could not have an influence on who to appoint. His agreeing with the interviewing panel’s recommendation had no effect of interfering with the independence of the panel to the extent that the panel gave both the applicant and the 2nd respondent same scores, a tie that could only be broken by the decision of the appointing authority exercising her prerogative. Thus, the comments by the resource person did not in any way prejudice the applicant.

[28] Secondly, I could find nothing untoward with the meeting held with the SGB by the circuit manager. It is not impermissible for the appointing authority to take measures to ensure that she exercises her prerogative from an informed point. While the applicant contented that the meeting held with the SGB meant to influence the decision taken by the SGB to recommend the applicant, evidence shows that the SGB was involved in the deliberations in that meeting, and which deliberations led to the recommendation of the applicant by the SGB changed to prefer the 2nd respondent. Thirdly, even if the SGB disagreed, its role is that of recommending candidates for appointment and not to actually appoint, a point conceded to by the applicant and her witnesses. But even if the SGB had reservations about the appointment, it is my finding that such reservations, unless shown to have merit, would not be sufficient cause to interfere with the prerogative of the appointing authority. This is especially so given that the very SGB, by also recommending the 2nd respondent for appointment, believed that she (2nd respondent) was equally suitable for appointment. This is more so given that at the time the applicant and 2nd respondent applied for the position, the 2nd respondent already held the position of principal, albeit at a different school.

[29] Fourthly, Mr Tshabalala, the SGB’s chairperson, referred to consideration by the appointing authority of the performance of the two candidates’ schools to be unfair as it was not part of the criteria when the position was advertised. This assertion, in my considered view, falls to be outrightly rejected because it makes no sense that performance of the schools that the candidates were charged to manage would not be a consideration on whom to appoint to a very crucial position of principal.

[30] As already alluded to, it was up to the applicant to show that the decision of the respondent to appoint the 2nd respondent was unfair and constituted unfair labour practice. On consideration of evidence in its totality, it is my finding that the applicant had failed to discharge the onus. I thus follow that she (applicant) is not entitled to the relief she seeks.

[31] In the premises, I make the following award:

AWARD

[31] The 1st respondent’s decision to appoint the 2nd respondent, Ms Lerato Kula, to the position of principal at Maquassi Hills English Secondary School was not unfair and did not constitute unfair labour practice.

[32] The application is accordingly dismissed.

[33] The Council is directed to close the file.

Monde Boyce
Senior Panelist: ELRC