19 June 2026 – ELRC934-25/26KZN

IN THE ELRC
BETWEEN:

PSA obo Didacus Igwe Applicant
and
The Head of the KwaZulu-Natal
Department of Education Respondent

Arbitration Award

Case Number: ELRC934-25/26KZN
Date of award: 18 June 2026

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

The arbitration was held remotely by way of a digital platform on 27 March 2026 and 2 June 2026. Written closing arguments were thereafter submitted on behalf of the Applicant but not the Respondent.
The Applicant, Didacus Ique, was represented by officials of his trade union; Mr Gcabashe on 27 March 2026 and Ms Dladla on 2 June 2026. The Applicant testified and a bundle of documents marked exhibit A was submitted on his behalf.
The Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by the Departmental employee, Mr Daniso.
The proceedings were recorded online by the digital platform.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

I am required to interpret and determine whether the National Collective Agreement 2 of 2024 (Collective Agreement;) in particular, paragraph 4.2.1.4 of the annexure A thereto, applies to the Applicant as provided for in section 24 of the Labour Relations Act 66 of 1995 (LRA.)

BACKGROUND

It is not in dispute that:
6.1. The Collective Agreement titled “The appointment and conversion of temporary educators to posts on the educator establishment” came into effect on 11 June 2024;
6.2. The Applicant is employed as a temporary educator at Georgenau Combined School in a funded, substantive level 1 post;
6.3. The Applicant’s current fixed term contract commenced on 1 January 2017, having been periodically renewed;
6.4. The Applicant is registered with the South Africa Council of Educators (SACE;)
6.5. The Applicant qualifies for the post.
The key issue in dispute is whether the Applicant meets the eligibility requirements for conversion from a temporary to a permanent educator prescribed in paragraph 4.2.1.4 of annexure A to the Collective Agreement which provides as follows:
“4.2.1 A temporary educator may only be appointed permanently to funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.4 The temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended, and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of 1994) as amended.”

SURVEY OF EVIDENCE
THE APPLICANT

The Applicant testified that he had been a permanent resident of South Africa since 2019. A copy of his permanent residence permit is at page 4 of exhibit B and it records its date of issue as having been 14 February 2019. He was subsequently issued with a South African identity document on 12 August 2019. A copy of the photograph page of the document is at page 3 of exhibit A.
He taught accountancy, mathematics literacy and EMS. He had taught since 2009.
He had received from the Respondent a “Notice of termination of temporary appointment against vacant PL1 substantive post” dated 7 November 2024. The reason for the Respondent’s decision to terminate the employment of the Applicant with effect on 31 December 2024 is recorded in paragraph 2 of the notice as follows:
“Kindly be advised that the Department is unable to convert your temporary appointment to permanency as mandated by collective agreement no. 2 of 2024 due to the fact that you are a Foreign National and not a South African Citizen.”
He had challenged the decision of the Respondent to terminate his employment and remains in the post.
Under cross-examination the Applicant:
12.1. Stated that he had been born in Nigeria and was a citizen of that country and a permanent resident (but not a citizen) of South Africa;
12.2. Stated that once granted, there was no requirement for him to apply for South African citizenship. He had commenced with this process after he had been issued his South African identity document;
12.3. Stated that he had initially come to South Africa in 2003 to study. He initially resided in South Africa on a study permit; after having obtained his post graduate qualifications he was granted a critical skills permit and thereafter he resided in South Africa in terms of the permanent residence permit issued in 2019;
12.4. Disputed that his permanent residence permit had lapsed.
The Respondent
Prudence Mjwara (Mjwara) is a Deputy Director in the Human Resources Support Services (HRSS) department of the Respondent’s Umgundlovu District.
She was satisfied that the Applicant was registered with SACE.
She had met with officials of Home Affairs who had confirmed that the permanent residence permit and identity document relied upon by the Applicant were legitimate. She had, however, also been advised that the permit was subject to review after 5 years. The Applicant could also apply for South African citizenship 5 years after the date of issue of his identity document. The Respondent had been waiting for the Applicant to apply for citizenship after this 5 year period had lapsed.
Under cross-examination Mjwara:
16.1. Confirmed that the Applicant occupied a funded vacant post;
16.2. Submitted that she had been advised by officials of Home Affairs that after 5 years Home Affairs could extend the period of residency or withdraw it;
16.3. Agreed that paragraph 4.2.1.4 of the Collective Agreement stated that it applied to South African citizens or permanent residents of South Africa but stated that she had not been given an explanation by Home Affairs on the difference between citizens and permanent residents;
16.4. Stated that the Respondent relied upon an educator’s identity document when deciding whether to permanently appoint the educator. As the identity number of the Applicant indicated that he was not a citizen, the Respondent had not converted the Applicant’s status from temporary to permanent;
16.5. Could not comment on the submission that a permanent residency permit did not expire after 5 years but rather the holder became eligible to apply for citizenship after that period has lapsed; and
16.6. Submitted that the Collective Agreement did not apply to the Applicant as the Respondent had not been given proof that his permit had been extended beyond its initial 5 year period.
WRITTEN ARGUMENTS
It was submitted on behalf of the Applicant that:
17.1. Once the Applicant had submitted to the Respondent proof that he was a permanent resident of South Africa, the Respondent was obliged to implement the Collective Agreement in respect of converting his status from temporary to permanent employee;
17.2. The permit of the Applicant remained valid beyond its initial 5 year period and it was not subject to review and renewal after this period;
17.3. The Applicant was entitled to apply for citizenship after the lapse of 5 years but he nevertheless remained a permanent resident beyond this period if he did not so apply and receive citizenship.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
This referral for the provisions of paragraph 4.2.1 of annexure A to the Collective Agreement to be interpreted and their application to be determined is made in terms of section 4.4 of the Collective Agreement read with clause 68 of the Council’s Dispute Resolution Procedures and section 24 of the LRA.
The provision of the Collective Agreement that needs to be interpreted and its application determined is found in paragraph 4 of annexure A to the Collective Agreement that is concerned with the “conversion of temporary educators to permanent educators.” It is not in dispute that the Applicant meets all of the requirements specified under sub-paragraph 4.1, which is titled “Application.” Sub-paragraph 4.2 is titled “Eligibility for conversion.” For ease of reference, I shall quote below the relevant provisions of sub-paragraph 4.2:
“4.2.1 A temporary educator may only be appointed permanently to funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.4 The temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended, and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of 1994) as amended.”
The interpretation sought by the Applicant is that there are two classes of temporary educators who are eligible for conversion to permanent status in terms of paragraph 4.2.1.4; namely, South African citizens and if not a citizen, a foreigner who is a permanent resident of South Africa.
On the other hand, it was submitted on behalf of the Respondent that in light of its understanding that a permanent residence permit is subject to review 5 years after it has been issued, a foreigner would have to acquire citizenship before becoming eligible.
With regards to the concept of interpretation it was held in the case of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593 (SCA) [2012] 2 All SA 262 (SCA) at paragraph 18 that interpretation “is the process of attributing meaning to the words used … Whatever the nature of the document, consideration must be given to the language used in light of the ordinary rules of grammar and syntax, context in which the provision appears.”
Applying these principles to paragraph 4.2.1.4 of annexure to the Collective Agreement, the use of the conjunction “or” between “citizen” and “permanent resident” in the said paragraph would indicate that the paragraph makes provision for two distinct possibilities for eligibility as submitted on behalf of the Applicant. To give the paragraph the interpretation sought by the Respondent would render the inclusion of “or permanent resident of South Africa” completely superfluous. There is nothing in the Collective Agreement that lends support to such an interpretation.
For completeness I have, however, given consideration to the reasons advanced by the Respondent for this interpretation. Mjwara testified that she came to this interpretation based on her having been informed by Home Affairs’ officials that a permanent residence permit was subject to review after 5 years. The provisions of the permanent residence permit do not support this view. The permit states that the Applicant “has been authorized …if he/she on date of approval of application, already sojourns therein (South Africa) legally, to reside permanently. Unless the holder of this permit enters the Republic of South Africa for the purpose of permanent residence before or on 13-02-2020 the permanent residence permit shall lapse.” Apart from this last-mentioned limitation (which does not apply to the Applicant,) no other restriction on the validity or period of permanent residency is recorded. This would indicate that there is no factual basis to support the interpretation sought by the Respondent.
In light of the above, I find that the clause in paragraph 4.2.1.4 of annexure A to the Collective Agreement must be interpreted as meaning that two categories of temporary educators are eligible for conversion to permanent status; namely, those who are South African citizens and secondly those who are not citizens but are lawfully in the country having been granted a permanent residence permit. The Applicant falls within the second category.
It was the evidence of Mjwara that she had established with Home Affairs that the permanent residence permit relied upon by the Applicant was an authentic document. As such I am satisfied that the Applicant is a permanent resident of South Africa and as such, he has established that he is eligible for consideration for conversion from a temporary educator to a permanent educator in terms of the Collective Agreement.
There is one remaining issue to deal with. In addition to his request for the Collective Agreement to be interpreted and then applied, the Applicant sought to be reimbursed retrospectively in respect of certain benefits that had been withdrawn from him. Such determination does not fall within the scope of a referral in terms of section 24 of the LRA and hence no findings have been made in this regard.
AWARD
Paragraph 4.2.1.4 of annexure A to the Collective Agreement (2 of 2024) is interpreted to mean that there are two distinct categories of temporary educators who are eligible for conversion to permanent status; namely those who are South African citizens and those who are not but reside in South Africa in terms of a permanent residence permit.
Paragraph 4.2.1.4 of annexure A to the Collective Agreement (2 of 2024) applies to the Applicant given his status as a permanent resident of South Africa.