Case Number: ELRC345-26/27NC
Panelist: LEKUKA MORE
Date of Ruling: 18 AUGUST 2026

In the Arbitration between

SADTU OBO BC MABALE
(Union/Applicant)

And

DEPARTMENT OF EDUCATION, NORTHERN CAPE
(1st Respondent)

K. TITUS
(2nd Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This is the Award in the Arbitration between the Applicant, South African Democratic Teachers Union (SADTU) on behalf of Boingotlo Crescentia Mabale and Department of Education, Northern Cape (1st Respondent) and also Kimor-Agarther Titus (2nd Respondent).
2. The Arbitration was held under the auspies of the Education Labour Relations Council (ELRC) in terms of Section 186 (2) (a) of the Labour Relations Act, 66 of 1995 as amended (“the Act”). The Award is issued in terms of Section 138(7) of the Act.
3. The Arbitration hearing was held remotely via Microsoft Teams on 06 August 2026. Mr. A. Melokwe, fulltime Shop steward from SADTU, represented the Applicant. The 1st Respondent was represented by its Labour Relations Officer, Mr. L. Jara, whereas the 2nd was represented by Ms. G. Neels, practicing Attorney from Neels Incorporated.
4. The proceedings were mechanically recorded, and handwritten notes were

taken as well.

ISSUE TO BE DECIDED

5. The issue in dispute was whether the 1st Respondent had committed an Unfair Labour Practice by not appointing the Applicant, Ms. Mabale to the position of Departmental Head at Asmandia Primary School.
6. In terms of the relief sought, the Applicant is seeking an order directing the 1st Respondent to appoint the Applicant to the position of Departmental Head and to pay her the remuneration and benefits applicable to that position backdated to the date she should have been appointed.

BACKGROUND TO THE DISPUTE

7. The dispute between the parties arose against the following background. The Applicant has been employed by the Department of Education, Northern Cape since 2017. She served as an Acting Departmental Head during the Second Academic Semester of 2025. She was currently teaching Grade Three’s (3) Afrikaans Home Language, English 1st Additional Language, Mathematics and Life Skills in Afrikaans. She holds a Baccalaureus Educationis (Pre-School and Foundation Phase) Degree and is registered with the South African Council of Educators.
8. She applied for the post of Departmental Head of Asmandia Primary School advertised as Post Number 1858 on Vacancy list of 2025 on the 1st Respondent’s E-recruitment system. Five Candidates applied for the Vacant Post wherein four Candidates were internal Applicants and one Candidate was an External Applicant. The Interview Committee recommended three Candidates namely, Ms. Mabale, Ms. Titus and Ms. Van Rensburg. The School Governing Body recommended the above-mentioned Candidates for appointments. On 24 April 2026, Ms. K.M. Titus was appointed as the Departmental Head (PL2) with effect from 01 April 2026.
9. At the conclusion of the hearing, parties were requested to submit Closing arguments on or before Thursday, 13 August 2026.
10. I have considered all the evidence and arguments presented by both parties but because the Labour Relations Act, requires brief reasons in terms of Section 138(7), I have only referred to the evidence and arguments presented by both parties herein that, I regard as necessary and relevant to substantiate my findings and the determination of the dispute.

SURVEY OF EVIDENCE AND ARGUMENTS
DOCUMENTARY EVIDENCE
APPLICANT’S CASE
BOINGOTLO CRESCENTIA MABALE’S TESTIMONY (THE APPLICANT)

11. The Applicant had prepared an agreed bundle of documents which consisted of seventeen (17) pages.
12. The Applicant claims that the decision not to appoint her was unfair. She contended that she was the highest Candidate scored by the Interviewing Panel and was recommended by the School Governing Body for appointment. She considered her appointment rejection unfair, particularly because no clear reason was given and she was told by the Deputy Principal that the District Office will give reasons why she was not appointed. She sought justice and fairness.
13. She acknowledged that the SGB only recommends and the power to appoint rests with the Superintendent General. While acknowledging that the Department has a responsibility of appointing a Candidate who matches a Post Profile, it was unfair not to appoint her. She agreed that Ms. Titus has required qualification and Afrikaans as a Home Language. She contended that she matched the Post Profile because she taught Afrikaans Home Language, English 1st Additional Language, Mathematics and Life Skills in Afrikaans to her Learners. No one from the District Office informed her that she did not meet the Post requirements. The position advert required a Candidate who can teach Afrikaans Home Language. The advert did not require a Candidate with Afrikaans Home Language qualification.
14. Ms. Mantji Patricia Seabi testified that, she worked for Blinkklip Secondary School as Departmental Head of English. On 30 October 2025, she was deployed by South African Democratic Teachers Union as an Observer of the Interviews that the Applicant and the 2nd Respondent attended. Five Candidates were interviewed and the Applicant performed exceptionally well. The Applicant, Ms. Mabale, was scored the highest amongst the Candidates. Subsequent to the interviews, three Candidates were recommended for appointments to the School Governing Body. She was not part of the SGB meeting that discussed recommendations and motivation for appointments. The Collective Agreement makes provisions for appointments to be made by the Head of Department or his or her Delegate. The advert requirement of Afrikaans Home Language did not require a Candidate with Afrikaans Home Language qualifications but rather a Candidate who could teach Afrikaans at a Home Language Level. The Applicant was currently teaching her Learners Afrikaans Home Language, Mathematics in Afrikaans, Life Skill in Afrikaans and also English 1st Additional Language.

1ST RESPONDENT’S EVIDENCE

1st Respondent submitted bundle of documents consisting of One Hundred and
Thirteen (113) pages.

MR BARRY MATHUPI’S TESTIMONY

15. He testified that he was an Acting Deputy Director, Corporate Services, Department of Education, ZF Mgcawu Region. The Post Profile of the position in dispute was encapsulated in the Post advertisement. The requirements of the position were amongst others: –

 Language of Instruction Afrikaans.

 Subjects: Afrikaans Huistaal (Grade R), Afrikaans Huistaal (Gr. 1), Afrikaans Huistaal (Grade 2), Afrikaans Huistaal (Grade 3).

 English First Additional Language (Grade 1), English First Additional Language (Grade 2), English First Additional Language (Grade 3).

 Lewenswaardigheid (Life Skills) (Grade 1), Lewenswaardigheid (Life Skills) (Grade 2), Lewenswaardigheid (Life Skills) (Grade 3).

 Wiskunde (Mathematics) (Grade 1), Wiskunde (Mathematics) (Grade 2), Wiskunde (Mathematics) (Grade 3).

16. Ms. Mabale had a Bachelor of Education, Pre-School and Foundation Phase Degree with the following relevant Modules but not limited to: –

 Basic Afrikaans Linguistics Patters and Usage.

 Basic Afrikaans Usage and Poetic form.

 Literacy Education: Afrikaans as Additional Language.

 Life Orientation and Elementary Mathematics etc.

17. Ms. Mabale was duly registered with South African Council for Educators.
18. Ms. Titus, 2nd Respondent, had Diploma in Grade R teaching and Bachelor of Education in Foundation Phase Degree teaching with the following relevant Modules: –

 Afrikaans Home Language.

 Life Skills.

 Mathematics.

 English Additional Language.

19. Ms. Titus, 2nd Respondent was appointed because she matched the Post Profile in particular, she had Afrikaans Home Language Module in her qualification. Ms. Mabale did not match the Post Profile because she had Afrikaans Additional Language Module in her qualifications. The Post needed a Candidate with Afrikaans as a Home Language. The process and the appointment of Ms. Titus was fair.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

20. The Constitution of the Republic of South Africa guarantees every Individual the right to a fair Labour Practice. This Constitutional right is reinforced through Section 186(2) of the Labour Relations Act 66 of 1995 (as amended) and the Employment Equality Act 55 of 1998 (as amended), under Section 186(2) of the Labour Relations Act (LRA), an Unfair Labour Practice is defined as: –
21. “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 or training of an Employee or relating to the provision of benefits to an Employee.”

22. Section 1(a) of the Labour Relations Act affirms that one of its primary purposes is to give effect to and regulate the fundamental right enshrined in the Constitution. In line with Section 10(a) of the Act, any party alleging that a right or protection provided under the Act, and by extension of the Constitution, has been violated must present factual proof of the conduct in question. This places the burden of proof squarely on the Applicant party.
23. To succeed in a claim of Unfair Labour Practice as defined in Section 186(2) of the Act, the Applicant must establish that the Respondent’s actions meet the legal threshold of an Unfair Labour Practice. Furthermore, the fact that “promotion” is covered by Section 186(2) of the LRA does not, by any means, create a right to promotion. It only implies that an Employee (Applicant for a position) has a right to be fairly considered for a promotion or appointment. In fact, it fundamentally confers a legal right and fair Labour Practice for promotions or applications of Employees or Officials, which is a right to be treated fairly in the process of promotions or appointments. (See Hlope v Head of Department: Department of Education KZN and Others (D755/2021) [2024] ZA LCD 4; [2024]. In other words, the responsibility lies with the Applicant to present a clear and substantial case, backed by evidence demonstrating that the Respondent’s decision not to appoint her amounted to an Unfair Labour Practice. It is not enough for the Applicant to simply be unhappy with the results of a recruitment or selection process. A mere sense of dissatisfaction or disagreement with the outcome does not meet the legal standard for Unfair Labour Practice. The Applicant must provide a credible evidentiary basis that shows the Respondent acted unfairly.
24. The Respondent has a duty to present evidence showing that they acted fairly and in good faith during the promotion process. This duty exists regardless of who carries the burden of proof in the dispute. If the Respondent fails to provide such evidence of fairness, it would be irrational and unreasonable to simply draw a conclusion that their actions were fair and justifiable. In the case of Pamplin V Western Cape Education Department (C1034/2015), the Court confirmed this principle. However, it remains true that the prerogative and final decision to appoint a Candidate falls within the Respondent’s discretion. Whilst Employers have the discretion to appoint, this discretion is not immune from oversight and being challenged. ELRC may intervene when there is clear evidence of bad faith, gross unfairness and irrationality in the exercise of this discretion. The interference, however, must aim to uphold fairness, both to the Employee and the Employer and not merely second-guess Management decisions.
25. In the present case, the Applicant’s claim of unfairness centres around the decision of the 1st Respondent decision not to appoint her despite being the highest scored Candidate. The Applicant further contended that she was currently teaching Learners Afrikaans Home Language, Life Skills, Mathematics in Afrikaans and English First Additional Language.
26. However, the fact that the SGB recommended three (3) Candidates to be considered for appointment with the Applicant having scored highest points does not on its own establish an Unfair Labour Practice. The Applicant still carries the burden of proving that the Respondent’s decision to appoint a Candidate from the recommended three was unfair.
27. The Applicant applied for a position of Departmental Head after it was advertised. The advert had the following specific Educational Curriculum and Language requirements: –

 Language of Instruction: Afrikaans

 School Phases: Foundation Phase, Intermediate and Senior Phase.

 Post Phases: Foundation Phase.
 Subjects: Afrikaans Home Language (Grade R, 1, 2 and 3)

 English First Additional Language (Grade R, 1, 2 and 3)

 Life Skills (Lewensvaardigheid) (Grade 1, 2 and 3)

 Mathematics (Wiskunde) (Grade 1, 2 and 3)

28. Based on the above Post Profile requirements, it was common cause that, suitable Candidates were expected to have inherent requirements of the position. It is trite law that the minimum requirements and qualifications stated in the advertisement for a position must be considered and adhered to. The Applicant conceded that she did not have Afrikaans Home Language Module. It is not in dispute that the Applicant was teaching Grade three (3) Learners Afrikaans Home Language. In the case of Ndlovu V Commission for Conciliation, Mediation and Arbitration and others [2000] 21 ICJ 1653 (LC) at 1655 – 1656 (paras 11-12) the Court held that Employer’s decision cannot be deemed unfair if it is rational and grounded in legitimate reasons. The legal test is not whether the Applicant or even SGB believed that she was more suitable, but whether the 1st Respondent actions were both procedurally and substantially unfair.
29. Mr. Mathupi submitted that the Applicant did not match the Post Profile. The evidence presented clearly showed that the Applicant did not have all the inherent requirements for the position. The argument of both Ms. Mabale and Ms. Seabi was misplaced and irrational wherein they stated that the Post needed someone who can teach Afrikaans at a Home Language Level. They clearly attempted to shift the goal post for the benefit of Ms. Mabale. They attempted to add their own requirement which was not in the advert. Mr. Mathupi rightly pointed out the inherent requirements needed for the post. The academic transcripts records of both the Applicant and the 2nd Respondent were submitted as evidence and showed that, Ms. Titus had all the inherent requirements needed for the position whereas the Applicant had Afrikaans Additional Language.

CONCLUSION

30. The legal standards set out in the above-mentioned cases, affirm that the decision is not whether the Candidate was entitled to the appointment, but whether the Employer’s decision-making process was fair. Fairness in this context is holistic, it considers both the reasoning and the processes used to reach the decision, not merely the outcome. In these contexts, the decision of the Respondent not to appoint the Applicant was not an arbitrary or capricious decision making. In the totality of the matter, I find that the Applicant failed to show that the 1st Respondent acted arbitrarily unreasonable or in bad faith. Accordingly, the 1st Respondent was justified in exercising its powers of appointing the 2nd Respondent.

AWARD

31. The Applicant, Boingotlo Crescentia Mabale failed to discharge the onus of proving that the 1st Respondent had committed an Unfair Labour Practice within the meaning of Section 186(2) of the Labour Relations Act, by not appointing the Applicant to the position of Departmental Head.
32. The Applicant’s case was dismissed.

Signature:

Panelist: LEKUKA MORE