20 October 2026 – ELRC449-26/27EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KOMANI

Case No ELRC 449-26/27EC

In the matter between

NAPTOSA obo Nyengane Zukisani Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: Simphiwe Ndzundzu

HEARD: 23 September 2026

CLOSING ARGUMENTS: 23 September 2026

DATE OF AWARD: 21 October 2026

SUMMARY: Interpretation and Application of Collective Agreement

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This matter was scheduled for arbitration at Komani Education building on 23 September 2026.
The Applicant Zukisani Nyengane was present and represented by Aaron Mhlontlo from NAPTOSA. The Respondent was present and represented by Z.E Sondlo.
I am satisfied that the CCMA has the requisite jurisdiction contemplated in section 138 of the Labour Relations Act, No. 66 of 1995 (the LRA) to arbitrate the dispute.
Both parties submitted closing arguments and I have taken them into consideration. The proceedings were both manually and electronically recorded.

THE ISSUE IN DISPUTE

I am required to determine the interpretation and application of collective agreement 1 of 2024.

THE BACKGROUND TO THE DISPUTE

The applicant was employed in 2016 and was the Acting Principal and his remuneration was R39000.00.
It was common cause that the applicant was shortlisted but process cancelled before interviews. The applicant’s issue is that the Department subsequently cancelled the recruitment process and re-advertised the post instead of finalising the existing recruitment process.
He sought a declaration that the action was improper and an order directing the Department to finalise recruitment.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant evidence
8. The applicant stated that he applied for the Principal post and he was shortlisted. The interviewed were scheduled for 4 May 2026. He received communication from District Director on the interview date that the interviews had been cancelled.

He maintained that the withdrawal occurred after the shortlisting stage at which clause 1.7 prohibited withdrawal.
This was followed by the cancellation letter dated 3 June 2026 to demonstrate that the Department acted after interviews had taken place.
He acknowledged that he had 5 years management experience whereas the bulleting required 7 years’ experience. He disputed that the school was specializing in agriculture as it accepted all different students and thought different subjects.
In closing, the applicant accepted that the Department had a power to withdraw a post, but submitted that the power was constrained by clause 1.7.
She argued that the Department had acted outside the permitted timeframe and that the interviews should be processed.

The Respondents Submission’s

The respondent witness Cikizwa Madliwa testified that she was involved in the shortlisting and the panel found that all the candidates did not have both mathematics and technical subjects.
When the respondent withdrew the recruitment process, the SGB was consulted and agreed that the post had to be profiled.
On 30 April 2026, the guidelines document on management profile was brought to the attention of the SGB but it was not workshopped.
She delivered the cancellation letter to the school. The SGB was consulted before the decision was taken, however, there was nothing that confirmed that indeed there was consultation.
The respondent sent to the school the list of candidates who met the minimum requirements of the post.
She contended that her role was to guide the SGB and indeed she guided the SGB. She confirmed that she was involved in the shortlisting of candidates and then invited them for interviews.
The District Director submission and the letter cancelling the interviews came after the shortlisting was finalized.
The SGB has also agreed that the process should be restarted and everyone is free to apply.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

The issue for determination concerns the interpretation and application of Collective Agreement 1 of 2024. In considering the dispute, it is necessary to distinguish between compliance with the provisions governing withdrawal of the post and the applicant’s entitlement to an order compelling the respondent to continue the original recruitment process.
The evidence establishes that the applicant was shortlisted and invited to interviews scheduled for 4 May 2026. However, the interviews were cancelled before they took place. There is no established interview outcome or recommendation requiring consideration or implementation.
Ms Cikizwa Madliwa testified that the Department had forwarded candidates who met the minimum requirements and that she participated in shortlisting and inviting candidates to interviews.
Ms Madliwa further testified that the shortlisted candidates did not possess the combination of Mathematics and technical subjects considered necessary and that the SGB agreed that the post should be reprofiled. This provides an explanation for the respondent’s decision to reconsider the recruitment process.
The respondent also relied on consultation with the SGB and its agreement that recruitment should restart. Although Ms Madliwa gave oral evidence of consultation, no documentary confirmation was presented.
The respondent’s explanation was that the District Director considered that the profiles of the post were not aligned with the focus school requirements. The concern advanced by the respondent was therefore connected to the requirements of the school.
Clause 8.3, as presented in these proceedings, requires the Head of Department or delegated authority to provide full motivation or convene a meeting with the SGB to discuss the rejection. Ms Madliwa testified that discussions took place with the SGB and that a meeting dealing with the rejection was minuted. The applicant also confirmed that the Circuit Manager met with the SGB concerning the cancellation. Considered together, this evidence supports the respondent’s contention that the recommendation was discussed with the SGB rather than simply disregarded without engagement.
I accept the respondent’s characterisation of the substantive decision as based on grounds relating to the school’s particular requirements.
The applicant’s reliance on the timing of the decision does not establish that the respondent’s power was unavailable to correct an anomaly in the process.
Accordingly, I find that the applicant has not established that the respondent’s withdrawal of the post contravened the collective agreement on the basis alleged. The completed shortlisting and scheduled interviews did not oblige the Department to accept a process that is tainted and would not be to the benefit of the school. The applicant’s claim therefore fails, and the dispute is determined in favour of the respondent.

AWARD