22 April 2026 – ELRC282-25/26MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD AT ERMELO

                                                                                                 CASE NUMBER: ELRC282-25/26MP

KOBE, ABRAMHAM JABULANE APPLICANT

and

MPUMALANGA DEPARTMENT OF EDUCATION RESPONDENT

Dates of hearing: 28 October 2025, 12 & 26 November 2025; and 09 April 2026;

Date of submission of heads of argument: 16 April 2026.

Date of award: 22 April 2026.

ARBITRATION AWARD

NAME OF COMMISSIONER: Dr. George Georghiades

Details of hearing and representation

The arbitration hearing between Abramham Jabulane Kobe and the Mpumalanga Department of Education, was held under the auspices of the Education Lacour Relations Council (ELRC) virtually over 4 days, being 28 October 2025, 12 & 26 November 2025 and 09 April 2026; in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“LRA”), in terms of an alleged unfair labour practice related to promotion, demotion, probation, training and benefits.
The applicant was represented by Mr. Bongani Ndlovu, NATU trade union official, while the respondent was represented by its Labour Relations Manager, Mr. Bongane Malaza.
The arbitration was held face-to-face, at the Gert Sibande District Office of the Mpumalanga Department of Education, 2 De Jager street, Ermelo, Mpumalanga.
The applicant submitted its bundle of evidence, marked as Bundle “A” and relied on the testimony of 2 witnesses to prove its case. The respondent submitted its bundle of evidence, marked as Bundle “R” and relied on the testimony of one witness to disprove the applicant’s case.
On 28 October 2025, the panellist assisted the parties to conduct a pre-arbitration meeting, whereafter a signed pre-arbitration minute was concluded and signed by the parties.
Upon conclusion of the arbitration hearing on 09 April 2026, the parties addressed me and requested that their closing arguments be submitted in writing, by 16 April 2026. This request was granted. I have considered the submissions and arguments of both parties in this award.
BACKGROUND TO THE DISPUTE
Common Cause Issues
The applicant is the Deputy Principal of Zinikeleni Secondary School.
Mr. B. S. Mathibela, the Principal of Zinikeleni Secondary School, has been displaced since 01 February 2023, after having been rejected as the school principal, by the community.
The power to appoint educators is a delegated power, afforded to the District Director.
The applicant was responsible for managing the school as the Deputy Principal during the period 01 February 2023, till present.
Resolution 8 of 2002 is applicable to this dispute.
The applicant requested for an Acting Allowance on 27 February 2025.
The Circuit Manager, Dr. A. M. Mngomezulu, appointed the applicant as the Acting Principal with effect from 26 September 2025.
The applicant did not receive any acting allowance or benefits in respect of his acting duties in the Acting Principal position.
The applicant is currently discharging his duties and still rendering the services as the Acting School Principal.
Issues in dispute
The respondent argued that the Circuit Manager (Dr. AM Mngomezulu) was not authorised to appoint the applicant into the position of Acting Principal, where he was currently acting.
The respondent averred that the applicant was not entitled to any acting allowance in terms of Resolution 8 of 2002.
The applicant averred that in terms of Annexure 5 of Resolution 8 of 2002, the applicant was entitled to an acting allowance.
The applicant claimed that the respondent has failed to remunerate the applicant in terms of Resolution 8 of 2002, relating to the “Acting allowance”.
The Circuit Manager was an authorised representative of the respondent who was authorised to appoint the applicant to the position of Acting School Principal.
ISSUE/S TO BE DECIDED
Whether the non-payment of an acting allowance to the applicant constitutes an unfair labour practice in terms of section 186(2)(a) of the LRA.
Whether the Circuit Manager, Dr. A. M. Mngomezulu, is an authorised representative of the respondent who was authorised to appoint the applicant to the position of Acting School Principal, in the absence of the School Principal.
Should the Council find that the applicant was entitled to the acting allowance claimed, to apply the appropriate relief.

PRECISE RELIEF CLAIMED

Acting allowance from 01 January 2023 till 31 March 2023, in the amount of R 8 268.75; and
Acting allowance from 01 April 2023 to 31 May 2023, in the amount of R 5 694.50; and
All further allowances from 01 June 2023 till current, calculated according to the applicable notches applied.
PRELIMINARY ISSUES
No preliminary issues were raised during the arbitration hearing.
PARTIES’ CASE AND SUBMISSIONS
The applicant’s submissions
The applicant testified himself and called one further witness, being the Circuit Manager, Dr. A. M. Mngomezulu, in support of his case.
Kobe testified that initially, both he and a colleague, a certain Ms. Manyise, acted jointly in the position of Acting School Principal.
He was called by the Circuit Manager, Mr. A. M. Mngomezulu and advised of his request to appoint the applicant to the position of Acting Principal. This was confirmed by virtue of a recommendation appointment letter, issued by Mngomezulu on 07 September 2023.
Further to his acting in the position of School Principal pursuant to Mngomezulu’s letter of 07 September 2023, the applicant submitted that he was formally appointed into the Acting School Principal position on 21 September 2023, by virtue of a letter of appointment from the Circuit Manager, Dr. Mngomezulu.
Under cross examination, the applicant conceded that the displaced Headmaster of the school, Mr. B. S. Mathibela, was still on the school’s payroll as headmaster.
He acknowledged that the displacement of Mathibela did not permit him to receive an acting allowance in terms of the compliance with any of the provisions listed at clause 5 of Annexure A, being that Mathibela was on either on maternity leave, on sick leave, on study leave, on suspension or seconded elsewhere.
The applicant further conceded that the Circuit Manager did not have the delegated powers to appoint him into an Acting School Principal position. In terms of the respondent’s EDA form (Acting Appointment Form: Educators).
The Circuit Manager’s recommendation for the applicant to be appointed to an Acting position was not approved by the District Director, whom the applicant acknowledged was the delegated authority to appoint educators into Acting School Principal positions.
Dr. Andreas M Mngomezulu testified that he was authorised to recommend any appointments in respect of acting positions.
He made a written recommendation for the appointment of the applicant to the District Director, in a letter dated 07 September 2023. He confirmed that he did not receive any written approval from the District Director, in respect of his recommendation letter.
The appointment letter that he issued on 21 September 2023 in respect of the applicant came about as a result of a verbal instruction to appoint the applicant that was issued to him by the District Director, through the Chief Director, Mr. Mabayeane, or his line manager, Mr. Phako. He conceded that no supporting documentation existed to confirm the instruction provided to him by the District Director.
Under cross examination Mngomezulu conceded that although he was authorised to make recommendations for appointments to acting positions, that this delegative authority was vested with the District Director. In terms of Annexure A(1) of Resolution 8 of 2002, such appointment was required to be made by the District Director, in writing. No such appointment was made by the District Director.
Mngomezulu conceded that the Head of Department did not approve the recommendations relating to the appointment of the applicant – which were not signed off and/or approved by the District Director.
On 09 April 2026, the applicant advised that his third witness was unavailable to testify as scheduled and that he did not intend to call him to testify at the hearing, thereby closing his case.
The Respondent’s Submissions
The respondent’s only witness, Mbekeni Nkosi, who was the Assistant Director: HR Staffing, testified that the powers to appoint were vested with the District Director only.
He explained the process of appointments into acting positions and the powers and authority of each party therein.
Nkosi confirmed that where a person who was in a specific position was displaced, that this did not confirm that the position was vacant. For a person to be appointed into an acting position, the position to be filled, must be vacant. The position of School Principal was not vacant and could therefore not be filled by the applicant, in an acting position.
With reference to clause 5 of Annexure A of Collective Agreement 8 of 2002, Nkosi confirmed that no acting allowance could be paid. The Headmaster, Mathibela was displaced from his position, which was not a condition to allow for an acting allowance to be paid.
In terms of clause 5, an acting allowance was only payable in instances where Mathibela was on either on maternity leave, on sick leave, on study leave, on suspension or seconded elsewhere.
Nkosi confirmed that the Circuit Manager, Mngomezulu, was authorised to recommend the appointment of an educator into an acting position – he was not authorised or delegated to make appointments. This power was vested only with the District Director. No evidence existed that such an appointment was approved or authorised by the District Director.
ANALYSIS OF EVIDENCE AND ARGUMENT
I considered all relevant evidence and arguments raised by the parties and in line with section 138(7) of the LRA requiring me to provide brief reasons, I have therefore only referred to evidence and arguments that I regard necessary to substantiate my findings and resolve the dispute.
In his evidence in chief, the applicant confirmed that he was appointed as Acting School Principal by the Circuit Manager, Dr. A. M. Mngomezulu. The Circuit Manager alleged that he was instructed by Mr Manyabeane, a Chief Director: District Co-ordination and Management.
Mngomezulu further alleged that permission to appoint was granted by the District Director, Mr. Magagula. No evidence exists to corroborate Mngomezulu’s allegation that he was authorised to exercise the power to appoint. No documentary evidence was submitted as evidence to support this testimony and no relevant person was called to corroborate this.
Sections 42A (5),(6) and (7) of the Public Service Act provide that—
“(5) The head of a department or any other functionary may—
(a) delegate to any employee of the department any power—
(i) conferred on that head by this Act; or
delegated to that head in terms of subsection (4); or

(b) authorise that employee to perform any duty-
(i) imposed on that head by this Act; or
(ii) that head is authorised to perform in terms of subsection (4).
(6) Any person to whom a power has been delegated or who has been authorised to perform a duty under this section shall exercise that power or perform that duty subject to the conditions the person who made the delegation or granted the authorisation considers appropriate.
(7) Any delegation of a power or authorisation to perform a duty in terms of this section-
(a) shall be in writing;
(b) does not prevent the person who made the delegation or granted the authorisation from exercising that power or performing that duty himself or herself; and
(c) may at any time be withdrawn in writing by that person.”

There is no evidence to corroborate the version of the Circuit Manager that the District Director gave him the power or authority to appoint the applicant into the Acting School Principal position or to appoint educators.
Both the applicant and the Circuit Manager conceded that in terms of Personnel Administrative Measures (PAM), it is the Accounting Officer (Head of Department) who has the power to appoint. In this instance, the HoD has delegated that power to District Directors.
In Attorney-General of OFS v Cyril Anderson Investments (Pty) Ltd 1965 (4) SA 628 (A), the Court established that the maxim assumes the legislature intended for a specific authority to exercise power personally and that unauthorised delegation is generally invalid, unless expressly or impliedly permitted.
The respondent’s witness, Nkosi, confirmed that the applicant was not entitled to an acting allowance as the reason for the displaced headmaster Mathibela’s absence, was not listed at clause 5(1) of Annexure A of the ELRC Collective agreement number 8 of 2002. This was accepted and acknowledged by both the applicant and the Circuit Manager during their testimony.
Section 23 of the Labour Relations Act (LRA) provides that—
“(1) A collective agreement binds-
(a) the parties to the collective agreement;
(b) each party to the collective agreement and the members of every other I party to the collective agreement, in so far as the provisions are applicable between them;
(c) the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates-
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers.”
The ELRC Collective agreement 8 of 2002 is applicable to the applicant and is binding on all parties.
The applicant’s consideration that Dr. Mngomezulu is the senior manager of the applicant and that he represents the employer, is accepted, but only in as far as his position, authority and delegation allows him to act on behalf of the respondent.
In this matter, even by his own admission, Mngomezulu confirmed that the powers to appoint were vested in the District Director and not with him. This confirms the respondent’s position that Mngomezulu was not delegated with the powers to appoint the applicant, as he did in writing, on 21 September 2023.
It is not disputed, but rather accepted that the applicant is currently discharging his duties and still rendering the services as the Acting School Principal and that the applicant has not received any acting allowance or benefits in respect of his acting duties in the Acting Principal position.
The inquiry to be conducted is not whether the applicant is rendering services as the Acting Principal to the respondent, but whether he is entitled to be paid an acting allowance in terms of PAM and the Collective Agreement 8 of 2002.
In terms of both guiding documents, as provided by the respondent and concessions made by the applicant, it is apparent that the conditions and/or requirements for such entitlement have not been met, for such an allowance to be paid.
Having considered the aforementioned, the applicant has failed on a balance of probabilities, to prove that he was entitled, in terms of PAM, the Collective Agreement 8 of 2002 and Annexure A thereof, that he was entitled to be paid an acting allowance as Acting School Principal.
AWARD
Having considered the aforesaid, the following award is hereby made:
63.1 The allegations of the applicant, Abramham Jabulani Kobe, relating to unfair conduct on the part of the respondent, Mpumalanga Department of Education, in respect of section 186(2)(a) of the LRA, relating to [Ma1.1]the applicant’s entitlement to payment of an acting allowance, being a benefit, is hereby dismissed.