---
title: "23 October 2026 – ELRC743-25/26EC"
description: "IN THE EDUCATION LABOUR RELATIONS COUNCIL CASE NUMBER: ELRC 743-25/26 EC IN THE ARBITRATION Between NAPTOSA obo BATSHISE MZINGELI APPLICANT AND DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT JALI MASANDE 2ND RESPONDENT ARBITRATION AWARD DATE/S OF HEARING 24 JULY…"
url: "https://elrc.org.za/docs/23-october-2026-elrc743-25-26ec/"
updated: "2026-10-23"
category: AWARDS
---

# 23 October 2026 – ELRC743-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC 743-25/26 EC
IN THE ARBITRATION
Between
NAPTOSA obo BATSHISE MZINGELI APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
JALI MASANDE 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 24 JULY AND 29 SEPTEMBER 2026
DATE AWARD SUBMITTED 23 OCTOBER 2026
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Mt Frere. Mr Bismarck Ndude from NAPTOSA represented the Applicant. Mr Loyiso Mashoai, an official from the Department of Education, represented the 1st Respondent, being the Department of Education Eastern Cape, and Mr Justice Ntlanga from SADTU, represented 2nd Respondent, Mr Masande Jali.

ISSUES TO BE DECIDED
2. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.
BACKGROUND OF THE DISPUTE
3. This is a promotion dispute involving post bulletin volume 1 of 2025/20 in the Eastern Cape being the principal’s post for Kwashushu Secondary School.
4. Applicant was teaching at Kwashushu Secondary School since 2017 as deputy principal, but taught for the respondent in other schools since 2002, so he has 23 years teaching experience.
5. The Second Respondent being Mr Jali was post level 1 educator with 9 years teaching experience during his appointment as principal of Kwashushu Secondary School.
6. After the post was advertised, Applicant and Second Respondent were shortlisted with other three candidates to attend interviews, where the second respondent was finally appointed as the principal of Kwashushu Secondary School.
7. The Applicant initiated his dispute by first lodging a grievance which was set down for hearing and his claim was not resolved.
8. Applicant alleged that he was not appointed despite meeting all the requirements of the post advertised.

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Mzingisi Batshise
9. He testified under oath that he was an applicant in this case and he was the deputy principal of Kwashushu Secondary School up to date.
10. He stated that he knew the first respondent as his employer and the second respondent as his colleague, although he was placed in another school.
11. He submitted that he was the qualified educator with Senior Primary Teachers Diploma (SPTD) and Advanced Certificate in Education (ACE) Management.
12. He stated that he was appointed as Head of Department at Mjikelweni Junior Secondary School in 2016 and further appointed in 20217 as deputy principal at Kwashushu Secondary School where he was managing curriculum and assisting principal with school management work.
13. He explained that there was a meeting held at his school when the former principal retired, where the acting principal was discussed in the presence of the retired principal and agreed that a young educator be appointed, which he viewed as not himself, but was saved by the intervention of the circuit manager to be the appointed as acting principal, so he finally became an acting principal.
14. He further stated that the profiling of the principal post was also discussed in the presence of the retired principal, which he viewed wrong as was not their normal procedure at school, as they used to gather in a meeting of staff, discuss the post considering a suitable candidate for the school needs.
15. He submitted that after the profiling of the post for management and agriculture, the post was advertised where they applied and shortlisted as five candidates for the post with four deputy principals at level three and one post level one educator.
16. He submitted that they attended interviews where he was not appointed and felt not satisfied as he qualified for the post and there was no reason that he believed could make him not to be considered for the principal post based on his qualification compared with the incumbent.
17. He submitted that he was not satisfied with the outcomes as he had required experience, qualifications, management and being deputy principal at the school, so he stated that he was not happy with the appointment of the incumbent to the post of principal at Kwashushu Secondary School. He further submitted that he was not happy with the advertisement as stated a subject Agriculture as a requirement, as he viewed management was sufficient as a requirement in the bulletin advert.

1. He further stated that he was not satisfied with some questions that were not relevant to management, which he quoted a question of facing electricity challenge at school and what process was he going to follow to repair electricity at school, which he stated that he answered the question, although he was not sure.
2. He submitted that he was familiar with other post level three educators who possessed more than twelve years’ experience, which he viewed should have been one of them to have been appointed in the post than the incumbent.
3. He confirmed during cross examination that he was once appointed as HOD at St Georges School where he was not appointed due to the procedural defect, so he was not appointed and remained a post level 1 educator.
4. He confirmed during cross examination that he was part of the formal meeting that discussed the acting principal at Kwashushu Secondary School and he disputed that the meeting was not formal due to the absence of other educators as majority of educators attended the meeting.
5. He stated during cross examination that he was not sure whether voting for the acting principal was taken to the School Governing Body (SGB) or not as he was not part of the voting for acting principal. He further could not answer that he was part of the meeting that appointed the acting principal as he stated that voting took place in the meeting to appoint the acting principal.
6. He further stated during cross examination that he was called by the circuit manager to convene an SGB meeting, which he was not part of and not familiar with the agenda of the meeting called by the circuit manager. He further confirmed during cross examination that he was appointed as acting principal and former principal was not part of the meeting that appointed acting principal.
7. He further confirmed during cross examination that profiling of the post was conducted, but he could not answer how he knew if he was not in the meeting as the SGB educator and parent components attended the meeting to profile principal post.
8. He further submitted during cross examination that the SGB and School Management Team (SMT) normally do profiling of the post at schools, but he did not know the source that authorised such profiling by SGB and SMT, so he contested profiling of the post of principal as he thought that SMT was supposed to have been part of the profiling of the post.
9. He confirmed during cross examination that the principal of the school as manager also teaches subjects at school, but he viewed that it was wrong for the SGB to require subject in
   the profiling of the post as he viewed that subject should have been discussed before the post was advertised in the bulletin. He further confirmed other schools in the bulletin that advertised their posts with subjects listed as requirements for principal post in those schools.
10. He further confirmed during cross examination that the requirement to be appointed as principal in schools is five years, but he was not satisfied with the outcome of not being appointed as principal as he was not favoured by educators even during the appointment of the acting principal. He further stated that SGB was responsible for recommending the appointment of the principal and he did not know why he included SGB when not favoured by educators at school for not being selected as the principal of the school.
11. He confirmed during cross examination that their school had a challenge of electricity, so the SGB was correct to include a question on electricity during interviews as they have a right to formulate questions related to their school during interviews, but he viewed it to be wrong for the SGB to ask a question on electricity to the incoming principal at Kwashushu.
12. He disputed during cross examination that he stated that he was a better qualified candidate, as he stated that other candidates were better candidates to have been appointed for the post of principal at Kwashushu as all five were qualifying for the post in question and there was no issue with the SGB as to who should have been appointed at Kwashushu.
13. He further confirmed during cross examination that the incumbent was teaching Agriculture at school with good performance as his major subject.
    RESPONDENT’S CASE
    Witness: Benjamin Dlali
14. He testified under oath that he was the circuit manager of Shinta where Kwashushu Secondary School belonged and was the resource person during the appointment of the principal at Kwashushu.
15. He submitted that when the retired principal left the school, he went to the school to appoint acting principal where he found that the SGB had already appointed a post level one educator to be the acting principal and he corrected such an appointment of acting principal as it was procedurally defective and, finally, the applicant was appointed as the acting principal since he was the deputy principal of the school.
16. He submitted that after the appointment of the acting principal at Kwashushu School, he never got any problems as submissions were properly done to the office up to the final appointment of
    the principal, so the school was co-operating with the office.
17. He stated that when he went to the school to profile the principal post, he found the former principal at school, where he advised the former principal to leave the school and proceeded with profiling the post of principal in the absence of the former principal as profiling of the post was done by the SGB and school administration clerk.
18. He disputed during cross examination that the former principal influenced the profiling of the post of principal as he was absent and they had considered the school needs for the post in question.
19. He disputed during cross examination that he had received complaints from the school during the acting principal’s time as the school was co-operating with office needs of submitting required information.
20. He further submitted during cross examination that all trade unions were invited to attend shortlisting and interviews, but they did not all attend to shortlisting and interviews, as it was only SADTU that attended the processes of employment of principal at Kwashushu Secondary School, and there was no report for the absence of another union.
21. He confirmed during cross examination that the criterion of interviews as adopted by the SGB also considered a young person for the post, which he submitted that the SGB had such right and was not to interfere with it.
    ANALYSIS OF EVIDENCE AND ARGUMENT
22. It is trite that the employee bears the onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act 66 of 1995(LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
23. I have considered the departmental guidelines for sifting, shortlisting, interview procedures, post requirements, as well relevant case law.
24. Section 186(2) of the LRA reads as follows:” unfair labour practice means any unfair act or omission that arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”.
25. In this case unfair labour practice involves promotion. I have to decide whether the 1st Respondent acted fairly or not in not appointing the Applicant in the position of the principal at Kwashushu Secondary school.
26. I start by considering procedural fairness in the promotional employment process of the principal at Kwashushu Secondary School.
27. As this is a principal post, in terms of the Employment of Educators Act PAM regulations the role of the departmental officials as resource persons is to assist the school governing body (SGB), towards the appointment of qualifying principal by giving control to manage the employment processes. The resource person will be responsible to ensure that capacity building sessions are conducted with the interview committee to enhance its understanding of the selection and interview processes.
28. In this case, SGB members together with the interview panel, were trained by the 1st Respondent to conduct the employment process as per the prescripts of the employment policies of the 1st Respondent The circuit manager testified that he was the resource person to assist and guide the panel on this employment process of the principal at Kwashushu Secondary School.
29. On this aspect of training l find that the circuit manager was fully acquainted with the process as he testified that there were no challenges reported after appointing acting principal as the school was highly co-operative in submitting documents at the office up to finalisation of the employment process of the principal. I reject evidence that the applicant had challenges after his appointment as acting principal, as was disputed by Mr Dlali and applicant’s evidence was not corroborated by any evidence.
30. I further find that the principal post was properly advertised by the school in accordance with the profiling of the post as testified by Mr Dlali that educators and parent SGB members advertised the post in accordance with their profiling of the post based on school needs. I reject evidence of the applicant that the advertisement of the principal post at Kwashushu was not proper based on the testimony of Mr Dlali and applicant that the SGB members agreed on the principal’s post requirements and was advertised as they agreed to, so l view that the advertisement of the post was properly complied with in the bulletin.
31. Considering post requirements, l find that all candidates shortlisted by the panel were qualifying to be appointed as principal of Kwashushu Secondary School as testified by the Applicant that they all fulfilled the requirements of the post, which l view that the panel had employed the incumbent fairly as per the advert requirements.
    Considering the relief sought by the Applicant that the 2nd Respondent’s appointment be set aside, l find that the Applicant’s relief sought ought to be refused as he failed to convince me that the 2nd Respondent’s appointment by the first respondent was unfair and amounted to unfair labour practice.
32. In the case of Ndlovu v CCMA and Others (2000) 21 ILJ 1653 (LC) the court held that to determine if the failure to promote the employee was unfair “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view that the appointment of the 1st Respondent was substantively fair as he complied with the requirements of the post of principal at Kwashushu. So, I view that the Applicant failed to prove the necessity for the remedy he sought, that the appointment of the incumbent be set aside.
33. Based on the evidence before me, I find that the Applicant failed to discharge the onus, on a balance of probabilities, placed on him to prove that he was the best candidate for the employment processes of the 2nd Respondent to be set aside or be placed in the position of principal at Kwashushu Secondary school.
    AWARD
34. I find that the 1st Respondent did not commit an unfair labour practice relating to promotion as is intended in section 186(2)(a) of the LRA against the Applicant by appointing the 2nd Respondent as the principal of Kwashushu Secondary School. `Signature:`

Commissioner: Bongani Mtati
Sector: Basic Education