Case Number: ELRC257-25/26GP
Commissioner: PAUL PHUNDU
Date of Award: 20 FEBRUARY 2026

In the ARBITRATION between

Kenny Raganya and Thabo Koshane
(Union/Applicants)

And

Tshwane North TVET College
(Respondent)

       Details of hearing and representation

[1] This is the award in the arbitration between Mr Kenny Raganya and Thabo Koshane, (hereinafter referred to as the Applicants) and Tshwane North TVET College (hereinafter referred to as the Respondent). The matter was set down for arbitration on 1 August, 25 September, 26 September 2025 and 26 January 2026 at Tshwane North TVET College Boardroom, Kgosi Mampuru Street, Tshwane.

[2] The Applicants were present at the arbitration hearing, and they dismissed their Union Representative from the proceedings and opted to represent themselves. The respondent was represented by, Ms Regina Habedi, the Employee Relations Official.

[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (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.

[4] Bundle of documents marked annexure “R” and “A” were admitted into evidence and the content was not disputed.

[5] The proceedings were digitally recorded. I have also kept handwritten notes.
Issue to be decided

[6] I have to determine whether or not the dismissal of the applicants was procedurally and substantively fair.

[7] I also have to determine the appropriate relief if I find that the applicants dismissal was procedurally and substantively unfair.
Background to the issue

[8] The applicants were in the employ of the respondent as Lecturers until their dismissal on 5 June 2025.

[9] The applicants appeared before an internal disciplinary enquiry wherein they were charged with the following misconduct:

[10] Mr Thabo Raganya: Charge 1: Falsification of Student Examination Marks: You committed a serious act of misconduct during the period between 23 November 2023 to 27 November 2023, by intentional falsifying and changing the original marks of the below listed students on their scripts and on the mark-sheet for the November 2023 Examination for the Criminal Law Level 3 subject at Tshwane North TVET College (Temba Campus).

[11] Charge 2: Colluding and Conniving. You committed a serious act of misconduct during the period between 23 November 2023 to 27 November 2023, by colluding and conniving with Mr. G.T Koshane in the falsification of students’ marks for scripts that were marked by Mr G.T Koshane and transferred by you onto mark-sheet No. Q-05094186 on 27 November 2023 for the November 2023 Examination for the Criminal Law Level 3 subject at Tshwane North TVET College (Temba Campus).

[12] Mr Thabo Koshane: Charge 1: Failure to complete Moderation of Marked Scripts. It is alleged that you committed a serious act of misconduct during the period between 23 November 2023 to 27 November 2023, by failing to complete the moderation of a script for a student with Exam Number: 961123-0746-084 that was marked and allocated 30 Marks by Mr. Mangena on 23 November 2023 for the introduction to Law Level 2 subject at Tshwane North TVET College (Temba Campus).

[13] Charge 2: Falsification of Student Examination Marks: You committed a serious act of misconduct during the period between 23 November 2023 to 27 November 2023, by intentional falsifying and changing the original marks that Mr J. Mangena allocated to a student with Exam Number: 981123-0746-084 from 30 Marks to 80 Marks on both the script and the mark-sheet No: Q-05094182 for the November 2023 Examination for the Introduction to Law Level 2 subject at Tshwane North TVET College (Temba Campus).

[14] Charge 3: Colluding and Conniving: You committed a serious act of misconduct during the period between 23 November 2023 to 27 November 2023, by colluding and conniving with Mr Raganya in the falsification of students marks that were transferred onto mark-sheet No. Q05094186 by Mr Raganya on 27 November 2023 for the November 2023 Examination for the Criminal Law Level 3 subject at Tshwane North TVET College (Temba Campus).
[15] On 5 June 2025, the applicants were found guilty and subsequently dismissed from their positions.

[16] The applicants referred an alleged unfair dismissal dispute to the Council for conciliation and arbitration. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicants prayed for re-instatement.

[17] The applicants challenged the procedural and substantive fairness of their dismissal.
Summary of evidence and argument

[18] The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

The Respondent’s case

[19] Ms.Ntabeleng Lilly Moumakwe testified, under oath, that she is employed by the respondent as a Senior Lecturer. The applicants reported directly to her. Her duty is to teach, allocate work to Junior Lectures, monitoring, verification of scripts and moderate marks amongst others.

[20] Ms Moumakwe stated that it was a requirement and a procedure that a Lecturer who is assigned to mark a script was further expected to transfer the marks onto a mark-sheet and sign both the script and the mark-sheet at the bottom of each page. No lecturer was allowed to transfer marks of the script he did not mark onto the mark-sheet.

[21] Mr Moumakwe stated that both applicants shared a teaching subject. Mr Raganye taught Introduction to Law (Level 2) and Criminal Law (Level 3). Whilst Mr Koshane taught Criminal Law (Level 3).

[22] Ms Moumakwe stated that in November 2023, Mr. Koshane marked a script and Mr. Raganye transferred the marks onto a mark-sheet. According to her, this was not allowed. Mr Koshane’s signature appeared at the bottom of the page as a marker of script and Mr Raganye’s signature appeared at the bottom of the mark-sheet page as the transferor of marks onto a mark-sheet.

[23] Ms Moumakwe stated that she picked up this discrepancy whilst she was verifying the scripts.

[24] Further to the above, Ms Moumakwe realised that the marks awarded and transferred by both applicants were not corresponding. A mark of 37 on the Criminal Law script by Mr Koshane was changed to 87 by Mr Raganya on the mark-sheet. This was a clear case of colluding and conniving. It was at this stage that she escalated the misconduct to the Chief Invigilator and suggested an investigation on the matter.

[25] Ms Moumakwa further indicated that there were a lot of instances where the applicants changed and inflated the students’ marks. For instance, a mark of 26 will be changed and recorded as 51 on the mark-sheet, 50 to 58 and so on.

[26] Ms Moumakwa stated that the integrity and reputation of the College was at stake because of the applicants’ conduct. The conduct was tantamount to fraud. The applicants had no reason to do this as work was equally shared amongst the Lecturers who were marking.

[27] Ms Moumakwa further stated that Mr Koshane was asked to Moderate his colleague’s scripts, Mr. Mangena, he partially moderated the scripts and changed a mark of 30 for student number: 911230746084 to 80. The respondent and Mr Mangena do not know where he got this mark as it did not correspond with a marked script. According to Ms Moumakwa, this was a clear case of falsification of marks and failure to complete moderation of marked scripts.

[28] Ms Moumakwa indicated that the applicants were afforded an opportunity to call their own witnesses. It was not true that they were denied this right.

[29] Ms Moumakwa concluded by stating that the trust relationship is irretrievably broken and the dismissal of the applicants was procedurally and substantively fair.

[30] Under cross examination Ms. Moumakwa confirmed that she picked up the discrepancies during the verification process. She said the awarding of undeserved marks to students was tantamount to fraud and wrong.

[31] Ms Moumakwa re-iterated that the applicants colluded and connived and changed the students’ marks.

[32] Ms Moumakwe indicated that Mr Koshane should have completed his work and transferred the marks and not delegate this part of his work as he was not allowed to do so.

[33] Mr. Masillo Jeffrey Mangena testified, under oath, that he is employed by the respondent as a Lecturer. He is teaching theory of Policing and Introduction to Law.

[34] Mr Mangena stated that he knew the applicants as colleagues. In November 2023, he was assigned to mark an Introduction to Law scripts. On 29 November 2023, he received a letter alleging that he committed misconduct by inflating student’s number Q-05094182 marks. He responded to the letter and denied the allegation.

[35] Mr Mangena stated that student number Q-05094182 obtained 30 marks. The script was moderated by Mr Koshane and the student obtained 80 marks after moderation. He said, the 3 was changed to 8 hence the 80 marks, and furthermore these scripts were half moderated. He stated that Mr Koshane was responsible for falsification of marks and his conduct was unacceptable.

[36] Mr Mangena further stated that it was an irregularity to expect a colleague to transfer marks onto a mark-sheet of a script he did not mark.

[37] Mr Mangena concluded by stating that it was not the first time that both applicants were involved in falsification of marks and they were both warned before by the respondent. He said it was embarrassing and hurtful to see his marks changed by his colleagues as their conduct betrayed their profession and nearly cost him his job.

[38] Under cross examination Mr Mangena confirmed that he was absolved of any wrong doing and found not guilty when he responded to the allegation by the responded. He said there was an alteration and his mark of 30 was changed to 80 marks.

[39] He said Mr Koshane conceded in his presence that he had changed the mark and that was wrong. He confirmed that the irregularity was identified by management during the verification of scripts.

[40] Mr. Ignatius Modipa testified, under oath, that he is employed by the respondent as Acting Manager. He is responsible for administration and examination processes.

[41] Mr.Modipa stated that the issue of falsification of marks was brought to his attention by Ms Moumakwa. He later requested the applicants to submit a written report to him. Ms Mabena, the Head of Department also approached him and complained about half moderated scripts and falsification of marks.

[42] Mr Modipa indicated that the misconduct by the applicants had the potential to have the college closed down by the Department of Higher Education and Training and affect the future of 2000 students and jobs of 70 employees.

[43] Mr Modipa stated that the applicants did not report the irregularity and it was picked up by Ms Moumakwa during the verification process.

[44] Mr Modipa concluded by stating that the applicants showed no remorse, lacked credibility and they cannot be trusted.

[45] Under cross examination Mr Modipa confirmed that the trust relationship is irretrievably broken.

[46] Mr. James Ndhlovu testified, under oath, that he was the chairperson of the internal disciplinary enquiry. He stated that he based his findings on the charges levelled against the applicants.

[47] Mr. Ndhlovu stated that the applicants were represented throughout the disciplinary proceedings. He indicated that the applicants cannot be trusted as Lectures.

[48] Mr Ndhlovu concluded by stating that their dismissal was substantively fair.

[49] Under cross examination Mr Ndhlovu confirmed that the charges levelled against the applicants were very serious and warranted dismissal.
The Applicants case

[50] Ms Madelyn Hlabane testified, under oath, that she is employed by the respondent as a Lecturer. In November 2023, she was appointed as Marking Centre Manager. Her duty is to lecture, issue scripts to Lecturers and managing scripts amongst others.

[51] Ms Hlabane stated that after marking, all scripts should be kept in a safe. She said she knew nothing about Mr Koshane’s allegation of conniving and colluding. She said if there was an irregularity that should have been brought to her attention or Mr. Modiba. No one told her about any irregularity during the November 2023 examination.

[52] However, she heard that marks of a certain student were changed from 30 to 80 by Mr Raganya. Later on, she had heard that Ms Mabena, the Head of Department, summoned Mr Koshane into her office regarding the falsification of marks. She confirmed that it was a duty of the moderator to verify the marks and check the scripts.

[53] Ms Hlabane stated that she knew nothing about the alleged discrepancies. She said Ms Moumakwe was never appointed to do the verification.

[54] Under cross examination Ms Hlabane stated that she trusted Mr Koshane and Mr Raganya. She acknowledged as a mistake the changing of 37 marks to 87 by Raganye as well as changing a mark of 30 to 80 by Raganye.

[55] According to her, the mistake could have been brought to the attention of Raganya and Koshane to rectify instead of an investigation and disciplinary action.

[56] Ms Hlabane denied that there was proof of marks being changed.

[57] Ms Hlabane confirmed that Moderation was not completed by Mr Koshane.

[58] She concluded by stating that it was wrong of the respondent to charge the applicants.

[59] Mr. Frans Ramoleta testified, under oath, that he is employed by the respondent as a Lecturer. He said one of his duties was to mark scripts, moderate scripts and examination invigilation amongst others.
[60] Mr Ramoleta disputed Mr Mangena’s testimony that his marks were changed by Mr Raganya and Mr Koshane. He stated that if there was an irregularity, this should have been reported to Irregularity Committee. The scripts should have been returned to the marker to rectify any mistakes done. According to him, a wrong procedure was followed by the respondent.

[61] Mr Ramoleta stated that the applicants were unfairly targeted.

[62] Under cross examination Mr Ramoleta stated that marking and transferring of marks separately by the applicants was a mistake. The amendment of marks was also a mistake.

[63] He concluded by stating that the dismissal was unfair and the applicants should be re-instated to their previous positions.
Analysis of evidence and arguments

[64] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.

[65] This dispute relates to an alleged unfair dismissal related to misconduct.

[66] Meaning of dismissal in terms of section 186 (1) (a) of the LRA means that an employer has terminated employment with or without notice.

[67] Section 192 (1) & (2) of the LRA stipulates that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, if the existence of the dismissal is established, the employer must prove that the dismissal is fair.

[68] The LRA, in schedule 8, sets out the guidelines for a fair dismissal. Item 7 specifically refers to misconduct and states as follows:

[69] “Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened whether or not-
(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer and;

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard. “

[70] It is my finding that the applicants were not denied an opportunity to call their own witnesses. This was expressly stated in their notice to attend a disciplinary enquiry. Furthermore, there is no evidence before me proving that this right was denied by the respondent.

[71] It is my finding that the dismissal of the applicants was procedurally fair.

[72] I am satisfied that there are procedures and National Policy on Conduct of Examinations that exist which regulates the marking of scripts and transferring of marks onto the mark-sheet. The existence of this procedure is known to the applicants, and it was not disputed by them.

[73] This policy expressly stipulates that “a marker of the script must also transfer the marks onto a mark-sheet”.

[74] It is my finding that the applicants contravened the National Policy on Conduct of Examinations by sharing the responsibility of marking and transferring marks and manipulated the marks awarded to students.

[75] Based on the documentary evidence presented by the respondent, I accept and agree with the respondent’s testimony that a mark 37 on the Criminal Law Script by Mr Koshane was changed to 87 by Mr Raganya. This is only one example amongst five other similar instances. The changed marks were not disputed by the applicants, and they have conceded that they have affixed their signatures at the bottom of every page of the script and mark-sheet.

[76] Further to this, Mr Koshane was issued with a written warning on the same or similar misconduct.

[77] In my view, the applicants conduct had the potential to compromise the credibility of the examination process as well as the reputation of the College.

[78] I find both applicants guilty of falsification of students’ examination marks as well as guilty of conniving and colluding.

[79] It is further my finding that Mr Koshane failed to complete moderation of marked scripts as delegated by the respondent.

[80] I accept Mr Mangena’s testimony that it is an irregularity to expect a colleague to transfer another colleagues marks onto a mark-sheet whereas the colleague did not mark the script.

[81] I have no reason not to believe Mr. Modipa’s testimony that the applicants showed no remorse, lacked credibility and they cannot be trusted.

[82] I am not convinced by Ms Hlabane’s testimony that the changing of 37 marks by Mr Raganya and replaced by 87 marks was a mistake. I reject this aspect of her testimony.

[83] I am not persuaded and convinced by Mr Ramoleta’s testimony that scripts should have been returned to the marker to rectify any mistakes done.

[84] I reject Mr Ramoleta’s testimony that the applicants were unfairly targeted. This is because this allegation was not supported by any facts to justify targeting.

[85] The gravity of the offences committed by the applicants is so serious and the applicants failed dismally to present any reasonable defence regarding their conduct.

[86] In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the Court stated as follows in paragraphs 78 & 79:

(78) In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.

(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.

[87] In Department of Home Affairs and another v Ndlovu and others (2014) ILJ 3340 (LAC) it was held that in order to proof that the sanction of dismissal was appropriate the employer must present evidence to prove the breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or the circumstances.

[88] Under the circumstances, and on a balance of probability, it is my finding that the sanction of dismissal was procedurally and substantively fair.

[89] I therefore make the following award:
Award

[90] The dismissal of the Applicants, Mr Thabo Raganya and Thabo Koshane, is found to be procedurally and substantively fair.

[91] The Applicants are not entitled to any relief.

[92] The Applicants referral of a dispute is dismissed.

Council Part-time Commissioner
Paul Phundu