25 June 2025 2025 – ELRC799-24/25 GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

CASE NO.: ELRC 799-24/25 GP
In the matter between:-

S.J MKHWANAZI APPLICANT
and

DEPARTMENT OF EDUCATION- GAUTENG 1ST RESPONDENT
V.M MALOPE 2ND RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 20 February,10; 17 April, and 26 May 2025
CLOSING ARGUMENTS: 03 June 2025
DATE OF AWARD: 24 June 2025

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.

                 ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

A virtual and physical arbitration was held on 20 February,10;17 April, and 26 May 2025, respectively. The applicant was initially represented by Mr. M.W. Boikhutso, SADTU union official, who later withdrew his representation. The applicant presented his case. Ms Lungile Mathobela, its Senior Education Specialist, represented the respondent. The second respondent, Mr V.M Malope attended the proceedings until 10 April 2025.
I recorded the proceedings digitally. The parties were granted indulgence to submit their closing arguments by 03 June 2025.
BACKGROUND TO THE ISSUE
The applicant, the second respondent, and another candidate were shortlisted and interviewed for the promotional post of School Principal. The second respondent, Mr Malope was appointed to the position.
The applicant referred the dispute of unfair labour practice relating to promotion to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
I am required to decide whether the respondent’s failure to appoint the applicant to the position of a school principal constitutes unfair labour practice. Substantively, I must determine if he was the best suitable candidate for the position i.e if he has the managerial and qualifications required for the special school.
Procedurally, I must determine if the HOD deviated from the SGB’s recommendation, i.e, if there was a need for the HOD to convene a meeting with the SGB within 14 days of the submission of the recommendation and motivate the deviation. Furthermore, if the 19 July 2024 meeting was a meeting for motivation in terms of clause 16.2 of the
Collective Agreement No1 of 2021 ‘CA’.
Should I find in favour of the applicant, I will further determine the appropriate relief. The applicant seeks that the decision to appoint the second respondent be set aside and that he be appointed to the position in dispute. SURVEY OF EVIDENCE AND ARGUMENTS AGREED FACTORS
The parties agreed to the following factors as being the common course:-
8.1 The applicant is a post level 1 ‘PL1’ Educator at Reinotswe Special School. He started his employment with the respondent on 01 January 1992.

8.2 He was shortlisted and interviewed for a Principal vacancy no.
TW83ED1003 for the Reinotswe Special school. When he applied, he had been working at the school for 4 years.

8.3 According to the SGB’s recommendation and preference order ranked as follows:

Mr Mkhwanazi,the applicant ;
Mr Malope, second respondent;
Mr Malepeng
8.4 At the time of the application, Mr Malope was a deputy principal for 8 years and acting principal for the same school for 9 months. He was the HOD for 14 years He was appointed to the position under review on 01 November 2024.
8.5 Mr Malope has a managerial qualification (diploma) and special school qualifications.
8.6 The recruitment file and the SGB recommendation were submitted to the District office on 09 April 2024.
8.7 Mr Malope met the minimum requirements for the position.
Sokwane Jacob Mkhwanazi testified that he was the preferred candidate by the School Governing Body (SGB) as of R20 Clause 3.4. The HOD failed to convene a meeting with the SGB and motivated her deviation from the SGB’s recommendation as required by Clause 16.2 of the CA in R10. The HOD is empowered to appoint any of the three recommended candidates.
He did not decline the position as per the conditions stated in clause 3.4 of R20. Therefore, he should have been appointed. In R14, the Director tampered with the SGB preferred list by changing the SGB ‘s order of preference. She ranked Malope number one. The recommendation powers are only vested with the SGB, not the Director. She contravened Clause 4 of CA on R26-27. Clause 35 of the CA on R87 provides that a recommendation not made by the SGB is unlawful.
He met the minimum requirements for the position. He has the required leadership, management, and administrative qualifications, together with experience. He acquired leadership experience as SADTU community leader. Management, he worked as a labour officer managing cases. He was part of the drafters of the Collective Agreement. He managed the curriculum at the school. As a class teacher, he manages learners and parents.
During cross-examination, he said R71(C) is the three candidates the SGB recommended. He was the only candidate recommended by the SGB as on R20 3.4.1-3.4.3. The three candidates were not all recommended. If he was not suitable for the post, the Director could have convened a meeting with the SGB within 14 days and motivated the deviation. She failed to do so.
The SGB did not recommend Malope, but was recommended by the Director. The director lacks the power to recommend the HOD. He conceded that the SGB recommends but does not appoint. Malope could have been considered only if he had declined the post or was not suitable. He has management experience as he forms part of the school management, and the SGB declared that the three candidates met all the requirements.
He was never appointed the HOD or Deputy Principal. Management was part of the module he studied. He attended workshops for a special school. However, he does not have a qualification in special needs. He does not have managerial experience. He acted as HOD for 3 months. He has a one-year qualification post the diploma. He has four years’ experience at the chamber but not at school.
The HOD failed to convene a meeting and deviate from the SGB recommendation. The Director has the delegated authority to appoint, not to recommend. However, she recommended that the HOD appoint the Malope. She changed the preference order of the SGB on R14.
Tshepo Ezrom Tau testified that he was the SGB chairperson during the recruitment and selection process. He was the interview panellist. They recommended the applicant because he teaches at a special school. He scored the highest during the interviews. He is suitable to handle the finances, policies, and discipline of the special school. They recommended the three best candidates.
They submitted their file on 09 April 2024. The Director had 14 days within which to have convened the meeting and motivated her deviation from the SGB recommendation as required by 6.2 of the CA. Instead, the Director convened a meeting after 90 days on 19 July 2024. Clause 6.2 provides that their recommendation stands by the HOD’s failure to convene a meeting within 14 days. The Director recommended Malope, who was not their preferred candidate.
During the 19 July meeting, the Director ordered them to caucus on the preferred candidates in a separate room. They failed to reach an agreement. As the chairperson, he did not sign the minutes.
The SGB maintained on Clause 5 of R27 that their preference order should stand and that all candidates were eligible for the appointment. The Director does not recommend but appoints. The July meeting was irregular because it was outside 14 days. The Director failed to motivate the deviation in the meeting.
During cross-examination, he said the SGB recommended only the applicant and outlined the conditions to consider candidates number two and three. Candidates two and three were not recommended but were to be considered on the set conditions.
The Director changed their recommendation when she submitted the list to the HOD. He conceded that the Director did not send the SGB a document indicating that she deviated or rejected their recommendation. The Director should have convened a meeting as required by 6.2 of CA as she failed to appoint the applicant. He conceded that the SGB recommended three candidates.
He does not understand the purpose of the Director’s July meeting. The HOD appointed a candidate from R14, but the order had changed. He understands that the applicant was recommended based on Clause 43 of ELRC Guidelines: Promotion Arbitrations R89, which is the outcome of the interviews.
He is not aware if the applicant has managerial experience. He knows he scored highest for interviews. He does not know if PL3 is a managerial qualification or not. He is not aware if the applicant has a qualification in a special school because he is not a teacher. The minimum requirement for the post was not PL2 or PL3. Even PL1 can serve as the principal. He believes the applicant has special school experience because he teaches at the school.
He conceded that Malope is more experienced and qualified than the applicant. He conceded that the HOD has considered the SGB recommendation. He denied that the HOD appointed Malope because the applicant was not suitable.
Magdalene Mudau testified for the applicant that she was the usher and was present during the interviews and verification process. The applicant scored highest in the interviews, which was what they were seeking. He has experience at a special school.
Their recommendation stood because HOD failed to convene a meeting within 14 days to motivate the deviation. The meeting was convened after 90 days on 19 July 2024. She did not understand the purpose of the meeting. In the meeting, the Director ordered that they caucus on the preferred candidate. There was no consensus.
They reported to the Director that there was no consensus on the preferred list stands. R14 differs from their preferred list because the Director placed Malope as the preferred candidate. She appointed a candidate of her choice. Malope was eligible only if the Applicant declined, was not suitable, or had a criminal record. These conditions were not applicable.
During cross-examination, she maintained that their recommendation was informed by the interview performance. She conceded that the applicant did not have a special school qualification in terms of what he submitted on R40-49. The applicant has 4 months of acting managerial experience.
Malope has 8 years and 6 months on PL3 (deputy principal) and 14 years on PL2 (HOD). Collectively, he has 22 years and 6 months of managerial experience. However, it does not make him the most suitable for their children. Based on the interview, he was not suitable.
The applicant does not have a managerial qualification. Malope has a further Diploma in Management Education and Administration, but it is not relevant for the post. The 19 July meeting was way outside the required 14 days to motivate the deviation. She conceded that the meeting had nothing to do with the motivation because there was no rejection of the SGB recommendation.
The Director should have given the SGB reasons if the applicant was not suitable. She did not respond when a version was put to her that the meeting was for verification and quality assurance on the SGB submission.
Yvonne Gladys Kedibone Mooke testified that she is the District Director. Her role began when the SGB submitted the file to her. She was responsible for verification and quality assurance for vetting before submitting the file to the HOD. The applicant was not the most qualified and experienced.
The Applicant lacks managerial qualifications. He has four months of managerial experience acquired from acting as HOD and is PL1. Malope has managerial qualifications and 22 years of managerial experience. He was the HOD for 14 years and 8 years as Deputy Principal. He has been a deputy principal at the same special school for 8 years.
Malope was the best suitable candidate for the special type of school. They also considered the interview score as required by clause 43 of the ELRC Guidelines on promotion. The clause provides that when making an appointment, both qualifications and experience, together with the interview performance, must be considered. It further states that it is irrational to make an appointment purely based on performance during interviews. Malope’s qualifications on R56-57 are relevant to the school (he was skilled for the special school).
During cross-examination, she said that in the July 2024 meeting, she requested the SGB to discuss in a separate room. When they returned, they indicated that the appointment should be among the three recommended candidates. She denied that the appointment was made without the SGB’s recommendation because their recommendation is attached to her motivation.
In terms of clause 6 (f) of the Employment of Educators Act 76 of 1998 (EEA), on R71, the HOD is not bound to follow the SGB’s preference order when he/she makes an appointment. This was the situation. Malope was one of 3 recommended candidates by the SGB as required by Clause 16.1 of the CA in R109.
The HOD is not bound by the SGB’s recommendation. However, the HOD did not deviate from the SGB recommendation, since Malope was a recommended candidate by the SGB.
She wrote the letter to the HOD on R13-14, after she completed quality assurance on the file. She informed the HOD about the SGB preference order on R13. On R14 in her findings, when she stated ‘recommend’ she meant ‘advise’. She did not change the SGB preference order.
Clause 16.2 of CA is not applicable because there was no deviation from the SGB recommendation. The 19 July meeting was not for 16.2 purpose but for sharing her findings and for the SGB to supplement information, if any, in support of candidate number one.
The applicant’s acting as HOD is not indicated because he was never appointed to the HOD post. He was acting, which differs from an appointment. Acting on the position does not count as experience. Malope was appointed as a manager and HOD. She counted Malope’s 4 months acting period as a manager because he was already appointed as a manager when he acted on a different level. The applicant was not a manager but only acted without appointment.
Malope has specialized courses and experience for this type of school. The applicant lacks such. Malope has a managerial qualification that the Applicant lacks.
SGB makes the recommendation. The recommendation she mentioned should mean advice in her quality assurance. She denied rearranging the preference order of the SGB on R13. If she had rejected the SGB recommendation, she would have ordered them to readvertise. This would be the case where all three candidates were not suitable.
The HOD has the prerogative to appoint the Deputy Principal and Principal. She lacks such powers; she only does quality assurance and verification. Her delegated authority to appoint is limited to only PL 2. Departmental Heads and Educators.
According to her findings, the applicant was not the best suitable, but she did not decline him. HOD considered all three candidates and selected the best suitable. There was no deviation. Her motivation on R18 does not mention preferred candidates.
Lekgotla Obakeng Donald Manyeneng testified that he has been the educator at the school since 2017. He served on the previous SGB and was re-elected to the current. He is the secretary of the current SGB.
He attended the 19 July meeting with the District Director. It was a consultative meeting relating to the appointment of the Principal and the SGB’s recommendation. The Director explained the purpose of the meeting and the qualification and experience criteria. She gave them time to discuss separately. When they returned, they informed the Director to select among the three candidates irrespective of the order.
1. During cross-examination, he said that they recommended three candidates, not only the applicant. All three candidates qualified for the position. Clause 16.2 of the Collective Agreement 01 of 2021 was not applicable because the District Director never mentioned that she rejected or declined the SGB recommendation during the meeting of 19th July 2024. Malope was appointed within the SGB recommendation list.
Friedah Manamela testified that she is a PL1 educator. She is the former SGB Secretary who prepared and submitted the SGB file to the district office on 9 April 2024. The SGB’s recommendation had the condition that if a candidate declined the offer or was not suitable, the next candidate would be considered in order of preference. The order of preference was based only on the interview performance. The qualifications and experience were not considered.
During cross-examination, she said that even though the SGB’s recommendation was based on interview performance, the candidates must meet the required qualifications and experience to be suitable for the post. The Director or the HOD did not deviate from the SGB recommendations because the appointment was made from the three candidates submitted by the SGB. CLOSING ARGUMENTS
The applicant argued that he was the preferred candidate of the SGB. The SGB requested his appointment to the post. In ELRC v GDECase JA72/2022, it was ruled that the first choice is the recommendation of the SGB; if the second choice is appointed, it means there was a rejection by the HOD.
The first Respondent appointed the second choice without motivating the rejection as per the Collective Agreement 1 of 2021, clause 16.2. The First Respondent’s reasons for not appointing him are a lack of experience in management and qualification management. These are not covered by the EEA ACT 76 OF 1998 ss 6(2)(c)(i) (reason not authorised by empowering provision) .
In Federasie van Beheerliggame van SA Skole Limpopo Department van Onderwys Limpopo (30801/03[2003] Appointment of Educators–ProcedureEmployment of Educators Act 76 of 1998, Unlawful administration action by the HOD, the decision taken by the HOD was set aside on review. The respondents did not comply with their obligations.
The First Respondent presented that by appointing the second recommended choice by the SGB did not reject its recommendation, but the appointment was within the three recommended. This is not true because it disregards that the first choice recommended candidate of the SGB is as good as rejecting or declining.
In High School, Carnarvon and Another v MEC for Education, Training, Arts and Culture of the Northern Cape Provincial Government and another [1999] 4 All SA 590(NC) the court held that appointment and promotions- Department discretion to decline recommendation of the SGB in respect of an appointment is limited to circumstances set out in the EEA 76 of 1998. The decision of the MEC to decline the recommendation of the SGB to appoint the incumbent as the principal was set aside.
The respondent argued that the applicant and all its witnesses corroborated each other that the SGB recommended names in order of preference, were Mr. Mkhwanazi, Mr. Malope, and Mr. Malepeng. The District Director did not reject or decline the SGB recommendation as claimed by the Applicant.
He failed to prove that he is more qualified and experienced than the 2nd Respondent to reverse the appointment as stipulated in the CA. He could not demonstrate how his qualifications are relevant to the post and the school type for the benefit of the learners with learning barriers and special needs.
The appointment was made within the SGB’s recommended list. There is no justification for the appointment of the PL1 educator without relevant managerial qualifications and experience over a Deputy Principal with more than twenty years of managerial experience.
Section 6 (3) (f) of EEA provides that, despite the order of preference, the HOD may appoint any suitable candidate on the list, read with Clause 16.1 of CA. The HOD applied his/her mind and considered all circumstances, such as advertised, school needs, best interest of the learners, Director’s input/motivation, and appointed the best suitable candidate.
Collective Agreement 03 of 2016 Clause 40 provides that where an employee complains that another employee was promoted, he/she must show that:
he/she has the necessary skills and
The person who was promoted does not possess the same or the same
level of skills. The applicant failed to prove these aspects
The applicant failed to prove the act of unfair labour practice. The dispute should be dismissed. ANALYSIS OF EVIDENCE AND ARGUMENT
The applicant bears the onus to prove that the respondent committed an act of unfair labour practice when it did not appoint him to the principal post of a special school. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC, the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him/her. This means that the employee must not merely show that he/she was a suitable candidate for consideration, but that he/she was the best candidate.
The applicant`s contention that he ought to have been appointed to the post because he ranked first on the SGB’s preferred list is not sufficient to prove that he was the best suitable candidate for the post. Additionally, it is not sufficient for the applicant to contend that he is the best suitable by merely meeting the minimum advertised qualification and experience. It is a common cause that both the applicant and the incumbent met the minimum requirements as per the advert. However, the respondent contends that he was not the best suitable candidate. The respondent contends that he was shortlisted for the interview by default.
The minimum requirements for the post of school principal at Reinotswe Special School in terms of the advertisement were: leadership, management and administration skills for the specific school type.
The applicant’s narrative is that he has the required leadership, management, and administrative qualifications, together with experience. He acquired leadership experience as an SADTU community leader. Management, he worked as a labour officer managing cases. He was part of the drafters of the Collective Agreement. He managed the curriculum at the school. As a class teacher, he manages learners and parents.
He failed to appreciate the fact that the inherent requirements must be related and relevant to the advertised post. His leadership, management, and administrative skills are not as relevant and outstanding as Mr Malope’s. He is not comparable and does not match Mr Malope in any aspect save for obtaining higher score in the interviews. He is PL1, and he lacks managerial qualifications. He has four months of managerial experience acquired from acting as HOD.
Mr Malope’s credentials, which are common cause, are: managerial qualifications and 22 years of managerial experience (PL2 and PL3). He held the HOD position for 14 years and 8 years as Deputy Principal. He has qualifications and experience for a special school. He has been a deputy principal at the same special school for 8 years. Malope has courses for the specialized school. The applicant lacks such.
The District Director provided a plausible explanation for not counting the applicant’s 4-month acting as HOD for managerial experience, because he was never appointed to the HOD post. Acting on a post differs from an appointment. Malope’s 4 months acting as the school principal was counted because he was already appointed as a manager, Deputy Principal. He was a manager when he acted on a different level. The applicant was not a manager but only acted without appointment.
In my view, even if the applicant’s acting stint were considered, it would not make a significant difference compared to Malope’s 22 years.
It is a common cause that the applicant scored highest during the interview, and SGB ranked him number one based only on the interview score. The Director’s unchallenged testimony is that HOD considered the interview score as required by Clause 43 of the ELRC Guideline on promotion. The clause provides that when making an appointment, both the qualifications and experience and the interview performance must be considered. It is irrational to make an appointment purely based on performance during interviews. I am persuaded that the interview outcome cannot be the only determining factor for the best-suited candidate.
In consideration of Malope’s managerial qualifications and experience, special school qualification and experience, leadership and administrative skills he acquired for 22 years, and the interview score, the respondent found him to be the best suitable candidate for the special type of school. I am persuaded that the decision was fair.
The applicant failed to challenge the District Director that Mr Malope was not only the best suitable candidate, in particular for the special type of school. Malope‘s qualifications and experience are relevant for the special school as he was skilled in the field. Meanwhile, the applicant only flags the interview score.
The respondent proved on the balance of probabilities that the HOD appointed Mr Malope because he was the best suitable compared to the applicant who ranked number one on the SGB’s preferred candidate list
Clause 6 (c) ( i) of the EEA, provides that the SGB must submit in order of preference to the HOD, a list of at least three names of recommended candidates. The SGB submitted the three recommended candidates in terms of this provision.
The applicant and his witnesses, who are members of the SGB, are disingenuous to contend that the applicant was the only one recommended for the post. The witnesses were inconsistent in their testimony. Their version changed from time to time, to that they recommended three candidates.
Agreeing with the applicant’s reasoning that the SGB recommended only one out of the three candidates would defeat the objective of recommendation to the HOD. It would amount to the SGB imposing the appointment on the HOD. The HOD would be deprived of an opportunity to evaluate the suitability among the three.
If it was only the applicant who was recommended, he would have been the only one on the list and the SGB could have consulted with the HOD as required by clause 6(3) (c) (ii) which provides that fewer than three recommended candidates must be in consultation with the HOD.
Clause 6 (f).1 of EEA provides that, despite the order of preference in (c) and subject to (d) recommended by the SGB, the HOD may appoint any suitable candidate on the list. Mr Malope was appointed from the three recommended list.
The HOD appointed a suitable candidate from the SGP preferred list. The HOD did not decline a recommendation as provided by clause 6 (f). There was no deviation. Therefore, the provision of clause 16.2 of CA No. 1 of 2021 is not applicable. The written motivation or a meeting with the SGB to discuss the rejection of the recommendation was not required.
Having found that the 16.2 meeting was not required, I am persuaded that the District Director did not invoke this clause when she convened the July 2024 meeting. There was no discussion of the rejection of the recommendation in the meeting. This is corroborated by the minutes of the meeting and the testimony of all the attendees of the meeting.
The District Director’s testimony is unchallenged that the meeting was for quality assurance and vetting. The meeting is not linked to any rejection or deviation, as there was none. The applicant’s contention is misplaced. The 14-day meeting timeframe is not applicable.
It is not true that the Director changed the preference order of the SGB went she submitted the file to the HOD. In her motivation to the HOD, she explained and referred to the SGB preference list as is. She went further to explain and motivate her findings arising from her line of duty in conducting quality assurance and vetting.
The Court in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
The applicant failed to prove that the decision taken by the respondent not to promote him was based on any of the negative factors mentioned in the City of Cape Town case supra. Furthermore, he failed to prove on the balance of probabilities that he was the best suitable candidate for the position as required by the court decision in the Sun International case, supra. In the premise, he failed to discharge his onus to prove on the balance of probabilities that the respondent committed an act of unfair labour practice.
AWARD
I order that:
The respondent did not commit an act of unfair labour practice.
The dispute is dismissed with no cost order.