IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD
VIRTUALLY/ONLINE (ZOOM)
Case No: ELRC 040-13/14GP
In the matter between

NEHAWU obo ARNOLD AND 3 OTHERS Applicant

And

TSHWANE SOUTH TVET COLLEGE Respondent

ARBITRATOR : Justice S Mthombeni
HEARD FROM : 03 November 2020
FINALISED : 19 May 2022
DELIVERED : 26 July 2022

SUMMARY: Labour Relations Act 66 of 1995 – Section 186 (1) (a) – Alleged Unfair Dismissal Dispute – Employment of Educators Act No 76 of 1998 – Section 18 (1) (a) – Failure to comply with this Act, Regulation or Legal Obligation – Section 18 (1) (f) – Unjustifiable Prejudice to Administration, Discipline or Efficiency of the College – Bringing the name Of the College into Disrepute – Contravention of a Court Interdict – Insulting and Swearing at Ms. Malete (Deputy Principal of the College)

Details of hearing and representation

1. This is an award in respect of the dismissal dispute (related to misconduct) between Mr. Albert Arnold (1st applicant), Mr. Aubrey Mshuqwana (2nd applicant), Mr. ZA Bucwa (3rd applicant), Mr. Anthony Mthombeni (4th applicant) (the applicants), and Thswane South TVET College (the respondent) held on 03 November 2020; 27 and 28 January 2021; 18 and 19 February 2021; 17 and 25 March 2021; 24 and 26 May 2021; 26 July 2021; 19 and 20 August 2021;18 to 19 and 26 January 2022; 10, 16 to 17 and 29 March 2022, and finalised on 19 May 2022 (a total of 20 days excluding days of postponement). The matter was heard online.
2. The applicants were represented by Ms. Prinoleen Naidoo, an attorney from Cheadle Thompson & Hayson. The respondent was represented by Mr. Bongani Khoza and Mr. Thandolwethu Mabuza, attorneys from Khoza & Associates. Both parties submitted bundles of documents. Both parties relied on the video footage that was submitted by the respondent. An inspection in loco was conducted at the respondents’ head office in Francis Baard Street Pretoria Central. The process was digitally recorded and interpreted.
3. Written closing heads of argument were submitted by both parties as per their request. The applicants were employed by the respondent as lecturers in terms of the Employment of Educators Act 76 of 1998.

The issue to be determined

4. Dismissal was not in dispute. I was required to determine whether the applicants’ dismissal was substantively and procedurally fair or not and to order an appropriate relief in the event dismissal is held to have been unfair.

Background to the issue in dispute

5. The applicants’ disciplinary hearing was held between mid-2011 and it was completed in August 2013. The applicants alleged that their dismissal by the respondent was not occasioned by a fair and valid reason as the allegations levelled against them were unfounded. The applicants further alleged that their dismissal was not preceded by a fair procedure in that their appeal against the sanction of dismissal was not processed nor heard by the respondent. They would like to be reinstated.
6. The 1st applicant was employed as a Senior Lecturer: Mechanical Engineering for fourteen years; the 2nd applicant was employed as a Post Level Lecturer: Civil Engineering for eleven years; the 3rd applicant was employed as a Senior Lecturer: Mechanical Workshop for 17 years, and the 4th applicant was employed as a General Assistant for four years.
7. The applicants were dismissed on 05 September 2013 on the basis of the following alleged acts of misconduct:

7.1. Mr. Albert Arnold (1st applicant)
Charge five:
Bringing the name of the college into disrepute
You contravened Section 18 (1) (f) of the Employment of Educators Act in that on or during March 2011 and at or near Pretoria you brought the name of the college into disrepute by attending a NEHAWU rally where you carried two placards. One placard carried a message saying stop corruption and nepotism whereas the other demanded that the college Principal and Vice Principal should go. The placards were published in the media. The placards brought the name of the college into disrepute because a reasonable reader of the newspaper could be left with the impression or could have understood the placards to mean that the college Principal and Vice Principal are corrupt nor have they been found guilty of corruption by a competent body of a Court of law (sic).

Charge seven
Insulting and swearing at Ms Malete
You contravened Section 18 (1) (a) of the Educators Employment Act in that on or about the 13th April 2011 and at or near the Head Office of the Tshwane South College, Schoeman Street, you jointly or in concert with your fellow employees wilfully and intentionally chanted or sang a song or songs in which you insulted and/or denigrated and/or swore at Ms. Malete. You inter alia said the following of or against Ms. Malete:
(a) That Ms. Malete likes a penis, (Uthanda pipi); (Orata pipi); and/or
(b) They have fucked her, (Ba mo nyobile); and/or
(c) That Ms. Malete is loose or has low moral; (Skheberesh) and/or
(d) The parents of Debra warn Debra, she was fucked last night, we did not fuck her, we only saw some hair, (Batswadi ba Debra kgalemelang Debra, ba letse ba mo ja, ga a ja ke rena re bone ka maboya) (sic).

7.2. Mr. Aubrey Mshuqwana (2nd applicant)
Alternative to charge seven
Contravention of a court interdict
You contravened Section 18 (1) (a) of the Employment of Educators Act in that on or about the 13th April 2011 and at or near the Head Office of the Tshwane South College, Schoeman Street, you jointly or in concert with your fellow employees wilfully and intentionally defied the Provisions of a Court interdict obtained by the College against you and your aforesaid colleagues by holding and/or participating in an unlawful industrial action. You inter alia sang and danced in fornt of the main gate of the College thus preventing people from accessing the aforesaid College premises. Your aforesaid conduct disturbed the peaceful operations of the College (sic).

Charge Eight
Insulting and swearing at Ms. Malete
You contravened Section 18 (1) (a) of the Educators Employment Act in that on or about the 13th April 2011 and at or near the Head Office of the Tshwane South College, Schoeman Street, you jointly or in concert with your fellow employees wilfully and intentionally chanted or sang a song or songs in which you insulted and/or denigrated and/or swore at Ms. Malete. You inter alia said the following of or against Ms. Malete:
(a) That Ms. Malete likes a penis, (Uthanda pipi); (Orata pipi); and/or
(b) They have fucked her, (Ba mo nyobile); and/or
(c) That Ms. Malete is loose or has low moral; (Skheberesh) and/or
(d) The parents of Debra warn Debra, she was fucked last night, we did not fuck her, we only saw some hair, (Batswadi ba Debra kgalemelang Debra, ba letse ba mo ja, ga a ja ke rena re bone ka maboya) (sic).

7.3. Mr. ZA Bucwa (3rd applicant)
Charge Three
Contravention of a Court Interdict
You contravened Section 18 (1) (a) of the Employment of Educators Act in that on or during the period of April to Fewbruary 2011 and at or near the Head Office, Pretoria West Campus, Atteridgeville campus, the Centurion Campus and/or the Odi Campus of the Tshwane South College you wilfully or intentionally defied the provisions of a Court Order which inter alia prohibits you from conducting yourself in a manner that would disrupt teaching and learning, threaten students and staff and generally disturb the peaceful operations of the College and its campuses (sic).

7.4. Mr. Anthony Mthombeni (4th applicant)
Alternative to charge five
Contravention of a Court Interdict
You contravened Section 18 (1) (a) of the Employment of Educators Act in that on or about the 13th April 2011 and at or near the Head Office of the Tshwane South College, Schoeman Street, you jointly or in concert with your fellow employees wilfully and intentionally defied the provisions of a Court interdict obtained by the College against you and your aforesaid colleagues by holding and/or participating in an unlawful industrial action. You inter alia sang and danced in front of the main entrance of the College thus preventing people from accessing the aforesaid College premises. Your aforesaid conduct disturbed operations of the College (sic).

Charge six
Insulting and swearing at Ms. Malete
You contravened Section 18 (1) (a) of the Educators Employment Act in that on or about the 13th April 2011 and at or near the Head Office of the Tshwane South College, Schoeman Street, you jointly or in concert with your fellow employees wilfully and intentionally chanted or sang a song or songs in which you insulted and/or denigrated and/or swore at Ms. Malete. You inter alia said the following of or against Ms. Malete:
(a) That Ms. Malete likes a penis, (Uthanda pipi); (Orata pipi); and/or
(b) They have fucked her, (Ba mo nyobile); and/or
(c) That Ms. Malete is loose or has low moral; (Skheberesh) and/or
(d) The parents of Debra warn Debra, she was fucked last night, we did not fuck her, we only saw some hair, (Batswadi ba Debra kgalemelang Debra, ba letse ba mo ja, ga a ja ke rena re bone ka maboya) (sic).

8. The applicants submitted through their representative at an opening statement that their dismissal was procedurally unfair because letters of their dismissal were not signed by the College Council thereby not in compliance with the applicable statute. They further submitted that they had a right to appeal and to be paid a salary while their appeal was still being processed. They submitted that their appeal was lodged on 05 September 2013 with the Minister of Higher Education as an appeal authority. Their appeal notice was also served on the Chairperson of the College Council on 10 September 2013, which was still within the prescribed five day period. However, on 16 September 2013 they received a letter from the College’s attorneys to the effect that their appeal could not be processed as it was lodged outside the prescribed five day period, which was incorrect.
9. The applicants argued in their closing heads of argument that their charges are generally based on the alleged contravention of a court interdict which only the court which issued the order can pronounce on the validity and application of its order and whether it has been contravened or not. Therefore, a presiding officer and by extension a commissioner do not have the competence to make a finding as to whether a court interdict is valid and whether it has been contravened or not which renders the applicants’ dismissal unfair in this matter unfair.
10. The respondent contended that the applicants were dismissed for a fair and valid reason as the charges proffered against them were founded. The applicants’ misconduct was on going for a number of years. The applicants behaved in a manner that was violent and had an element of criminality. The applicants were convicted by a Magistrate Court and an interdict was granted by the High Court as a result of their conduct. The applicants violated the court interdict which prevented them from engaging in the specified acts of misconduct. The respondent submitted in its heads of argument that the Final Court interdict that was violated by the applicants was valid as it had not been set aside by either an appeal, an application to stay its operation, a rescission or variation. The respondent further argued that in case the applicants are not found guilty on the main charges, the commissioner is empowered to make a competent verdict as the elements of other forms of misconduct exist.
11. At the narrowing down of the issues in dispute and also at the submission of closing heads of argument the applicants submitted that though the allegations levelled against them were related to participation in an industrial action (i.e. strike or protest march) the dispute was referred as a dismissal dispute related to misconduct and that it was not an automatically unfair dismissal. Therefore, what I need to determine is whether there was misconduct or not committed by the applicants. Put differently I need to determine whether there is a rule that has been contravened by the applicants.

Brief survey of parties’ submissions and arguments

12. As the process was recorded I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration but mainly submissions/evidence that informed my findings as provided for in Section 138 (7) (a) of the Labour Relations Act 66 of 1995 (the LRA)). Documents submitted would be referred to if and where necessary in my discussion of the issues raised by parties.

Evidence on behalf of the respondent

Mr. Joseph Tokello Chiloane testified as follows:
13. He is the Principal of Tshwane South Technical and Vocational Training College. He has been the Chief Accounting Officer of the College since 2003. He knows the applicants as they used to work for the respondent at the Atteridgville and Odi Campuses. The College has five campuses: Atteridgville; Centurion; Pretoria West; Odi and the Head Office in the Pretoria city centre. In early 2020 the applicants acted in a manner that was prejudicial to the name of the College. The applicants would wake up in the morning and block the gates so no one can have access to the campuses. The applicants would threaten and intimidate anyone who did not want to be part of them. They would instruct staff and students to leave the campus and lecture theatres. The applicants interfered with the administration, discipline and efficiency of the College. The applicants accused him of being corrupt without providing evidence of their allegations. The applicants would call abrupt meetings which would disrupt the functioning of the College.
14. He testified that his precautionary transfer was lifted and the charges that were proffered against him were withdrawn by the Gauteng Department of Education (GDE) on 24 January 2010 after he was cleared/exonerated by a forensic report. When he returned to the College on 01 February 2010 at the end of the day he received a telephone call from Ms. Suzanne Motsepe, the campus manager, and Mr. Skhosana to the effect that he must not report for work on 02 February 2010 as he would be a statistic. Upon reporting for work on 02 February 2010 at the Centurion Campus he saw people through the window of his office holding objects and fire extinguishers. His brand new Merces Benz vehicle was damaged and he was physically assaulted. Ms. Suzanne Motsepe was threatened. Ms. Deborah Malete, the Deputy Principal: Corporate Services, was sprayed with a fire extinguisher.
15. The College had no alternative but to apply for an interdict as the applicants acted with impunity and damaged College property. The GDE supported the College’s application for an interdict as it was dismayed at the damage that was caused. The applicants did not oppose the application for an interdict. The rule nisi was served on the applicants and a final order was granted. The applicants were served with a copy of the final interdict (Court order). The applicants and their colleagues were arrested and they were each sentenced to six years imprisonment which was suspended for five years plus a fine of R30 000.00 after they pleaded guilty to assault and damage to College property. He testified that the applicants could have lodged a grievance in line with the provided grievance procedure as individuals or through their respective unions if they were unhappy. He did not receive any grievance by the union for or on behalf of the applicants. The applicants avoided any remedy that was rooted in law to address their concerns. The applicants could have reported any allegations of maladministration, stealing or corruption to the SAPS for investigation instead they resorted to self-help. The applicants did not challenge the MEC’s decision to reinstate him or to lift his precautionary transfer
16. He testified that on 13 April 2011 the applicants came to the Head Office and blocked the entrance while the interdict was still in place. They held placards that contained insults towards Ms. Deborah Malete, the Deputy Principal: Corporate Services. The 1st applicant was singing and dancing to the tune. He had a placard with him, he was acting in concert with other applicants. The 1st applicant understood everything that was happening. The 1st applicant ought to have known that what was being said about Ms. Malete was wrong. The 1st applicant had an option not to engage in the conduct of the group and he was not forced to sing or to hold a placard instead he was jubilant and singing. The applicants stripped Ms. Malete of her dignity in view of the insults that were hurled at her. The applicants contravened an applicable rule which is contained in Section 18 (1) (q) and (t) of the Employment of Educators Act. The applicants did not challenge the MEC’s decision to reinstate or to lift his precautionary transfer.
17. The 1st applicant brought the name of the College into disrepute when he held placards to the effect that the College Principal and the Deputy Principal were corrupt. The incident was publicised on print media for public consumption. The 2nd applicant was part of the group that sang and hurled insults at Ms. Malete. He saw the applicants through the window of his office. The 4th applicant was also part of the group that sand and hurled insults at Ms. Malete on 13 April 2011. The 3rd applicant interfered with the administration of the College in contravention of the terms and conditions of the interdict against him. The 3rd applicant harassed and intimidated members of staff and mage the College ungovernable. No notice was received that the applicants would be protesting at the Head office. Therefore, the applicants engaged in an unprotected industrial action.
18. He testified that Kganaga, Ledwaba and Ngobeni were charged in relation to the 2010 incident. The applicants were suspended for the incident that happened 02 February 2011. They were suspended on 15 February 2011. The applicants lodged their appeal out of prescribed time of five days.

Ms. Jessie Ngobeni testified as follows:
19. She is employed by the respondent as a Personal Assistant to the College Principal (Mr. Chiloane) since 2007. She has been at the Head Office since 2010. On 13 April 2011 while she was at work, staff members came to the Head Office and sang vulgar words. She could hear the staff singing as her office is the first one from the main entrance to the College. Ms. Suzane Motsepe, Mr. Kraft (the acting CEO), and Mr. Chiloane came to her office to see what was happening at the gate. She did not know the people who were singing at the gate. She testified that Mr. Chloane came back to the office sometime in 2010.

Mr. Phillipus Johannes Kraft testified as follows:
20. He has been on pension since 2013, however, he was previously employed by the respondent as a Deputy Principal: Academic. In 2010 he was appointed as an Acting Principal of the College as Mr. Chiloane was not in the position to perform his duties due to a precautionary transfer to the GDE Head Office. He ceased to be an Acting Principal upon the return of Mr. Chiloane to the College Head Office. Mr. Chiloane occupied office number one and two which were next to the gate. He testified that on 13 April 2013 his attention was drawn to the fact that he heard people singing. He would not know what songs they were singing because he did not understand the language that was used. He was standing outside and he walked along the passage to office number one. In office number one it was himself, Ms. Motsepe, Mr, Chiloane and Ms. Ngobeni. The people at the gate were singing, dancing and had placards with them. The applicants were part of the group that was singing as he observed them through the office window. He testified that people could not access the College as the crowd was blocking the entrance. He knew the applicants as he was previously a Deputy Campus Manager at Atterdgeville campus.
21. In February 2010 he was stationed at the Centurion campus. There was an incident whereby vehicles were damaged by the protesting members of staff and the College had to apply for a Court interdict. The applicants were not happy about the return of Mr. Chiloane to the College. As an Acting Principal he was not aware of any grievance that was lodged by the applicants. The applicants acted in an inappropriate manner as educators, they were not exemplary. The applicants were stopped by security from entering the College when they came to the Pretoria Magistrates Court to attend a case of the people who were arrested for damaging Mr. Chiloane’s vehicle. He signed the applicants’ letters of suspension in February 2011. The 1st applicant brought the name of the College into disrepute as he was seen at a NEHAWU protest march carrying placards which were published in a newspaper. On 13 April 2011 the applicants contravened a Court interdict. On 13 April 2011 the applicants had no business to do at the Head Office, they were not supposed to be at the Head Office because there was an interdict in place.
22. At cross examination he confirmed that the 1st and the 4th applicants were not cited as respondents in the Court interdict and further that he did not testify during the applicants’ disciplinary hearing. It was put to him that Mr. Chiloane’s affidavit does not make mention of singing and carrying of placards and that the chairperson made a finding that the 1st and 4th applicants were not guilty of contravening a Court order. However, he testified that the 1st and 2nd applicants were found guilty in terms of the Employment of Educators Act. The applicants were placed on precautionary suspension when they marched to the Head Office on 13 April 2011. It was put to him that Mr. Kganaga, Mr. Ngobeni and Mr. Ledwaba were interdicted, criminally charged and found guilty but they were still working for the respondent. He responded by saying that the disciplinary hearings of the above mentioned individuals were held in abeyance and not concluded as per the directive by the Public Protectors’ office, however, they have been charged again and their matter is pending. He submitted that if employees are charged and the chairperson of the inquiry finds them not guilty there would be no inconsistency.

Mr. Shadrack Nkgadima testified as follows:
23. He is employed by the respondent as a Caretaker but he previously worked as a Security Officer stationed at the respondent’s Head Office in Francis Baard Street. On 27 January 2011 while on duty, Tshwane College employees came and asked for parking but they were not allowed to park as there was not enough parking space for them. They parked their cars in the street. After sometime they came back and when the gate was opened for a cleaner to take out dustbins, a large number of people came in. They accused Mr. Kraft of not granting them access into the College. On the same day he was called to the boardroom and he found the people talking to Mr. Kraft. The mood was not right. He had already agreed with his security supervisor to call the police when he was called to the boardroom. He was informed that when people come to the College he should phone the police as it happened in Centurion. The people came back again on 13 April 2011.
24. On 13 April 2011 he was at work and the 1st applicant and Mr. Matlala walked past the gate and he focused on them as he knew that they were College staff. He realised that they were writing placards and they started growing in numbers. When the group was large they started chanting. The College has three gates one in Schubert Street, the other one is in Potgieter Street and the main gate is in Francis Baard Street. The group approached the gate while it was singing and chanting a song that they will enter by force and fuck your asses. When the group arrived at the gate they changed and sang a vulgar song about Deborah Malete. The group was in a tense mood as they shook the gate. The security stood at the gate as the police were called. The main gate at is used for entry to the College. The people who came to the College could not enter. On the day in question there were a lot of people at the gate but he remembers seeing the 1st applicant as he knew that he worked at the Atteridgeville Campus. The 2nd and 4th applicants were part of the group. He remembers the 4th applicant well because he was at the front of the crowd.
25. He testified that he observed protestors writing placards at the corner of Schubert Street. Mr. Skhosana’s car could not enter the College premises as the gate was blocked.
Mr. Liaster Skhosana testified as follows:
26. Before he could retire he was employed by the respondent as a Driver at Atteridgeville Campus. He delivered mail to all Campuses. On 13 April 2011 he wanted to enter the Head Office but he could not as there was a group of people toyi-toying at the gate and carrying placards. He drove past the group and used alternative entrance. He identified the applicants as having been part of the group. He submitted that he knew the applicants because he worked for the respondent since 2005 and the applicants worked with him at the Atteridgeville Campus except for the 3rd applicant who was stationed at Odi Campus. At cross examination he confirmed that he did not see the applicants carrying placards. He testified that on the day in question he arrived at the gate, slowed down, his car stopped for a while and drove away.

Mr. Michael Nkune testified as follows:
27. He has been a Security Officer for the respondent for the past ten years stationed at the Head Office in Francis Baard Street. On 13 April 2011 at about 07h30 to 08h00 while he was at work, the 1st applicant appeared at the gate and his supervisor, Mr. Nkgadima who has been at the College for many years, said when the 1st applicant appears it meant that there would be a strike. A group of people appeared while the 1st applicant was writing on a placard and it was aggressive. The 4th applicant was at the forefront of the group dancing. They arrived at the gate and sang a vulgar song about Ms. Deborah Malete. He could hear the words because they were singing very loud and he was at the gate. Ms. Malete held a senior position, she was part of management and the song was not appropriate to sing about someone senior.
28. He testified that there was a need to protect the occupants of the premises and the building because there was an attack on the Principal, his car was damaged and he was sprayed with a fire extinguisher. There was a car that wanted to come in and he said the car could not come in as there were protesters. His supervisor called the police and when the police arrived they wanted to know who was leading the strike and the group turned its attention to the police. At 11h57 the crowd dispersed due to the arrival of the police. He testified that the 1st applicant understood the song that was sung as he was dancing and singing.

Mr. Tebogo Thabane testified as follows:
29. He is employed by the respondent as an Acting Deputy Director for Corporate Services. Before his appointment as an Assistant Director for Labour Relations in 2012 he was a student at the respondent’s College. As a student he was the chairperson of the Student Representative Council (SRC) in 2009 to 2010 at Odi Campus. In 2010 he was elected as a Secretary General for all the Campuses. He testified that in 2008 there were disruptions across the campuses in that lecturers would embark on go-slow and they will attend meetings. In 2010 it became worse when the Principal Mr. Chiloane came back to the College after his precautionary transfer was lifted. Lecturers disrupted teaching and learning through their forum. On 02 February 2010 the 3rd applicant (Mr. Bucwa) mobilised and distracted teaching and learning. The 3rd applicant went around the campus saying that they are going to remove Mr. Chiloane as a Principal.
30. After the incident of 02 February 2010 there was an interdict that was obtained by the College against the lecturers. On 16 September 2010 the 3rd applicant called a meeting which disrupted teaching and learning. The 3rd applicant together with a group of lecturers went to the student support office and they screamed asking the occupants to vacate the office as they wanted to lock it. Mpho Lebethe refused to go out and the 3rd applicant unplugged the phone cables and threw out the chairs. The Court interdict was clear that they should not interfere with learning and teaching. The 3rd applicants’ conduct disrupted the administration of the College.
31. At cross examination it was put to him that the 3rd applicant was previously charged with assault and not found guilty and he was again charged on the basis of a Court interdict that was obtained for an incident that took place in February 2010, that is, almost a year after the alleged incident on 16 September 2010. His response was that the 3rd applicant’s dismissal came as a result of his position and conduct as a shop steward. He further submitted that the allegations of assault levelled against the 3rd applicant were founded as pushing a person amounted to assault. The 3rd applicant went to Mpho Lebete’s office to remove her which he did not have authority to do that.

Ms. Suzanne Motsepe’s testimony:
32. It was submitted by the respondents’ representative that Ms. Suzanne Motsepe was medically boarded and that she was not available to testify in person or virtually as she was frail. An application was made for her disciplinary hearing transcript to be admitted as evidence. It was further submitted by the respondent that the admission of the transcript would not be prejudicial to the applicants’ case as Ms. Motsepe led evidence in chief and that she was cross examined. Therefore, the transcript would be relied upon only to an extent of Ms. Motsepe’s testimony about the events of 13 April 2011. The above application was not opposed by the applicants’ representative and the transcript was admitted as evidence.
33. The essence of Ms. Motsepe’s testimony was that on 13 April 2011 she was in the reception area of the Principal’s personal assistant when she observed the applicants singing a vulgar song about Ms. Deborah Malete. She could identify the Atteridgeville staff members, Mr. Bila, Mr, Makwela, Mr. Mampane, Mr. Matlala, Mr. Arnold, Ms. Mphahlele, Mr. Mthombeni, Mr. Hleza and others who she could not identify as they were apparently from other campuses. She testified that some of the people she mentioned above were accused of misconduct like Mr. Makwela, Mr. Matlala, Mr. Arnold, Mr. Mr. Mthombeni and Mr. Hleza.

Evidence on behalf of the applicants
Mr. Albert Arnold (1st applicant) testified as follows:
34. He was appointed by the respondent in November 1996 as a Post Level 1 Lecturer and in 2011 his title was that of a Head of Department: NCV Programmes in Atteridgeville Campus. He knew Mr. Chiloane since his appointment as College Principal in 2003. The management of the Collegein 2003 was good and everything ran according to plan. However, after the transformation period things changed. He was in the College task team and therefore he could see what needed to be done and implementation thereof. What became concerning was that during implementation projects were incomplete but tenders were already paid. That raised eye brows and questions.
35. The different task teams who worked on recapitalisation programme asked questions to the top management (i.e. Mr, Chiloane and different campus heads). Questions were not satisfactorily answered. The task team decided to set up what is called the workplace forum which consisted of elected staff members from each campus. The purpose of the workplace forum was to engage with management and to effectively work together on transparency of funds. Unfortunately the forum was not recognised by the College management. There was mismanagement of funds of recapitalisation programme. The staff unions (i.e. NAPTOSA, SADTU and other unions) could not interfere with management operational decisions. The relationship between the labour/workplace forum, College Council and the Campuses was fractured. They could not refer a grievance to the College Council through Mr. Chiloane. They could also not declare a dispute with the ELRC as it could not address their concerns because they related to operational decisions of management. The forum decided to approach the Department of Education as an employer.
36. An investigation into maladministration was initiated by the Gauteng Department of Education (GDE). The Forensic Investigation Report published by the GDE in 2008 recommended disciplinary action to be taken against Mr. Chiloane and as a result Mr. Chiloane was placed on precautionary transfer. In February 2010 Mr. Chiloane reported back to the College as the Principal. They were informed by Campus managers that Mr. Chiloane was back and they were surprised because they were not informed about the developments as a forum. Mr. Chiloane returned to the College on 01 February 2010 and on 02 February 2010 there was an incident at the Centurion Campus whereby Mr. Chiloane’s car was damaged. He was not part of the group that went to Centurion and he was not cited on the Court interdict that was obtained by the College. The group that went to the Centurion Campus on 02 February 2010 was not part of the Forum.
37. He testified that he became aware about the Court interdict when people were criminaly. He was suspended on 02 February 2011 and his suspension letter was signed by Mr. Kraft. On 19 February 2011 he decided to join NEHAWU as all people who were charged with alleged acts of misconduct decided to be represented by NEHAWU. On 23 March 2011 there was a NEHAWU to the Department of Higher Education and he wanted to support the march as NEHAWU was representing him in his disciplinary hearing. On 16 March 2011 prior to the march NEHAWU issued a media statement condemning the Department of Higher Education for its inaction and failure to solve the problems at the FET Colleges. On the day of the march NEHAWU handed out placards randomly. The march was attended mainly by lecturers from Gauteng Province. The march was protected and not illegal. It was his right to be part of the march as he was a member of NEHAWU.
38. He did not bring the College into disrepute by holding placards as alleged because there was a media statement and a forensic report about the issues that were raised on the placards. The issue of alleged corruption was already public knowledge. The College was already in disrepute as the principal was placed on precautionary transfer. The placards were not damaging. He cannot understand as to why he was the only one who was charged with bringing the name of the College into disrepute when he was not the only lecturer who attended the march.
39. On 13 April 2011 there was an arrangement to go to NEHAWU offices to discuss progress on his disciplinary hearing. The meeting was scheduled for 09h00. Shortly before he could arrive at Sanlam Building where NEHAWU offices are situated, he received a call from Mr. Makwela that the meeting was delayed and Mr. Makwela asked that they meet at the College’s Head Office. At the corner of Schubert and Schoeman he saw people gathering and writing placards. The group was lectures from Pretoria West Campus whose employment contracts were not renewed. He looked for Mr. Makwela. He did not write on placards and he did not carry any placards. He was outside the College gate but he did not take part in the protest. He was sitting on the pavement between the two gates of the College.
40. He did not sing a vulgar/derogatory song against Deborah Malete as allegd because he did not speak the language that was used. He only speaks Afrikaans and English. He was in the vicinity of the protestors but he was not dancing and singing. The protestors were peaceful and did not carry weapons. The protest lasted for about one and half hour. The people who were identified by Ms. Motsepe to have been part of the protest were not disciplined for their participation.
41. He received a letter of his dismissal on 04 September 2011 and he appealed his sanction of dismissal on 05 September 2011 with the Minister of Higher Education and Mr. Chiloane. His dismissal letter was signed by Mr. Chiloane however he did not see any letter from the College Council which confirmed his dismissal. He received a letter from the College attorneys to the effect that his appeal was lodged within the prescribed time frame which was not true as he was dismissed on 04 September 2011 and he appealed on 05 September 2011 one day after he was dismissed.
42. Under cross examination he confirmed that it was not right for the protestors to sing a derogatory song about a College Deputy Principal. He further submitted that the respondent was entitled to discipline employees who sang a derogatory song. Though he was in the vicinity of the protestors and that he heard the song he did not understand it as it was sung in an African language. The College was already in dispute at the time of the march on 23 March 2011. He participated in a NEHAWU march which was already in the news. The protest was protected.

Mr. Aubrey Mshuqwana (2nd applicant) testified as follows:
43. He was employed by the respondent in 2002 as a lecturer for Civil Technology Education at Atteridgeville Campus. He is cited as one of the respondents on the Court interdict, however, he does not know as to what led to the interdict. On 02 February 2010 he was at the College when Ms. Motsepe announced that Mr. Chiloane was back at the College and that nothing they will do. Lecturers took their cars and drove to Centurion Campus to inquire about the return of Mr. Chiloane. There were about 100 to 150 lecturers at the gate of the Centurion Campus. Other lecturers forced their way into the Campus and went to the boardroom. He saw lecturers damaging cars and they were not controllable.
44. He went back to Mr. Monyai’s car as he was offered a lift to the Centurion Campus. He was outside the gate when the lecturers damaged cars. The workplace forum was established to deal with operational issues within the College. He was not a leader of the forum. He was one of the people who were criminally charged for having caused damage to the cars and spraying a fire extinguisher. He pleaded guilty at the Magistrate Court because his representative said the Magistrate will sentence him to six months in jail if he did not plead guilty, he was fined R38 000.00.
45. On 13 April 2011 he went to town for a NEHAWU meeting to get feedback about their disciplinary case. He received an SMS from Mr. Makwela that the Pretoria West Campus lecturers were marching to the Head Office. He joined his shop steward at the side of the Magistrate Court and that is why he cannot be seen on the video footage because he was standing far from the Campus gate. He heard the song that was sung about Deborah Malete. Mr. Skhosana drove past the College with his car and he did not stop. He had no reason to sing the song about Ms. Malete. He was on suspension at the time of the incident on 13 April 2011.
46. Under cross examination he testified that he pleaded guilty at the Magistrate Court as he did not want to go to jail. He was misled by his attorney to plead guilty but he did not complain about his attorney. When he went to Centurion Campus on 02 February 201 he wanted to see how Mr. Chiloane’s matter will be concluded. On 13 April 2011 he was in the same street with the protestors at the College but he was not part of the group. Mr. Makwela was also cited as a respondent on the Court interdict. He did not appeal or apply for the interdict to be set aside as he did not have such knowledge.

Mr. ZA Bucwa (3rd applicant) testified as follows:
47. He was employed by the respondent in November 1996 as a Lecturer at Odi Campus. He was elected to be a shop steward between 2001 and 2002. He is cited as a respondent on the Court interdict. The interdict related to the incident that took place in Centurion Campus on 02 February 2010. He was not part of the incident as on the day in question he was at Odi Campus. He thinks the reason why he was cited was because Mr. Chiloane decided to list the names of all members of the Labour Forum. He was not part of the people who were criminally charged for the violent incident at Centurion Campus. After the Centurion incident he was not disciplined by the respondent. Mr. Chiloane knew all members of the Forum so he just mentioned all of them.
48. The issues that were experienced by the labour Forum were mismanagement of funds at the College and irregular tender processes. Tebogo Thabane (Tebogo) who testified for the respondent was an SRC president that was not democratically elected. Tebogo was a member of an illegal structure that was in cohorts with Mr. Chiloane. There was a strong relationship between the illegal governing structure and Mr. Chiloane. In 2010 his Campus manager Mr. Nkosi was frog marched from the Campus by the illegal structure. There was no effective teaching and learning at the College because of the illegal governing structure. The Campus was ungovernable. His charge sheet is vague as it only refers to September 2010 and it does not make reference to Mpho Lebethe. He learned about Mpho Lebethe when his disciplinary hearing started sometime in 2011. He was suspended in February 2011 together with other applicants. He was suspended for allegedly assaulting a student at Odi Campus however the letter does not mention Mpho Lebethe or Tebogo Thabane.
49. On 16 September 2010 the situation at the College was not fine. Lecturers were complaining about Mpho Lebethe as she was a member of an illegal structure. There was a long standing complaint that Mpho Lebethe was working as a student support officer when she was not qualified for the position. Mpho Lebethe brought instability within the Campus. On 16 September 2010 lectures convened a meeting as they were angry. He attended the meeting as a shop steward. The purpose of the meeting was to normalise the situation within the Campus. One of the decisions which was taken was to close Mpho Lebethe’s office. Lectures took a decision to send him together with shop stewards from other unions to close Mpho Lebethe’s office. Some lecturers decided that if Mpho Lebethe did not want to vacate her office she should be forcefully removed. However, he did not agree with that suggestion of using force.
50. When Mpho Lebethe was approached in her office she was with Naomi Motsepe and Tebogo Thabane. If they had close Mpho Lebethe’s office the Head Office would have attended to their concerns. When they requested the office key from Mpho Lebethe she refused and they did not argue with her. Mokgopakgosi, one of the shop stewards, wanted to unplug the office phone and he stopped him. They decided to go back to the staff to give them feedback.
51. Under cross examination he testified that on the day of the incident at Centurion on 02 February 2010 he signed the attendance register upon reporting for duty but he cannot recall if he had signed out. He submitted that on the day in question the illegal structure disrupted classes but he cannot recall if his class was disrupted. He was incorrectly cited as a respondent on the Court interdict because he did not go to Centurion Campus. He did not challenge the application for the interdict despite having acknowledged receipt of the interdict on 15 February 2010. On 22 April 2010 he did not go to Court to argue as to why the interdict should not be made an order of the Court. He was shocked by the charge sheet which accused him of being violent because on 16 September 2010 he never engaged in any violence. He agrees that when the Court order is made final it exist throughout.

Analysis of evidence and arguments
52. Section 186 (1) (a) of the Labour Relations Act 66 of 1995 (the LRA) defines “dismissal” as a termination of employment by the employer with or without notice. Section 192 (1) and (2) of the LRA provides 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. The facts required to prove a dismissal depend on the nature of the dismissal that is alleged and essentially involves a value judgment (NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC) par 33). The test whether onus is discharged is the balance of probabilities.
53. Section 18 (1) (a) and (f) of the Employment of Educators Act 76 of 1998 (EEA) provides as follows-
18 (1) misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship.
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office the state or a school, further education and training institution or adult learning centre.
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.
54. In this matter the 1st applicant (Arnold) was dismissed for bringing the name of the college into disrepute and for insulting and swearing at Ms. Malete. Arnold argued that the allegations levelled against him were unfounded because at the time when he participated in a protest march that was organised by his union NEHAWU on 23 March 2011 and held the placards the name of the college was already in disrepute. The name of the college particularly the names of the College Principal and the Deputy Principal were already in the media on the basis of alleged acts of corruption and nepotism on their part. There was already a NEHAWU media statement dated 16 March 2011 and a forensic investigation by the GDE into suspected maladministration at the College as early as 15 August 2008. Therefore the issue of alleged corruption was already public knowledge. The College was already in disrepute as the principal was placed on precautionary transfer before 23 March 2011. Therefore the placards were not damaging as alleged. I took note that the above submissions by Arnold were supported by documentary evidence in the form of a media statement by NEHAWU and a forensic investigation report that recommended charges against the Principal and the Deputy Principal albeit they were exonerated. In view of the above submission and evidence in my view it could not be said that Arnold brought the name of the College into disrepute. It is noteworthy that the protest march that Arnold attended was protected. I accordingly find on balance of probabilities that Arnold did not bring the name of the College into disrepute as alleged by the respondent.
55. Regarding the allegation of swearing at Ms. Malete. Arnold submitted that though he was at the College with the protestors on 13 April 2011 he could not be held to have acted with common purpose with the protestors because he did not understand the song that was being sung about Deborah Malete as he only speaks Afrikaans and English. In my view Arnold actively associated himself with the protestors because he was not just in the vicinity of the College gate but he was seen by the security officers dancing and singing thereby implying active participation. I took note that when Arnold presented himself at the College gate he was on suspension and he participated in an unprotected march where derogatory and a very vulgar song was sung by the protestors thereby in contravention of his suspension conditions in view of section 18 (1) (a) of the EEA. In my view the lyrics of the song that was sung by protestors, which Arnold associated himself with, bordered on gross disrespectful conduct, intimidation and an attack on Ms. Malete’s dignity and integrity as it was submitted by the respondent. I accordingly find on balance of probabilities that Arnold committed misconduct as envisaged by Section 18 (1) (a) of the EEA.
56. The 2nd applicant (Aubrey) was dismissed for contravention of a court interdict and insulting and swearing at Ms. Malete. Aubrey was cited as a respondent on the application for an interdict. Aubrey argued that though he was in the vicinity of the college he did not contravene a court interdict as alleged because he was far away from the college gate and the protestors. He did not form part of the group. He came to the college to meet with Mr. Makwela who wanted to address the protestors before they could proceed to the NEHAWU office which was in close proximity to the college.
57. A court interdict in my view is a regulation or an order of a court of law which imposes a legal obligation against the person it is obtained. I agree with the applicants’ argument that a chairperson of a disciplinary hearing and by extension a commissioner does not have the competence to pronounce on the validity or application of an interdict or whether an interdict was contravened or not but the court that issued the interdict. However, if an interim interdict is made an order especially a final order of the court it affords the applicant protection against the conduct that is identified or specified in the order. Therefore, in my view it is not necessary for the employer to initiate contempt of court proceedings where an employer has a rule in place which prohibits the conduct that has been specified/identified in the interdict or which regards or defines non-compliance with statute, regulation or legal obligation as misconduct. If the employer has a rule that stipulates that defiance or contravention of a court interdict would amount to misconduct, then, defiance of a court interdict in such an instance should treated as misconduct and not contempt of court. Alternatively the employer may choose to pursue contempt proceedings or the route of misconduct.
58. In this matter, the respondent went to court to obtain an interdict against the applicants. The respondent has a rule to the effect that if employees fail to comply with statute, regulation or legal obligation will be committing misconduct which could lead to a breakdown in the employment relationship (Section 18 (1) (a) of the EEA). Therefore, my view is that the respondent made a correct election to pursue the allegations against the applicants as pure misconduct and not as contempt of court because there is an existing that has been contravened. The matter before me is dismissal related misconduct. Therefore, I am not required as submitted by both parties in their heads of argument to pronounce on the validity of an interdict and its application but on whether misconduct was committed which is prohibited by the respondent’s rule. The applicant was interdicted from organizing and participating in any protests, protest meetings and protest marches at any of the campuses of the respondent. It is noteworthy that at the time of the applicant being at the college on 13 April 2011 he was on suspension and he participated in an unprotected march or industrial action in contravention of Section 18 (1) (a) of the EEA. I accordingly find on balance of probabilities that the applicant contravened an interdict as envisaged in the above provision.
59. It is arguable whether Aubrey on 13 April 2011 took part in the singing of the vulgar and derogatory song that was directed to Ms. Malete given that he was not seen on the video footage. The security personnel testified that Aubrey was part of the group that was singing and dancing at the college gate. Aubrey confirmed that he was in the same street with the protestors, that he could hear the lyrics of the song that was being sung. His testimony was that he was standing on the other side of the street waiting for Mr. Makwela, his union representative, so they could go to the NEHAWU office to prepare for their disciplinary hearing. The testimony of Aubrey was merely a bare denial of the allegations as it was not substantiated by any evidence, for example a confirmation by Mr. Makwela or at least sworn statement by Mr. Makwela to the effect that Aubrey was not part of the protestors, especially that his testimony is disputed by the respondent. I accordingly find on probabilities that Aubrey insulted and swore at Ms. Malete as alleged.
60. The 3rd applicant (Bucwa) was dismissed for contravention of a court interdict in that during the period of April 2010 to February 2011 he conducted himself in a manner that disrupted teaching and learning, threaten students, staff and generally disturbed the peaceful operations of the college and its campuses. Bucwa was drawn to an incident that took place on 16 September 2010 whereby Mpho Lebethe was allegedly threatened with violence while she was in her office in the presence of Naomi Motsepe and Tebogo Thabane. Bucwa’s own testimony attested to the fact that he was part of the delegation that was mandated by the staff to remove Mpho Lebethe from her office. Mpho Lebethe allegedly did not have qualifications for her position as a student support officer.
61. Bucwa testified that the intention of the staff was to remove Mpho Lebethe forcelly from her office and to lock the office after taking the keys presumably forcefully from her. It is clear that Bucwa’s testimony has hall marks of threats, intimidation and violence though he testified that he was against the use of violence. It was disputed that Mpho Lebethe’s telephone was unplugged by one of Bucwa’s colleagues. Bucwa testified that the labour Forum was angry and that it wanted to bring stability within the college, therefore, they wanted to decisively deal with the alleged illegal structure that was operating within the college. In my view, the conduct of Bucwa and the manner in which the labour Forum wanted to bring stability within the college had a potential to threaten students and staff and to disrupt teaching and learning as alleged by the respondent. Thereby in contravention of a court interdict which is prohibited in terms of Section 18 (1) (a) of the EEA as previously briefly discussed in paragraphs 57 and 58 above. Aubrey was cited as a respondent on the court interdict that was obtained by the respondent against him. I accordingly find on balance of probabilities that Aubrey contravened a court interdict as envisaged by Section 18 (1) (a) of the EEA.
62. The 4th applicant (Anthony) was dismissed for contravening a court interdict and for insulting and swearing at Ms. Malete. Anthony did not testify. His legal representative submitted in heads of argument that an adverse inference should not be drawn from the fact that he did not testify because the allegations levelled against him were similar in every respect with that of Mshuqwana. In essence his testimony and defence is presumably similar with that of Mshuqwana. I take notice of the above submission. However on close scrutiny of the evidence by the respondent, it is noted that Anthony could clearly be seen on the video footage. Anthony was dancing and singing with the protestors and as per the testimony of the security personnel and a video footage he was the last person to leave the college gate. Therefore, it is clear on preponderance of probabilities that Anthony was part of the group of unprotected protestors who had danced and sang derogatory songs aimed at Ms. Malete thereby in clear contravention of Section 18 (1) (a) of the EEA as alleged by the respondent. Even though Anthony was not cited as a respondent on the court interdict he in any case contravened Section 18 (1) (a) of the EEA as he was on suspension and participated in an unprotected protest were insulting and swearing songs were sung. In Tshisonga v Minister of Justice and Constitutional Development and another (2007) 28 ILJ 196 (LC) the Court held that the failure to call a witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the fact as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or may even damage his case.
63. Consistency is an element of disciplinary fairness. It is the perception of bias inherent in the selective discipline which makes it unfair. The criterion of fairness in cases where consistency is challenged is a value judgment dictated to by facts of each particular case and its surrounding circumstances. A claim of inconsistency can be sustained only if the earlier cases relied on are sufficiently similar to the case at hand to warrant an inference that the employer has indeed been inconsistent. The applicants argued that the respondent was inconsistent in dismissing them as other lecturers who were observed or identified to have been part of the protest march/strike particularly on 13 April 2011 were not disciplined nor dismissed for a similar offence. The applicants submitted that the group of lecturers who were protesting at the college gate on 13 April 2011 were from Pretoria West campus and they were aggrieved as their employment contracts with the college were not renewed. In my view the fact that the protestors on the day in question were no longer in the employment of the respondent it would be illogical to expect the respondent to initiate disciplinary proceedings against them for any misconduct as they were no longer employees of the respondent.
64. Consistency claim should be brought with sufficient details at the beginning of the process and not during the process to allow the respondent an opportunity to prepare for a response. My observation was that the names of the people who were allegedly not disciplined were elicited from the respondent’s witnesses instead of the applicants. For example, Ms. Motsepe identified a number of people who were at the college gate on 13 April 2011 who she believed were not dismissed, like Mampane, Matlala, Ndebele, Maramela and Hleza. Clarity could not be sought as a transcript was relied upon for Ms. Motsepe’s testimony. It is incumbent upon the applicants to provide names and details of the individuals who were not disciplined. The respondent testified that Mr. Kganaga, Mr. Ngobeni and Mr. Ledwaba have been charged again and the outcome of their disciplinary inquiries is pending. I accordingly on balance of probabilities that the respondent has not been inconsistent as alleged.
65. The applicants submitted that their dismissal was procedurally unfair as the respondent failed to process their appeals which were timeously lodged with the relevant authority. I took note that even though procedural unfairness of the applicants’ dismissals was raised at the identification of the issues in dispute, the applicants’ version of events around their appeal was not put to the respondents’ witnesses for their response. The issue of procedural besides that it was canvassed at the narrowing of issues it was only revisited during Arnold’s examination in chief. Therefore, no version on procedural unfairness of the applicants’ dismissals was put to the respondent. Therefore, I am unable to determine the issue of procedural unfairness in the manner required (NUM and another v CCMA and others (2018) 3 BLLR 267 (LAC)).
66. In Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the court held that, the duty of a commissioner in dismissal disputes is to determine whether the dismissal was for a fair reason and in accordance with a fair procedure. 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. Commissioners must have regard to all relevant factors, including the reasons given by the employer, when determining whether the sanction of dismissal was fair. In this matter the allegations proffered against the applicants in my view are founded. The applicants at the time of their misconduct were on suspension and they took part in an unlawful industrial action or protest, except for Arnold who participated in a protected protest on 23 March 2011 and Bucwa who was not charged with participation in an industrial action
67. In view of the above discourse and the totality of evidence before me, I accordingly find, on balance of probabilities, that the dismissal of the applicants was substantively and procedurally fair.

Award
In the premises I make the following order and award:
68. The applicants’ dismissal was fair.
69. The applicants’ claim is dismissed.
70. The Council is directed to close the file.

Justice S Mthombeni
ELRC Panellist
26 July 2022