IN THE ELRC ARBITRATION
BETWEEN: ELRC 212-23-24GP

CATHERINE Z. NYIRENDA “the Applicant”
and

DEPARTMENT OF EDUCATION – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: 212-23/24GP

Date of award: 26 June 2024
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 7th of September 2023 and proceeded as such. Both parties were present, the applicant was represented by Amukelani Baloyi of Baloyi and Associates and the Respondent was represented by Gileon Ramalepe the Employee of the Respondent.

1.2. The initial arbitration was held virtually however the parties agreed to a face-to-face hearing to mitigate against postponements due to network and load shedding issues .

1.3. From the onset, the representative of the Respondent indicated that they were objecting to legal representation. The parties were given an opportunity to make their submissions on legal representation, but both parties were in agreement that they wanted to do the application in writing.

1.4. Both parties were given an opportunity to address me on the application. An ex-tempore ruling was issued postponing the matter. Legal representation was granted and the arbitration proceeded with the applicant represented by Mr. Baloyi of Baloyi Inc.

2. BACKGROUND

2.1. The Applicant was employed by the Respondent (The Gauteng Department of Education) as a Principal of Kwanele Primary School for the past 8 years before termination. She was given notice to attend a disciplinary hearing at which she faced one count of financial misconduct. She was found guilty and dismissed from her employment with the Department.

2.2. Dissatisfied with her dismissal, the Applicant referred a dispute to the ELRC for unfair dismissal.
2.3. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal for misconduct as provided for in section 191(5)(a)(i) of the Labor Relations Act 66 of 1995 (LRA.)
2.4. I am now required to decide whether the dismissal of the applicant was unfair substantively and procedurally and then to make an order accordingly.

3. RESPONDENT’S EVIDENCE AND ARGUMENTS

3.1. The Respondent called its first witness Ms Anita Riet the Deputy Chief Education Specialist LTSM.

3.2. The witness testified and described that there are two categories of schools (a) The self-managing S21 schools and (b) Non S21 schools or otherwise called S20 schools and that the latter are managed by the Department. During procurement process the schools procure according to their needs. The Department has a catalogue with items that the schools use to procure, if the item that the school wants to procure is not in the catalogue the schools are given vouchers to procure what they require. She described pg. 5 to 11 as the Memo written for all the schools that receive the vouchers. The Memo outlines all the procedures to be followed when utilizing the vouchers. It outlines the responsibilities of the Principal as the person responsible for safeguarding the vouchers.
3.3. She testified that it is very important for the vouchers to be utilized for the purpose for which it was obtained.

3.4. She testified that, there is a requisition form that the schools complete for outsourced items which are not in the catalogue. She showed Pg. 12 as the requisition form completed by Kwanele Primary school where the applicant was the Principal. The requisition was signed by the Applicant indicating that they needed certain items which were not in the catalogue. The items requested in the requisition form were LTSM, meaning that they were for Learning, Teaching and Support Materials.

3.5. Pg. 15 was described as the delivery note issued by the Managing Agent Bongani Rainmaker. She confirmed that the vouchers were issued to Zanele Maseko the LTSM coordinator after they were given training on the use of the vouchers. The total value was the value of the vouchers issued to Kwanele Primary School. She confirmed that Maseko signed for receipt of these vouchers. Maseko had a responsibility to hand over the vouchers as well as all the information she received to the Principal as the person responsible for the vouchers according to the Memo.

3.6. She reiterated that all the attendees are given training on the use of vouchers each time they come for collection of the vouchers. She further testified that when they are issued with the vouchers they verify the number on the voucher against the number on the delivery note, it gets ticked then they take delivery of the voucher, once all the vouchers have been received, they sign and stamp the document, then they can leave.

3.7. She stated that the vouchers have a timeline for usage because the schools know what they need to buy and where to buy it as they have obtained quotations prior to completing the requisition.

3.8. She testified that she received a report that Kwanele Primary school did not procure according to the requisition. She conducted her investigation and indeed discovered that the items on the requisition were not the items on the invoices, meaning that the school did not procure according to the requisition and further the items were not LTSM. She testified that deviation is not allowed and that if there is a need, the school is supposed to request permission first before they can proceed. There is a letter indicating deviation and the letter happened to be there on the 19th October 2021. The principal indicated that she had informed the district of the deviation by letter but the district had not received such a letter.

3.9. She testified that the invoices she picked up were invoices of groceries, clothing, building material and fuel and she confirmed that these items were not LTSM, and this was mismanagement of funds. The Principal indicated that sometimes when she was busy, she would send people to make the purchases for the school. She testified that some of the vouchers have not been returned, they are still with the SGB members.

3.10. Page 30 to 49 of the bundle are agreements signed by the SGB and individuals taking vouchers in exchange for cash, this is not allowed under no circumstances. It amounts to a transgression of the Memo. She stated that to her it appeared as if the school was selling vouchers. She testified that she visited the school on the 19th October 2021 and she was not shown these agreements, she only saw these at the disciplinary hearing.

3.11. She testified and demonstrated through documentation that vouchers were allocated to certain individuals as per their agreement for cash but the same voucher actually used by either the applicant or other people to make purchases for items that were not LTSM. She stated that each voucher was for R5000 normally but it depends on what the school has requested.

3.12. She testified that the school had requested to make a purchase of a printer, quotation was for R75 469.95 on the 20th September 2021 but the machine ends up paid for by the school from its Standard bank account when there were vouchers that were issued for the purchase of the Printer. This amounts to mismanagement of funds.

3.13. She testified that she was informed that the school had indicated that the vouchers were not user friendly and that some suppliers were not willing to take the vouchers, her advice was that they should buy from another supplier which offers what they had requisitioned for.

3.14. Under cross examination the witness was asked when did the district start using the system and she stated that it is a fairly new system, that it started in 2020. She stated that in the past the Managing Agent would make the purchases.

3.15. She reiterated under cross examination that training was conducted when the vouchers were issued and the Memo gets issued when the vouchers are issued.

3.16. When asked about the deviation, she stated that deviation was allowed only on merit.

3.17. The witness was questioned about the administration fee, she indicated that it is about R19.80 per voucher. She stated further that the Managing Agent has an agreement with Greenstone shopping Centre, if the voucher is utilised at the shopping centre there is no levy paid, however if the voucher is utilised in any other shopping centre, a levy gets charged.

4. SECOND WITNESS
Gertrude Tseki The Deputy Chief Education Specialist of Library Services and LTSM
4.1. She testified that she coordinates processes of library services and ensure that LTSM is in all the schools.

4.2. She corroborated the evidence of the first witness and stated that the Memo is utilised in the procurement of outsourced LTSM items that are not in their GDE catalogue.

4.3. She confirmed that she wrote the report on Page 20. Which confirms that Kwanele Primary school had been allocated vouchers, and that the rationale for the allocation of the vouchers was that the items they required were not available in their GDE catalogue.

4.4. She confirmed in the report that the school was issued with 36 vouchers to the value of R178 183.00. She testified that according to the utilization report dated 5th October 2021 submitted by Mr Mthembu of the R74 654.73 only 1.2% of the items were LTSM related. She testified that the vouchers were used to purchase groceries, camp chairs, petrol, KFC etc.

4.5. She confirmed that the Principal was the custodian of the vouchers.
4.6. She confirmed that Maseko had signed for the receipt of the vouchers.

4.7. She confirmed that training was done on how to utilise the vouchers and if there were any questions, they were addressed and the attendees sign in acknowledgement.

4.8. She testified that the school had used vouchers were used to purchase items that were not in the requisition and not LTSM related.

4.9. She stated that there was a purchase on the 1st of September 2021 and yet she called a meeting on the 2nd September 2021 to say the vouchers were not user friendly. On the 3rd of September 2021 the school started exchanging vouchers for cash, this was in violation of the Memo.

4.10. This witness testified that if the schools experienced problems with the vouchers, they were supposed to source support from the District. She testified that the school had advised Mthembu about a supplier that would not accept the vouchers and he advised them to source another supplier and this was on the 21st September 2021.

4.11. She reiterated that the Memo does not allow for the schools to divert to buy items that are not requisitioned.
4.12. She testified that LTSM stands for Learning, Teaching and Support Materials and the purpose is to support the implementation of effective teaching and learning in the classroom at the schools.

4.13. She reiterated that the items bought by Kwanele Primary school had nothing to do with the implementation of effective teaching and learning and it was not in line with the request which was geared towards the learning and teaching in the school.

4.14. Under cross examination it was put to the witness that anyone can use a Makro card to purchase, and the card name will reflect on the invoice, the witness denied this and stated that she has experienced that when she forgot her card at home, she was not able to use someone else’s card, she was told to get a temporal card at the service desk.

4.15. She reiterated that training gets conducted on the day when the vouchers are issued to the schools.
4.16. She stated that the Principals are supposed to report on the purchases attaching supporting documents to the facilitators. The facilitators report to the witness.

5. Third witness
Noluthando Felicity Mokherenyane Teacher at Kwanele Primary School.
5.1. She testified that her current occupation is Educator, but she was employed as a Finance Officer from 2015.

5.2. The witness was referred to Page 28 of the bundle, and she confirmed that she had knowledge of the documents and that these were minutes that she was requested to type by the Principal, Ms Nyirenda. She testified that she did not attend this meeting, although it was a FINCOM meeting she had not attended this meeting. She testified that as a Finance Officer she was part of the FINCOM but reiterated that she had not attended the meeting in question. She believed that the meeting did not occur.

5.3. She testified that she was given the minutes which were handwritten by the Principal to type.
5.4. She testified that she knew the document on page 27 and that she was requested by the Principal to type the minutes of the SGB. She has no knowledge if the meeting did occur because she was not part of the SGB committee.

5.5. She testified that she could not remember when exactly she was given the hand written notes to type out, but she can recall that it was last year 2022 and they did this as the Principal was preparing to attend the case regarding the vouchers.

5.6. The witness testified that she was instructed by the Principal to sign document on page 38 which is an agreement between herself and the SGB acknowledging receipt of the voucher in exchange for cash. She confirmed that she signed the document because she was instructed to do so by the Principal, although she had not received any voucher. She testified that she did not pay any money in cash to the school or SGB. She testified that she did not receive both vouchers that she signed receipt of.

5.7. When asked why her name appeared on the invoice, she testified that she was given a list of items to buy for the Principal, she used her Makro card to make the purchase. She testified that some of the items bought could have been for the catering for the SGB because they always had catering when they had their meetings. She confirmed further that these items were not LTSM related. She testified that the voucher that she used to make the purchase at Makro was allocated to Mrs Mazibuko, but she received it from the principal.

5.8. She testified that the school received vouchers because they required a photocopying machine and learners’ books.
5.9. She testified that the photocopying machine was bought by the school account and not the vouchers as requested. She stated that she knew this because she was the one that made the payment after the Principal gave her the instruction to pay on the 27th October 2021.

5.10. She testified that that with all the vouchers which were allocated and signed for by all the people as indicated from pages 30 to 49, none of those cash deposits appear on the school account or Statement. There is no evidence of any money paid back to the school.
5.11. She confirmed that she was the one that typed out the minutes on pages 28 and 29 of the bundles and again the Principal instructed her to sign the attendance register.

5.12. She reiterated that the Principal was responsible for the consolidation of the vouchers and the usage of the vouchers.
5.13. Under cross examination it was put to the witness that the Auditors gave the school a clean audit for 2021 because there was nothing untoward that they found in the school finances.

5.14. It was further put to the witness that the minutes that she testified to have typed in 2022 were actually typed in 2021 because in 2022 she was no longer in the position of the Finance Officer, she was now in the position of an Educator.
5.15. The witness denied this and stated that although she was an Educator, she had two subjects and she was in the office most of the time because the Principal told her that she was the right person to deal with the Auditors at the end of 2022 financial year. Although she was appointed as an Educator, she continued to perform her Finance Officer duties.
5.16. Under cross examination the witness was asked to confirm if there were any payments made for building material in the School Bank Statement, she confirmed payments to the amount of R202 284.34 at different times while the construction was going on. She further confirmed that the school embarked on staff room renovation and built three toilets for the females and one toilet for the males.

6. Fifth witness:
Zama Antoinette Mofokeng: SGB Deputy Chairperson.

6.1. The applicant’s representative objected to this witness testifying stating that they had intentions to call this very witness. The witness denied that she was informed that she would have to give evidence on behalf of the employee. The witness was allowed to proceed with the understanding that the applicant’s representative will put his version on the witness under cross examination.

6.2. The witness continued to testify that initially when she started with the SGB she was the Deputy Secretary to Mr Mthethwa who was the Secretary of the SGB and part of her duties were to capture the minutes when the Secretary was not there. She testified that they were advised that those positions were not necessary. Then the following year, she was appointed as the Deputy Chairperson of the SGB.

6.3. She testified that she knew the document on page 176 to be a handover document after the nominations of the new SGB.

6.4. She testified that Malisela was the Treasurer for the duration of the year 2021.
6.5. The witness denied ever signing the document on page 27 and the signature is not hers, she stated that her “F” in her signature is always facing towards the left and the one on the document is facing the opposite direction. She compared the signature on page 27and the signature on page 177 which she confirmed was signed by herself.

6.6. She denied ever attending a meeting on the 2nd of September 2021.
6.7. She testified that the Principal, the Chairperson of the SGB, the Treasurer and the Finance Officer are members of the FINCOM. She stated that only those people attend the FINCOM, and Mkhwanazi does not feature anywhere, but her name is appearing in the list of attendees on page 27. She denied that this meeting ever happened. There is no meeting that happened where vouchers were discussed. The only time she heard anything about vouchers was last year when she was called and asked about the distribution of the vouchers.
6.8. She testified that the only other time she heard anything about the vouchers was when she was a Chairperson of the SGB in a FINCOM meeting.
6.9. She reiterated that the meeting of the 3rd of September 21 never happened, it is a fraud. Her signature was forged, the signature on that document is not hers.

6.10. She reiterated that for Mkhwanazi to sign as a treasurer is incorrect.
6.11. She testified that when schools reopened, Mr Motsoeneng was co-opted, Mkhwanazi was also co-opted in December 2021 because of her skills in fundraising. Again, she denied that Mkhwanqzi was a treasurer in September 2021.
6.12. She testified that Mkhwanazi had no right to redirect the vouchers to staffroom project. She stated that on face value, looking at the signature of Mr Malisela on page 177 and 49, the signatures don’t look the same.
6.13. Under cross examination the representative of the Applicant submitted that if the meeting had proceeded without the witness, there would have been no need to forge her signature.

6.14. It was put to the witness that Mkhwanazi was a Treasurer in March 2021, the witness stated unequivocally that, that was not true.
6.15. Again, under cross examination the witness denied that there ever was a meeting on the 3rd of September 2021.
6.16. She denied vehemently that there was ever a meeting on the 2nd September 2021. She reiterated that Mkhwanazi was not a member of the SGB until she was co-opted in December, she stated that if there is anyone from the SGB who comes to testifies that there was such a meeting, it will only be because they knew about the vouchers.

The Respondent closed its case at this point.

7. APPLICANTS CASE
Ms Zanele Catherine Nyirenda

7.1. She testified under oath and stated that she has been in the employ of the Respondent since 1994 as a teacher at Abram Hlophe Primary School, after which she became an HOD and then got a promotion to become a Deputy Principal. There openings for the Principal position in several schools and Kwanele Primary was one of those schools. She applied and was appointed as a Principal in 2012. The school had 300 children. She confirmed that she has a service of 29 years in the service of the Respondent.

7.2. She testified that the school is a Section 20 school, the finances are handled by the Department. They applied for Section 21 but their application was denied.

7.3. She testified that on the 23rd of August 2021 Mr Maseko the school LTSM Co Ordinator came to her office and indicated that he had received a call from Mr Mthembu to go to Bongani Rain maker with the school stamp. Mr Maseko was given permission to attend to the LTSM appointment as requested.
7.4. Mr Maseko came back with 33 vouchers and a Memo. 32 vouchers were R5000 and the last one R3600. The vouchers were handed to Noluthando for safe keeping. She stated that prior to this, she had never come across vouchers.

7.5. She testified that they were never trained on the use of these vouchers, Maseko only brought the Memo. They went through the Memo with the HOD’s Maam Mthethwa and Ms Maluleke and Maseko.

7.6. She testified that for each use of the voucher there is a fee of R18.00 which gets deducted, she testified that page 2 to 4 is not a true reflection because these amounts are R5000 and as she has stated every time one used the voucher it charges R18.00. She stated that these documents were cooked in order to dismiss her for misconduct.

7.7. She testified that the Memo itself on page 10 at the bottom, states that the vouchers have to be issued out to the Principals only, Maseko is a teacher and LTSM Coordinator, why were they issued out to him.
7.8. She confirmed that she was charged with Mismanagement of funds.
7.9. She testified that page 17 is an attendance register for Rainmaker meeting attended by Mr Maseko.
7.10. She confirmed that she knew Ms Getrude Tseki from the LTSM meetings. She confirmed that the report on page 20 was for voucher utilization by Kwanele Primary school.

7.11. She confirmed page 24 is a report by Anita who had ben to the school. They had given her their version of what had transpired. She testified that she called Ms Anita and she advised that they should contact Mthembu. When they spoke to Mthembu he advised that they should go to another supplier.
7.12. She stated that the Photo copying machine was a big item costing over R100 000. They were able to get the readers from a shop at the Mall of the South and the vouchers were declined at CNA. Greenstone didn’t have the Readers.

7.13. She testified that they managed to purchase all the LTSM material but they didn’t use the vouchers. She testified that they had a project that they were working on (Building the staff room). They exchanged, took the money meant for the Project and bought the machine and the Readers and used the vouchers to build the staff room.

7.14. She testified that she consulted with the SGB when Maseko came back from purchasing the printing machine and had experienced issues with the vouchers. She asked Mr Gumede to call a meeting because if they didn’t do anything they were going to forfeit the vouchers. Anita advised them to go to other shops.

7.15. She testified that page 27 is the attendance register for the urgent SGB meeting, the secretary of the SGB was Mr Ntsutsha, Maam Mthethwa and Mr Gwala. The three rotate as secretaries. She denied that Mokgerenyane typed these minutes and stated that she was not part of the SGB and therefore could not have typed the minutes.

7.16. She testified that the SGB had embarked on the staff room building project, and this was a huge project. It included the Finance office, the kitchen, three (3) toilets for lady teachers, two (2) toilets for male teachers a store room for kitchen utensils and a second store room for exam stationery. She estimated the cost of the project to about R800 000.

7.17. The SGB agreed to pay the builder cash using the money they were collecting from the teachers who had opted to take the vouchers. Mrs Mkhwanazi was appointed to deal with the vouchers because they did not want the vouchers to get mixed up with school finances. She testified that; the school had a clean audit in 2021-2022.

7.18. She testified that they received vouchers but only signed the agreements later. The vouchers were handed out by Mrs Mkhwanazi. She stated that before the SGB came to an agreement, Mr Gwala was sent with a voucher to make a purchase at Makro and because he did not have a Makro card, she gave him her card. She testified that the LTSM coordinator refused to take the voucher because he didn’t need one. She testified that Mokgerenyane took vouchers and paid back the money.

7.19. She testified that Maseko will come and testified that he was threatened by Mr Ramalepe, they were all forced to come and testify against her and that Mokgerenyane was one of the people that were forced to come and testify against her. She testified that Maseko even reported the threats to his Union and he was advised to wait for the letter of dismissal. Gwala had also informed her that Ramalepe had informed them not to take responsibility for the vouchers.
7.20. She stated that the auditors did not pick up any mismanagement of finances.

7.21. Under cross examination she confirmed that as the Principal she is the overseer of the LTSM, ensuring the division of the money between all the Departments, ensuring the audit is done before placing an order to avoid repeat orders. She confirmed that she received the MEMO on the 23rd when the LTSM coordinator was coming from the meeting with the Service Provider. She was with Mokgerenyane the school Administrator when Maseko gave her the Vouchers and the MEMO. Maseko had been called by Mthembu, and told to bring the school stamp. She reiterated that it was not odd for him to go with the school stamp.

7.22. She confirmed that she understood how to utilise the vouchers from reading the MEMO. She confirmed further that the vouchers were given to her in her capacity as the Principal. She stated that she did not recall pages 5-7 of the bundle (The Procurement of outsourced material utilizing the allocated vouchers)
7.23. She reiterated that Maseko did not know that he was going to fetch the vouchers. She stated that if she was the one that was invited, she would have gone there but she wasn’t. When Maseko came with the Vouchers, She called Noluthando because she had the keys to the safe. The vouchers were given to her for safe keeping in the safe.

7.24. The applicant confirmed that only the items on the LTSM requisition were to be purchased using the vouchers.
7.25. She testified that they attempted to make a purchase using the vouchers but the owner of the shop refused to take it, they called Anita and Mr Mthembu who informed them to try other shops.

7.26. She testified that Mofokeng attended that meeting and that it is not true that the signature on page 27 is not her signature
7.27. Page 28 are the minutes for the urgent FINCOM meeting. She confirmed the signature of the treasurer as that of Maam Mkhwanazi who was also an SGB member. She was chosen to deal with the vouchers because they were avoiding clouding he finances with vouchers. She confirmed that Maam Mkhwanazi was chosen at the urgent meeting.

7.28. At the SGB meeting the Chairperson gave her an opportunity to address the meeting.
7.29. She stated that the supplier refused when they went to buy using the vouchers, so they came back and made a decision to use the vouchers themselves so that the money they were paying back could be used for buying the material to build the staff room. The resolution was taken urgently because the vouchers had an expiry date of the 24th of September 2021.

7.30. She confirmed that she underwent the SASA training, which was training on finance handling in the school.
7.31. She stated under cross examination that Mkhwanazi was appointed to assist with the vouchers, she was previously a Treasurer and when she did the handover of the previous year’s finances, they unanimously agreed to co-opt her to assist the current treasurer Mr Malisela.
7.32. She denied that the MEMO was ever violated, she stated that they never received training on the use of the vouchers.
7.33. She conceded that the items bought using the vouchers were not LTSM items but reiterated that she was never trained on the use of the vouchers.
7.34. She stated that the teachers and SGB members who were given vouchers signed the agreement, vouchers were issued first then the agreements were signed later. As the teachers brought back cash, cash was used to pay the builders.

7.35. She reiterated that it was important for them not to lose the money, the vouchers were expiring and they were not going to allow that to happen. She conceded that there is no policy authorising the exchange of the vouchers for money, instead she made sure that the money served the school as allocated.
7.36. She stated that the invoices submitted by the Department are not from the school, that they were able at the end of the day to purchase the LTSM items so she does not believe that there was anything wrong with what they did. If they had not done what they did, they would have forfeited the vouchers and Govt would have taken the money back.

7.37. She conceded that they bought what they wanted to buy using the vouchers but they paid back the money in cash.
7.38. The Respondent submitted that the applicant’s experience is 12 years as a Principal and therefore she should have known that using vouchers allocated for LTSM for personal use was in contravention of the MEMO.

7.39. She stated that the staff room project was about R 700 000 to R800 000, stated that this was money received from the department towards maintenance. She stated that she could not remember the process that they followed to procure the builder, later she stated that the SGB took the decision and that she is not responsible for the SGB. Confirmed that the is the accounting officer as the Principal and that some of her responsibilities are curriculum, staff and staff members.

7.40. The applicant failed to explain why Nkambule’s agreement indicated a different amount to the amount used and part of the voucher allocated to Nkambule was again used for buying building material and she stated that the invoices did not come from the school, they came with Anita so they have been forged.

7.41. She confirmed that the value of the vouchers allocated to Kwanele Primary school amounted to R 178 183.00. She confirmed that R 96 260.00 was exchanged but could not explain what happened to the rest of the money. Eventually the applicant referred to page 173 and stated that all the vouchers that were not exchanged were re-directed to the Staff room project.

7.42. She stated that Molapi advised them to write a letter to the Department and request to re direct the funds, but the letter was not submitted to the Department, she did not know how the Department got hold of the letter.
7.43. She stated that they made mistakes because they were not trained on the use of the vouchers.
7.44. She confirmed that the printing machine was bought using school money not the vouchers as requisitioned. She confirmed that she deviated from the Memo, but reiterated that she used her own interpretation of the Memo to ensure that the school did not forfeit the monies despite the fact that they were not trained.

7.45. She stated that the vouchers were given to all the teachers and SGB members who were willing to take them and reimburse the school with cash.
7.46. She denied that she instructed Mokgerenyane to type the minutes after receiving the charge sheet.

8. The 2nd Witness of the Applicant
Lindokuhle Mduduzi Gumede (The Chairperson of the SGB 2021)

8.1. He testified under oath and stated that he was appointed by the parents.
8.2. He confirmed that he knew Ms Mkhwanazi, and that she is an SGB member, she was co-opted in the middle of the year 2021 because of her experience in Finance and Fundraising. They had agreed as the SGB when she was doing the handover.
8.3. He testified that on the 23rd of August 2021 they had received the vouchers from the Department for the purchase of the LTSM items. They quickly realised that there was an issue with the vouchers, they could not purchase what they were meant to purchase. The SGB took a decision to use the vouchers to purchase building materials because they had an expiry date.

8.4. He confirmed that page 27 was an attendance register for an urgent SGB meeting, that his name appeared as number 5 on the list. The minutes were typed by the SGB Secretary who is a teacher Mr Ntsutsha. Ms Mthethwa had two assistants because she was not able attend all the meetings because of her commitment at the school. He denied that the minutes were typed by Noluthando Mokgerenyane and testified that Mokgerenyane was a Finance Officer and has never been an SGB member, so she couldn’t have typed the minutes.

8.5. He testified that he was surprised that Mofokeng testified that she never attended this meeting because she was definitely there. He testified that this was an urgent meeting and he needed everyone to be there. The meeting would not have proceeded without her. He needed everyone to be heard, with the exception of Sibiya who was always absent.

8.6. He testified that they have never used the vouchers to buy LTSM items, they were further not trained on the use of the vouchers.
8.7. He testified that Mkhwanazi was asked to assist with the vouchers because they did not want the vouchers to be confused with the school finances.
8.8. The FINCOM held as per page 28 was about the vouchers.

8.9. He confirmed that page 30 is a contract that was created after Mr Gwala reported to them that the vouchers could not purchase at certain shops but was able to purchase at shops like Makro. They decided to give the vouchers to teachers for their personal use and give the school cash back. The agreement on page 30 onwards were signed by those that took the vouchers.

8.10. He confirmed that the cash was used to pay the contractors, cash was collected by Noluthando in bits and pieces as the Finance Officer.
8.11. He confirmed that the SGB came with the idea of building the staff room because the teachers were working under the tree even when its windy and raining. The teachers were using the same toilets used by the learners.

8.12. He confirmed that the LTSM items were bought, even though they were not bought using the vouchers. He testified that the school has had a clean audit since 2021 so he is convinced that there was no mismanagement of funds.

8.13. Under cross examination the witness conceded that he read the Memo and understood it. He reiterated that they were never given any training on the use of the vouchers. His understanding was that the Principals role with regards to the vouchers was to keep the vouchers safe. Noluthando, who is the finance officer was responsible for the finances.

8.14. He confirmed that the minutes of the 2nd of September 2021 were typed by Mr Ntshutsha and stated that the issue of the dates was just a typo, when asked why the typo was not corrected at their next meeting as the minutes of the previous meeting are read for correction then signed by all concerned, he could not give any answer.

8.15. When asked why the co-option of Ms Mkhwanazi was not tabled on the resolutions of the, he stated that it was agreed after the meeting.
8.16. He conceded that they were not allowed to use the vouchers to buy building material.

8.17. He denied that Ms Mkhwanazi was not an SGB member in July as testified by Ms Mofokeng. He stated that Ms Mofokeng had every reason to lie for the Respondent because she was paid by Mr Ramalepe. He stated that she was paid enough to put a roof at her house.
8.18. He stated that each time anyone was given a voucher, they would sign the agreement. It must be noted that all the agreements were signed on the 3rd September 2021.

8.19. He conceded that he knew page 50 as the report for the diversion of the monies, that they wrote it together with the Principal as well as the Treasurer. He stated that the report was submitted to the Department.

8.20. He stated that he asked Mr Malisela to sign the report on his behalf because he had to go to work. He reiterated that it was the right thing to do informing the District of the decision they had taken.
8.21. Later he stated that the school apologised to the Department for using vouchers to buy building material, however they were satisfied that they had done the right thing.

8.22. The witness later stated that the vouchers were issued, then the agreements were formalised later. Then stated that he could not remember when the vouchers were issued, it may well have been on the 2nd or 3rd of September 2021.
8.23. He stated that the builder was paid R10 000 from the vouchers not R 60 000 the rest of the money paid to the builder came from the school account. He said it was clear why the builder did not issue receipts when he was paid earlier and only R10 000 was outstanding.
8.24. The respondent submitted that the witness was not truthful because there is no trace of any money from the school account paying the builder R50 000.
8.25. He confirmed that the vouchers did not purchase the LTSM items
8.26. He stated that the building of the staff room was authorised by someone from the Department, although he could not remember who it was.

9. Third witness
David Oupa Malisela SGB Treasurer
9.1. He testified and stated that he was appointed as Treasurer of the SGB at Kwanele Primary School. He confirmed that he was the Chairperson of the FINCOM.
9.2. He testified that he knew Mkhwanazi and that she was the Treasurer of the previous SGB, that she was requested to assist their team because of her experience. She had vast experience in fundraising and as Section 20 school they relied on fundraising significantly.
9.3. Mkhwanazi was approached to deal with the issue of vouchers.
9.4. He confirmed that the vouchers were for the purchase of the LTSM material.
9.5. They had not been trained on the use of the vouchers.

9.6. The SGB decided to exchange the vouchers with the staff because the vouchers were expiring. The staff signed agreements as they took the vouchers.
9.7. He testified that Mokgerenyane was a clerk, that she received the money and she was there when the agreements were prepared by the secretary
9.8. He testified that on the 2nd September they had an urgent meeting regarding he vouchers.
9.9. He denied that Mofokeng’s signature was forged, they had no need to do that because they made the quorum even if she was not there.
9.10. Mkhwanazi ran with the meeting of the 2nd September 2021 because she was responsible for the vouchers and that is why she signed at the bottom of page 26. Mkhwanazi was responsible because the meeting related to the vouchers and that is why his name did not appear.
9.11. He questioned why the (Page 51) letter written to the Department was in the file because it was actually not submitted, it was an old version, they drafted a better one. He confirmed that he signed the letter for Gumede as authorised. He stated that he could not put his name because he was not the chairperson.
9.12. He testified that they came to this conclusion because they feared losing the money. He stated that SASSA document allows for the diversion of the funds.

9.13. He testified that as an SGB they have every right to take decisions that benefit the school, they make the laws.
9.14. He confirmed that they apologised for buying things that were not LTSM using vouchers.
9.15. He confirmed that page 110 was a receipt for the payment of the builder. Builder was paid with monies received from the vouchers. It is possible that the builder was paid bit by bit and when the money was paid in full, he would issue the receipt.

10. 4th witness
Vusi Freddie Ntsutsha: SGB Secretary
10.1. He testified under oath and stated that part of his duties is to organise minutes, draft agendas and correspondence coming in and out.
10.2. Teachers are appointed as Secretaries for the SGB for confidentiality purposes.
10.3. He confirmed that Ms Mokgerenyane was in the meeting referred to on page 27 of the bundle. She was not an SGB member so she attended the FINCOM not SGB.

10.4. He confirmed that the school had received the vouchers that were not user friendly so there was a decision to exchange and give them to the staff who paid back in cash. The vouchers were expiring.
10.5. He testified that they were not trained on the use of the vouchers. And that the vouchers were regulated by the MEMO.
10.6. He testified that Mkhwanazi was co-opted into the SGB because of her expertise. She was trusted to handle the vouchers. Cash received back was used to pay the builder.

10.7. He denied that Gumede was appointed as the Secretary as it appears on page 174 of the bundle, reiterated that the minutes are not a true reflection of what transpired.

10.8. He conceded that he drafted the minutes on page 180 of the bundle.
10.9. The witness initially testified that he paid back R5000 then he was shown another agreement, then he changed and stated that he paid back R10 000.
10.10. He confirmed that he bought food and drink using the vouchers. Later stated that he could not remember exactly what he bought.
10.11. He reiterated that they were not workshopped how to use the vouchers more especially because the vouchers had an expiry date.
10.12. He testified that the staff was told to remain to sign the contract after the meeting where they decided to exchange the vouchers.

11. 5th WITNESS of the Applicant
Sibongile Favourite Mkhwanazi: Treasurer of the SGB
11.1. This witness testified under oath and stated that she had been a member of the SGB from 2020 until March 2024. She started just as a regular member of the SGB then she was elected to be treasurer from 2022 t0 2024.
11.2. She testified that she was asked to join the SGB in December 2021. She did the plannery in November 2021 then was fully fletched in 2022 at election time.

11.3. On the 9th April 2024 she met with the applicant Mrs Nyirenda and they went for consultation at Baloyis offices.
11.4. She stated that she could not continue telling lies, she testified that they were meeting at Baloyi’s office planning lies, and her conscience did not allow her to continue telling lies.

At this point the applicant’s Attorney Baloyi made an application to declare the witness hostile.
A ruling was made and the witness was declared hostile in terms of Section 54 of the Evidence Act. The Attorney could proceed to treat this witness as a hostile witness and he was authorised to cross examine his own witness, however the applicant’s Attorney declined to proceed with the witness and called for the evidence to be scrapped and the witness to be disqualified as he did not wish to proceed with the evidence of this witness. (The Applicant’s Attorney requested the matter to stand down for him to prepare himself to proceed with the witness, this was allowed however the Attorney did not return).
12. The 6th Witness
Thulani Antony Gwala: Educator Kwanele Primary School
12.1. He testified under oath and stated that page 27 was an urgent meeting where they agreed to exchange the vouchers to buy building material. He confirmed that Ms Mkhwanazi assisted Mr Malisela in treasury. Mkhwanazi was co-opted from the previous SGB before 2021.
12.2. He confirmed that Ms Mkhwanazi was there and stated that she would be lying if she said she was not there and signature appearing was her signature. He reiterated that she was there and even testified at the Disciplinary hearing for the Principal.
12.3. He denied that the minutes were concocted.
12.4. He testified that he knew about the vouchers, that he was sent to test using the vouchers at Makro.
12.5. He testified that he was the one that was sent to check if they would be able to buy using the vouchers, he stated that he took the voucher on the 1st September 2021 and signed the agreement on the 3rd September 2021< that he paid the money back to Mr Ntshutsha.
12.6. He testified that page 26 was an error of typing and stated that he could not recall why it was never corrected.
12.7. When asked why his statement is now different to what he had stated during the investigation, he stated that he was intimidated by the representative of the Respondent and he recommended what he should state in his statement. He could not state clearly what was said to intimidate him.
12.8. He denied that the school principal had mismanaged the vouchers and stated that the items were eventually bought although they were not bought with the vouchers, but they are there at school and the learners are benefiting from the use.

13. The 7th Witness
Zakhele Maseko: The Educator and LTSM Co-Ordinator at Kwanele Primary School
13.1. He testified that he has been an educator for the past 9 years.
13.2. He testified that as the LTSM co-ordinator He prepares the needs analysis for the school, approaches the teachers through the HODs to find out what the needs are. This is done in the 1st Quoter of the year. Sends the needs analysis to the District Coordinator after getting the approval of the Principal.
13.3. The Co-ordinator sends the catalogue in the 2nd quoter for him to purchase what was captured in the needs analysis. This is done electronically as well as physically, the District co-ordinator will check that the budget tallies with the
13.4. The District co-ordinator together with Rain Maker capture on the system, it gets printed and signed. In the 3rd quoter they might receive the order or earlier the following year.

13.5. There were changes in 2021 because when they were supposed to get the order, he was called by the Co-ordinator Mthembu to come to Centurion with the school stamp. Upon arrival they were informed that they were going to be given vouchers instead to purchase what was in the requisition.
13.6. He testified that he did not have any prior experience with the vouchers. He testified that they were not trained save to say that the vouchers would expire and if they were not used in time they would forfeit.

13.7. He conceded that they were given the MEMO, that he gave it to the Principal.
13.8. Afterwards Maam Mthethwa, Skhosana, an Administrator and Maseko went to the supplier in Alberton where the supplier demonstrated how the machine works, however the branch with the machines was in Centurion. The following day they went to Centurion with Skhosana however they were unable to pay for the machine because the supplier did not accept the vouchers.

13.9. He testified that they further went to PNA at the Mall of the South and again they were not able to pay using vouchers. He informed Mthembu about the payment issues encountered who promised to call him back but never did. He stated that he gave the vouchers back to the Principal.
13.10. He stated that Mthethwa asked him to take the vouchers, but he refused because he did not have cash to pay back to the school
13.11. He confirmed that the printer as well as the dictionaries and readers were purchased because he was instructed to go and collect them at PNA at Mall of the South.

13.12. He confirmed that Ms Mkhwanazi was an SGB member in 2021 because he had seen her at the school. Further that she participated at the disciplinary hearing in the school.
13.13. He testified that when they collected the vouchers, they were told to read the MEMO and that the vouchers expired in 30 (thirty) days.

14. ANALYSIS OF EVIDENCE

14.1. The Applicant was charged in terms of Section 18 (1) of the EEA with Misconduct in that “On or around September / October 2021, she wilfully or negligently mismanaged the finances of the school, in that she used and/ or caused vouchers budgeted for LTSM materials to buy items which are not LTSM related and were not listed in the requisition form.
14.2. According to Item 7 of the Code and the ELRC guidelines on Misconduct Arbitration, the first consideration regarding the substantive fairness of a dismissal requires a factual determination as to whether or not the employee actually contravened a rule or standard regulating conduct in the workplace. In Sdumo and another v Rusternburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC), [2—7] 12 BLLR 1-97 (CC)the Court that in arriving at a decision, the Commissioner is not required to defer to the decision of the employer but that it should consider all the relevant factors and circumstances. Amongst the factors relevant to the determination of fairness are:

• The importance of the rule that was breached
• The reasons for establishing the rule including its reasonableness
• The harm caused by the employees conduct
• The impact that it had on the trust relationship.
• The effect of setting a precedent
• The reasons why the employer imposed the sanction of dismissal
• The basis of the employee’s challenge to the dismissal

14.3. The Respondent testified through The Deputy Chief Education Specialist LTSM Ms Riet that she received a report that Kwanele Primary had not procured according to the requisition. That she conducted an investigation and indeed discovered that the items on the requisition were not the items on the invoices, further that they were not LTSM. The applicant had deviated from the requisition and this was not permitted. She testified that if the school were to deviate, there should have been a request before the deviation and such deviation would be granted under exceptional circumstances and that this was not the case with the Applicant.

14.4. She Testified that the Applicant through the LTSM Co-ordinator had received the MEMO which guided how the vouchers were to be utilised.
14.5. The Applicant conceded that the items bought using the vouchers issued to purchase LTSM items were not requisitioned items. Stated that the SGB had taken a decision to exchange the vouchers for cash when they realised that the vouchers would expire and they had not been able to purchase the requisitioned items using vouchers from certain suppliers. She stated that they had informed the Department that the vouchers were not user friendly and they had been told to look at other suppliers.

14.6. Ms Riet testified that when she conducted her investigation on the 19th October 2021 at the school, the letter of apology was not there, further that the agreements in pages 30 to 49 were also not there.
14.7. The applicant conceded that they had written the letter of apology but that it was never submitted to the Department because they intended re-writing it. The issue of the agreements was not disputed by the applicant.
14.8. The applicant stated that they were not trained how to use the vouchers and that this had been the first time they were issued with the vouchers. Previously the Managing Agent would purchase the items for the school. She conceded that she had received the MEMO and that she read the MEMO and understood the contents, however the vouchers were expiring in about 30 days and that that was the cause of their panic.
14.9. This demonstrates that the Applicant had knowledge of the MEMO.

14.10. The respondent denied the submission stating that the LTSM coordinator Mr Maseko who collected the vouchers had been trained before issuing and given an opportunity to ask questions. She conceded that the vouchers were fairly new but reiterated that training was conducted before the LTSM coordinator took possession of the vouchers. The respondent did not expect that the schools would experience delays because before completing the requisition they would have collected quotations and would have had an idea which suppliers to purchase from.

14.11. The Respondent through its witness Ms Riet stated that the Principal was responsible for the vouchers at the school.
14.12. The Applicant denied that she was responsible and stated that the Finance officer who had possession of the safe keys was responsible for the vouchers, however after much deliberation the applicant conceded that she was the overseer and added that the SGB was responsible for all the finances at the school.
14.13. The Respondent demonstrated through documentation in evidence that vouchers had been allocated to individuals as per their agreement for cash, however the same voucher would be used by the Applicant or other people to make purchases that were not LTSM.
14.14. To this, the Applicant stated that sometimes she would send SGB members or members of staff to make purchases when she was not able to do so herself.

14.15. The Respondent through Mokgerenyane stated that the applicant requested to purchase a printing machine costing R75 469,95, the money for the printer was given to the school in vouchers however the said machine was paid for from the school account. The Respondent argued that this was mismanagement of the school funds.
14.16. The Applicant argued that the LTSM items were bought and the learners are benefiting from the use and that the Applicant did not benefit from the vouchers.

14.17. The Applicant was charged with Wilful or negligent mismanagement of finances of the school.
14.18. The school was given 35 vouchers to the value of R178 183.00 for the purchase of LTSM items.
14.19. Mismanagement of funds is described as “Management that deliberately or not is handled in a way that can be characterized as “wrong, bad, careless, inefficient or incompetent” and that will reflect negatively upon the financial standing of the business”.
14.20. There is sufficient evidence that the Applicant was responsible for the vouchers and not the SGB or the Finance Officer. The MEMO was addressed to the Applicant as the school Principal, Mr Maseko after collection handed the vouchers to the Applicant as the school Principal. The MEMO itself states that “the school Principals are responsible for safe keeping and utilisation of the vouchers.”
14.21. The Applicant had a responsibility to ensure that the vouchers were used for the purpose for which they were issued to the school.
14.22. The Applicant knowingly used and in certain instances allowed the use of vouchers by others other than what they were purposed for.
14.23. The Applicant testified that Ms Mkhwanazi was co-opted to manage the vouchers because the SGB and the Principal wanted to ensure separation of the school finances and the vouchers, however it is clear that there actually was no separation because as per the Applicants evidence they collected cash from the staff that had agreed to take vouchers and used it to purchase building material, it was not used to purchased LTSM material. Monies from the school account was used to purchase a printer which was supposed to have been purchased through vouchers. This is clear mismanagement of funds. The MEMO is clear that the purchase must be in accordance with the items listed on the submitted requisition. This was not the case with Kwanele Primary school under the Leadership of the Applicant.

14.24. Gumede the SGB Chairperson stated in his evidence that the builder was paid R10 000 from the vouchers and the rest was paid from the school account. Malisela’s account was that the builder was paid bit by bit and only issued the receipt when he had been paid R60 000.
14.25. It is not clear why the builder would not issue receipts upon each payment made. This practice is against basic controls to make a payment and not demand a receipt. The main issue being that the Applicant did not appreciate the seriousness of this malpractice

14.26. The Respondents witnesses Mofokeng as well as Mokgerenyane testified that Ms Mkhwanazi was not a member of the SGB in 2021 that she was only co-opted in November and commenced in that position in 2022, however the Applicants witnesses corroborated each other and testified that Ms Mkhwanazi was co-opted and assisting the treasurer Mr Malisela in September 2021 and that she was responsible for managing the vouchers. Ms Mkhwanazi in her brief testimony denied that she was a member of the SGB in 2021. She was asked to join the SGB in December 2021 She testified that she was appointed Treasurer in 2022 until 2024.
14.27. All the witnesses had been making mention of Ms Mkhwanazi in their evidence however when she took the stand, she became hostile towards the Applicant and the Attorney made an application for the witness to be declared hostile. A decision was made after allegations of threats not to proceed with this witness.

14.28. Ms Mkhwanazi’s brief evidence corroborated the Respondent’s case that she only started formally in 2022 as a treasurer.
14.29. There were inconsistencies on the evidence relating to the signing of the agreements. The applicant’s version was that the staff was given vouchers and signed the agreements later, Gumede’s testimony was that the agreements may have been signed on the 2nd or 3rd of September 2021.

14.30. The Respondents version was that the agreements were not even there when she went in to conduct the investigation. Riet had stated that the Applicant did not make mention of the agreements save to say that she had requested deviation orally from the District. She had indicated during the investigation that she would send SGB members to make purchases using the vouchers. Ms Riet’s testimony was that she saw the agreements for the first time at the disciplinary hearing.

14.31. Mokgerenyane testified that the agreements were fabricated and she was told to sign, she never received any vouchers nor paid any money back to the school.

14.32. The Respondent’s version sounds more probable because if the agreements had been there during the investigation, the Applicant would have forwarded them to the investigator to show that the money would be paid back, not because that would have been the correct way. Again, there were too many inconsistencies relating to who had taken which voucher and who had used which voucher and why.

14.33. Mokgerenyane testified that she typed pages 26 to 29 at the instruction of the Applicant after she had received the charges from the Department. She stated that she erroneously typed 2022 instead of 2021 because it was actually year 2022. It was her version that the Applicant was doing all this to cover her tracks.
14.34. The Applicant’s witnesses corroborated each other and all denied that Mokgerenyane had typed the minutes stating that the minutes were typed by Mr Ntsutsha that she was not a secretary but could not explain the error in the minutes satisfactorily.

14.35. The Respondent argued that trust is key in a position of the Principal because she oversees to a lot of key responsibilities and once trust is broken it renders the continued employment relationship intolerable. He argued that the relationship between the Applicant and the Respondent has broken irretrievably and requested that dismissal be upheld.

14.36. In the consideration of fairness of the dismissal, I am required to have regard to the totality of the circumstances. This required me to have regard to the allegations raised, the evidence put up, to resolve factual disputes in the manner detailed in SFW Group Ltd and Another vs Martel et Cie and Others and determine whether the allegations against the applicant had been proved on a balance of probabilities.

14.37. The Applicant was charged in terms of Section 18 (1) of the EEA which is similar to Section 17(1) of the same Act. Acts of misconduct in Section 17 are clearly identified as serious misconduct that are couched in a way that if an employee is found guilty of any of the six (6) transgressions, there is no option but dismissal. However, Section 18(1) transgressions are not identified as very serious misconduct. Further to this, its subsection (3) clearly gives the presiding officer of an enquiry wide discretion of sanctions to be imposed in (a) to (J). The Commissioner should still consider dismissal in paragraph (i). Therefore, the Commissioner still needs to evaluate the relevant factors and the nature or extent of the misconduct to decide if it warrants dismissal.
14.38. The Code provides specific guidance in regard with appropriate sanction, relevant factors must be considered i.e.:

(a) The gravity of the offence, taking into account the employee’s circumstances, nature of the job and the infringement itself.
(b) Consistency in taking disciplinary action
14.39. With regards to consistency, the respondent argued that they always take action in matters of misconduct relating to mismanagement of funds and they always dismiss employees who are found guilty.

14.40. The evidence indicated that the Applicant had a responsibility to ensure that the vouchers were used for the purpose for which they were issued to the school and the Applicant failed in her duty, she saw the vouchers being used to purchase things that were not requisitioned and not LTSM. Then the Applicant used monies from the school account to purchase the LTSM materials. The respondent argued that the actions of the applicant were serious more so because she had involved staff members.

14.41. It is therefore my finding that the dismissal of the applicant was an appropriate sanction.
14.42. I accordingly make the following award:

15. AWARD

15.1. I find the dismissal of the Applicant Zanele C Nyirenda by the Respondent, the Department of Education Gauteng to be appropriate.
15.2. This application is dismissed.

GCINA MAFANI
Arbitrator 26 June 2024