IN THE ELRC
BETWEEN:

Aneel Ramcharan Applicant
and
The Head of the KwaZulu-Natal
Department of Education First Respondent
G S F Zondi Second Respondent

Award

Case Number: ELRC675-22/23KZN
Date of award: 26 February 2026

J KIRBY
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

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was initially held at the Durban Teachers Centre on 12 December 2023, 13 December 2023 and 11 March 2024 and thereafter at the offices of Mooney Ford, the Applicant’s attorneys, on 3 July 2024, 9 & 15 October 2024, 27 November 2024, 21 and 24 February 2025, 20 March 2025, 21 and 24 April 2025, 26 June 2025, 20 and 22 August 2025, 24 October 2025, 4 December 2025, 19 January 2026 and the hearing of evidence was finalized on 20 January 2026. The parties were thereafter given a special dispensation in respect of the submission of written closing arguments.
2. The Applicant, Aneel Ramcharan, was represented by a legal practitioner, Ms Naidoo of Mooney Ford.
3. The First Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by its employee, Mr Ramcheron.
4. The Second Respondent, G S F Zondi, was represented by a legal practitioner, Mr Ngcongo of NEB Attorneys.
5. At the commencement of proceedings, a combined bundle of documents was submitted and marked exhibit A. Thereafter further bundles of documents were submitted by parties and these have been marked as exhibits B-S respectively.
6. The proceedings were interpreted and electronically recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. The principal issue I am required to determine is whether the Applicant was subjected to an unfair labour practice relating to promotion as specified in section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA).
8. In addition to the principal issue, I was required to issue rulings in respect of two in limine applications brought on behalf of the Second Respondent.
9. Prior to any evidence having been led, the Second Respondent indicated that he challenged the jurisdiction of the Council to arbitrate this dispute. The grounds for the challenge are detailed in a document marked exhibit B.
10. When I issued an ex tempore ruling dismissing the challenge to the jurisdiction of the Council, an application was immediately brought by the Second Respondent for my recusal. I also ruled against the Second Respondent with regards to this application
11. A written ruling dated 27 December 2023 was issued in respect of both of the abovementioned challenges.

BACKGROUND

12. It is common cause that:
    12.1. The post in dispute is that of principal of the M L Sultan Secondary School, KwaDakuza (the School;)
    12.2. The Second Respondent was appointed to the post. Prior to his appointment, the Second Respondent had been an educator at the School;
    12.3. The Applicant was shortlisted and interviewed for the post;
    12.4. The post had previously been advertised. Both the Applicant and Second Respondent had participated in this earlier process. An appointment was not made following this process;
    12.5. The First Respondent conducted an investigation in respect of the first process.
13. The Applicant avers that:
    13.1. As a result of the investigation into alleged irregularities associated with the first process, the First Respondent had decided that it and not the School Governing Body (SGB) of the School would be responsible for the appointment process;
    13.2. The failure of the First Respondent to act in accordance with its decision and instead to allow the SGB to proceed with the appointment process under HRM 35/2021, renders the appointment of the Second Respondent procedurally unfair. (The Respondents dispute that any such decision was taken by the First Respondent;)
    13.3. He was the best candidate for the post and ought to have been appointed but for the predetermined decision of the SGB and Interview Committee (IC) that the Second Respondent, an internal candidate, would be appointed.
14. On two occasions the Applicant attempted to secure the attendance of a witness, Ncube, by way of subpoenas issued by the Council. The returns of service would indicate that she received the subpoenas but on both occasions she refused to attend the hearings.

SURVEY OF EVIDENCE
THE APPLICANT

15. With regards to the bundle of documents (exhibit A,) the Applicant stated that:
    15.1. At page 31 the minimum requirements for appointment as a principal are recorded as including holding a three- or four-year qualification, which includes professional teacher education; registration with SACE and 7 years “actual teaching experience;”
    15.2. At page 33 the advertisement for the disputed post (HRM Circular 35 of 2021) reflects the abovementioned requirements for the post;
    15.3. At pages 40 and 41 the criteria to be applied by the shortlisting and Interview Committees are stipulated and it is further recorded that the total scores for the shortlisting and interview processes were 42 and 49 respectively;
    15.4. At page 52 is a document provided by the First Respondent for the purpose of this arbitration and which appears to be correspondence from the Second Respondent concerning the appointment by the SGB of an Interview Committee in respect of the disputed post. The Applicant felt it strange that the Second Respondent as a candidate for the post, was involving himself in this way. He submitted that the Second Respondent ought to have removed himself from all proceedings related to the post for which he was an applicant;
    15.5. At pages 55-59 and 60-64 are the Z83 forms and curriculum vitae of the Applicant and Second Respondent respectively. It is evident from these documents that the Applicant registered with SACE on 31 March 1999; he had 32 years’ teaching experience; he obtained a teaching qualification in 1989, a Higher Education Diploma in 1988 and that he subsequently qualified as a Doctor of Literature and that the Second Respondent obtained his NPDE qualification in 2016 and his ACT qualification in 2020; and that he had 15 years teaching experience;
    15.6. At pages 122 and 135 are the shortlisting and interview scores respectively of the Second Respondent whereas those of the Applicant are at pages 126 and 139 respectively. The Applicant did not agree with these scores. He felt that he had been significantly underscored. On the other hand, the Second Respondent submitted that the Applicant had misleadingly bolstered his curriculum vitae with managerial experience that he simply did not possess given his only experience was as a classroom educator;
    15.7. At pages 131-132 and 133-134 of exhibit A are purported minutes of the Interview Committee’s interviews on 27 September 2022. The two sets of minutes are inconsistent; in particular, the minutes at pages 131-132 include the following entry, which is not included in the set of minutes at pages 133-134:
    “All five candidates were interviewed, but right after candidate 2 and 3. The union rep was not happy and also raised the issue about procedures processes not adhered too, and not being fair and he felt that the committee was not being consistent. He also highlighted and reminded the panel of Resolution 11 of 1997 and read notes from the Resolution. He also compared his notes and found candidates were not fairly treated equally when being scored.
    Mr SD Mchunu reminded the panel to be fair and transparent.”

The minutes record at page 132 of exhibit A that the Second Respondent was allocated a score of 40,33 and the Applicant was allocated a score of 37,99. This document also appears to contain the minutes for posts 218 and 219,being the post in dispute. The document does not include the letterhead of the School and appears to have only been signed by Ncube, in her capacity as secretary. The purported minutes at pages 133 and 134 of exhibit A bear on the letterhead of the School and appear to have been signed by Ncube as secretary, Mchunu as the resource person and Mthembu as the IC chairperson;
The version of the minutes at pages 131-132 was initially received by the Applicant from the First Respondent and sometime thereafter the First Respondent had provided him with the version at pages 133-134, which also records their respective scores as 40,33 and 37,99;
15.8. At pages 144 and 145 (which unlike the version at page 144 is on a document bearing the School’s letterhead) are two versions of the alleged minutes of the SGB’s ratifying committee. Both versions record that the meeting was held on 28 September 2022. The minutes at page 144 of exhibit A were received from the First Respondent sometime before the second version of the minutes at page 145 of exhibit A were received. The minutes at page 145 are more detailed, on the letterhead of the School and signed by the SGB caretaker secretary, X B Ncube, and N Tembe, the SGB chairperson;
15.9. At pages 146/7 respectively are two versions of the list of recommended candidates sent to the Department. The Applicant had initially received the version at page 146 from the First Respondent and sometime thereafter he had received the version at page 147, which contains more signatures of committee members than the document at page 146. The documents are both dated 27 September 2022, which predates the date of the alleged minutes of the SGB ratifying committee meeting minutes of 28 September 2022. The recommendation by the SGB is the same in both documents;
15.10. At page 148 and 150 of exhibit A respectively are copies of the Expedited Promotions Grievance form submitted by a candidate, K Pillay, dated 25 September 2022 and a letter written by him to the Ilembe District Office;
15.11. Pages 151-155 of exhibit A are copies of grievance forms submitted by other candidates, including Ottoman Cele;
15.12. At page 156 of exhibit A is a copy of a letter from the Ilembe District Director recording that the grievance committee did not have jurisdiction to hear the grievances.

16. The Applicant submitted that the documents clearly indicated that he was the best candidate; that there was favouritism shown by the Interview Committee; that the second interview process was simply a ruse as the only change in membership of the committee was the removal of Tembe who allegedly had close ties with the Second Respondent. He sought to be appointed to the post with retrospective effect.
17. Under cross-examination by the First Respondent the Applicant stated that:
    17.1. The Second Respondent’s curriculum vitae (at page 61 of exhibit A) recorded that he had obtained his teaching qualification in 2016 and thus he did not meet the minimum qualification of 7 years qualified experience. He understood the provisions of PAM (at page 31 of exhibit A) to mean that only experience gained once qualified as an educator was relevant;
    17.2. He did not know whether the Second Respondent had been employed as an unqualified educator and disputed the teaching experience of the Second Respondent recorded in his curriculum vitae indicating that he had taught since January 2006. He had caused a subpoena to be issued for the Second Respondent to provide documentary proof of his teaching experience. (On 17 July 2024 it was placed on record by the Applicant’s representative that qualifications of the Second Respondent were not in dispute. The Applicant, however, maintained that only the teaching experience of the Second Respondent gained after SACE had issued him with a certificate of registration dated 12 December 2016 (at page 4 of exhibit E) ought to be regarded as counting towards the required 7 years teaching experience stipulated in the post advertisement;)
    17.3. While the Second Respondent had been registered with SACE since 2013, he might have only been registered provisionally pending him acquiring his full teaching qualifications;
    17.4. The failure of the SGB to recommend him for the post (as required by the provision at paragraph 35 of Collective Agreement 3 of 2016 (at page 29 of exhibit C) was unfair
    17.5. Zuma, a SADTU branch chairperson, was appointed as the chairperson of the Interview Committee in the first process despite only being a coopted member of the SGB. The official from the Department official present at the interviews nevertheless allowed the meeting to continue;
    17.6. He had been shortlisted and interviewed during the first process;
    17.7. Following the first process, an investigation had been conducted by the First Respondent and a recommendation arising from this investigation was that the appointment process should be done by an independent panel;
    17.8. The recommendation had not been implemented and the second process had also been done under the auspices of the SGB;
    17.9. His belief that the appointment of the Second Respondent was pre-determined was based upon the findings of the investigation that the Second Respondent had close relationships with the SGB chairperson at the time of the first process, Tembe, and the chairperson of the Interview Committee at time of the second process, Mthembu. The sole ground for his allegation that collusive practices led to the appointment of the Second Respondent is the investigation finding detailed in the report at page 92 of exhibit A;
    17.10. He was aware that Mthembu was a non-scoring member of the Interview Committee as its chairperson;
    17.11. He had not seen the approval by the Head of Department of the recommendation of the Investigation Team for the appointment process to be taken over by an independent panel;
    17.12. The Second Respondent ought not to have signed the notice of the SGB meeting on 3 September 2021 held to elect the Interview Committee if he was going to participate as a candidate;
    17.13. If the Interview Committee had not been biased, it would have allocated him higher scores than the Second Respondent;
    17.14. The School was a secondary school offering technical subjects;
    17.15. He had 4 years high school teaching experience;
    17.16. He had no experience of teaching technical subjects;
18. Under cross-examination by the representative of the Second Respondent, the Applicant stated that:
    18.1. It was not necessary to lodge a grievance before referring a dispute to the Council;
    18.2. The unfair discrimination allegations mentioned in his referral form had been withdrawn at the commencement of the arbitration.
19. Under cross-examination by the Second Respondent himself the Applicant stated that:
    19.1. The process to be followed was set out in HRM 35 of 2021 (at page 32 of exhibit A) and that were the process not followed, it would be unfair;
    19.2. Those eligible for the post were, in terms of paragraph 4.2 of the circular those “appointed in a permanent, temporary and substitute capacity and those that are non-serving that meet the requirements for the post;”
    19.3. The Department recognized SGB appointee educators and recognized their experience gained as such educators;
    19.4. The Second Respondent had been shortlisted and if the guidelines for shortlisting (at page 38 of exhibit A) were followed, the process would be fair;
    19.5. In terms of the guidelines the curriculum needs of the School needed to be considered in the shortlisting process and agreed that the School was a secondary school with technical subjects;
    19.6. He could not comment on whether the Second Respondent had experience in teaching technical subjects;
    19.7. The Interview Committees had been established by the SGB in both processes as prescribed;
    19.8. Members were co-opted on to the SGB due to their expertise;
    19.9. The SGB had made its recommendation in accordance with the ranking of the Interview Committee;
    19.10. When it was put to him that the Second Respondent had not yet decided to apply for the post when as SGB secretary he had issued the notice to attend the SGB meeting to elect an Interview Committee, he should not have done so in any event.
20. Ottoman Sipho Cele (Cele)was a level 1 educator at the School from 2014 until he was transferred to Tinley Manor Primary School in 2024. He knew the Applicant as a fellow level 1 educator at the School.
21. On being shown the Applicant’s curriculum vitae (CV) used in his application for the post in question, Cele stated that he was unaware of the roles, responsibilities and experience claimed by the Applicant as to the best of his knowledge the Applicant had not performed any of the claimed functions at the School. He could not comment on the Applicant’s functions at other schools.
22. Cele was aware of the grievance lodged (at page 72 of exhibit A) in respect of the first process. At that stage he was still a SADTU site steward. The grievance had been lodged on behalf of SADTU. With regards to the memorandum at page 80 of exhibit A, Cele supported its recommendations and added that it was he who had suggested that the interview process should be stopped. He further confirmed that the minutes of the SADTU meeting of 11 October 2021 correctly reflect that the issues raised by him, including that of Zuma, the former principal of the School, being part of the interview committee despite not being a member of the SGB.
23. N Y Mthembu, recorded on page 117 of exhibit A as the Interview Committee chairperson in the second process, was a parent at the School. Tembe was the father of her children at the School.
24. Cele was the author of the grievance at pages 151-152 of exhibit A. The grievance was lodged in respect of all advertised posts and the gist of the grievance was that it was alleged that the appointees had been pre-determined prior to the interview process. The grievance was unsuccessful.
25. Under cross-examination by the Second Respondent Cele:
    25.1. Agreed that he was unaware of the Applicant’s experience at other schools;
    25.2. Agreed that the ‘validation stamp” on the Second Respondent’s CV (at page 62 of A) meant that D N Mthembu, the circuit manager, had confirmed the correctness thereof;
    25.3. Could not comment on whether the Second Respondent, as a member of the SGB of the School, had been involved in amending the Code of Conduct and other policies falling under the responsibilities of the SGB;
    25.4. Agreed that Khuzwayo, the then principal, had established committees and that the Applicant had been a member of the discipline, safety and security committee. Cele was not part of the committee and thus did not know what workshops the Applicant had attended;
    25.5. Was unaware of the work the Applicant had done in respect of creating opportunities for learners to gain work experience in trades with SAPPI;
    25.6. Was unaware of the “mentorship’ arrangement he had with the principal of Danville High School, KwaZulu-Natal’s best performing school;
    25.7. Was unaware of responsibilities assigned to the Applicant by principals of the School and the SCB;
26. The cross-examination of Cele was interrupted for the evidence of the next witness and resumed thereafter when Cele:
    26.1. Maintained that Ngema, the trade union representative, had been intimidated into not sticking to his version as recorded in the minutes that he was not satisfied with the interview process;
    26.2. Maintained that the Second Respondent was a friend of Tembe as they had been seen together. Tembe was not a member of the Interview Committee but the mother of two of his children (Mthembu) had been.
27. Following the evidence of Dr Gokar summarized below, the parties agreed to Cele being recalled as a witness.
28. Bongumusa Ngema (Ngema) is a deputy principal and uThukela branch secretary of SADTU.
29. He was the SADTU observer at the interviews and confirmed that Ms Ncube had been the secretary. He had been satisfied with how the interviews had been conducted and was not aware that minutes of the interview committee meeting on 27 September 2022 had recorded that the union representative had raised concerns about the procedures followed and that candidates had not been fairly treated (at pages 131 and 132 of exhibit A.)
30. The interview assessment form (at page 135 of exhibit A) and the recommended candidate lists (at page 146 and 147 of exhibit A) had not been signed by him as he had been in a rush to leave.
31. He did not agree with both versions of the ratifying committee meeting minutes (at pages 144 and 145 of exhibit A) that record that the SADTU representative were not present but would come back. He had not been asked to return and he had not done so.
32. He maintained that he was unaware of complaints raised by Cele concerning the interview process but confirmed that after the process he had been contacted by Cele who had indicated that he was unhappy.
33. Ngema could not comment on the version of Ncube when it was put to him that she would testify that the minutes of the interview committee (at page 132 of exhibit A) correctly reflect that he had stated that he was not satisfied with the procedures there were being followed.
34. Under cross-examination by the First Respondent Ngema stated that he was unaware of any objection to the process that might have been lodged by SADTU.
35. The Second Respondent had no questions for Ngema.
36. Dr K Gokar is currently the principal of Stanger Training Centre, a school for learners with special educational needs. He was previously employed at the School as Head of Department, acting Deputy Principal and acting Principal.
37. He knew the Second Respondent, whom he had interviewed before he had been appointed as an educator at the School. He would have been appointed as a level 1 educator but Dr Gokar could not recall whether the Second Respondent was employed by the State or the SGB.
38. The management of the School consisted of the five Heads of Departments, the two Deputy Principals and the Principal and the management team was in turn supported by various committees in respect of which educators would be approached by management to become members. The committees would deal with various co-curricular policy issues. They would report to the management committee and after consideration the committees’ recommendations (as amended, if appropriate) would be submitted to the SGB for consideration and adoption.
39. During Dr Gokar’s period as acting principal, the Second Respondent had been one of the educators responsible for developing the School’s disciplinary code. Generally speaking, Dr Gokar could vouch for the Second Respondent having sat on various committees at the School.
40. The Second Respondent would sit in management committee meetings as a trade union representative.
41. It was not necessarily only those in management who would participate in the planning and development of strategic plans. Input would be received from other stakeholders as well.
42. Dr Gokar could not recall whether the Second Respondent had established the committees as claimed by him in his curriculum vitae but he could recall that during his period as acting principal, the Second Respondent had been one of those responsible for school discipline. In addition, he was a member of the time-tabling task team.
43. When it was put to him that it had been put to Cele that he (Cele) had approached Dr Gokar and told him that the Applicant was intent on having the Second Respondent removed from his post, he confirmed having spoken to Cele at a shopping mall where Cele had told him that the principalship post was in dispute. He did not, however, engage Cele beyond that on the issue.
44. Under cross-examination by the First Respondent’s representative, Gokar:
    44.1. Confirmed that the Second Respondent had done the things claimed to have been done in his curriculum vitae;
    44.2. Stated that the Disciplinary Code had been adopted by the SGB;
    44.3. Could not dispute that the Second Respondent had been a member of the SGB committees as claimed by the Second Respondent as staff representatives did become members of these committees;
    44.4. Stated that “protected temporary educators” was a category of educators who possess scarce skills. He could not dispute that the Second Respondent possessed a scarce skill and that he had been appointed into a vacant post;
    44.5. Stated that the Second Respondent had been one of the educators relied upon by him during his 18 months tenure as acting principal, to handle the late-coming problem;
    44.6. Confirmed that the Second Respondent had been involved in “learner distancing” during the COVID pandemic period.
45. Under re-examination Dr Gokar stated that the scarce skill possessed by the Second Respondent was that of an educator of technical mathematics.
46. The Applicant closed his case after Ncube had failed (or refused) to attend the hearing despite having been subpoenaed to do so.
    The Respondents
47. Siyathemba Daniel Mchunu (Mchunu) is the acting KwaDukuza Circuit manager and was the resource person in respect of the second appointment process to appoint a principal for the School. He has participated in approximately 40 appointment processes.
48. In August 2022 he had attended a meeting convened by the late Charles Ngcobo (Ngcobo,) the Director of Labour Relations. Members of the SGB, including the Second Respondent were also present but he had recused himself after Ngcobo had asked those with an interest in the post to do so. At this meeting Ngcobo had explained that the process for appointing the principal was going back to the SGB.
49. Once an interview committee was appointed his role as the resource person was to workshop the members on their responsibilities. He had done so and reminded the members of their obligation to recuse themselves by referring them to the relevant clause in HRM Circular 35 of 2021 (at page 45 of exhibit A) in which it is stated that members must recuse themselves from any issue in which they have a personal interest.
50. The shortlisting meeting had taken place on 12 September 2022. The committee agreed to ground rules that would apply to the meeting and these included that members would all put their cellular phones on silent mode and that before any breaks were taken, the committee would first complete the scoring process. No member used their phone during the shortlisting process.
51. The same cellular phone practice was followed during the interview process and cellular phones were placed on a table in the interview room. During the interview of one of the candidates his cellular phone rang but the candidate did not answer the phone and the interview continued. The committee had taken breaks during the shortlisting and interview processes. He did not observe members using their phones during these periods. He disputed the version put forward by Cele that the chairperson had been in constant contact with Tembe.
52. An important consideration in identifying a candidate was that the School would need a principal who was well versed in the needs of a technical school; the School being the only technical school in KwaDukuza. In scoring candidates, the members submitted their personal scores and the consensus scoring method was not adopted. Ncube did not voice any dissatisfaction with the process. The committee had followed the provisions of clause 8.1 of HRM 35 OF 2021; in particular the provisions of 8.1.2 that state that the committee must conduct shortlisting subject to the curriculum needs of the school. The shortlisting meeting’s minutes were signed by Ncube, the secretary, Mthembu, the chairperson, and himself on the day of the meeting. The signatories signed in each other’s presence. Ncube did not lodge any complaint in respect of the shortlisting process.
53. At the interviews the committee was guided mainly by Resolution 11 of 1997 in deciding on the five questions to be put to the interviewees. The questions were formulated on the day of the interviews and the committee agreed upon what answers they expected. Each member had then arrived at a particular score, from which an average score for each candidate was determined. This method was agreed upon by the committee members. By following this method, the Second Respondent had been given a score of 40,33 and the Applicant had scored 37,99. The committee’s decision is recorded in the interview committee meeting minutes at pages 4-5 of exhibit C. The meeting had ended at 19:15 when the committee had signed the EHR 11 form. He had been present when Ncube and Mthembu had signed the minutes.
54. Ncube had attended the grievance meeting held on 5 October 2022. He had also been present at the meeting at which Ncube had not voiced any dissatisfaction with the process adopted by the interview committee.
55. The photograph at exhibit A1 is of the Applicant and Tembe. He had not been with them at the time the photograph was taken.
56. The minutes of the interview committee meeting at pages 131-132 of exhibit A had not been signed by Ncube in Mchunu’s presence. The members of the committee had signed all documents together with one another. He disagreed with the content of the minutes in the following respects:
    56.1. That the union representative had helped the committee in formulating its questions;
    56.2. That he and the union representative were allowed to have their cellular phones on during the meeting;
    56.3. That the union representative had stated that he was unhappy and had raised issues of processes not being followed; that candidates were not being scored fairly; and
    56.4. That the committee was acting inconsistently towards the candidates.
57. The only issue raised by the union representative was whether the candidate whose cellular phone had rung during the interview should be given extra time. As the timekeeper he had felt that extra time should not be allotted to him and the committee agreed, as the requirement to place the phone on silent had been explained to all candidates.
58. He had seen the minutes at pages 131-132 of exhibit A before they had been corrected. They should not have been submitted to the First Respondent without the corrections having been made.
59. Under cross-examination Mchunu:
    59.1. Agreed that he views the School as a technical school;
    59.2. Attempted to rectify the impression that the committee viewed technical school teaching experience as a requirement for appointment by initially stating that such experience was viewed as an added advantage. He then submitted that the committee did not specifically want someone with technical school experience and that the committee was aware that it could not decide upon selection criteria that would prefer one candidate over another;
    59.3. When asked to explain exactly what the advantage was of having technical school experience, he stated that what the committee had looked at were the criteria of leadership and management; organisational ability; professional development and community involvement with technical school experience factored in as an added advantage. The candidates had not been asked any question related to technical school experience. Such experience had been considered at the shortlisting stage but not at the interviews where the scoring was based solely on the answers given by the candidates;
    59.4. Agreed that Resolution 11 of 1997, Collective Agreement 3 of 2016 and PAM set out the general criteria applicable to the appointment;
    59.5. Agreed that scores that should be allocated in accordance with the point allocation set in the Resolution at page 4 of exhibit A;
    59.6. Agreed that a candidate for a principalship was required to have 7 years of actual teaching experience, which would include such experience of a candidate before qualification as an educator. This was so as previously persons were appointed as educators without a teaching qualification;
    59.7. Stated that the interview questions were set by the chairperson and committee members. He had trained them and was thus satisfied that they were competent to set the questions. They had received training as members of the SGB and then again on the day of the shortlisting;
    59.8. Disputed the version of the Applicant that only the chairperson had asked questions of the candidates and maintained that the scorers had asked the questions;
    59.9. Submitted that the minutes of the shortlisting meeting of 12 September 2021 at pages 118-119 of exhibit A; the minutes of the interview meeting held on 27 September 2022 at pages 131-132 of exhibit A and the minutes of the ratifying meeting of 28 September 2022 at page 144 of exhibit A were all draft minutes;
    59.10. Stated that the First Respondent provides a checklist of the documentation that ought to be submitted to it and the committee followed this checklist. As the checklist did not include the need to submit the questions and model answers, these had not been submitted by the interview committee. The model answers had been determined by having regard for the criteria and scoring guidelines included in Resolution 11 of 1997 at pages 7 and 8 of exhibit A;
    59.11. Agreed that the declaration at page 143 of exhibit A had not been signed by the trade union representatives. He could not say whether this declaration was in respect of either the interview or ratification meetings;
    59.12. Agreed that the versions of the minutes of ratifying meeting at pages 144 and 145 both record that the meeting commenced at 17:21 and ended at 18:30 on 28 September 2022;
    59.13. Submitted that the record of the SGB’s recommended candidates at page 146 of exhibit A may have reflected the date of the ratification meeting of the SGB as having been held on 27 September 2022 as a result of human error on the part of Ncube, the meeting secretary;
    59.14. In response to the argument put to him that Tembe had signed the form as he had been part of the process, stated that he had not been involved. He had taken the documentation to the meeting of the SGB at which meeting the full complement of members had been present;
    59.15. Agreed that Ncube, despite being the secretary is not listed on the form of recommended candidates at page 146 of exhibit A;
    59.16. Submitted that it was possible that the form of recommended candidates was corrected by the document at page 147 of exhibit A (which includes the names and signatures of Ncube and Mthembu;)
    59.17. Stated that all he knew of the first process was that which had been explained by Ngcobo at the meeting called by him before the second process;
    59.18. Stated that he had attended the SGB meeting at which the late Ngcobo had informed it that the SGB would be responsible for the second process of appointing the School principal;
    59.19. Stated that Cele had not at any stage raised concerns he might have had regarding the appointment process and as a site steward he would not be involved with the process as regional representatives are deployed to oversee those processes as site stewards might have an interest in the outcome of the process;
    59.20. Agreed that were it to be established that the Second Respondent and Tembe were friends, this would amount to a conflict of interest had Tembe been elected as the chairperson. Tembe had not been present when the chairperson was elected by the committee members;
    59.21. Could not say whether the draft of page 119 of exhibit A when shown to him by Ncube, was signed by her or not;
    59.22. With regards to the draft minutes at page 132 of exhibit A, he had told Ncube to correct the formatting of the minutes. he had not told her to change the content. He had no explanation for certain of the content of the draft minutes being removed from the final version;
    59.23. Stated that he was taking notes of the meeting on his laptop during the interviews;
    59.24. Denied that the interview committee had been inattentive and spoke amongst themselves during the Applicant’s interview;
    59.25. Stated that he did not find it strange that well trained members of an interview committee would similarly score the top ranked candidate.
60. The Second Respondent testified that he had initially been employed by the First Respondent in January 2006 as an educator. He did not possess a teaching qualification at the time and only obtained such a qualification in 2016. He was initially employed on fixed term contracts and on receiving his teaching qualification he had been appointed on a permanent basis. He had been employed at the School since 2009.
61. The policies of the First Respondent made provision for the employment of unqualified educators.
62. The Second Respondent had served for two terms on the SGB of the School as a representative of the educator component. During his second term he had been the committee secretary. In addition, he had served upon a number of the SGB’s sub-committees. Unlike himself, Cele, the Applicant’s witness, had not been a member of the SGB.
63. In his capacity as secretary of the SGB he had signed the notice of the meeting of the SGB on 3 September 2021(at page 65 of exhibit A.) The meeting had been called to discuss HRM 35/2021 and related issues for the first process. He and one other had recused themselves from the meeting once the agenda had been announced. He could not recall whether he had already submitted his application at this stage but he in any event had intended to apply and hence he had withdrawn from the meeting at that stage.
64. During the first process he had applied for the post of principal and had been shortlisted and interviewed.
65. He and Tembe were known to one another prior to the first process. He had initially been introduced to Tembe by a fellow educator at the School as being the parent of a child who had excelled in physical science. This has been during or about 2019/2020. Until this hearing, the Second Respondent had been unaware that Tembe and Mthembu, who was the chairperson of the IC in the second process, had children together. He had met him for the second time approximately one year later when they had both been elected to the SGB. The photograph of the two that had featured in the investigation into the first process had been placed on his Facebook page by the Second Respondent himself. He and Tembe had met fortuitously at a new entertainment venue and he had asked a bystander to take their photograph. During the investigation he had been confronted with the fact that Tembe and he had been seen together at a funeral. The funeral had been that of a past principal of the School and it had been attended by a number of educators, union members, SGB members, other applicants for the post, the SADTU observer at the interview committee and the SADTU officer bearer, N Ngcobo, who lodged a grievance against the first process had all been at the funeral. Tembe and he had been together at another social event hosted by the then School principal, Zuma. This event had similarly been attended by many different role players.
66. Whilst Ncube had not been an applicant to the post, she had lodged a grievance in respect of the first process in which she had alleged that she had not been invited to the meeting of the SGB at which the Interview Committee had been selected. The Second Respondent had submitted a letter together with supporting documents (at pages 52-54 of exhibit A) to the team investigating the alleged irregularities associated with the first process in response to her complaint that she had not been invited to the meeting. The Second Respondent submitted documents to the investigation team in support of his submission that it had been agreed that communication amongst members of the SGB would be by way of WhatsApp, that Ncube had been a member of the WhatsApp group but had then removed herself from the group prior to the notice having been circulated to the WhatsApp group. Despite not having been a candidate for a post, in her grievance she sought to have the process redone by an independent board. In addition to Ncube, P Pillay, an educator at the School, who had applied for the post of deputy principal to the best of the Second Respondent’s recollection and Ngcobo, SADTU’s then branch secretary had all lodged grievances. These grievances were lodged following a meeting addressed by Ngcobo at which he encouraged attendees to find reasons with which to challenge the process.
67. With regards to the challenge by the Applicant to his work experience detailed in his curriculum vitae, the Second Respondent agreed that such work would normally not be done by a level 1 educator. He, however, maintained they he had indeed done what he had alleged to have done. He pointed out that in his curriculum vitae (at page 63 of exhibit A) he had stated that he had gained such experience after having been delegated the responsibilities by the School principal.
68. With regards to the Applicant’s witness, Cele, the Second Respondent submitted that learners taught by him had performed badly. In addition, prior to his appointment as the School principal an exercise had been carried out at the School, which had determined that it had five “excess educators.” Cele was included amongst these five. He had, however, not been transferred from the School at the date of the Second Respondent’s appointment as principal. Under his principalship the exercise was repeated and again Cele was found to be “excess.” This process is driven by the staff. Cele’s learners were performing poorly and he was qualified to teach at a primary school and not at a secondary school. Cele challenged the process but the First Respondent upheld the process and transferred Cele to a primary school.
69. At the time of the interviews the Second Respondent had 16 years’ experience of teaching at a high school whereas the Applicant only had 2 years of such experience. He had planned and managed the curriculum of the School whereas the Applicant had no such experience at a technical high school.
70. With regards to Mthembu and Tembe he stated that both had been elected to the SGB in their capacity as parents of different children.
71. The Second Respondent was appointed principal of the School on 4 December 2022. At the time of his appointment the matriculation pass rate at the School was 56%. Under his principalship this had improved to 100% (with an 85% Batchelor’s pass) at the end of 2024.
72. Under cross-examination the Second Respondent:
    72.1. Submitted that in terms of paragraph 8.1.2 (at page 38 of exhibit A) of HRM 35 of 2021, the curriculum needs of the School were a shortlisting requirement. It was up to the Applicant to have exhibited the full extent of such experience;
    72.2. Disputed that the School was not a technical school;
    72.3. Disputed that he had a special relationship with the SGB and IC members;
    72.4. Disputed that the improvement in his scores from the first process when he scored 35,4 to the second process when he scored 40,33 indicated that he had been unfairly favoured by the IC. In doing so, he submitted that if the Applicant wished to rely on these scores he ought to have called members of the investigating team to testify;
    72.5. Agreed that he did not have 7 years’ post qualification teaching experience;
    72.6. Disputed that he had a personal relationship with any of the SGB or IC members or that any of them had a vested interest in his appointment;
    72.7. Agreed that the photographs at exhibit 1A taken on 20 December 2020 depicted himself and Tembe. The issue of these photographs had previously been raised by Cele and another educator, Pillay after a union official had stated that such “evidence” could be useful;
    72.8. Agreed that all vacant posts at the School included in HRM35 of 2021 had been filled by educators from the School;
    72.9. Stated that his application for the post of principal was the first time that he had applied for promotion to a school-based post. He had previously applied for a Head Office post. At the same time as applying for the principalship post at the School, he had also applied for the post of deputy principal;
    72.10. Agreed that he had not previously been a department head or deputy principal;
    72.11. Disputed that he had no prior management experience. He had been entitled to apply for the post and he had displayed his managerial experience through his curriculum vitae and interview;
    72.12. Stated that he had learnt during the grievance process related to the first process that he had been ranked first. It had also later been said that Jiran had been ranked first. He had not been given this information by any member of the SGB or IC. He conceded that he might have initially said that he had been told during the Department’s investigation that he had been ranked first but maintained that he had learnt of this during a grievance process chaired by him;
    72.13. Disputed the version of the Applicant that it was evident from the scoring that the IC in the second process was biased. In support of this evidence, the Second Respondent referred to both the resource person and union representative who had affirmed the fairness of the interview process;
    72.14. Confirmed his evidence in chief that he was unaware of the relationship between Mthembu and Tembe. He had not read the investigation report and was thus unaware of its finding that they had twins together, who were at the School. The School has 1 400 learners;
    72.15. Stated that nothing prevented both parents of children being members of the SGB and disputed that the SGB Chairperson appointed the IC Chairperson, who he maintained was appointed by the IC members;
    72.16. Confirmed that when he had first been employed as an educator, he only had a senior certificate qualification and had acquired his teaching qualification in 2016;
    72.17. Confirmed that he had first registered with SACE in 2013. That registration would have been provisional and he would have been fully registered after he had qualified as an educator. The SACE registration certificate at page 60 of exhibit A records that he was provisionally registered on 11 September 2013 and fully registered with effect from 12 December 2016 (page 4 of exhibit E;)
    72.18. In response to the submission that his “teaching experience” would only commence from the date of his full registration, stated that were this to be true, it would have been dealt with at the sifting phase;
    72.19. Stated that he became a permanent employee in 2016 or 2017, after he had qualified;
    72.20. Confirmed that prior to his appointment, he had not been employed as a head of department or deputy principal;
    72.21. Confirmed that he had stated in his curriculum vitae (at page 64 of exhibit A) that he had “completed a Certificate in Management Studies which serves as a foundation year for Masters in Business Administration,” which assertion was supported by the correspondence from MANCOSA at page 1 of exhibit R and the Certificate in Management Studies at page 2 of exhibit E;
    72.22. Stated that he had written the letter to the Investigation Team at page 64 of exhibit A in his personal capacity and not on behalf of the SGB as he had been called upon by the Investigation Team to respond to certain allegations that had been made to it concerning himself;
    72.23. Disputed that it was a conflict of interest for him to call an SGB meeting at which the post was to be discussed. He maintained that he had acted correctly by withdrawing from the meeting when the item of the post of principal came up for discussion. This was in accordance with the provisions of HRM 35/2021 at page 45 of exhibit A that state that members of the SGB “must recuse themselves for the duration of the discussion and decision-making on any issue in which the members have a personal interest;”
    72.24. Stated that if the SGB was indeed prohibited from conducting the appointment process as alleged by the Applicant, the Head of Department would not have appointed him as principal on the SGB’s recommendation.
    WRITTEN ARGUMENTS SUBMITTED ON BEHALF OF THE PARTIES.
73. Comprehensive closing arguments were submitted on behalf of the parties.
74. The submissions made on behalf of the Applicant and the reply to the First Respondent’s submissions may be summarized as follows:
    76.1. Similar irregularities identified by the Investigation Team in the first process, permeated into the second process. The team had been properly appointed by Madondo, the District Director, who was authorized to make such an appointment
    76.2. The Second Respondent arranged for the meeting of the SGB at which the shortlisting and interview committees were to be chosen;
    76.3. All scorers had allocated similar scores to the Applicant, thus indicating that these were predetermined;
    76.4. Interview Committee members were not attentive during their interview of the Applicant. The Respondents could have called members of the committee to testify to refute these claims and the content of “Ncube’s minutes,” which reflect the true position;
    76.5. No reason has been advanced for the recommendations of the Investigation Team having not been implemented;
    76.6. The SGB was not authorized to proceed with the second process and its decision to recommend the appointment of the Second Respondent was ultra vires and null and void;
    76.7. Correspondence of the First Respondent records that the Head of Department had decided to remove the process of appointing the School principal from the SGB;
    76.8. The evidence by and for the Applicant establishes a prima facie that the failure to promote the Applicant was unfair. As such, an evidentiary burden was placed upon the Respondents to advance evidence to counter this prima facie case. In this regard, for instance, the Respondents did not advance any evidence to show that the findings of the Investigation Team had been set aside;
    76.9. The evidence of Cele establishes that the Second Respondent did not have any managerial experience whilst he was employed at the School;
    76.10. The evidence by and for the Applicant is to be preferred to that for the Respondents’ as it was free of internal and external contradictions and consistent with documentary evidence provided by the First Respondent;
    76.11. On the other hand, the Second Respondent was not a credible witness; for instance, he maintained that he had passed the “foundation phase” of a Masters in Business Administration Degree as averred in his curriculum vitae when this clearly was not the case; maintained that the School was a technical school whereas it was an ordinary secondary school;
    76.12. The evidence of Ngema ought to be approached with caution;
    76.13. The evidence of Gokar established that while the Second Respondent might have been a member of various committees, he had not held any managerial positions;
    76.14. The evidence of Mchunu ought to be approached with caution as he, as the resource person, had a motive to uphold the integrity of the proceedings. He could not justify the existence of two sets of minutes;
    76.15. The Second Respondent did not have the required post-qualification experience as an educator to be appointed.
75. The submissions on behalf of the First Respondent include that:
    77.1. The appointment of the Second Respondent was in accordance with the Employment of Educators Act and applicable Collective Agreement. Functions of the SGB can only be withdrawn from it in terms of section 21 of the South African Schools Act. No such withdrawal had been effected by the Department and any correspondence from its Legal Services or District Office does not assist the Applicant;
    77.2. The Second Respondent had recused himself from meetings of the SGB as required. He had not participated improperly in any such meeting;
    77.3. Whilst initially challenged by the Applicant, the qualifications of the Second Respondent had been accepted by him. the unchallenged evidence of Mchunu had established that it was not only post-qualification experience that counted towards the required experience for appointment;
    77.4. Ncube had attended meetings relevant to the second process leading to the appointment of the Second Respondent. The alleged failure to invite her to a meeting in the process, even if true, is of no relevance;
    77.5. The Second Respondent was registered with SACE as required;
    77.6. A single photograph together does not establish a friendship between the Second Respondent and Tembe. In any event, the Applicant did not present any evidence to prove that Tembe participated in any way in the second process;
    77.7. The evidence of the Second Respondent and that of the Applicant’s witness, Gokal established that the Second Respondent possessed the experience set out in his curriculum vitae. Further, the certificate submitted by the Second Respondent established that he had completed the foundation year for a Master in Business Administration, as claimed by him;
    77.8. No bias on behalf of the Interview Committee members;
    77.9. The evidence of the Applicant’s own witness, the SADTU observer, established that the Interview Committee followed a fair process. This was confirmed by the evidence of Mchunu, who had attended the meeting as the resource person;
76. Submissions were made on behalf of the Second Respondent. In these submissions the Second Respondent’s representative revisits the jurisdictional challenge in respect of which I have already issued a ruling. No further consideration was given to these submissions. The remainder of the closing argument includes that:
    78.1. The investigation report relied upon by the Applicant is hearsay and without a formal application for its admission, the content of the report must be disregarded;
    78.2. The Applicant merely speculates that the Applicant had a relationship with any of the members of the SGB or Interview Committee.
    78.3. There was no evidence that he had participated improperly in any meeting of the SGB relating to the process to appoint a principal;
    78.4. The evidence of the Applicant’s witnesses ought to be disregarded save for the evidence of Dr Gokar, where it is consistent with the evidence of the Second Respondent;
    78.5. The South African Council of Educators Act provides for both provisional and full registration with the Council. The Second Respondent was registered with the Council as provided by the legislation;
    78.6. The Second Respondent met the requirement for the post of at least 7 years’ experience. The Applicant was wrong to submit that this requirement required 7 years of post-qualification experience.
    ANALYSIS OF EVIDENCE AND SUBMISSIONS
77. The Applicant bears the onus of establishing on a balance of probability that the First Respondent committed an unfair labour practice relating to its failure to promote him to the position of principal of the M L Sultan Secondary School.
78. The First Respondent does not dispute that the Applicant was appointable.
79. Whilst the Applicant bears the onus to establish that the First Respondent committed an unfair labour practice in not promoting him, it was held in the case of Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT that the employer is by the same token obliged to defend the challenges to the substantive and procedural fairness. In this regard, there was an obligation on the employer to present evidence that it acted fairly.
80. The Applicant’s challenge to the conduct of the First Respondent rests upon a number of themes, including that:
    82.1. The process in terms of which the Second Respondent had been appointed, was irregular as the First Respondent had taken a decision following its investigation of the first process, that the SGB was not to be involved in the appointment process yet the SGB had been involved in recommending the appointment of the Second Respondent. As a result of the decision by the First Respondent that the SGB was not to be involved in the appointment process, its involvement rendered the subsequent appointment of the Second Respondent null and void;
    82.2. The Investigation Team had found the first appointment process to have been irregular in that the SGB and IC were found to have been biased. The same irregularities had persisted in the second process leading to the SGB’s favoured candidate, the Second Respondent, being appointed;
    82.3. The Second Respondent did not meet the minimum requirements for the post in that he did not have the required teaching experience;
    82.4. The Interview Committee was irrational;
    82.5. The Applicant was the best candidate for the post and the Second Respondent had padded his curriculum vitae with alleged experience and qualifications that he did not possess.
81. I shall deal separately with each of these themes in the paragraphs that follow.
    Following an investigation by the Department into the first process it had decided to remove the selection process from the SGB and as such the subsequent appointment of the Second Applicant pursuant to the SGB’s recommendation was null and void
82. The evidence relied upon by the Applicant in this regard consists of documentary evidence provided to him by the First Respondent from its records.
83. None of the authors of these documents were called as witnesses. The documents accordingly amount to hearsay evidence. They were, however, provided by the First Respondent and I shall have regard to them solely to establish whether they provide any support for the allegation by the Applicant that the SGB of the School proceeded with the selection process contrary to the decision of the Head of Department that the SGB was to be removed from the process for the appointment of a principal for the School. These documents include:
    85.1. A letter addressed by the Ilembe District Director, Dr Madondo, to O S Lushaba mandating him to conduct an investigation into the first selection process (at pages 86-88 of exhibit A;)
    85.2. A letter (at pages 100-101 of exhibit A) addressed by Dr Madondo to the SGB of the School informing it that “the department is intending to invoke the provisions of Chapter 3 section 6(3)(1) of the Employment of Educators Act, as amended.” (There is no such sub-sub-section;)
    85.3. A recommendation by Dr Madondo to the Head of Department (at pages 103-107 of exhibit A) dated 2 June 2022 in which it is recommended that “the department takes over the selection process in terms of section 6(3)(d) of the Employment of Educators Act.” (This section referred to by Dr Madondo deals with the obligation in terms of which a Head of Department must consider a recommendation to appoint received from an SGB. It does not deal with the assumption of the functions of an SGB by a Head of Department.)The recommendation of Dr Madondo appears to have been supported by N V Hlongwane, the acting Chief Director of Corporate Services. Provision is made in the document for Advocate Hlongwane, the Deputy Director General of Corporate Services to either support or not support the recommendation and for the Head of Department to approve or not approve the recommendation. Neither of these two sections have been completed nor signed by either Advocate Hlongwane or the Head of Department;
    85.4. A letter by Dr Madondo (at page 109 of exhibit A) recorded as having been signed by him on 18 July 2022, in response to correspondence from the SGB of the School in which he states that “…the Head of Department has granted us permission take over the selection and recruitment process … However further consultation is being conducted through our Legal Services whether to take over the processes…”
    85.5. A letter by Dr Madondo (at pages 110-111 of exhibit A) also recorded as having been signed by him on 18 July 2022 addressed to the Director of Legal Services, N Maphumulo, in which he states “It must be mentioned that the Head of Department has approved that the Independent Panel should conduct the selection and recruitment process. It is in this regard that the Ilembe District would like to seek advice whether to take over the process or not;” and
    85.6. A letter, dated 2 August 2021 (which I understand ought to be 2 August 2022 as it refers to a letter of 21 July 2022,) addressed by the Director of Legal Services, Maphumulo, to the attorneys for the SGB of the School in which she states that the “Head of Department had reason to withdraw this function (to make recommendation in respect of appointments) …”
84. On the other hand, Mchunu, the acting KwaDukuza Circuit manager, testified on behalf of the Respondents that he had been appointed as the resource person for the second process to appoint a principal for the School and had attended a meeting in August 2022 together with members of the SGB of the School addressed by the late Charles Ngcobo (Ngcobo,) then the First Respondent’s Director of Labour Relations. In terms of section 12.1 of HRM Circular 31of 2021, as the resource person he would have been appointed by the Department to assist the SGB. This would indicate that the Head of Department had not decided to remove the SGB from the process of appointing the principal to the School. Further, while Ngcobo was obviously not available to testify due to his passing, it is inconceivable that he would have called a meeting to notify the SGB that it was to continue with the appointment process, if this was in fact contrary to the decision taken by the Head of Department. Lastly, the Head of Department followed the recommendations of the SGB and appointed the Second Respondent. Clearly he would not have done so if he had in fact decided that the selection process was to be removed from the SGB and given to an independent panel.
85. In addition to the evidence of Mchunu and the documentary evidence relied upon by the Applicant, I have referred to relevant statutory provisions to determine whether there is any evidence from which I can infer that such a decision to take over the appointment process from the SGB was taken by the Head of Department.
86. Section 20 of the South African Schools Act 84 of 1996, (as amended )details those functions that an SGB must carry out and in terms of section 20(1)(i) of the said Act, recommending the appointment of educators to the Head of Department is one such function. Section 22 of the said Act provides that the Head of Department may on reasonable grounds withdraw a function of an SGB. He, however, may not do so unless he has:
    88.1. “Informed the governing body of his or her intention so to act and the reasons therefor; section 22(1)(a)
    88.2. Granted the governing body a reasonable opportunity to make representations to him or her relating to such intention; section 22(1)(b) and
    88.3. Given due consideration to any such representations received.” Section 22(1)(c)
87. In terms of section 22(3) of the said Act in cases of urgency the Head of Department may act without prior communication with the SGB provided subsequent to acting reasons are furnished to the SGB, it is given an opportunity to reply and due consideration is given to the representations.
88. As already indicated, in light of the abovementioned legislative provisions I need to determine whether there is any evidence from which I can infer that the Head of Department had acted in terms of section 22 of the said Act. I find that there is no evidence from which I can infer that such a decision was made by the Head of Department as:
    90.1. The correspondence at pages 100-101 of exhibit A informing the SGB of the School that it was the intention of the Department to take over the selection process from the SGB was written by Dr Madondo, the District Director and not the Head of Department. No attempt to comply with the statutory requirements of section 22 of the said Act are evident from the content of the letter;
    90.2. The letter from the attorneys for the School’s SGB (at pages 112-113 of exhibit A) is addressed to the “Legal Department, Department of Education, the Ilembe District Office” and dated 21 July 2022. This would indicate that as of 21 July 2022 no notification in terms of section 22 of the said Act had been received by the SGB from the Head of Department and that interaction between the SGB and the Department had been confined to District level. It is also evident from the content of the letter that no notice of a decision by the Head of Department to assume the function of the SGB had been conveyed to the SGB by the Head of Department by the date of the letter.
89. In light of the above, I find that the Applicant has not established that the SGB improperly participated in the selection process and that the appointment of the Second Respondent was null and void.
    Minimum requirements for the post
90. The Applicant’s challenge to the appointment of the Second Respondent in this regard rests on his submission that the Applicant did not have the minimum required teaching experience.
91. It is not in dispute that candidates for the post of principal were required to have “7 years of actual teaching experience.”
92. The Respondents do not dispute that the Applicant possessed the required experience.
93. The Applicant submits that as the Second Respondent had only qualified as a teacher in 2016 he did not have the required experience when he had applied for the post in 2021. In this regard, it is the Applicant’s assertion that the Second Respondent’s teaching experience from 2006 until he qualified in 2016 should have been disregarded as only post qualification experience was relevant.
94. On the other hand it was the evidence of the Respondents that for various reasons the First Respondent had in the past appointed persons as educators who were not qualified as such; it did not distinguish between SGB appointed educators and those appointed by it and that if the First Respondent had considered only post qualification experience to be relevant, it would have stated so.
95. HRM 35 of 2021 lists the education qualifications, statutory requirements, experience and eligibility for the post of principal under five separate columns (at page 34 of exhibit A.) Under the column heading of “Experiential competency” it is stated that “7 years of actual teaching experience” is required by candidates. I cannot find anything in the said circular to support the interpretation sought by the Applicant. In this regard, if it was the intention of the First Respondent to require candidates to have a minimum of 7 years of post-qualification experience, it could have simply stated as much by replacing the word “actual” with “post-qualification.” By using the word “actual” to qualify the experience candidates were required to possess I find that the First Respondent required candidates to have a minimum of 7 years of teaching experience whether or not they were in possession of a recognized qualification. As I am satisfied that the Second Respondent had been employed as an educator since 2006 before having qualified in 2016, I find that he met the minimum requirements for the post in respect of teaching experience.
96. The Applicant also challenged the veracity of the functional and generic competencies and skills claimed by the Second Respondent in his curriculum vitae. The Applicant had not previously worked with the Second Respondent and thus he could not give direct evidence in this regard. The Applicant challenge to the appointment of the Second Respondent in this regard was twofold.
97. Firstly, he relied upon the evidence of Cele, at the relevant time a fellow educator with the Second Respondent at the School, and that of Dr Gokar. Their evidence, however, was not particularly helpful to him. Cele initially testified that he was unaware of the roles, responsibilities and experience claimed by the Applicant in his curriculum vitae as to the best of his knowledge the Applicant had not performed any of the claimed functions at the School. He simultaneously conceded that he was unaware of the Applicant’s functions and experience gained at other schools. He nevertheless proceeded to agree that the Second Respondent had been a member of the School’s discipline, safety and security committee. He further subsequently conceded that he was unaware of what experience the Second Respondent had gained as a member of the SGB. In particular, he could not dispute that the Second Respondent had been a member of sub-committees of the SGB that had drafted policies subsequently been adopted by the School. On the other hand, the Second Respondent stated that he indeed had the experience claimed by him (on which he expanded upon considerably during his evidence) and that he had simply framed that experience in compiling his curriculum vitae, to speak directly to the competencies and skills’ requirements set out in the advertisement. In this regard the Applicant’s evidence was supported by that of Dr Gokar, who had testified on behalf of the Applicant. Dr Gokar confirmed that the Second Respondent had been a member of committees established to support the senior management team at the School during his period as acting principal.
98. Secondly, it was submitted by the Applicant that the Second Respondent had been dishonest in his curriculum vitae as he simply could not have acquired the claimed experience as a level 1 educator as such educators do not carry out managerial functions. This argument cannot hold water as it is accepted by the Applicant that level 1 educators could apply for the post of principal. As such, it is clear that the Department accepts that level 1 educators (like the Second Respondent) may have acquired the necessary competencies and skills. The mere fact that the Second Respondent was a level 1 educator, thus does not give rise to the conclusion that he must have been dishonest in his curriculum vitae.
99. It was also argued on behalf of the Applicant that the Second Respondent had made false claims in respect of his non-teaching qualifications. In particular, it was submitted that the Second Respondent had falsely claimed in his curriculum vitae that he had “completed a Certificate in Management Studies which serves as a foundation year for Masters in Business Administration”-at page 64 of exhibit A. After having been challenged in this regard and having maintained that he indeed had such a qualification, the Second Respondent on the second day of his cross-examination submitted as exhibits copies of correspondence from MANCOSA (at page 1 of exhibit R) and a “student academic record” issued by MANCOSA (at page 2 of exhibit R) that records that passed a number of subjects in the programme described as “Certificate in Management Studies/MBA Foundation Year.”
100. Lastly in this regard, it was submitted that the Second Respondent had been dishonest in stating in his application that he had been registered with SACE since 11 September 2013 whereas he had only been registered since 12 December 2016 after he had qualified. The response of the Second Respondent was that SACE had granted him provisional registration in 2013 as it is entitled to do for unqualified educators and full registration on him qualifying. I accept the evidence of the Second Respondent as it is in line with the legislation and corresponding regulations. I find that the Applicant has not established any dishonesty by the Second Respondent in this regard.
101. I find that the Applicant has not established that the Second Respondent was dishonest or misled the Shortlisting and Interview Committees.
     The Interview Committee was biased and conducted itself in a manner to give effect to a predetermined decision to recommend the appointment of the Second Respondent
102. The Applicant places reliance upon the findings of the Investigation Team to support his submission that Interview Committee was biased. In essence it is alleged that the alleged irregularities identified by the Investigation Team permeated into the second process by which the Second Respondent had been appointed. As already indicated, the content of the report of the Investigation Team is hearsay and, in any event, does not relate to the second process by which the Second Respondent was appointed. One of the persons relied upon by the Investigation Team, Cele, also testified at this hearing as a witness for the Applicant. I am thus able to consider his evidence.
103. Cele had applied for but been unsuccessful for various posts advertised in HRM 35/2021. He had not been shortlisted and interviewed for any of the posts and had unsuccessfully lodged a grievance (at pages 151-152 of exhibit A) in respect of the posts. The grievance made generalized complaints that the selection process was manipulated to give predetermined results. He did not expand upon this allegation at the arbitration. He did, however, submit that the Second Respondent was a friend of Tembe as they had been seen together. He did not attend the Interview Committee proceedings. He further testified that Tembe was a parent of children at the School together with Mthembu, the chairperson of the Interview Committee, and that he had continued to manipulate the selection process by remaining in contact with her throughout the interviews. I do not know how Cele knew of this communication as even if I assume that he saw Mthembu on her cellular phone, how did he know with whom she was communicating? This alleged communication would also detract from his premise that the interview process was a sham as if it were so, there would be no need for Mthembu to take instructions from Tembe during the course of the interview process, as implied by Cele’s evidence. She and the Interview Committee would simply have given effect to the predetermined result.
104. The Applicant called the SADTU trade union observer of the interview process, Ngema, as a witness. His evidence did not support the view that the interview process was a sham.
105. Mchunu, the acting KwaDukuza Circuit manager, was the resource person at the second process and was called as a witness by the First Respondent. He testified that he had participated in approximately 40 selection processes. He had trained the Interview Committee in respect of their obligations and duties in terms of the prevailing prescripts. The shortlisting and interview processes had proceeded as prescribed, according to his observations. It was submitted on behalf of the Applicant that Mchunu’s evidence should be approached with caution as he had a motive to defend the process given his role as the responsible resource person. Such a submission would only hold water if it was established that irregularities had occurred and he had remained silent. The available oral evidence, however, does not support this supposition.
106. The Applicant had intended to call Ncube, the Interview Committee secretary as a witness. Despite having been served with a subpoena on two occasions, she did not present herself at the arbitration. It is obvious that the purpose of her testifying was at least for her to prove and expand upon the purported Interview Committee meeting minutes signed by her that are at pages 131-132 of exhibit A. These “minutes” inter alia record that all “five candidates were interviewed, but right after candidate 2 (the Applicant) and 3 (Mhlongo). The Union rep was not happy and also raised the issue about procedures and processes not adhered to, and not being fair and he felt that the committee was not being consistency…” These minutes are not on the letterhead of the School and appear to have only been signed by Ncube and not also by the chairperson and resource person unlike the minutes at pages 133-134 of exhibit A.
107. I need to decide whether I can attach any weight to the content of these purported minutes signed by Ncube and nobody else. In this regard I have considered that:
     109.1. Mchunu testified that Ncube had produced draft minutes that had only undergone cosmetic changes after having been reviewed. These changes had not included the removal of the abovementioned content or any other similar substantive changes. I thus do not know whether the purported minutes signed by Ncube only are a copy of the draft minutes referred to by Mchunu. He further testified that he and Ncube had attended the grievance in respect of the second process and she had not raised any complaints in respect of the conduct of the Interview Committee (unlike with the first process when she had lodged a grievance herself.) If she had concerns herself about the process followed at the interviews, one would have expected her to similarly raise these concerns at the grievance hearing but she did not do so;
     109.2. The purported minutes of Ncube record that it was the trade union representative who voiced his concern about the interview proceedings. The trade union official was Ngema, who testified on behalf of the Applicant. He testified that he was satisfied with the process followed by the Interview Committee and was unaware of any complaints by his trade union, SADTU. There was nothing in his demeanor for me to disregard his evidence and instead to place weight on the evidence of Cele who testified that Ngema had been intimidated not to be truthful and to give voice to his concerns regarding the process adopted by the Interview Committee; and
     109.3. The evidence of Ngema and Mchunu discharges any evidentiary burden on the Respondents that may have been brought about by the submission of the purported minutes signed by Ncube.
108. In support of his allegation that the SGB was biased in favour of the Second Respondent, the Appointed pointed to a photograph (at annexure A1) of the Second Applicant and Tembe. It was submitted that the photograph was indicative of an unduly close relationship between the Second Respondent and members of the SGB. The date stamp on the photograph is 20 December 2020. The Second Respondent does not dispute that the photograph is of him and Tembe. He testified that he had been at the opening of a new venue where he per chance had met Tembe and he had asked a third party to take their photograph. He had uploaded the photograph on to his Facebook page. The Second Respondent denied that he enjoyed a particularly close relationship with Tembe outside of Tembe being a parent of a learner at the School and them both having been members of the SGB.
109. It would appear from the content of the Investigation Report that this photograph influenced the Investigation Team in reaching its recommendation that the appointment process be taken away from the SGB. I do not reach the same conclusion that a single photograph can give rise to an inference that there is an unduly close relationship between Tembe and the Second Respondent that would cause the SGB to unfairly favour the Second Respondent.
110. The Applicant further placed reliance upon the scoring at the shortlisting and interview phases as being indicative of the appointment process having been unfair. The scoring for the shortlisting and interview phases were summarsied by the Applicant on exhibit Q. It is indeed true that similar scores were allocated by the scorers in most cases. This on its own, does not give rise to the inference that the process had not been fair. It may well arise, as submitted by Mchunu, that they had all had a similar understanding of their induction training given by him. The supposition by the Applicant also does not explain the scoring of the scorer Shabangu who gave the Second Respondent a score of 31 at the shortlisting phase, which was substantially less than the scores of 35 and 36 allocated by the other two scorers and also less than the score of 33 which he had allocated to the Applicant. As such, I find that no inference of unfairness can be drawn from the scoring on its own.
111. Lastly, it was submitted on behalf of the Applicant that the Second Respondent had participated in the SGB contrary to his obligation to recuse himself from proceedings in which he had an interest. In this regard it was submitted that the brazen manner in which the Applicant had continued to involve himself was indicative of the hold he had over the SGB and that from the outset the process had been biased. The evidence relied upon by the Applicant was that the Second Respondent had issued the notice to attend the SGB meeting at which the Interview Committee was to be elected. The Second Respondent did not dispute that he had in fact issued the notice but maintained that he did recuse himself once the relevant item had come up for discussion. This evidence is supported to a certain extent by that of Mchunu who testified that the Second Respondent had been present at the meeting addressed by the late Dr Ngcobo but had recused himself once the item of HRM 35/2021 had come up for discussion.
112. I am thus not satisfied that the Applicant has established that the interview process was unfair.
113. Having considered all of the challenges raised by the Applicant I am not satisfied that he has established that the First Respondent committed an unfair act or omission relating to its failure to promote him.
     AWARD
114. The First Respondent, the Head of the KwaZulu-Natal Department of Education, did not commit an unfair labour practice relating to its failure to promote the Applicant, Dr Aneel Ramcharan, to the post of Principal of the M L Sultan Secondary School.
115. The Applicants dispute is dismissed.
116. There is no order in respect of costs.

J Kirby
Arbitrator 26 February 2026
ELRC675-22/23 KwaZulu-Natal