IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT GRAHAMSTOWN / MAKHANDA
Case No ELRC704-19/20EC
In the matter between

SADTU obo MP Matshoba Applicant

and

Provincial Department of Education: Eastern Cape Respondent

ARBITRATION AWARD

Arbitrator: JC Robertson

Heard: 06 05 2021, 15 07 2021, 05 08 2021, 12 08 2021, 22,23,24 11 2021, 17, 18 02 2022, 15, 16 03 2022, 04,05 04 2022, 27, 28 06 2022, 25, 26 07 2022, 29, 30 08 2022, 20 02 2023, 22, 23 05 2023, 10, 11, 12 07 2023, 18, 19, 20 12 2023, 22, 23 04 2024, 24 06 2024, 01 08 2024

Closing arguments: 10 September 2024

Award: 03 December 2024

Summary: Labour Relations Act 66 of 1995 – Section 186(1)(a) – Unfair Dismissal Dispute; Fraudulent conduct, misrepresentation relating to practical training.

Details of hearing and representation

1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(i) of the Labour Relations Act, No 66 of 1995 (LRA). The hearings were conducted via the teams / zoom digital platform on the dates set out above. Mr F Tjale represented the applicant party, SADTU obo Ms MP Matshoba (the applicant). Adv S Collett instructed by the State Attorney, represented the Provincial Department of Education: Eastern Cape (the Respondent). Mr M Ndabambi, Ms A Matata, Ms B Mancayi and Mr D Kova acted as interpreter. The proceedings were digitally recorded. The matter was finalised on 10 September 2024 when the parties submitted written closing arguments. I requested an extension to submit my award. Preliminary matters
2. The respondent applied on the papers for permission (17 September 2021) to submit evidence, by way of affidavit, of Mrs Phumla Mdodana and Ms Nomthandazo Bonga, who had testified at the applicant’s disciplinary inquiry. The applicant opposed the application. After considering the matter and for the reasons set out in my ruling dated 29 October 2021, I dismissed the application to present the evidence of Ms Mdodana and Ms Bonga by way of affidavit. Neither Mrs Phumla Mdodana nor Ms Nomthandazo Bonga, testified at the hearing, the respondent’s representative citing medical reasons.

3 The respondent was unable to obtain copies of the documents Ms MP Matshoba submitted in support of her practical training at MBSSS to the University of South Africa (UNISA). The respondent applied, on 16 March 2022, on the papers for an order compelling the applicant, Ms MP Matshoba, to provide the respondent with copies of the documentation she submitted to UNISA in support of her practical training performed at Molly Blackburn Senior Secondary School (MBSSS) for the period 2010 and 2011. The applicant had handed up at the arbitration a letter from UNISA dated 13 June 2019, certifying that she had completed her PGCE (Senior Phase and FET) at UNISA, including the two practice teaching modules PTEAC1X in 2010 and PTEAC2Y in 2011. This letter had not been handed up at the disciplinary inquiry. It was the respondent’s view that this letter was hearsay, but in any event the applicant should be able to obtain the supporting documentation from UNISA. The applicant opposed the request citing inter alia jurisdiction of the ELRC, POPIA the regulated procedures for access to personal information and that the applicant could not be compelled to produce information that was in the hands of a third party. After considering the papers and for the reasons set out in my ruling dated 8 June 2022, I dismissed the respondent’s application. I did however indicate in the body of my ruling, that nothing prohibited the respondent subpoenaing the relevant UNISA official duces tecum the relevant documents to testify at the arbitration hearing. The respondent subsequently took this up, however the attempt did not succeed as UNISA were unable to locate the relevant records.

The issue to be determined 

4. I am required to determine whether the dismissal of the applicant was substantively fair, and if not, to determine appropriate relief. Background
5. At the time in question 2010-2011, it is common cause or not disputed, that the leadership and management structure of Molly Blackburn Senior Secondary School (MBSSS) included: Mr Nqqondi (Principal); Mr Goba (Deputy Principal Academic); Mr Dlutu (Deputy Principal Administrative); Ms Mdodana (Head of department (hod) of Economic & Management Sciences (EMS)); Ms T Ndika (hod Life Sciences and Music); Mr MH Sitole (hod Social Sciences). The applicant Ms MP Matshoba was the administrative clerk MBSSS.

6 The applicant commenced employment with the respondent (the Provincial Department of Education Eastern Cape), as an admin clerk at Molly Blackburn Senior Secondary School (MBSSS) in May 1997. She obtained a B. Com. Degree from Nelson Mandela University (NMU). In 2010 she registered at UNISA for a post graduate certificate in education (PGCE). Her registration for the PGCE was on a part time basis, requiring that she do the certificate over a period of 2 years (2010 / 2011). Part of the requirement for the award of a part time PGCE is the completion of two 5 week practical training modules, one conducted each year. The applicant was required to do the following training modules:
Year Module Age Group Grade Days Subject
2010 PTEAC1X 16-18 Years 10-12 25 days Economics (FET phase)
2011 PTEAC2Y 13-15 Years 7-9 25 days Economics & Management Sciences (Senior phase)

7. The applicant sought permission to do her practical training at MBSSS where she was employed as a clerk. The applicant’s subject choice fell within the Economics & Management Sciences (EMS) department. Ms Mdodana was the head of department (hod) of EMS. The applicant was awarded her PGCE and was translated / appointed to the position of educator post level 1 in the EMS department at MBSSS, with effect from 1 June 2013. She was subsequently charged with misconduct arising out of her practical training in the following terms:
   “It is alleged that you are guilty of fraudulent conduct in that you misrepresented to the school management team that you had completed your practical training with, alternatively under supervision of Ms Mdodana when in fact you failed to do so and thus presented fraudulent training documentation to UNISA, ultimately resulting in your appointment as a post level 1 educator”.
8. The disciplinary hearing commenced on 22 September 2015 and was finalised on 14 September 2017. The applicant pleaded not guilty, was found guilty as charged and was dismissed effective 01 October 2019 after an unsuccessful appeal on finding and sanction. At the disciplinary inquiry, the applicant was represented by an attorney, Mr Rossouw and the respondent was represented by Adv. SA Collett. At the date of her dismissal she earned R 25 795.00 per month.
9. The applicant referred a dispute to the ELRC seeking as relief that she be reinstated, together with backpay, from the date of her dismissal (1 October 2019). The respondent sought that the status quo ante remains. The matter was not resolved at conciliation and proceeded to arbitration.
10. At the commencement of the arbitration hearing the parties agreed by way of a pre-arbitration agreement, that the applicant is aware that there is a rule underlying the charge and that it is wrong to contravene the rule (i.e. the rule prohibits the misrepresentation to the school management team (SMT) that one had completed their practical training, when they had not done so) and she is aware that it is wrong to do so. The applicant also admits that the rule / rules are valid and reasonable. Consistency and procedural fairness were not placed in dispute.
11. Essentially it was the respondent’s case that the applicant never in fact did practical training under the supervision of Ms Mdodana as HOD of EMS (including the assignment / appointment by her of Ms Bonga and Ms Mayi to mentor the applicant in 2010 and 2011 respectively) or that they mentored her. It was accordingly the respondent’s case that any documentation that may have been presented by the applicant to UNISA in order to fulfil the practical training requirements that was allegedly done at MBSSS was fraudulent and that any representation made to the Senior Management Team (SMT) that she had completed such practical training was a fraudulent representation.
12. The applicant’s case was to the effect that she met the requirements for the PGCE as per A1. She had been introduced through the correct channels to the EMS department, in both 2010 and 2011. The HOD, Ms Mdodana, had allocated Ms Bonga to mentor her in respect of Economics (FET phase) in 2010 and allocated her Ms Mayi as mentor for Economics and Management Sciences (Senior phase) in 2011. Further Ms Foley of UNISA had assessed her during October 2011. She had done practice training for two 5 week periods one in 2010 and the other in 2011 and had submitted the required lesson plans and assessments, signed off by her mentors, and assignments to UNISA.
13. The issues in dispute accordingly related to substantive fairness, In particular:
    13.1 Whether the applicant committed the misconduct as charged. In this regard the applicant pleaded not guilty and denied that she committed the offence with which she was charged. It was the respondent’s case that the applicant was guilty as charged
    13.2 The sanction of dismissal
14. The documents (A1-A227 , R1-R95, Award on Merits in disciplinary hearing Page 1-62, Award on Sanction page 1-25 and the transcript (on a flash drive in the matter of SADTU obo Nqqondi) of the disciplinary inquiry were handed up by agreement between the parties into evidence as to what they appear / purport to be. The arbitrator did not take into account the content of any document not referred to by the author thereof unless otherwise agreed by the parties .
15. I shall refer to the documents, where necessary as A1, A24, R23-B25, and the Transcript as T2100 etc.

Survey of evidence and argument
The Respondent’s Submissions
16 The respondent led the following witnesses and closed its case:
Mr MC Totana: At the time in question, Senior State Accountant, functioning as, Head of Investigating Unit (promoted to Senior Investigating Officer, Anti-Corruption 01 08 2015) Department of Education: Eastern Cape.
Ms F Ngqono: She commenced employment as a post level 1 educator with the Department of Education: Eastern Cape in 1991. In 1993 she was transferred to MBSSS and taught Mathematics Literacy and English. She together with Mr Goba, Ms Mdodana, Ms Mtshoweni and Mr Sitole had undergone a three day training, offered by UNISA, with regard to the mentoring of student teachers (practical training).
Mr M Mdashe: Employed by the Department of Education: Eastern Cape as a post level 1 educator in the EMS department MBSSS, teaching Business Studies and Economics. He had commenced as a substitute teacher in 2011.
Ms T Ndika: At the time in question (2010 / 2011) the HOD of the department of Life Sciences and Music and a member of the Senior Management Team (SMT) MBSSS. Currently the deputy Principal MBSSS.
Mr M Sitole: At the time in question he was the HOD of the department of Social Sciences MBSSS (2009-2019) and a member of the SMT MBSSS. Currently he was the principal of Zanulwasie SSS, Despatch.

17 Mr MC Totana testified to the following effect:
17.1 He had been instructed to investigate MBSSS after receipt of complaints from the District Office pushed by a petition of concerned people within MBSSS including educators. He recalled that one of the issues was that of the qualifications of Ms Matshoba, an educator at the school. There were allegations in the petition around promotions and appointments and one was the appointment of Ms Matshoba without consultation and questioning the process.
17.2 He had obtained confirmation of the applicant’s appointment as an educator after requesting it from the principal. The applicant, at the time he conducted his investigation, was working in the school clerk’s office. After receipt of the applicant’s personnel file which he had requested from head office registry, he ascertained that the applicant had the necessary qualifications and had done her practical training at MBSSS with Ms Mdodana as her supervisor. In his view it was strange that the documentation relating to the applicant’s practical training was not in her personnel file held at the School. He held the view that in terms of section 16A of the South African Schools Act, it was the responsibility of the principal to safeguard the school records. He requested the applicant to provide proof of her practical training. She had furnished him with original documents / practical assessment forms relating to 2011 written in pencil and incomplete (R24-R87) as confirmation that she had sent her documents to UNISA. As to what she had actually sent he did not know.
17.3 He had checked with Ms Mdodana as to whether the applicant had done her practical training under her supervision in 2010/ 2011. Ms Mdodana advised that she had never been briefed on this, there had been no departmental meeting in this regard and she did not supervise or observe Ms Matshoba. The documents handed to them by the applicant included reference to Mr Koliti as a mentor . On these being exhibited to Ms Mdodana, she had called Mr Koliti into her office and he had denied ever mentoring the applicant. Both of them had no knowledge of the applicant being trained within the EMS department. After the engagement with Ms Mdodana he requested her to make a report in writing (R89C-R89D) .
17.4 He had also interviewed Ms Bonga who confirmed that she had never been appointed by the HOD Ms Mdodana or the principal, to mentor the applicant. However the applicant had come to her informally to ask to observe her in class, which she had allowed. She did not however mentor the applicant, this was simply an informal arrangement between them. At the time Ms Matshoba had not mentioned Ms Mayi as a mentor. This, at the arbitration hearing, was the first time that this had been mentioned.
17.5 He had requested UNISA to provide the original documents but had no success to date. Based on the supervisor’s, (Ms Mdodana) denial of any assessment in relation to the applicant’s practical training, he had formed the view that the applicant had acted fraudulently in relation to her practical training assessment and accordingly obtained her qualification fraudulently.

18 Ms F Ngqono testified to the following effect:
18.1 She knew Ms Matshoba, having worked with her in her capacity as an admin clerk.
18.2 The procedure followed when a student embarked on practical training at MBSSS was as follows:
18.2.1 The student teacher attends on the principal together with the documents from the referring institution
18.2.2 The principal calls the HOD who is responsible for the subject/s in which the student teacher is to receive training
18.2.3 The HOD will call the subject teacher of the subjects the trainee teacher will get practical training in, the teacher is assigned to the student teacher
18.2.4 The student teacher gets introduced to the teachers at the staff room by the principal and HOD
18.2.5 The mentor will oversee the student teacher while they are at the school and both the mentor and teacher will report to the hod.
18.2.6 While doing practical training the student teacher was required to observe the mentor, prepare their lessons for the day as to what they would teach and attend to everything that other teachers did, this would include going to the staff room and attending staff meetings
18.2.7 The period of practical teaching varied from institution to institution but was normally five weeks per module
18.3 The applicant had never been introduced at the staffroom as a trainee teacher and she knew her only as an admin clerk and not as a student teacher. She had never seen the applicant doing practical training or during the changeover between lessons, when teachers moved from one class to another.
18.4 She had been approached by Ms Bonga to assist her to complete a form for Ms Matshoba’s practice training. Ms Bonga reported that she had been referred by Mr Goba to her. She asked Ms Bonga why she did not go to the HOD, Ms Mdodana. Ms Bonga reported that she had been to her but that Miss Mdodana refused to sign the forms as one of the mentors (who had received training) because she had not been told about the practical training of Ms Matshoba . Mr Goba then directed Ms Bonga to her. She could not deny that Mr Goba did or did not instruct her, this is what Ms Bonga reported to her. Mr Goba was the deputy principal academic. Ms Bonga reported that the applicant had attended one class with her and therefore she requested the witness to assist her with the form as she was one of the mentors out of the five that had been trained and that the applicant was a student from UNISA. She assisted her not in relation to the subject content, but in relation to how the student conducted herself, discipline wise, classroom wise, manners etc.
18.5 She had questioned Ms Bonga as to why she had brought the forms to her to complete as she was not in the EMS department. Ms Mdodana as HOD should have been in charge of the applicant if she had done her practice teaching.
18.6 She had signed the petition (A2-A4 dated 25 April 2013). At the time she held no grievance against Matshoba. The complaint in the petition relating to Ms Matshoba related to her job description as a clerk (A8 paragraph 2.1).
18.7 Some-time after the petition, a risk management team was appointed to investigate the situation and arrived at their school. During this period the applicant’s status had not changed and she remained as admin clerk.
18.8 After the arrival of the risk management team they were told that Ms Matshoba had been translated as an educator. The educator staff were shocked by her translation as this was new to them. R97 (dated 13 August 2013) was a letter written by the site secretary to the district office in this regard. No one, not even the SMT knew about this translation it had been kept secret. There were three temporary educators in EMS at that time and they had not been advised of any vacancies. R96, dated 3 June 2013, was the letter of permanent appointment of Ms Matshoba as an educator at MBSSS with effect from 1 June 2013. At this time Ms Matshoba was still acting as admin clerk.
18.9 She had worked well with Ms Matshoba and had nothing against her. Had they been told that she had become a teacher they would have rejoiced in her progress and congratulated her as one of them. However that she remained as an admin clerk and earned an educator’s salary was confusing and surprising to her.
18.10 Questioned about her off the record statement, she responded variously to the effect that she had been talking to herself and that it was something she was aware about as she had been at MBSSS at the time. She was not suggesting that Ms Matshoba was guilty. She was saying the only reason they appealed was to get another opportunity to check if the outcome was fair. She was not biased or chose any particular side. It was within their right to appeal. The reason she was testifying at the arbitration was because she had assisted Ms Bonga to fill in one form for Ms Matshoba on one occasion.
18.11 Put to her that it was the applicant’s case that the reason she remained in the clerk’s office after she should have assumed her educator function, was because the HOD Ms Mdodana had refused to allocate her classes to teach. As a result the deputy Principal directed her to work from her office. She had no comment
18.12 Resulting out of their workshop on mentoring, the 5 educators in question would assist the teachers to whom student teachers were attached. She was not familiar with the form at R71 as this was an assessment form. She was familiar with lesson plan forms such as R80-R82.
18.13 She reiterated her testimony that:
8.13.1 She had assisted Ms Bonga in completing forms for Ms Matshoba in 2011. Ms Bonga used a pencil. She had no reason to mislead.
18.13.2 Ms Bonga was referred to her for assistance with the forms of Ms Matshoba by Mr Goba the deputy principal curriculum. She had asked why Ms Mdodana had not assisted with them.
18.13.3 She had been told that Ms Mdodana was not aware of the practical training of Ms Matshoba and she, Ms Ngqono, must assist as she had been trained as a mentor. There was no difference in the training she got as a mentor from that of Ms Mdodana as they were trained in the same room.
18.13.4 That the applicant had not been introduced to the educators in the staff room. The applicant had not attended briefings.
18.14 Put to her that Ms Matshoba would testify that she had noticed her in the corridors when moving from class to class while doing her practical training she responded that she did not recall seeing the applicant. That the applicant may have seen her, she could not dispute.
18.15 Educators other than HOD’s would either sit in the staff room or together with their HOD in their office, during their free periods. Put to her that Ms Matshoba’s testimony would be that while she was doing her practical teaching she chose not to sit in the staff room but in the admin clerk’s office. She responded that they did not see anything wrong with the applicant in the admin clerk’s office because she was the admin clerk of the school.
18.16 She could not dispute whether the principal and two deputy principals, on Ms Matshoba’s testimony, were aware that she was to do practice training.
18.17 Put to her that it would be Ms Matshoba’s testimony that she completed 5 weeks practice training under Ms Bonga. She responded that she had only filled in one form once and could not say if she was there or not. Put to her she stated that she had never seen the applicant doing practical training with Ms Mayi for a period of 5 weeks in 2011.
18.18 In her view it was not possible for anyone to do another job at the same time as doing the practical training.

19 Mr M Mdashe testified to the following effect:
19.1 He commenced at EMS as a substitute teacher in EMS in 2011. On his arrival he had been introduced to the staff just before the start of the morning session.
19.2 There was disagreement between the staff and management. The staff wrote a petition (A2-A4 dated 25 April 2013). He had signed the petition. There were a long list of grievances . There was no grievance against Ms Matshoba, if there was any it was not about this matter. He later learned of Ms Matshoba’s translation. This was in 2013, when he was still a temporary educator. He was not sure in which department she was placed but heard it was EMS. He knew of no vacancies in EMS at the time.
19.3 Put to him that his classes were taken from him and given to Ms Matshoba on her translation as a permanent educator by Mr Goba. Was he then not aggrieved by the fact that she was permanent and he still temporary. He confirmed there had been a reallocation of classes, however he had not been aggrieved by this. He felt aggrieved that she was permanent and he temporary, however he did not understand the employment process as he was still new in the department. He held no resentment against Ms Matshoba.
19.4 He agreed that the reference to the senior clerk in the letter of explanation of the grievances was to Ms Matshoba. Asked if at this stage he felt unfairly treated by the senior clerk he responded that the relationship between them and the senior clerk was not good.
19.5 He had done practical teaching. He stated that two 5 week sessions were required per year for practice teaching, however this depended on the subject. Later he agreed that the periods would differ depending on the institution. He was speaking of his practice teaching. He could not dispute that Ms Matshoba’s practical teaching was one 5 week module per year over two years. A student doing practice teaching was required to undergo training with her mentor and teach classes. She would also be introduced to the staff and attend staff and departmental meetings.
19.6 He was teaching economics in EMS in 2011. He did not see the applicant doing practice teaching in EMS in 2011. She had never been introduced to him in EMS in 2011. She had never attended any EMS departmental meetings in 2011.
19.7 Ms Mdodana was HOD of EMS. She had never mentioned that Ms Matshoba was doing practical training in EMS in 2011. He had not seen Ms Matshoba at all during the times they changed over classes. In his view it was not possible for him not to have seen her, had she done practice teaching in 2011 for 5 weeks as they would have been in the same department and bound to cross one another’s path. Neither had he seen her in departmental meetings in 2011 which she would be required to attend as a student doing her practice teaching. All other educators had, in the past been introduced to the staff at a staff meeting. The applicant had never been introduced to him / the educator staff at a staff meeting.
19.8 The minimum number of departmental meetings per month would be one. He had not seen Ms Matshoba at departmental meetings, staff meetings or morning briefings. Although supposed to attend morning briefings not all teaching staff would attend because of other commitments. This would be evident from their respective time tables.
19.9 He disagreed that the whole of the educator staff could not fit into the staff room for morning briefing sessions. If all attended then some staff would stand. He did not see Ms Matshoba at morning briefings.
19.10 Put to him that Ms Matshoba had been introduced to the staff at a staff meeting in 2010 and that therefore it was not necessary to reintroduce her again, he responded that he could not answer to that, only what he knew.
19.11 He had initially commenced as a substitute teacher in history (grade 10) in the place of Mr Baadjies. Later on, learning that he had majored in economics, the HOD had given him grade 10 economics to teach as well. He agreed that there was no vacancy in EMS at that stage, however he had taught as instructed.
19.12 Put to him that as he taught history and economics to grade 10 he would have been on the first floor whereas during July-August 2011 Matshoba’s testimony would be that she taught economics to grade 9 on the ground floor, was it possible for their paths to cross. He responded no, he had never seen Ms Matshoba while changing classes and their paths had never crossed. In reexamination he confirmed the class layout per floor as follows. Ground floor Grade 8; First Floor Grade 9 and 10; Second Floor Grade 9 and 10. In the circumstances had Ms Matshoba taught Grade 9 she would also have been on the First floor. The chances were slim if not impossible for him not to have seen Ms Matshoba at department meetings or staff meetings. He had attended all the staff meetings. He had seen Ms Matshoba on the school premises in the office of the clerk working as a clerk.
19.13 Put to him that among other reasons why Ms Matshoba left MBSSS was that he resisted allowing her to teach the subjects he was teaching. He responded that it depended on how one looked at it, he was part of a collective who had issues around grievances, it was not personal to Ms Matshoba, if she felt like that it was up to her.
19.14 Put to him that he was testifying against Ms Matshoba because he harboured a grudge against her as a result of her being permanently appointed while he was temporary he declared this not to be the case at all.
19.15 Mr Tjale applied for the recall of Mr Mdashe which was granted. Mr Mdashe additionally testified as follows;
19.15.1 Mr Mdashe had sought an opportunity to locate the school registers as he could not say for sure when he started at MBSSS. Asked why his name appears for the first time at A101 for the week starting 25 07 2011 and that he had not signed and why his signature appears for the first time at R102 (10 August 2011). He maintained that he had commenced at MBSSS in February / March 2011. Although he had looked for the relevant registers he was unable to locate them. Asked why his signature only appeared at A146, an attendance register of a staff meeting on 1 November 2011, he responded that he had been a substitute teacher and deployed as and when needed, he was so to say like a shifting spanner. He would be in and out sometimes away for a period of 3 months up until he became permanent in 2013. He had commenced as a substitute teacher, then as an SGB teacher and then as a temporary teacher up until he became permanent. Put that had he substituted Mr Baadjies when he commenced then he would have had to substitute him for a period of 3 months, i.e. March – May 2011. Mr Mdashe was unable to explain why the register did not reflect this other than to say it was long ago, he substituted Mr Baadjies and on his return to school, his, Mr Mdashe’s conditions of employment changed.
19.15.2 It was put to him that he started as a substitute for a Ms Moko on 10 August 2011 and not for Mr Baadjies. He responded that this was long ago and he could not recall and so would not dispute it. He had however already said that his conditions of service changed as he stood in for different teachers during that time. He agreed that as per R102 he started at MBSSS on 10 August 2011.
19.15.3 Put to him that at that time (10 August 2011) Ms Matshoba was already three weeks into her practice teaching, he responded that when he was at the school Ms Matshoba was in the front office as a secretary and so he would not be able to say whether she was a teacher or not.
19.15.4 Put to him that Ms Matshoba completed her practical teaching in the week ending 26 August 2011 he could not disagree and was thankful for the information.

20 Ms T Ndika testified to the following effect:
20.1 She was currently the deputy principal MBSSS. During 2010-2011 she had been the HOD of Life Sciences and Music. As an HOD she was a member of the SMT as was Ms Mdodana the hod of EMS.
20.2 She explained the procedure followed for a student teacher to be allowed to do practice training at MBSSS namely: The institution would give a letter to the student teacher. The student teacher would take this to the principal, who would call the relevant hod and introduce her to the hod. The SMT would be informed, even if the student teacher was not in their department. The student teacher would be introduced to the staff and would be required to attend briefings in the morning, staff meetings and attend departmental meetings at the discretion of the hod. The applicant had not been introduced as a student teacher to the staff in 2010 or 2011. Neither was she introduced to the SMT as a person who would do practical teaching.
20.3 Put that it was Ms Matshoba’s version that she did 5 weeks practical training in 2010 and in 2011 and if she was aware of this. Her response was that she was not aware of that. Ms Matshoba never attended staff meetings and she had never seen her do practice teaching.
20.4 Had the applicant done practice teaching then she would have had to have been in class for 5 weeks in 2010 and 5 weeks in 2011. If she had a free period then she could have returned to the clerk’s office. In her view it would not have been necessary for an additional staff member to have been employed as there was an intern already working in the admin office.
20.5 The only time she had seen Ms Matshoba going to a class was when Ms Foley from UNISA came to critique her. She could not recall the year. She knew Ms Foley from when she had taught her, Ms Ndika, at school. She had seen her sitting in the foyer and had gone to greet her. She had then learned that she was there to critique Ms Matshoba. She was surprised at this as normally a student teacher would have been practice teaching for some time, an assessment conducted by the hod and then a person from the institution would come and critiques the student teacher, whereafter the student teacher would still continue with her practice teaching. Except for this one day she had never seen Ms Matshoba doing practice teaching in 2010 and 2011. The assessor from the institution would come to assess the student once, i.e. during the 5 week practice teaching in the last year.
20.6 In 2010 and 2011 there was no rotation of the classes and teachers would go to the respective classes and move from one class to another, as necessary, in between periods.
20.7 The block in which she had her office comprised three floors, top floor, middle floor and ground floor. Her office as hod was on the middle floor. In 2010 she taught Grade 11 on the top floor. In 2011 she taught Grade 11 on the top floor and Grade 12 in the adjoining block. To teach Grade 12 she had to go down the stairs in her teaching block and go to the block where Grade 12 was.
20.8 Grade 10 was on the first or middle floor with some Grade 10 classes on the top floor. Grade 11 was on the top floor and Grade 12 was on the top floor of the other block which only had a ground and first floor. Put to her that Ms Matshoba’s case was that in 2010 she taught economics to Grade 12 and therefore she would not have seen Ms Matshoba when she changed classes. She responded that they would go from their SMT briefing to the morning briefing and then to their classes. During this time she would have sight of teachers going to their classes, in addition she could see teachers from the ground floor and when coming from the staff room. In her view even if Ms Matshoba were teaching Grade 12 on the top floor of the other block and she not, in 2010, it was not possible that she would not have seen her.
20.9 She had never seen the applicant when walking between classes or teaching in class at all during 2010-2011, apart from the incident with Ms Foley, even then she did not see which classroom they went to. Ms Matshoba had come to collect Ms Foley, she had wished her luck and they had gone off together.
20.10 The issue of the appointment / translation to a post in the EMS department had not been raised or discussed in the SMT. The first she heard about it was when it was raised in a meeting during the time the teachers had been protesting in 2013. At the time Ms Matshoba was still working in the clerk’s office. After their site raised a complaint with the principal Ms Matshoba was given a class. The applicant’s translation and appointment as a teacher came as a surprise because she had never been teaching, she was in her office. She could not explain why the translation / appointment of the applicant had taken place secretively without them knowing about it. In her view the teachers would have had no objection to Ms Matshoba qualifying as a teacher if this was done in a proper manner and all other posts filled. She held no grudge against the applicant.
20.11 Ms Mdodana, the EMS hod, had never mentioned that the applicant was doing practice teaching in EMS. Ms Mdodana was no longer at MBSSS having retired. She had suffered from ill health at School. At some stage she had collapsed and had to be rushed to hospital.
20.12 Put to her that Mr Goba would testify that the issue of Ms Matshoba’s translation was relayed to the SMT during the second term of 2010, she responded that she had joined MBSSS as from 1 February 2010 and did not know about that.

21 Mr MH Sitole testified to the following effect:
21.1 Currently he was the principal of Zanulwasie SSS in Despatch. Prior to this he had been at MBSSS from 2009 to 2019 as hod of the department of Social Sciences and a member of the SMT. Mr Goba and Mr Dlutu were part of the SMT. As the SMT they had not been informed that Ms Matshoba was doing any practical training. Ordinarily a practice teacher would be attached to an hod and the principal would introduce the student teacher to the SMT and the staff. Ms Mdodana was the hod for EMS and accordingly would have been in charge of the student teacher. He knew Ms Matshoba in her capacity as school clerk. He had attended the three day training with UNISA in Port Elizabeth together with the other hods and deputy principals. The usual period for practical training for student teachers was two blocks of 25 days / 5 weeks each. He explained the procedure followed when a student teacher joined the school to do practical training.
21.2 It was expected of a student teacher during their practical training to do basically everything that a teacher would do. Prepare lessons, teach, administer and manage classroom discipline, participate in staff meetings, briefings and extra curricula activities if any. This was a whole day exercise for the 5 weeks in question. Given the number of classes in each Grade, teachers would have to teach almost the whole day. For example if one had 6 classes, then one would have 1 to 2 classes free in a day. Put that Ms Bonga was the applicant’s mentor in 2010 and that Ms Matshoba followed her timetable. He responded that practice teaching was not confined to teaching only but involved observing lessons, administration, lesson plans and attending staff meetings. It was a whole day activity for the days a student teacher was given to do practical training.
21.3 Had Ms Matshoba done practical teaching at MBSSS in 2010-2011 he would have known about it. In his view it was impossible for Ms Matshoba to discharge her duties as a clerk and do practical training at the same time. He had not heard of or seen that Ms Matshoba did practical training at MBSSS in 2010-2011.
21.4 His office at the time had been on the top floor of the three storey block. Grade 11 and a small part of Grade 10 occupied the top floor. The middle floor was occupied by Grade 10 and mostly Grade 9. The ground floor comprised mostly Grade 8 and one or two classes of Grade 9. The other block, a two storey block had 2-3 Grade 11 classes and the rest was Grade 12. In 2010 and 2011 he had taught Grade 10 and Grade 11 and had assisted in Grade 12.
21.5 Asked if he had seen Ms Matshoba doing practical teaching in Grades 10 and 12 for 2010 and Grades 7-9 in 2011, he responded that he had not and it was not possible that had she done so that he would not have seen her. In addition her absence from the clerk’s office would have been noticed.
21.6 At some point he heard that Ms Matshoba had apparently done her practical teaching at MBSSS. This was during 2013, mid-year. He was shocked as she was always in her office and he did not see or hear that she underwent practical teaching. This had come out at a meeting during the time the educators were protesting. HR told the meeting that Ms Matshoba had been translated to an educator. Both Mr Miggels (Labour Relations) and Mr Twigg (Head of HR) were there. Mr Twigg had explained what translation was to them. He could not recall who of the two raised the issue. The SMT had not been informed of Ms Matshoba’s translation, this had come out during a crisis meeting. At the time Ms Matshoba was still working in the clerk’s office.
21.7 Put to him that Ms Matshoba’s testimony would be that she did practice training in Grade 12 economics. He had not heard that she did practice teaching and he had not seen her do practice teaching. Grade 9 was housed in the three storey block. It was mostly occupied by Grade 8 classes. A small part of Grade 9 (one class) were also on the ground floor and the rest were on the middle floor. Put to him that Matshoba’s testimony would be that she taught Grade 9 on the ground floor during 2011 and was it possible that he could not have seen her if he was teaching classes on the first or middle floor. He responded emphatically, no.
21.8 He denied that Mr Goba had made the SMT aware of Ms Matshoba’s practice teaching.
21.9 There were two other ladies in the clerk’s office, however one was an intern and other employed by the SGB. They were not always there. Had they as SMT been aware that Matshoba had to leave her post to do practical teaching they would have made arrangements regarding clerical support.
21.10 He was not aware of the applicant’s claim that she had been introduced to the staff by Ms Mdodana in an EMS department meeting or that she did practice teaching under Ms Mayi in 2011.
21.11 Put to him that Mr Dlutu, deputy principal management and Grade 12 head was aware of Ms Matshoba doing practical training in Grade 12, he could only speak for himself. Mr Dlutu had not shared this with the SMT.

    The Applicant’s Submissions

22 The applicant testified on her own behalf and led the testimony of:
Ms N Mayi: At the time in question a post level 1 educator
teaching Accounting and Economics for Grades 8-12 and Economic Management Science to Grade 9, in the EMS department MBSSS, She left MBSSS on 31 May 2023 for personal reasons. Currently she was unemployed.
Mr T Classen: Currently teaching at Mfesani High School Motherwell. At the time in question, an educator in the EMS department, MBSSS, teaching business studies and accounting (FET phase grade 10-12).
Ms M Jack: Trainee admin clerk in the office of the admin clerk, MBSSS at the time in question.
Mr S Goba: At the time in question Deputy Principal Academic, MBSSS. He resigned from MBSSS on 31 May 2015. Currently employed in the Department of Education, as an SES in the District Office.

23 Ms MP Matshoba testified to the following effect:
23.1 She commenced employment at MBSSS in May 1997 in a SGB post as an admin clerk. In 1998 she was permanently employed as an admin clerk. She obtained her B Com degree from NMU. In 2010 she registered at UNISA to do a PGCE part time which included five weeks practical training in 2010 and 2011. She chose to do her practical training at MBSSS and filled in the UNISA placement form (R57, 2011 placement form) for the period 25 July- 26 August 2011 (R59). She had also completed a placement form for 2010 (February-March 2010) and did practical teaching at MBSSS in February – March 2010. She did not have the documents for this.
23.2 On receipt of the letter from UNISA advising that she could commence practice teaching at MBSSS she went to Mr Nqqondi, the principal. He took her to the deputy principal academic Mr Goba, Mr Goba then took her to the hod of EMS and introduced her to Ms Mdodana. He then took her to the staffroom and introduced her to the staff and told them that she would be doing practical teaching and told them not to be surprised that she would not be in the secretaries’ office. Ms Mdodana then took her to her office and introduced her to the teachers there. Ms Mdodana assigned Ms Bonga to assist her doing her practical teaching until completed (in 2010). Ms Bonga taught economics. Ms Bonga gave her a copy of her timetable and she had to accompany her to classes with Grade 12. She was with Ms Bonga for five weeks going to her class. She, Ms Matshoba, did lesson plans and at the end of each lesson Ms Bonga would assess them and also assisted her in making lesson plans.
23.3 Ms Matshoba testified on the forms R71 – R87 indicating where she and Ms Bonga had completed these forms in pen and pencil. Ms Bonga had completed lesson plans which she gave to her to guide her through the lesson plans. Before class they would sit down and discuss the lesson and what needs to be done. On the day of presentation she would go to class and Ms Bonga would score/assess her. After the lessons she would copy the information from the draft lesson plans onto a fresh document in pen. Ms Bonga would sign and this was then sent to UNISA. The documents in the bundle, referred to above, had been handed by her to Mr Totana on his request for them. These documents related to her practical teaching with Ms Bonga in 2010. She had submitted the documents for 2010 in 2010 and 2011 in 2011 to UNISA.
23.4 Mr Koliti assisted her in 2011 when she had assignments. In 2011 she did practical teaching during the period 25 July to 26 August 2011. In 2011 a letter arrived from UNISA. She again went to the principal Mr Nqqondi who took her to the deputy academic Mr Goba. He again called Ms Mdodana to tell her that she was continuing. Ms Mdodana took her to her office and told her teachers (EMS) and chose Ms Mayi to guide her. Ms Mayi then guided and assisted her with lesson plans in the classroom. The 2011 assessments were not in the bundle of documents handed up as she had sent them to UNISA and did not retain copies. In her view there was no obligation on her to retain copies.
23.5 She was told towards the end of the year that Miss Foley, her supervisor at UNISA, would come to assess her. She told Ms Mdodana, the principal and Ms Mayi. She told Ms Mayi because she had last worked in her class. Ms Foley arrived. She took her to the principal Mr Nqqondi who called Ms Mdodana to his office. They, Ms Mdodana, Ms Foley and Ms Matshoba left and went to Ms Mayi’s class. Ms Mdodana introduced Ms Foley to Ms Mayi and explained what was happening. Ms Mayi then left and she commenced with her lesson. After the lesson she went with Ms Foley who gave her feedback and told her to call Ms Mdodana. She left the two of them seated together and went to the office. After Ms Foley left Ms Mdodana came and hugged her and celebrated with her.
23.6 Mr Classen was one of the people who had assisted her with tests and assignments that she had to do for her PGCE.
23.7 After risk management had been there she had to prove that she had done practical teaching and so she had called UNISA and got A1 dated 13 June 2019.
23.8 She taught Grade 9 economic management science in 2011.
23.9 She did practice teaching in 2010 and 2011 and was surprised that Ms Ndika said she never saw her. Mr Sitole was incorrect when he said that there was no way she could have left the admin office in the admin block because she had no assistants. At the time she had two other ladies helping full time from Siyaya. With regard to Mr Mdashe who said he did not see her do practical teaching and that she had not been introduced to the staff. Mr Mdashe had arrived in 2011, when she was nearing the end of her practical teaching. He was not there when she was introduced to the teachers. Ms Ngqono had said that she did not see her doing practical teaching, but she conceded that she could have missed her. In her view they would have seen each other. She would not attend many meetings as it was not compulsory for her as she would be busy. She attended departmental meetings. She continued to do her admin work during the whole of her practice teaching period.
23.10 She confirmed that she did practical training as set out in A1 (see paragraph 6 above). In 2010 Ms Bonga was her mentor and in 2011 Ms Mayi was her mentor
23.11 Both mentors were assigned her by Ms Mdodana. Ms Foley of UNISA assessed her in 2011.
23.12 She was taken through her testimony regarding, the penciled in and in some areas written in ink, lesson plans and assessment forms. In respect of the 5 lesson plans (R69-R67) It was then put to her that not only did Ms Bonga complete the assessment of learner by teacher but she completed almost all of the information in the lesson plans in her own handwriting and that this to say the least was highly unusual. Ms Matshoba responded variously that the reason was that Ms Bonga asked her to make copies. Ms Bonga had offered to assist her with practice teaching. What would happen is that they would sit and prepare the lesson plan. They would then prepare the lesson plan they were going to teach the following day. Whilst they were preparing for the lesson, sometimes it would be Ms Bonga who did the writing to show her how it is done. She, that is Ms Matshoba, would rewrite the lesson plan for submission to UNISA. Ms Bonga helped her in filling in the forms and correcting her if she wrote it incorrectly. Ms Bonga assisted her in parts she did not know in the lesson plan. She helped her but not 100%. Even though the writing was hers, they were sitting together and working together. She had not been fraudulent and this was the first time she did a lesson plan and Ms Bonga was helping her in this regard. Ms Bonga was willing to help her even after class. She was like a child and Ms Bonga taught her all the way. It was not as if because it was Ms Bonga’s handwriting that she, Ms Matshoba had no input. She was not talking of a full years work, only five weeks. By 2011 she knew how a lesson plan was made. By the time the assessor came she knew how a lesson plan was made. Ms Bonga took her step-by-step through the processes and she, Ms Matshoba, would present the lesson plan and it would not be submitted by Ms Bonga.
23.13 Put to her that this was consistent with Ms Bonga’s a testimony given at the disciplinary hearing to the effect that she filled in the lesson plans because Ms Matshoba had asked her to do it (A121). Ms Matshoba responded that Ms Bonga was the one who said that she must make copies and then they would sit and assist each other and indeed they did sit down and she was assisted.
23.14 It was put to the applicant that during cross examination of Ms Bonga by her attorney, Mr Rossouw, at the disciplinary hearing (A118) that Ms Bonga testified that she had not been introduced to Ms Matshoba by the hod but that she had helped Ms Matshoba as a friend/colleague to fill in the forms. Ms Matshoba amongst other things responded that Ms Bonga had been assigned to her by the hod and the documents were written by Ms Bonga because she liked writing and the lesson plan was not the main reason why she received her certificate.
23.15 Put to her that at A123-A124 Ms Bonga, at the disciplinary hearing testified that she was given documents / forms to sign, no one told her that it was a draft and that it would be a final document and she thought it was an informal thing and did not at any stage say she assisted Ms Matshoba as a mentor. Ms Matshoba responded that Ms Bonga did not assist her as a friend but as a student teacher. Ms Bonga knew that she was doing practice teaching and that she was assisting her. She also signed the final documents she submitted to UNISA.
23.16 She could not recall whether R24-R87 came as one bundle. She had however made photo copies. Put to her that R24 up to R42 appeared to be the instructions / tutorial letter and the documents after that would be those she would fill in in respect of her practical teaching, she agreed.
23.17 Put to her that R24 was dated 2011 yet according to her she did practical teaching with Ms Bonga, who assisted her in filling in these forms in in 2010. How could this be if she only got the tutorial letter in 2011 ?. She responded that the tutorial letter was dated 2011 and she was not sure whether all the documents R24-R87 were received together as a bundle.
23.18 She confirmed she received a placement letter for 2010.
23.19 Ms Mayi mentored her for 5 weeks in 2011 and she had been assessed by Ms Foley in October 2011
23.20 She had majored in Economics and Industrial psychology at university. Ms Mayi taught Economic management and sciences (EMS) and Ms Bonga economics. EMS was taught in grades 8 and 9 whereafter they were taught economics to grade 12. The reference to her mentor at R67 was Ms Mayi.
23.21 Asked if she received confirmation from UNISA regarding her placement at MBSSS she confirmed she received something that told her she could start teaching as a student teacher. But she did not know when that was.
23.22 Put to her that as apparent from R68 this would have been prior to when she was assessed in October 2011. She responded that the October referred to at R68 was not the October of Ms Foley’s assessment. Ms Foley assessed her in October 2011 and the support she was talking about was an internal support at the school. Referred again to the paragraph in question and reminded of her previous testimony she agreed that Ms Foley had assessed her in Oct 2011 as referenced at R68.
23.23 Put to Ms Matshoba that implicit from her comment at R68, she had not at the time of completing the particular document (post October 2011) received a placement letter form UNISA. She responded that that is what she had written. She then went on to explain that this was a long time ago and she could not recall. However because there were exams to be written she continued with her practical teaching so that she could not be constrained, as in any event she would do that at MBSSS. She had completed R57-R59 and submitted it. At R59 she indicated her practical training dates as 25/07-26/08/2011.
23.24 Put to her that the 10 lesson plans were included in the tutorial letter the applicant responded that what she could remember was she did five lesson plans in 2010 and five lesson plans in 2011 for the respective subjects. She was not sure if all the lesson plans were contained in the one bundle because she had given all the documents to Mr Totana. Put to her that the forms for the lesson plans were contained in one tutorial letter, she responded that what was being put to her was not in the bundle of documents before her and reiterated that she had done five lesson plans in 2010 and five lesson plans in 2011. She confirmed that she has taken two years to obtain her qualification and that full time would take one year.
23.25 With regard to R29 she had submitted assignment 1 in 2010. Assignment 2 was supposed to be submitted by 31 May 2011 (R64), however she had submitted it on 29 August 2011. She could not recall why, and ventured that UNISA may be aware of the reason. UNISA had not raised any issue about this and she had assumed all was in order.
23.26 At the request of Mr Totana she had submitted what documents she had. All she had for 2010 were the lesson plans and assessments for Ms Bonga. She had not kept copies of her lesson plans for 2011 with Ms Mayi. She was not under any duty to keep copies. She had completed lesson plans for 2011 and submitted them to UNISA. She had completed lesson plans with both her mentors namely Ms Bonga and Ms Mayi for five weeks in 2010 and five weeks in 2011 respectively.
23.27 She had not received a placement letter before she commenced with her practical teaching in July 2011. The dates she had recorded in her declaration form (regarding placement, assignment 2. R61-R64) at R 61, namely 25 July to 26 August were approaching and she had to start practice teaching . Asked then how had she gone about persuading the principal/deputy principal that she needed to do practice teaching without any letter. She responded that a letter came from UNISA accepting her to do practice teaching. She had received this before she commenced practice teaching in the class but she could not remember the date it was in 2011. Nothing in the letter indicated the institution at which she should do her practice teaching and at what time or date. It was only accepting her unlike the letter in 2010 where she received an acceptance letter and a placement letter. She did her practice teaching in 2011 whilst her placement letter has not yet arrived. Had she waited for the placement letter then she would not have done her practice teaching in 2011. She had done her practical teaching and submitted the documentation she needed to submit. This was accepted and she received no notification of rejection from UNISA.
23.28 Put to her that the comment at R68 to the effect that after she completed her placement letter she did not receive any response, was not correct as she had now testified that she received an acceptance letter. She responded that she had said she did not know when it had arrived and accordingly she was not untruthful.
23.29 Put to her that she testified in evidence in chief that in 2011 she received a letter to the effect that she had to start her practice teaching and that she had gone to her principal, Mr Nqqondi, to inform him. She responded that a letter arrived accepting her to do practice teaching, what did not arrive was a placement letter. The principal had accepted this and she did her practice teaching.
23.30 Referred to T2067 where she had said at the disciplinary hearing that the person referred to as her mentor at R67 was Ms Bonga and asked to explain why she now said it was Ms Mayi. She responded that the person she was speaking of was Ms Mayi and she did not know who wrote that (the disciplinary transcript).
23.31 Put to her she confirmed that her evidence was that she did 5 lesson plans in 2010 with Ms Bonga and 5 lesson plans in 2011 with Ms Mayi. She confirmed that the reason she did her assessment in Ms Foley’s class was that Ms Mayi was her mentor in 2011, Ms Foley arrived in 2011 and that was why Ms Mayi gave her the class.
23.32 Reminded that at T2102 of the disciplinary hearing record, in response to a question whether Ms Mayi signed off on the 5 lessons, she had answered no it was Mr Classen because she was teaching in Mr Classen’s class and then when Miss Foley came she used Ms Mayi’s class. It was put to Ms Matshoba that her testimony in the arbitration and at the disciplinary hearing were inconsistent. She responded that she could never have said it was Mr Classen because Mr Classen was teaching grade 10–12 and not grade 9. It was Miss Mayi that was teaching grade 9.
23.33 It was further put her that at T2098 she said that she had done 5 lessons in Ms Bonga’s class and the one in question was the draft and final one signed by Ms Bonga which she sent to UNISA. At page T2099 she was asked whether Ms Mayi signed anything and she had responded no. She was asked why not as she was her mentor, to which Ms Matshoba responded that was so but being a mentor did not mean she had to sign something, she helped her during the course.
23.34 Put to her that at T2100 she confirmed that Ms Bonga signed off 5 lessons and when asked about the other 5 lessons she responded that the other 5 weeks it was business studies at Mr Classen’s class where she was teaching and he signed off the lessons. When Ms Foley came she did the assessment in Ms Mayi’s class as the children wore their uniforms neatly. Asked to comment on the inconsistency, she responded as follows:
23.34.1 In 2010 she did 5 weeks with Ms Bonga. The lessons plans were done with Ms Bonga. Ms Bonga did the assessment forms, which were signed.
23.34.2 In 2011 she did 5 weeks with Ms Mayi including the lesson plans and assessment. Ms Mayi signed.
23.34.3 With regard to Mr Classen she had only observed in his class as he taught grade 10 to grade 12 and not grade 9. In 2011 she was doing EMS with Ms Mayi and so there was no way Mr Classen could sign her off.
23.34.4 On Ms Foley’s arrival she went to Ms Mayi’s class because it was the class she last worked in. Ms Mayi’s class was the cleanest.
23.35 She disagreed that she had not been introduced to the staff as testified to by the respondent’s witnesses. She had been introduced to the staff in both 2010 and 2011. She was then asked why had her legal representative put it to Mr Mdashe in cross-examination that she had not been introduced to the staff in 2011 because she had already been introduced in 2010. She gave various responses not addressed to the question. Asked if she agreed with what had been put on her behalf. She responded that in 2011 she was introduced to the staff. Put her that the proposition put by her legal representative was then incorrect she responded, no comment, I cannot say that.
23.36 She attended all morning briefings that required everyone to attend. Put to her that she testified in evidence in chief that she testified that she would not attend morning meetings as it was not compulsory for her to attend as she was busy at the time and she attended departmental meetings. She responded variously that she would attend briefings that had something to do with her. She did not go to the meetings if there was nothing relating to her. She asked Ms Bonga if it was compulsory who told her to attend those meetings that had something to do with her and department meetings.
23.37 Asked then to explain why it was repeatedly put to the respondent’s witnesses who testified that she was required to attend morning briefing, that she in fact attended with her proposition that she did not attend as it was not compulsory. She responded that she would not be able to answer for them as to why they would say she was absent while she was present.
23.38 She confirmed that Ms Bonga and Ms Mayi were her mentors in 2010 and 2011 respectively. Asked to explain why she recorded Mr Koliti as her mentor at R61, which she would have sent to UNISA after completion of her practice teaching . Ms Matshoba responded that the reason she put his name there was because he helped and guided her, a mentor was someone who helped you with things you did not know, Ms Mdodana chose Ms Mayi as her mentor and said that she could ask for assistance from anyone available in EMS, she also went and observed in Mr Koliti’s class. Asked why she did not put Ms Mayi’s name as mentor, she responded that she did not see a problem in putting Mr Koliti’s name as mentor because he helped her in class.
23.39 Ms Matshoba’s attorney had put to Mr Totana in cross-examination that the reason Ms Matshoba recorded Mr Koliti as mentor at R61, was because she had identified him as a mentor knowing he worked in EMS. However Mr Koliti was not teaching economics and it was on this basis that she was allocated Ms Bonga who was teaching economics. Asked if she had instructed her attorney accordingly, she had no comment but stated that Ms Bonga was in 2010 and Mr Koliti was one of the teachers that assisted her in 2011.
23.40 Ms Matshoba was insistent that MBSSS educators’ attitudes changed toward her after the petition. The petition was in 2013 and she did her practical training in 2010-2011.
23.41 Put to her that her practical training issue came up as a result of Mr Totana’s investigation (R88-R89) and the enquiry arising therefrom to Ms Mdodana (as she was mentioned as the supervisor for her training). She took issue with the reference to her personnel file, that she was not aware of it and wished to see its contents. It was put to her that there had been no such demand addressed to Mr Totana, the point being made was that it was a result of Mr Totana’s investigation that the issue of her practical training arose, not the petition. She maintained she had no knowledge of such a file initially her training had not been an issue but after the letter of appointment arrived it subsequently became part of the petition. Mr Totana could not just come and testify without handing up the documents / file.
23.42 According to Ms Matshoba, she had a good relationship with both Ms Bonga and Ms Mdodana, they had fulfilled their duties and obligations in assisting and mentoring her with her practical teaching, however this changed with the arrival of the petition. Asked what possible benefit they, and similarly Mr Sitole, Ms Nqgono, Ms Ndika and Mr Mdashe, would get by suddenly denying she did any practical training. She responded that only they would know, she could not answer for them as she did not know what their benefit was and questioned why Ms Mdodana would not come again to testify if she was not telling the truth.
23.43 On it being put to her she confirmed that she had been present at her disciplinary hearing when Ms Bonga and Ms Mdodana had testified, that her legal representative had the opportunity to cross-examine both Ms Bonga and Ms Mdodana, who like her, testified under oath. Put to her that at A22 (transcript of disciplinary record) Ms Mdodana testified that Ms Matshoba submitted no forms relating to practical training, despite being asked for these, and did no practical training and asked to comment. She responded to the effect that why would Ms Mdodana ask her for forms if she had knowledge of her studying. According to her this showed Ms Mdodana knew about her practice teaching.
23.44 She agreed that it was her testimony that Ms Mdodana as hod had assigned Ms Bonga to her in 2010. However nothing she did with Ms Bonga was discussed with Ms Mdodana although Ms Mdodana had knowledge of her doing practice teaching as she had assigned Ms Bonga to her.
23.45 Ms Matshoba was referred to the disciplinary record at A38-A43, where Ms Mdodana testified in respect of the filling in of a practical teaching form. That Ms Bonga had told her that she recalled a day or two when Ms Matshoba did practice teaching in her classroom, that she, Ms Mdodana, spoke to Ms Bonga and Ms Ngqono regarding her hand writing in pencil on the lesson plan, that Ms Bonga reported to her that that the principal asked her to sign, that Ms Ngqono assisted in filling in the form because she was asked to, that Ms Ngqono told her that she filled in the form and answer and Ms Bonga had to rewrite and sign, that Ms Matshoba had never done practice teaching in her department and if she had she would have known about it and that on the same day that risk management was there she had called Mr Koliti in and ascertained that he had never mentored Ms Matshoba, and also referred to A70 where Ms Mdodana, during cross-examination by the applicant’s attorney, responds that it was an informal thing. It was then put to Ms Matshoba that from the above that the hod, Ms Mdodana, was never made aware of her practice training and neither did she appoint anyone to be her mentor. Ms Matshoba denied this.
23.46 With reference to excerpts of Ms Bonga’s testimony, including cross-examination by Ms Matshoba’s attorney, at the disciplinary hearing (at A89-A126) it was put that:
23.46.1 Ms Bonga was never appointed by Ms Mdodana as Ms Matshoba’s mentor
23.46.2 Ms Matshoba was never introduced by Ms Mdodana as a person doing practice teaching at MBSSS
23.46.3 That the arrangement between Ms Matshoba and Ms Bonga was an informal arrangement with Ms Bonga assisting Ms Matshoba as a friend
23.46.4 Ms Bonga was not trained as a mentor with or for UNISA
Ms Matshoba responded that she was tired of answering to people’s lies. Ms Bonga was lying. This was a new hearing and they should have testified. Ms Bonga was her mentor and it was not informal. Both Ms Mdodana and Ms Bonga knew she was doing practice teaching. She did not go to Ms Bonga’s class twice but for weeks. She observed and she taught.
23.47 Put to Ms Matshoba that Ms Bonga’s testimony given at the disciplinary hearing at A102-A103 was consistent with the documents at R69-R87 in that Ms Bonga’s signature appeared only once at R71. She repeated her version that Ms Bonga was her mentor and had assisted her and marked her. They had an agreement to copy documents, complete them and do final documents with signatures on all 5 assessments. Asked why Ms Bonga would conjure up a story that she had assisted her as a friend and not a mentor. She responded that a possible reason was that she changed after the petition.
23.48 Put to her that Ms Ngqono had testified that she assisted Ms Bonga in preparing the lesson plans, she responded that there was no reason for Ms Ngqono to be involved as she was a mathematics literacy teacher.
23.49 Put that the testimony of Ms Ngqono to the effect when she assisted Ms Bonga in completing the forms, had asked why had it not been taken to Ms Mdodana, that she, Ms Bonga, reported that Ms Mdodana said she had not been told about Ms Matshoba doing any practical teaching etc., supported the evidence given by Ms Mdodana at the disciplinary hearing. She responded that there was no basis for Ms Ngqono to get involved, denied any involvement by her and repeated her version of events relating to how she did her practice teaching with Ms Bonga. There was no requirement for Ms Mdodana to sign any of the forms.
23.50 Put to Ms Matshoba that at the disciplinary hearing she testified that Mr Classen and not Ms Mayi signed off on her 5 lessons T2099-T2102 and asked to explain the contradiction between this and her testimony at arbitration. She responded. Ms Mdodana assigned her to Ms Mayi in 2011. She did 5 weeks practice teaching in grade 9 EMS. Mr Classen did not even come into grade 9. He did grade 10-12. There was no way she could say that Mr Classen signed off her documents, he was not even teaching EMS. He was one of the people who assisted her. The forms were signed by Ms Mayi in 2011. Maybe she had mentioned Mr Classen at the disciplinary hearing because they did not have an interpreter. Maybe she was confused because it was the first time for her to deal with something like this where she was asked a question and had to answer right away. Her attention drawn to T2103 where it was put to her that she was given Ms Bonga and Ms Mayi, Ms Bonga 10-12 (FET phase) and Ms Mayi 9 (Senior phase) and she had responded, Yes and Mr Classen also in 9. Ms Matshoba replied that Mr Classen never taught grade 9 she had said she was confused, Mr Classen was teaching grade 10-12 all the time at MBSSS. In reexamination she stated further that maybe she did not understand the question or that maybe she was tired. Mr Classen never taught Senior phase, he taught FET phase. Ms Mayi taught EMS grade 9 senior phase.

23.51 Asked about their attendance or not at her disciplinary inquiry, she answered that she had given the names of Mr Goba, Mr Classen, Ms Mayi and Mr Koliti to her attorney. He had only called Mr Koliti, she could not explain why Mr Koliti did not testify about her evidence at all or why her attorney had not called the others.
23.52 Put to her that regardless of whether she had been issued with a certificate, the information she gave to UNISA was fraudulent as to her practice teaching at MBSSS. She responded this was not so and would like to see the documents which were fraudulent which she had submitted to UNISA.
23.53 She had rewritten the rough drafts of the lesson plans and submitted the originals.
23.54 She described the documents at R57-R87 as follows:
23.54.1 R57-R68 concerned the practice teaching for 2011 (Tutorial and assignment 1)
23.54.2 R69-R87 concerned practice teaching for 2010
23.54.3 R69-R71 was a lesson plan comprising 2 pages and 1 page assessment, the first page of the lesson plan was missing.
23.54.4 R72-R75 was a lesson plan of 3 pages the 4th page was an assessment.
23.54.5 R69-R71 was lesson 1, R72-R75 was lesson 2, R76-R79 was lesson 3, R80-R R84 was lesson 4 and R84-R87 was lesson 5.
23.55 She had submitted complete lesson plans to UNISA

24 Ms N Mayi testified to the following effect:
24.1 She had left MBSSS on 31 May 2022. At the time, she had 27 years teaching experience and was teaching accounting and economics to grade 8–12 in the EMS department. In 2011 she taught EMS to grade 9 and economics to grade 10. At that time she had 16 years’ teaching experience. She commenced mentoring after she had practiced as a teacher for five years.
24.2 Mr Goba introduced Ms Matshoba to the staff in the staff room and Ms Mdodana introduced her to the staff in the department in 2010 as a practice teacher. Ms Matshoba did practice teaching in economics grade 12 with Ms Bonga as her mentor. She, Ms Mayi, would see Ms Matshoba in the corridors on the way to their classes and at EMS meetings.
24.3 Ms Matshoba was again introduced by Ms Mdodana in 2011 as coming to teach EMS grade 9. She, Ms Mayi, mentored her on how to teach, Ms Matshoba observed and then taught. Ms Mayi assessed her and she completed the necessary forms guiding her here and there. By this time Ms Matshoba knew how to do a lesson plan. She, Ms Mayi, would do assessments and add constructive comment. She signed approximately five forms for Ms Matshoba over the 5 weeks.
24.4 She knew Mr Mdashe. In 2011 he was in the social sciences and tourism department not the EMS department. He was mistaken or telling a lie if he said he was in EMS in 2011.
24.5 The assessors from UNISA came only once to assess. She met the person who came from UNISA to assess Ms Matshoba at the foyer when she arrived. She requested to meet Miss Mdodana. Ms Mayi was called in by Ms Mdodana and asked to take Ms Foley to her class, 9B. There she introduced them and left and went to the staff room. Afterwards she met Ms Foley again in the foyer. Ms Foley was waiting to give feedback to Ms Mdodana. Later she escorted Ms Foley to her vehicle (it was still long break) and Miss Foley told her to advise Ms Matshoba to raise her voice.
24.6 She signed the petition (SADTU letter dated 25 April 2013, A2). At the time they were not allowed to speak to the principal the deputy principals and Ms Matshoba.
24.7 She was never called to testify at the disciplinary inquiry and did not know the reason. She would not have gone if she had been called to testify for fear of being called a skunk/intimidated by the rest of the staff. This was no longer the case.
24.8 At the time she had been at MBSSS Mr Ngqondi was a post level 1 educator. The principal, Mr Jonas, left in January 2007. The reason for the petition was a list of grievances which were contained in the petition itself. She was not in agreement with the grievances. She was a member of SADTU. There had been a meeting before the petition. She could not remember what was discussed, this was in 2013. She could recall events in 2011 relating to the practical teaching as this concerned her personally. She signed the petition as she was at school that day. She could not remember if Ms Matshoba, Mr Goba or Mr Dlutu were at the school that day. She did not know how many educators were at MBSSS at the time. She attended the first meeting. After that she was off sick for a week and thereafter the meetings clashed with her doctor’s appointments (two times a week). She attended only one other meeting and stopped going to the meetings because she was of the view that the other teachers saw her in a negative light. Put to her that other educators who testified at this arbitration namely Ms Ngqono Ms Ndika and Mr Mdashe did not view her in a negative light, she had no comment.
24.9 Ms Matshoba was not part of the petition. She did not see anything in the petition about Ms Matshoba. She did not know what item 15 at A3 (job description of clerk and caretaker) was about. She knew nothing about A2. Item 8 (treatment from clerks’ office).
24.10 She left MBSSS for personal reasons.
24.11 After a long time she heard that Mr Matshoba had qualified as a teacher. This had been when she met Ms Matshoba on the road. Ms Matshoba told her she was teaching at Ashton Gontsha School. This was after a long time as they did not see each other at MBSSS as Ms Matshoba had left MBSSS. While at MBSSS she had not heard of Ms Matshoba being appointed as an educator.
24.12 Put to her that Ms Matshoba had been appointed as an educator at MBSSS in 2013 in her department, that is EMS, she responded that she had never heard of that and never heard that Ms Matshoba was appointed as a teacher at MBSSS at all. She was not aware if Ms Matshoba’s name had at any time been placed on a lesson timetable in EMS and never aware of whether she was assigned classes in EMS.
24.13 She was present when risk management came to MBSSS. One of them had spoken to her about who was in the EMS department. She had never heard that there had been a question mark about Ms Matshoba’s practical training. She did not know what Ms Matshoba had been charged for and did not enquire. She had been called by the applicant’s attorney to testify in this arbitration.
24.14 It was put to Ms Mayi that Ms Matshoba laboured under the impression that Mr Koliti was her mentor in 2011 and this could not be correct. She had no comment. Put to her that her version was that she had been identified as the mentor for Ms Matshoba in 2011, she confirmed this. Put to her that then Mr Koliti could not be Ms Matshoba’s mentor she did not know.
24.15 It was her testimony that Ms Matshoba attended class with her every day for five weeks. In the first week she observed and from the second week onwards until the completion of five weeks she taught in the class. Ms Foley came in October 2011 to assess Ms Matshoba. This was after she had completed her practical training.
24.16 She interacted with Ms Mdodana concerning the progress of Ms Matshoba. She could not comment on whether Ms Mdodana harboured any ill feelings towards Ms Matshoba. She filled in approximately 5 lesson plans, this could have been 4 as Ms Matshoba did not teach in the first week. She returned the forms to Ms Matshoba.
24.17 She confirmed her testimony that someone had come from UNISA. That she met this person in the foyer and she had requested to meet Ms Mdodana. The person had introduced herself as Miss Foley. She was then called in by Ms Mdodana who requested her to take Ms Foley to Ms Matshoba and she then continued to her classroom 9B. Asked whether Ms Matshoba was in the classroom. She responded that Ms Matshoba was in her office. From the office all three of them moved to her classroom she took them into the classroom and introduced them to the children and then left the class. This was the 3rd period (before break time). She later came across Ms Foley waiting in the foyer to give feedback to Ms Mdodana. She had then seen Ms Foley, through the window in the staff room, making her way to her car and had gone to accompany her. This was during break time. She had not seen Ms Mdodana, but did see Ms Matshoba sitting in her office.
24.18 Put to her that her version of events in this regard was different to that of Ms Matshoba namely:
24.18.1 Ms Foley arrived at the school
24.18.2 When Ms Foley arrived at the school Ms Matshoba took her to Mr Ngqondi, the principal
24.18.3 Ms Matshoba then called Ms Mdodana who came to the principal’s office while Ms Foley was there
24.18.4 They, Ms Matshoba, Ms Mdodana and Ms Foley, then left to Ms Mayi’s class
24.18.5 Ms Mdodana introduced Ms Foley to Ms Mayi.
24.18.6 Ms Mdodana then left them
24.18.7 Ms Mayi then introduced Ms Foley to the class and explained to them that she will be with Ms Matshoba in the class
24.18.8 Ms Mayi then left Ms Matshoba and Ms Foley in the class and Ms Matshoba started with her lesson whilst Ms Foley was seated in the class.
24.18.9 Ms Matshoba and Ms Foley then went to the foyer. They seated themselves on the bench in the foyer and Ms Foley gave her feedback and asked her to call Ms Mdodana.
24.18.10 She had then left the two of them seated together and went to her office
24.18.11 After Ms Foley left Ms Mdodana came to Ms Matshoba and hugged her and celebrated with her.
Ms Mayi responded that she had referred to what she knows and what she did

24.19 Ms Ndika’s version of what transpired when Miss Foley arrived at the school was put to Ms Mayi namely:
24.19.1 Ms Ndika was in her office on the middle floor (1st floor
24.19.2 She saw Ms Foley sitting in the foyer.
24.19.3 She knew Ms Foley as she had been her teacher years back when she taught her at high school
24.19.4 She then went to greet her and they had a little chat
24.19.5 At the time she thought Ms Foley was from the Department of Education and that maybe she had been promoted and was a SES or something
24.19.6 Ms Foley had said no, actually she was from UNISA and that she was waiting for Ms Matshoba as she was going to critique her
24.19.7 Ms Matshoba arrived whilst Ms Ndika was talking to Ms Foley and then Ms Foley and Ms Matshoba went off. She wished Ms Matshoba luck
Ms Mayi responded that she did not see Ms Ndika.
24.20 Mr Classen taught accounting and business studies to grade 10–12 (FET phase). It was put to Ms Mayi this meant that Mr Classen could not mentor someone doing practice teaching in grade 7–9. Ms Mayi disagreed. Put to her that Ms Matshoba had said in the disciplinary inquiry that the other 5 weeks of practice teaching had been in business studies in Mr Classen’s class and that it was not possible for her to have done both at the same time. She responded that where a person had two majors they could do practice teaching in two classes EMS grade 9 and business studies grade 10 depending on the time table, Reminded that she had testified that Ms Matshoba had spent her entire time in her class and that from Ms Matshoba’s evidence at A1, her focus was on senior phase grade 7-9. Whose class was she in ? She responded she was in her class, but depending on the time table and as she had two majors she could do classes in grade 9 and 10. She could not be able to answer for Mr Classen with regard to his classes.
24.21 Later she confirmed she would teach the same lesson but to 6 classes daily and would have 1 to 2 free periods a day.
24.22 She mentored Ms Matshoba for five weeks in her classroom in grade 9, she had completed the institutional forms and score sheets for Ms Matshoba’s practice teaching and gave them to her.
24.23 Put to her that at the disciplinary enquiry T2099 Ms Matshoba testified that Ms Mayi did not sign anything, Ms Mayi had no comment.
24.24 Put to her that her testimony that she filled in the documents was not in line with Ms Matshoba’s testimony at the disciplinary inquiry, she again had no comment. Put to her that at T2100 of the disciplinary hearing record Ms Matshoba said that the other documents were filled in by Mr Classen she again had no comment. Asked whether Mr Classen taught business studies in 2011 she was not sure.
24.25 Mr Koliti was teaching business studies to grade 10, 11 and 12 at the time she left.
24.26 She would have one to two free periods a day. She would not know what Ms Matshoba did during such free periods. Ms Matshoba did her practical teaching in 2010 and 2011 and Ms Mdodana had introduced her to them accordingly.
24.27 Mr Sitole, Ms Ngqono, Ms Ndika and Mr Mdashe did not tell the truth when they said that Ms Matshoba did not do practice training in 2010 and 2011 as they were in the staff room when she was introduced.

25 Mr T Classen testified to the following effect:
25.1 He had done his practice teaching at MBSSS in 2009. He started teaching at MBSSS in 2010. He was there during 2010 and 2011 when Ms Matshoba did her practical teaching. He had taught business studies and accounting (FET phase grades 10–12). Currently he was teaching at Mfesani High School in Motherwell.
25.2 Having done his practical teaching in 2009 he had assisted Ms Matshoba in 2010 by giving her all the material and resources that he had.
25.3 Ms Matshoba was introduce at a staff meeting and then at a department meeting (EMS) and then she was assigned her mentor in both 2010 and 2011. In 2010, Ms Bonga (economics) was assigned as mentor to Ms Matshoba. In 2011 Ms Mayi was assigned as mentor to Ms Matshoba.
25.4 In 2011 Ms Matshoba would come to his classes to observe how to teach.
25,5 Told that evidence had been led at the disciplinary inquiry that he had signed Ms Matshoba’s lesson plans in 2011, he responded that he did not sign Ms Matshoba’s lesson plans. Only her mentors would sign off lesson plans.
25.6 He had assisted Ms Matshoba as a fellow teacher, not a mentor, in both 2010 and 2011. He was not qualified to be a mentor at the time.
25.7 Put to him that at T2100 of the disciplinary hearing transcript, it was recorded that Ms Matshoba testified that the other 5 weeks was business studies at Mr Classen’s class, at T2102 Ms Matshoba states that Mr Classen signed off her five lessons and that he was her supervisor and mentor and when Miss Foley came she used MS Mayi’s class. Mr Classen responded that he did not sign as he was not her mentor
25.8 Ms Matshoba had done practical training in the FET phase in 2010 and the Senior phase in 2011. He had never taught grade 9 as stated by Ms Matshoba at the disciplinary inquiry at T2103, neither was he a Senior phase teacher. He saw Ms Matshoba doing her practical teaching.

26 Ms M Jack testified to the following effect:
26.1 She together with another trainee, Miss N Mtybolo started in the admin office at MBSSS on 13 July 2010. They were doing their practical work in administration as administration clerks, having been placed at MBSSS. Ms Matshoba tutored them in their work. Towards the middle / end of July 2010, the applicant told them that she would be doing her practical teaching and that the two of them would remain alone in the office. She showed them her timetable as to when she would leave early to class and when she would come back. Ms Jack could not say how long this was for, whether a month or whole year. Ms Matshoba would attend practice training according to her timetable. She would return to office during break time and if she had a free period. Asked whether this was for a whole year, she stated that it was for about a month. Ms Matshoba was always there when they started at 07H00. School hours were from 07H45-14H30. There was no day when Ms Matshoba would not come to the office. If Ms Matshoba had no classes on a Tuesday, according to the timetable, she would be in the office. The same thing happened in 2011. She did not remember well when and for how long this was in 2011. The office was not left unmanned at any stage. Put to her that Ms Matshoba had testified during the disciplinary hearing at T2077 that there were 4 people in the clerk’s office, she and 3 others who were on SGB posts, who carried on with the work while she was busy with her practical teaching. She could not answer except to say there were 3 in total in the office.

27 Mr S Goba testified to the following effect:
27.1 Currently he was working for the Department of education as an SES in the district office. He had previously worked at MBSSS as the deputy principal academic and had resigned from MBSSS on 31 May 2015.
27.2 During 2010/2011 he was the deputy principal academic at MBSSS. With regard to trainee teachers the principal would introduce the trainee teacher to him and he would then attach her to the respective HOD depending on the subject in which the trainee was majoring. He would then introduce the trainee teacher to the entire staff of the school. He knew Ms Matshoba as a clerk and secondly as a teacher at MBSSS. Ms Matshoba had majored in commerce subjects, he had called Ms Mdodana and told her of the trainee teacher Ms Matshoba and that she was expected to allow her space to conduct her practice teaching in the department. The rest was then taken care of by the hod.
27.3 This process (introduction) happened once, the same as with other trainee teachers. Asked whether Ms Matshoba had done practice teaching over two years he answered that this was the case. Told that Ms Matshoba had testified that she was introduced in 2010 and 2011 he responded that he introduced trainee teachers once. If it was a second time this was most probably that she was going to join the staff, not as a trainee teacher. Later on being asked on this again to the effect that it was Ms Matshoba’s evidence that she became a teacher in 2013 and she was not introduced, as a teacher, in 2011 and asked to clarify. He responded, “I said most probably because I was used to introducing trainee teachers once not two times. She, Ms Matshoba, will remember better because she is the one who was introduced.”
27.4 Put him that evidence had been led by Ms Ngqono that he had directed Ms Bonga to seek assistance from her to complete lesson plans for Ms Matshoba. He responded that this was impossible. Ms Ngqono was in the mathematics department and one had to be a specialist in the subject concerned to complete a lesson plan.
27.5 Put to him that Ms Mdodana testified in the disciplinary inquiry that Ms Matshoba did not do practice teaching in her department (EMS). He responded that this was not true.
27.6 He had resigned from MBSSS on 31 May 2015. Put to him that at that time Mr Ngqondi, Ms Matshoba, Mr Koliti and Mr Dlutu had been served with disciplinary inquiry notices but that Mr Classen had not been as he had resigned in time. He was unaware of this. He had resigned in order to cash in his pension to fund his son’s trip overseas to participate in a competition. He had given the principal advance notice of this. He did not receive a notice to attend the disciplinary hearing prior to his resigning.
27.7 As the deputy principal academic he did not form part of the ex-co of the SGB. However he had sat on ex-co on several occasions one of which was the appointment of Ms Matshoba as a post level one educator. In this case he sat in in his capacity of deputy principal academic and not a member of ex-co. There had been no problems with Ms Mdodana as a teacher. It was common cause that Ms Matshoba was appointed as a post level 1 educator with effect from 1 June 2013 (A96). He could not be definite as to why Ms Mdodana would say that Ms Matshoba did not do her practical teaching in her department. However, he speculated that it was peer pressure due to the atmosphere of resistance to the appointment of Ms Matshoba as a member of teaching staff, why he wouldn’t know. He did not suffer from peer pressure.
27.8 He confirmed his evidence in chief that he said he did not remember the year that Ms Matshoba came to do practical training but that it was once. He further confirmed, on his version of events, that he had no knowledge of what Ms Matshoba may or may not have done once he had handed her over to Mdodana, Put to him that throughout the arbitration, witnesses had been told that Mr Goba will testify that he introduced Ms Matshoba to the staff and to the hod in 2010 and 2011 and that he had not testified to this at all i.e. his testimony was that he had introduced her once. He agreed that this was correct. Later he testified that as a part time student Ms Matshoba took two years, how long she took each time for her practical teaching he did not know.
27.9 Put to him that it had been Ms Ngqono’s testimony at the arbitration that Ms Bonga had reported to her that Mr Goba had directed her to Ms Ngqono to assist her in filling in Ms Matshoba’s lesson plans. He denied this was the case and repeated his testimony about the person having to be a specialist and that the forms were subject specific. Put to him that in any event the forms had the hand writing of Ms Ngqono in them. This was challenged. It was then put to Mr Goba that Ms Ngqono had testified in cross-examination that the reason why she was sitting in this hearing was that it was because she had assisted Ms Bonga to fill in forms for Ms Matshoba and that was the reason that she was sitting in the hearing as a witness. She helped Ms Bonga fill in the form it was one form and she helped her one time. Asked on what basis Ms Ngqono would come and testify to this at the arbitration he responded that he thought it was because she was one of the ringleaders in destabilizing the school at the moment (2013) .
27.10 Referred to the disciplinary hearing record transcript at A36-A38 where Ms Mdodana relates as to whose handwriting was in the lesson plans and at A40-A42, where Ms Mdodana relates that part of the form was completed in Ms Solani’s (Ms Ngqono’s) handwriting and that Ms Ngqono told her that it was her handwriting. It was then put to Mr Goba that it was clear that Ms Ngqono did assist in filling in the form that was the subject matter of this hearing. He responded that according to his knowledge there was no way she could do that. Put to him that it was Ms Ngqono’s testimony that the reason she was approached, was on Mr Goba’s instruction, as Ms Mdodana who was the hod for EMS, was not aware that Ms Matshoba was supposed to be doing practical teaching in her department. He responded that he did not ask Ms Ngqono to complete those forms and that Ms Mdodana did not tell the truth. It was his view despite that the unrest built up to a climax in 2013 and the practical training was in 2010 / 2011, the unrest and campaigns to remove top management led to the staff denying that they saw Ms Matshoba doing her practical teaching. According to him she worked closely with top management and the staff saw Ms Matshoba as part of top management.
27.11 He recalled that on the day of the disciplinary inquiry he had arrived and asked if he could sit in but had not been allowed to. He did not know the reason why but confirmed that he did not sit in.
27.12 Put to him that attempts had been made by the applicant’s attorney, Mr Rossouw, to secure his attendance at the disciplinary inquiry, but without success. He was unaware of this. Put to him further that Mr Roussouw had approached him to testify at the disciplinary hearing on 09 01 2017 and that he declined. He could not remember this. Put to him that the matter was stood down on 9 03 2017 for him to testify but that he did not. He agreed that he did not testify at the disciplinary hearing.
27.13 Put to him that risk management had conducted their investigation during 2014/2015. One of the items that came out of that was the appointment of Ms Matshoba as a post level 1 educator. He recalled this. It was also alleged that Ms Matshoba had not done practical training at the school. He recalled this. Put to him that it seemed at the time that the allegation had come from Ms Mdodana, he was not aware where it came from. Put to him that as deputy principal academic his testimony would be relevant to the applicant’s dispute, had he ever offered his testimony in this regard to any other forum. He could not recall whether he did or did not.
27.14 It was his view that Ms Matshoba had done her practice teaching at MBSSS

Analysis of evidence and argument
28 My thanks to the parties’ representatives for their respective written arguments. I have considered all the evidence and argument, but because the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons (Section 138 (7)), I have only referred to the evidence and argument necessary to substantiate my finding/s and award.

29 The LRA provides that an employee may not be unfairly dismissed , and that a dismissal includes the situation where an employer terminated employment with or without notice . Further that [i]n any proceedings concerning any dismissal, the employee must establish the existence of the dismissal and that [i]f the existence of the dismissal is established, the employer must prove that the dismissal is fair . In terms of Section 188 of the LRA, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason (substantive fairness) and that it was arrived at in accordance with a fair procedure (procedural fairness), taking into account any relevant code of good practice issued in terms of the LRA . Schedule 8 of the LRA, the Code of Good Practice: Dismissal; sets out guidelines relating to procedural and substantive fairness and guidelines on determining sanction .

30 This matter arises out of the applicant’s referral of her dismissal dispute. Dismissal was not in dispute. The applicant did not raise issue with procedural fairness or consistency. The applicant was aware of the rule and admitted that it was valid and reasonable. The applicant placed substantive fairness in issue in so far as she denied committing the misconduct charged with. The applicant seeks that she be reinstated together with backpay. It was the respondent’s case that the applicant was guilty as charged and that dismissal was an appropriate sanction.

31 In terms of section 192 of the LRA, the applicant bears the onus to prove the existence of the dismissal / i.e. that s/he was dismissed. Dismissal, procedural fairness and consistency were not placed in dispute and the respondent accordingly has the onus to prove that the dismissal of the applicant was substantively fair. The respondent needs to prove by way of credible evidence, that its version is the more probable and acceptable version . The onus is determined on a balance of probabilities .

32 In order for the dismissal to be substantively fair, the employer must prove that the employee contravened the rule/s; and that dismissal was an appropriate sanction for a breach of the rule .

33 In LRA arbitrations in the case of hearsay, factors such as reliability, corroboration and the testimony of other witnesses are essential in determining the admissibility of hearsay evidence and it is only when the hearsay evidence fits into the overall jigsaw of hard facts that have been presented, that it may assume significant weight. It may also be used to corroborate other admissible evidence.

34 If at or during a hearing a party seeks to introduce hearsay evidence, both parties should be given the opportunity to address the arbitrator in terms of section 3(1)(c) of the LEAA , on the question of its admissibility . If it is admitted the other party then has notice of what it needs to adduce in this respect as regards its case. Once all the evidence is in, then only can a determination be made on the probative value or weight to be assigned the hearsay evidence.

35 In the instant matter the parties agreed in their pre-arbitration agreement at Par. 52 thereof that:
“The documents (A1-A227, R1-R95, Award on Merits in disciplinary hearing Page 1-62, Award on Sanction page 1-25 and the transcript (on a flash drive in the matter of SADTU obo Nqqondi) of the disciplinary inquiry) are handed up by agreement between the parties into evidence as to what they appear / purport to be. The arbitrator will not take into account the content of any document not referred to author thereof unless otherwise agreed by the parties.”

36 It is apparent from the above that the transcript of the record of the disciplinary inquiry was handed up into evidence as to what it purports to be. In this regard the direction of the Labour Court in Hillside Aluminium (Pty) Ltd v Mathuse and others (2016) 37 ILJ 2082 (LC) [56]-[68], [70]-[71] is instructive.
37 See also Minister of Police v RM M & 2 others (2017) 38 ILJ 402 (LC) where the Labour Court held that the transcript, (which reflected that the disciplinary inquiry had been conducted in an orderly fashion and the transcript was properly done), of the witnesses evidence at a disciplinary inquiry viewed holistically showed them to be as credible and persuasive and that they had withstood competent cross-examination, that the transcript of the disciplinary inquiry in question constituted a different order of hearsay / “hearsay of a different type” compared e.g. to a witness statement handed up at arbitration .

38 As apparent from the transcript of the disciplinary record, the applicant was represented by an attorney, evidence was given under oath and subject to cross-examination, the disciplinary inquiry dealt with the same facts and charges as in this arbitration, the disciplinary inquiry was conducted in an orderly fashion and properly transcribed. Given the above and the basis on which the parties have handed up the transcript into evidence, I may have regard to the evidence presented at he disciplinary inquiry. I shall however refer only to the parts of the transcript of the disciplinary inquiry to which the witnesses were referred and which the applicant was able to interrogate.

39 In Stellenbosch Farmers Winery Group Limited & Another v Martell et Cie and Others, the SCA explained the approach to the resolution of factual disputes as follows. In resolving factual disputes, an arbitrator must make findings on (a) the credibility of the various factual witnesses ; (b) their reliability ; and (c) the probabilities . The credibility and reliability of the witnesses and the probability / improbability of their versions are not to be treated piecemeal. They are part of a single enquiry into the acceptability or otherwise of the versions. A finding on the probabilities involves a process of reasoning by way of inferences drawn from the facts to arrive at the most natural, plausible, and logical conclusion to be drawn out of any number of possible conclusions from those facts .

40 In Sasol Mining (Pty) Ltd v Ngqeleni NO and Others the Labour Court after quoting from the above SCA judgment stated as follows:
“One of the commissioner’s prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour . He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. …”.

41 Accordingly where there are differing factual versions presented by witnesses this entails, in summary, an assessment of the credibility, by way of their demeanour, any partiality, prejudice or self-interest , of the witnesses, the reliability and accuracy of their testimony , and the inherent probability or improbability of the witnesses testimony together with an overall consideration of the probabilities of each party’s version and to make a determination thereon as to the most natural and plausible conclusion .

42 I take into account that in the event of circumstantial evidence, inferences on the probability of the facts in dispute, may only be drawn from proven objective facts. As such, it constitutes indirect proof and care must be taken as to the nature of the evidence from which it is sought to draw an inference about the facts in dispute. “If the facts permit of more than one inference, the Court must select the most ‘plausible’ or probable inference” . The distinction between speculation, (an impermissible inference), and a permissible inference grounded on objective facts, must also be born in mind :
“There can be no inference unless there are objective facts from which to infer other facts, which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other, cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

43 In summary, in the event of circumstantial evidence, it is necessary to determine whether there are proven objective facts , on which inferences can be drawn and the probability or otherwise of such inferences (i.e. where the facts permit of more than one inference, that it is the most ‘plausible’ or probable inference).

Comment
44 The respondent’s witnesses impressed as reliable and credible, apart from Mr Mdashe, who impressed as a less reliable and credible witness. I shall deal with this below.

45 Mr Totana testified as to his investigation and accordingly his testimony relating to Ms Matshoba’s practical teaching was hearsay. The main aspect of his testimony was that it was as a result of his investigation that the allegations that Ms Matshoba did not do the practical teaching component for her PGCE came to light. Mr Totana’s investigations were conducted during the period 2014–2015. Ms Matshoba’s practical training was in 2010–2011.

46 Ms Ngqono, Ms Ndika and Mr Sitole had attended training offered by UNISA in order to enable them to assist teachers in the school who were allocated to mentor students assigned to do practice teaching at MBSSS. As such they had knowledge of the relevant processes and how practice teachers would interact with their mentors and of the responsibilities that would be assigned to them including their practice teaching. At the time in question they were all hod’s and accordingly privy to such information by virtue of their participation in SMT meetings.

47 The fact that they were hod’s and had trained to assist fellow teachers as mentors at MBSSS self-evidently would make them more aware of an arrangement in a department in respect of a practice teacher. They all testified that Ms Matshoba had not been introduced to them as a practice teacher, (which was the convention at the school) and that they had not seen her at staff meetings.

48 In addition they taught their subjects while Ms Matshoba allegedly attended her practical training. Not one of them saw Ms Matshoba, doing practical teaching or moving between classes in between periods, whether from their offices, on the way to and from the staff room, on the way to and from classes and also moving from class to class in between periods. Neither for that matter did they notice that she was not in the admin clerk’s office.

49 The practical training was for a period of five weeks in 2010 and five weeks in 2011. Given the number of lessons in a day that would be taught by a practical teacher, (approximately 6), and the changes between classes, the probabilities that none of the witnesses would not have seen Ms Matshoba doing practical teaching or in the corridors while she was changing classes, are remote, if not zero.

50 Ms Ndika testified that she knew Ms Foley who had taught her at high school. She had seen Ms Foley in the foyer at MBSSS. Although she could not recall the year, she recalled that Ms Foley had said that she had come to critique Ms Matshoba. This was surprising to her as she had not seen Ms Matshoba doing practical teaching, but nevertheless wished her luck when Ms Matshoba came to collect Ms Foley. Ms Matshoba’s testimony and that of Ms Mayi, which both differed from each other in the sequence of events regarding Miss Foley’s visit, differed again from that of Ms Ndika. I accept Ms Ndika’s version of events.

51 The fact that Ms Ngqono testified that the applicant may have seen her when moving from class to class, but that she Ms Ngqono had never seen Ms Matshoba in the corridors, when moving from class to class, is not a concession to the effect that Ms Matshoba was in fact practice teaching and moving from class to class in between periods. Ms Ngqono was answering the question posed and obviously could not deny that the applicant would say that she saw her. Ms Ngqono was questioned about her off record remark to the effect that “why are they appealing while they know that they have embezzled the funds”. Her response was that she was talking to herself, it was about something she knew. However she was not suggesting that Ms Matshoba was guilty but she was saying that the reason why she had appealed was to get an opportunity to check if the outcome was fair. The remark was unfortunate, however Ms Ngqono did explain herself and I am of the view that this did not affect her testimony in respect of the facts of this matter.

52 The respondent’s above witnesses all testified confidently and without hesitation. Where they were unable to recall or did not know, they said so. They maintained their respective testimonies under vigorous cross-examination. In so far as their respective testimonies overlap they all cohere. Mr Mdashe was not clear on timeframes and although I accept his testimony that he did not see the applicant at staff meetings or EMS department meetings, it does appear that his testimony establishes that he was present for the last three weeks of the period Ms Matshoba alleges she was doing practice teaching in 2011.

53 Ms Ngqono testified in respect of the forms handed to Mr Totana by Ms Matshoba. She, Ms Ngqono, had assisted Ms Bonga in filling in the forms. She was not a subject expert in economics or economic management sciences, but had assisted Ms Bonga on, as it were, the procedural aspects, e.g. as to how the student teacher presented her lessons, discipline in the class etc. It was her testimony that Ms Bonga had reported to her that Ms Mdodana would not fill in the forms as she had not been told that Ms Matshoba was doing practical training in her department. Ms Bonga reported to her that Mr Goba had directed her to Ms Ngqono for assistance. In all the above aspects the witness was directed to the relevant parts of the transcription of the disciplinary inquiry, see above. Ms Matshoba and Mr Goba to, were directed to the disciplinary inquiry record. They both denied Ms Ngqono’s testimony.

54. In in addition to the above mentioned reasons I accept Ms Ngqono’s testimony in this regard because:
    54.1 She testified that she filled in the relevant forms and this was consistent with Ms Mdodana’s testimony at the disciplinary enquiry.
    54.2 At the time Ms Ngqono was an hod and had received training in how to assist mentors. It would be logical and makes sense to direct Ms Bonga to her for assistance to fill in the practice teaching forms, in the face of Ms Mdodana’s refusal.
    54.3 The attention of the applicant’s witnesses involved, at the time, in this regard, was drawn to the relevant portions of the transcript of the disciplinary inquiry and were unable to provide a suitable explanation other than to resort to the applicant’s case that she had been appointed in EMS to do practical teaching, Ms Bonga had assisted the applicant in completing the forms and to deny the interaction between Ms Bonga and Ms Ngqono.
    54.4 Ms Ngqono’s testimony that she filled in the forms in pencil is consistent with the reference to Ms Matshoba’s testimony given at the disciplinary inquiry to the effect that the forms were completed (by Ms Bonga) in pencil. In this regard it may be that Ms Matshoba was not privy to Ms Bonga’s interaction with Ms Ngqono. This however does not change the fact that Ms Ngqono assisted in filling in the forms.

55 It was put to Ms Matshoba that the majority of the content of the lesson plans, handed up by Ms Matshoba to Mr Totana, were completed by Ms Bonga. Ms Matshoba’s retort was that she then re-wrote these in pen, Ms Bonga signed and she sent it to UNISA. This could well be so, however it does not change the fact that Ms Ngqono helped fill in the forms with Ms Bonga and nor does it assist the applicant’s case.

56 Ms Matshoba did not impress as a credible or reliable witness. Ms Matshoba’s testimony was characterized by contradictions between:
56.1 Her testimony given at the disciplinary inquiry and the arbitration
56.2 Her evidence in chief and in cross examination
56.3 What was put to the respondent’s witnesses as to what she would testify and what she testified
56.4 As to what it was put to the to the respondent’s witnesses that her witnesses would testify and their testimony

57 At the disciplinary inquiry Ms Matshoba claimed that Ms Bonga and Mr Classen were her mentors. In the arbitration hearing she stated that Ms Bonga and Ms Mayi were her mentors in 2010 and 2011 respectively. In this regard I do not accept the applicant’s excuse that she said Mr Classen was her mentor during the disciplinary inquiry and not Ms Mayi, because she was tired, confused or there was no interpreter, it was the first time that she had to answer right away or that she did not understand. At the time she was represented by an attorney. There is dialogue both before and after Ms Matshoba’s allegation that Mr Classen was her mentor. She even went so far as to state, presumably in support of her case at the time, that Mr Classen taught grade 9. Mr Classen’s testimony at the arbitration was that he did not mentor the applicant or sign any of her lesson plans. Mr Classen did not testify at the disciplinary inquiry. The fact that he did not and now testifies in support of the applicant’s case, as now presented, raises issues of credibility and voracity as to his to his testimony. In addition why Ms Matshoba would testify at her disciplinary inquiry that Mr Classen was her mentor and that he signed of the 5 lesson plans, remains a mystery and does not assist the applicant in regard to her credibility. At the arbitration hearing Ms Mayi testified that he signed off the 5 lesson plans.

58 Ms Matshoba testified that she did practical teaching at MBSSS in 2010 and 2011. In cross-examination she confirmed that she did not receive a placement letter for 2011 and that she submitted assignment 1 on 29 August 2011 and not on the due date of 31 May 2011. She was unable to explain her placement for 2011. She received no placement letter for 2011 however, she commenced her 2011 practical teaching on the dates she had recorded in her assignment no. 1, Information for placement at a school for teaching practice (R57), namely 27/07-26/08. Although the assignment should have been submitted on or before 31 May 2011, she only submitted it on 29 August 2011. The problem here, is that she commenced practical teaching before she submitted the application for placement at a school for teaching practice (A57). In addition the question arises as to how she could commence her practical training without a placement letter. When confronted with this she alluded to having received a letter accepting her to study at UNISA, she had taken the letter to the principal and had then been allowed to commence her practical teaching for 2011. She did not have a copy of this letter. There is no logical reason that UNISA after having accepted a student to do a two year part time PGCE, would send her an acceptance letter in the second year of her study. What is expected is that UNISA would forward a placement letter to the applicant on receipt of her assignment 1 on 31 May 2011. This was only sent on 27 August 2011 . On this basis it was not possible for UNISA to send the applicant a placement letter for 2011. The applicant had an opportunity to explain what actually transpired but failed to do so. It is accordingly not apparent on what basis if any the applicant did practical training in 2011 and if she in fact did so.
59 Despite the respondent’s witnesses being cross-examined on not having been in a position to see Ms Matshoba going about her practice teaching, given the layout of the buildings and classrooms, Ms Matshoba testified that she was surprised that the witnesses did not see her e.g. Ms Ndika.
60 It was put to the respondent’s witnesses that Mr Goba would testify that he had introduced Ms Matshoba on two occasions. Mr Goba testified that like all other trainee teachers he introduced Ms Matshoba once.
61 It was drawn to the applicant’s attention that Ms Bonga testified at the disciplinary inquiry that her assistance given to Ms Matshoba, in relation to the lesson plans and practice teaching was done on an informal basis, as friends and because she was asked. Ms Matshoba denied that and argued that Ms Bonga had been assigned to her as her mentor. This however fits in with the testimony of Ms Ngqono who testified that Ms Bonga requested assistance from her in filling in practice teaching forms, although she could not recall the year.
62 At A67 the applicant records that her mentor has taught the subject for 18 years. She testified at the arbitration that the mentor referred to is Ms Mayi. Ms Mayi testified that at the time she had been teaching for 16 years. The applicant’s major subject was economics and Ms Mayi taught economic management science. In her application for placement in 2011, referred to above, the applicant gives the names of her mentors as Mr Ngqondi and Mr LC Koliti (A61). At the disciplinary hearing Ms Matshoba had testified that Mr Classen was her mentor (see above). It is not possible to accord any weight to Ms Matshoba’s testimony, as apparent from the above, her case is constantly evolving as she attempts to ward off relevant and awkward questions.

63 Ms Mayi appears to have been a witness of convenience, to portray that she was the applicant’s mentor in 2011, on the applicant’s version as now presented at the arbitration. I find that Ms Mayi was not a credible or reliable witness and that I cannot place any weight on her testimony. My reasons include the following:
63.1 When put to her that the applicant had testified at the disciplinary inquiry that Mr Classen was her mentor in 2011 she remained silent. Later when asked how could this be, if she were Ms Matshoba’s mentor ?. She attempted to argue that because Ms Matshoba had two majors she could have done two practical teaching modules, and as I understand her, have done them at the same time. Based on Ms Mayi’s testimony that she taught approximately 6 classes a day and would have between one to two free classes a day, it was simply impossible for Ms Matshoba, who had to shadow Ms Mayi, to do practice teaching in two subjects at the same time. This fact seems to have escaped Ms Mayi.
63.2 Ms Mayi’s testimony as to the sequence of events concerning the arrival of and assessment by Ms Foley is not in line with that given by Ms Matshoba and both testimonies respectively are not in line with that given by Ms Ndika. See Par.24.17-24.19 above. When Ms Matshoba’s version was put to her, Ms Mayi’s response was that she had referred to what she knows and did. When asked to respond to Ms Ndika’s version she responded that she did not see Ms Ndika. There are material differences between the versions, e.g. the absence of Ms Mdodana, that Ms Mdodana asked her to take Ms Foley to Ms Matshoba and that all three moved to her class, that Ms Matshoba called Ms Mdodana, the sequence of events, going to the classroom etc. No point will be served in analysing the differences, suffice to say that Ms Matshoba’s witness did not testify in line with her version of events and it would appear that Ms Mayi has no independent recall of what transpired. Ms Ndika’s testimony has a ring of authenticity to it, she would not have gone to the visitor had she not recognised her as her former teacher. It was then that she discovered that she was there to assess Ms Matshoba. She found this strange as she had not seen any activity in this regard. She nevertheless wished Ms Matshoba luck, when she collected Ms Foley and they went off. I accept Ms Ndika’s version of events, as the more probable version of what transpired.
63.3 It was put to Mr Totana by the applicant’s attorney that she had identified Mr Koliti as a mentor as he was teaching her subject in EMS. On commencing her practice teaching he was no longer teaching economics and accordingly she was assigned to Ms Bonga. This in the context of Ms Matshoba recording Mr Koliti as her mentor in 2011 (R61) and her testimony at the arbitration that Ms Mayi was her mentor in 2011. Ms Matshoba’s various versions are irreconcilable and point to an attempt to deceive / deception on her part.
63.4 That Ms Mayi was the applicant’s mentor in 2011, is contrary to the applicant’s assertion to UNISA (R61) that Mr Koliti was her mentor and further her testimony at the disciplinary inquiry that Mr Classen was her mentor. In this regard all these allegations cannot be correct, only one of them or none of them can be the case. The probabilities of determining the true position on the applicant’s various versions are problematic, if not impossible.
63.5 Ms Mayi did not testify at the applicant’s disciplinary inquiry. Given her testimony at the arbitration, which I do not accept, it is inconceivable that she would not testify in support of the applicant at her disciplinary enquiry, in particular as Ms Matshoba was represented by an attorney who in the course of preparation for her hearing would in all probability have canvassed the aspect of witnesses favourable to her case. In this regard I do not accept Ms Mayi’s excuse that she did not testify for fear of intimidation or being called a skunk. Ms Mayi is a mature person and at the time, a post level 1 educator teaching economics at MBSSS.

64 Despite having been put to the respondent’s witnesses that Mr Goba, the then deputy principal academic, would testify that he introduced Ms Matshoba on two occasions, he testified that he only introduced her once. He introduced trainee teachers once and had it been a second time, then this would have been to introduce her as an educator joining the staff. This was in direct contrast to the testimony of Ms Matshoba and what had been put to the respondent’s witnesses on her behalf.

65 He, Mr Goba, could not say what happened after he had introduced Ms Matshoba to Ms Mdodana and later stated that as a part-time student she took two years. He denied having directed Ms Bonga to Ms Ngqono for assistance in filling out the lesson plans. His response as to why Ms Ngqono would testify that she assisted in filling out the lesson plans for Ms Bonga and testify to this effect at the arbitration, was that she was one of the ringleaders in destabilizing the school in 2013.

66 I accept that Ms Ngqono’s writing appears on the forms. It is difficult to imagine how, if she was a ringleader in 2013, this led to her assisting Ms Bonga and indirectly Ms Matshoba in 2010. The connection is difficult to make. The more logical and probable reason is that, in the face of Ms Mdodana’s refusal to fill in the forms, Mr Goba directed Ms Bonga to seek assistance from Ms Ngqono, knowing that she was one of the persons who had received training from UNISA on how to assist mentors.

67 Mr Goba had not been charged along with the principal and other educators, including the applicant. He had attended at the disciplinary enquiry against inter alia the applicant. However, he had not been allowed to sit in the hearing. He denied any knowledge of attempts by the applicant’s attorney to secure his testimony at the disciplinary inquiry. It was put to him that as a deputy principal academic, his testimony would be relevant to the applicant’s dispute and had he ever offered his testimony in this regard to any other forum. He could not recall whether he did or did not. The witnesses answer in this regard is equivocal, is not direct, does not assist the hearing and does not assist the witness’s credibility.

68 It was common cause that during the period 2010–2011 no additional staff were appointed in the admin office. Ms Matshoba testified at the disciplinary inquiry that there were three additional persons in the admin office. At the arbitration hearing she testified that there were two additional persons. Ms Jack testified that there were two additional persons, including herself, in the office at the time in question. They were students doing their training in office administration. Ms Matshoba testified that at all times she continued with her office work and sometimes remained at school until 16H00 to complete her work.

69 Several witnesses testified that it would not have been possible for Ms Matshoba to fulfil her duties as an admin clerk and that of a trainee teacher simultaneously. A trainee teacher was required to shadow her mentor, attend to classes, lessons, preparation, class administration, attend staff meetings and department meetings. This would also include completion of assignments and submission to UNISA. Witnesses testified that an educator, because of the number of classes per grade, would teach an average of 6 classes per day with between one and two free periods. Given the above it was not probable that Ms Matshoba was able to attend to her practical teaching responsibilities, as outlined above and which was not disputed, and her admin clerk duties. It was the testimony and the view of the respondent’s witnesses that at all times the applicant performed her admin clerk duties. This coupled with the fact that it was not possible to do both at the same time leads to the inevitable conclusion that Ms Matshoba did not engage “full time”, as it were, in doing her practical teaching and in this regard fraudulently misled both UNISA and her employer, the respondent.

70 The applicant self-evidently must have received assistance in how to complete lesson plans and in the submission of same to UNISA. How this was achieved is not known. What is known is Ms Ngqono’s testimony to having assisted Ms Bonga with forms for lesson plans, that Ms Bonga assisted the applicant with drawing up lesson plans and appears ex facie the document to have signed one of the drafts. According to Mr Classen he assisted Ms Matshoba by giving her his materials from his practical teaching at MBSSS the year before.

71 Taking into account all of the above, I find that although the applicant may have had some assistance in doing practice teaching and filling in lesson plans, she did not do her practical teaching at MBSSS as alleged by her for 5 weeks in 2010 and 5 weeks in 2011, this on the probabilities is the most natural, logical and most plausible conclusion to be drawn.

72 In the circumstances I find that Ms Matshoba was guilty as charged,

Sanction

73 Turning to the issue of sanction, Clause 2, Item (1) Schedule 8, the Code of Good practice regarding dismissals, of the LRA as amended, provides that “Whether or not a dismissal is for a fair reason is determined by the facts of the case and the appropriateness of dismissal as a penalty”. Item 7 of the Code directs that In order for the dismissal to be substantively fair, the employer must prove that there was a rule, the employee contravened the rule; the rule was valid or reasonable; the employee was aware or should have been aware of the rule; the rule was applied consistently by the employer and dismissal was an appropriate sanction for a breach of the rule .

74 As stated above, the existence of the rules, their validity and that the applicant was aware of them including the issue of consistency, were not placed in dispute. I have found that the employee was guilty of the misconduct she was charged with.

75 In Sidumo the Constitutional Court listed the factors that a commissioner should consider when deciding on the fairness of a dismissal. The Constitutional Court emphasised that this is not a closed list and that the weighting that should be attached to each factor would differ from case to case. The factors are; the totality of the circumstances, the importance of the rule that was breached, the reason the employer imposed the sanction of dismissal, the basis of the employee’s challenge to the dismissal, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and the long-service record of the employee .

76 The Constitutional Court in Sidumo held further that:
“To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”

77 In terms of item 3(4)-3(6) of the Code the following guidelines are given.
3 (4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
3 (5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
3 (6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration

78 The applicant has been found guilty of serious misconduct involving dishonesty namely fraud and misrepresentation.

79 The manner in which the applicant went about obtaining her qualification was dishonest misleading and involves deception. A common thread running through the misconduct with which the applicant was charged and the employee’s conduct during the hearing is deception. E.g. Her failure to acknowledge her wrongdoing; her plea of not guilty; her failure to acknowledge her testimony given at the disciplinary inquiry and insist that what she testified in the arbitration was what happened; that she obtained her PGCE from UNISA without completing the required practical teaching at MBSSS and accordingly misrepresented the true position to the respondent in this regard.

80 In Nedcor Bank Ltd v Frank and others (2002) 23 ILJ 1243 (LAC), dishonesty was succinctly explained as follows:
[15] Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. ( See, Toyota SA Motors SA (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) at 345F-H; R v Brown 1908 TS 21; R v White1968 (3) SA 556 (RAD) Ex parte Bennett 1978 (2) SA 380 (W) at 383H-384C; S v Manqina; S v Madinda 1996 (1) SACR 258 (E) at 260e-h and the Oxford Dictionary.) In the Canadian case of Lynch & Co v United States Fidelity & Fidelity & Guaranty Co [1971] 1 OR 28 at 37,38, Ont SC, the following was said: (per Fraser J): ‘ “ Dishonest” is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning.’

81 Dishonest conduct on the part of an employee will justify dismissal especially where the employee is in a position of trust in the workplace. The applicant is a post level 1 educator and self-evidently occupies a position of trust not only to her employer, but her colleagues, the School management, the School Governing Body, the school learners and parents.

82 In the matter of Cecil Nurse (Pty) Ltd v CCMA and Others (PR174/2013) [2015] ZALCPE 28 [7] (29 04 2015), the Labour Court held as follows in relation to misconduct involving dishonesty
“10 …. Nor is there any indication that he considered the long established rule applied in this court and by the Labour Appeal Court, i.e. that the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, such as long service and a clean record, against the sanction of dismissal in cases of dishonesty. (See, for example, Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC), where the LAC referred with approval to and applied Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 (LC):
‘It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.’ “

83 In Shoprite Checkers (Pty) Ltd v CCMA and others (2008) 29 ILJ 2581 (LAC) the Labour Appeal Court noted that it has consistently held that dishonesty by an employee irreparably destroys the relationship of trust with the employer. This applies in the case of the applicant and she stands to be dismissed on the basis of her dishonesty alone.

84 The applicant’s dishonest conduct goes to the root of the employment relationship, more particularly so, that as an educator this is one of the values she is required to impart to learners.

85 The applicant’s misconduct goes to the heart of the employment relationship. Trust and confidence are fundamental pillars of the employment relationship. Accordingly, conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employment relationship, will entitle the employer to bring it to an end .

86 With regard to trust and confidence, the Labour Court In Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others , held:
“The general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long-established one. See Council for Scientific and Industrial Research v Fijen (1996) 17 ILJ 18 (A) at 26E-G .”

87 On this basis alone there can be no continued employment relationship. The employee has by her dishonest conduct destroyed any trust between her and the respondent.

88 In denying her guilt when manifestly she was guilty, she showed a total lack of remorse for her conduct. The approach to lack of remorse and dishonest conduct on the part of an employee is appositely set out by Snyman AJ in Masubelele V PHSDSBC & others (LC) JR1151/08 (17 January 2017) as follows:
“[43] … In this regard, the relevant issues are that the applicant never showed any genuine remorse and persisted with what were entirely unacceptable and unreasonable explanations for his misconduct. Furthermore, the misconduct of the applicant clearly related to offences of dishonesty. As to the absence of any remorse in this instance, reference is made to the De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others .
This brings me to remorse. It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust, which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”
…

89 In Timothy v Nampak Corrugated Containers (Pty) Ltd the Labour Appeal Court held as follows, with regard to remorse:
“…. she contended that, given the fact that the appellant had an unblemished record and that, until this point, there was no indication in his conduct of any dishonesty or any impropriety prior to the events that gave raise to this dispute, a form of progressive sanction would have been more appropriate. I have no doubt that these arguments would have carried far greater weight had there been a scintilla of recognition by the appellant of his wrongdoing. By contrast, the appellant denied that any conversation or conversations had taken place with Ms Brisley. Throughout the disciplinary hearing and the hearing before third respondent appellant continued to take the view that the allegations brought against him were no more than lies. Appellant showed no remorse, no recognition of misconduct, save for a blatant and clearly dishonest denial. That places this case into an order of different magnitude from those urged upon us by Ms Bezuidenhout.
…. in a case such as the present, where there is an egregious act of dishonesty, and I use that word advisably because, as I have already indicated appellant’s conduct throughout this dispute constituted a perpetuation of the dishonesty, by way of a denial, conversely complete a lack of acknowledgement of any wrongdoing, there is a formidable obstacle in the way of the implementation of a progressive sanction. Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer’s organisation, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct.
In these circumstances, where there is nothing more than an aggressive denial and a perpetuation of dishonesty, it is extremely difficult to justify a progressive sanction, particularly in a case where the dishonesty is as serious as this dispute.”

90 The applicant failed to acknowledge any wrongdoing on her part and throughout the hearing persisted in the view that she had not committed misconduct. The applicant has committed serious misconduct, fraud and misrepresentation, including dishonesty. In the absence of an acknowledgement of and remorse on her part for such wrongdoing, there can be no re-establishing of the trust relationship / employment relationship between her and the respondent.

91 No work related personal circumstances of the applicant have been drawn to my attention that may impact on the issue of sanction.

92 The misconduct in respect of which the applicant was charged and has been found guilty concerns her fraudulent misrepresentation made to her employer. This constitutes serious misconduct involving dishonesty. The applicant has exhibited no acknowledgement of wrongfulness of her misconduct or accepted responsibility for what she has done. It is axiomatic that the employee’s misconduct has destroyed the relationship of trust and confidence between her and the respondent.

93 The interests of the employer far outweigh the interests of the employee (the loss of her employment). Fairness dictates that an employer should not be forced to retain in its employ an employee who has been found to be dishonest and has committed misconduct of the nature the employee has been found guilty of.

94 There are no redeeming features that may be considered with a view to imposing a lesser sanction. It follows that a sanction less than dismissal / progressive discipline cannot be applied. For the same reason, additional training and instruction cannot be considered. Accordingly, in taking into account the totality of the circumstances, I find that the respondent did not unfairly dismiss the applicant and that the sanction of dismissal was an appropriate sanction

95 I make the following award:

    Award

96 The dismissal of the applicant, Ms Mandisa Penelope Matshoba, by the respondent, the Provincial Department of Education: Eastern Cape, on 1 October 2019 was substantively fair.

97 The applicant’s dismissal dispute referred under case Reference ELRC704-19/20EC is dismissed.

98 The ELRC is directed to close the file in this matter.

Senior Arbitrator ELRC
Makhanda / Grahamstown