Commissioner: Lanthis Taylor
Case No.: ELRC118-26/27WC
Date of Award: 28 October 2026

In the Arbitration between:

SAOU obo Jane Wanza
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr Rudolph Baard & Ms Wanza

First Respondent’s representative: Ms. Lauren Randall (WCED Representative)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 20 July 2026 by way of the virtual platform, Microsoft Teams. The applicant, Ms. Jane Wanza was represented by Mr. Rudolph Baard from Suid Afikaanse Onderwys Unie (SAOU). Ms. Lauren Randall represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and were digitally recorded. The matter was part-heard on the day and reconvened on 27 August 2026 where the respondent’s representative raised a point in limine regarding the jurisdiction of the ELRC to arbitrate the matter.
2. After considering the parties’ submissions, I issued a ruling confirming that the ELRC had the requisite jurisdiction to hear the matter and the matter reconvened and concluded on 9 October 2026

THE ISSUE IN DISPUTE

3. The issue before me relates to the applicant’s claim of non-payment of salary and an associated appointment into a permanent position from 1 January 2026.

BACKGROUND TO THE ISSUE

4. The parties concluded a pre-arbitration process where issues as common cause and issues as disputed issues were set out. Despite this, during the initial stages of the arbitration process, an issue arose regarding whether the applicant filled a substantive vacant post on the school’s staff establishment. This would be a point for my consideration.
5. The WCED embarked on a process where Grade R positions would be universalised to form part of the Foundation phase. Circular 0035/2022 outlined how Grade R educators would be classified on the REQV/NQF levels given the differing levels of educational qualifications.
   REQV 10 (Grade 12 or lower without a teaching qualification) = Unqualified.
   REQV 11/12 (Grade 12 plus 1 or 2 years relevant qualification) = Underqualified.
   REQV 13 and above (Grade 12 plus 3 or more years relevant qualification) = Qualified.
6. The circular also sets out the vetting process, the appointment process, how posts are allocated to public schools, the upskilling of underqualified educators and the how subsidy transfers will be dealt with post January 2023. The underlying sentiments are that if a post is vacated it can only be filled by a qualified person and would be subject to financial protocols.
7. It is common cause that the applicant is suitably qualified to teach in the foundation phase (Grades R-3) as she is qualified at REQV 14 level and that she worked at Bruckner De Villiers Primary School from January 2026. Her complete application for appointment to the WCED was uploaded on 23 April 2026 and she was subsequently appointed permanently to the post as of 1 April 2026. She was not remunerated for the period of 1 January 2026 to 31 March 2026.
8. The applicant was paid an amount of R48137.25 while the arbitration process was in progress. The respondent’s view was that the applicant was only entitled to be paid the “stipend” amount of R16045.75 per month whereas the applicant and her union’s view is that she was entitled to be paid the full remuneration of a basic salary + 37% in lieu of benefits. The union is also seeking that the applicant be appointed retrospective to 1 January 2026.

SUMMARY OF THE EVIDENCE & ARGUMENTS:

9. Both parties presented bundles of documents in support of their versions. The applicant testified on own accord and the union presented Illois De Goede as her witnesses. The respondent called its witnesses, Ms. Crystal Myburgh (Assistant Director Recruitment and Selection) and Mr. James Isaacs (Principal of Bruckner De Villiers Primary School) to testify on its behalf.
10. I am required by the Labour Relations Act to provide brief reasons to substantiate my findings and determinations in this dispute. The relevant aspects of the parties’ respective testimonies will be dealt with in the analysis, hereunder. I will deal with the substantial merits of the matter before me based on the arguments presented by each party without having to repeat what was testified to verbatim. I have considered all the testimony and evidence presented with the resultant award being a synopsis of my consideration.

THE APPLICANT’S CASE

11. The applicant testified on own accord under oath that she commenced employment at Bruckner De Villiers Primary School on 13 January 2026. The position was advertised on Facebook in December 2025. She was the successful candidate after the interview process. She referred to the advert which listed the post as “posnommer 1 – Graad R. – SBL” (translated = Post number 1 – Grade R – SGB). She stated that she had not received a contract and had spoken to the principal, Mr Isaacs, as well as emailing him about this. She asked for an appointment later from both the school and WCED on 28 May 2026.
12. She stated that she did not get paid and had approached the principal who told her to wait a while and then let him know when she was paid. He told her that WCED would be paying her. She did not get paid for the months of January to March 2026. She was appointed as of 1 April 2026. Her documents were submitted during January 2026 and Isaacs told her that everything had gone through. She believed that WCED was her employer.
13. Wanza stated that she was charged with misconduct for speaking to the district office about the non-payment of salary for the three months. However, the disciplinary action was not pursued. She stated that she was expecting to be paid as a PL1 Educator from 1 January 2026.
14. During cross-examination she confirmed that she had responded to an advert on Facebook in December 2025 and that the advert referred to a SGB post. She confirmed that she had applied for the SGB post but stated that the principal told her that it was a WCED post when she started working there. She stated that she did not receive any form of confirmation from WCED or the school when she started teaching. She later twice confirmed that the principal had not told her that it was a WCED post but that’s the WCED would be providing money for the post.
15. The applicant’s witness, Illois De Goede testified that she is a full-time shop steward for the union. She referred to two instances where the WCED had entered into settlement agreements with staff members who had not been paid over an extended period from January to April 2024 having been appointed in May 2024. She stated that those staff members received new appointment dates backdated to January 2024 as part of the agreement.
16. De Goede referred to the staff establishment document signed off on 6 May 2026 where the Grade R post was listed as, an additional post. She stated that in the case of Grade R, the establishment is updated upon the appointment of the permanent appointment of a qualified educator. She referred to the “conversion process” which is outlined in paragraph 5 above. She stated that Wanza was appointed as of 1 April 2026. She explained the differences in remuneration between a qualified person and an unqualified or underqualified person and how the funding worked. She stated that the school had asked for an abnormal appointment, but this did not apply to the applicant as she was not underqualified.
17. During cross examination, De Goede stated that she could not recall if the posts that she referred to in the settlement agreements were PL1 posts on the staff establishment. She confirmed that in Wanza’s case, the previous incumbent had been unqualified and as such there would not be a post on the establishment. She confirmed that Wanza applied for a SGB post on Facebook.

RESPONDENT’S CASE:
18. The respondent’s first witness, Ms. Crystal Myburgh testified under oath that she works as an Assistant Director in Recruitment and Selection. She stated that was familiar with the applicant’s matter. She confirmed that the applicant’s nomination documents were uploaded but the completed set of documents was only received on 23 April 2026. The applicant was permanently appointed as of 1 April 2026. The department could not appoint her earlier as the previous incumbent was not a qualified educator. She referred to a document dated 29 August 2025 which reflects that there was a total of 12 on the staff establishment and which did not include any Grade R post. A further document dated 25 March 2026 reflects that 2 growth posts were allocated but Grade R was not included in this allocation.
19. Myburgh stated that there was no substantive Grade R post at the school in January 2026. She confirmed that it was possible that a person could be appointed if all the documentation was in order. She referred to Circular 0016/2023 which states “Permanent appointments will be made within three months of the receipt of the documentation to allow for administrative processes to be finalised. Payment will be made from the date reflected on the letter of appointment. Head Office will issue a revised staff establishment reflecting an additional post level 1 position to be utilised for Grade R”. In the case of the applicant, despite the completed documents being received on 23 April 2026, the appointment was backdated to 1 April 2026.
20. During cross-examination, Myburgh confirmed that the applicant could not be appointed permanently from 1 January 2026 and that the completed documents were only submitted on 23 April to June 2026. When it was put to her that other PL1 educator appointments had been backdated, she stated that in the case of grade R educators, the positions were not part of the normal staff establishment. The position only becomes part of the establishment if a grade R educator is permanently appointed. She confirmed that the school then gets a new staff establishment which will add the grade R post to the establishment effective from the date of permanent appointment.
21. Myburgh reiterated that the predecessor in the post was not in a funded vacant post. The funds that are allocated for payment (stipend) is obtained from a different budget under the learner materials category. She confirmed that she makes appointments against funded posts and that the grade R post at the school was not funded prior to 1 April 2026.
22. The respondent’s witness, James Isaacs testified that he is the principal at Bruckner de Villiers Primary School. Isaacs stated that the former grade R educator, Ms. Pietersen had resigned effective the end of 2025. She was unqualified and as such the school needed to create a substantive vacant post. There was no substantive vacant post at the school at the beginning of 2026. The school advertised the vacancy for grade R educator on Facebook and this was advertised as an SGB post as there was a need for approval from the WCED. Isaacs confirmed that Wanza had been permanently appointed from 1 April 2026. The school had initially uploaded Wanza’s documents onto e-recruitment but later had to reload the documents onto PMPS because she was a qualified educator. He applied for an abnormal appointment as there was no post at the time, but he did not receive any feedback from the department. He denied telling the applicant that she would be permanently employed from 1 January 2026. She was in an SGB post, and he could not guarantee a WCED employment.
23. During cross-examination Isaacs confirmed that he was appointed as principal on 1 July 2025. He was uncertain whether Petersen had a SGB contract as a grade R educator. He was however aware that she was paid partly by the SGB and partly by departmental subsidy. When asked why Wanza was not given an SGB contract, he stated that he had asked Ms. Karriem who worked at the district office where how the school could apply for her to be appointed. He waited for her to respond but did not receive any response as she was waiting for higher authority.
24. Both parties submitted closing arguments in writing on the agreed date which I have considered and which will form a part of the overall award. The closing arguments presented a synopsis of the oral testimony presented.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:

25. The issues before me are relatively simple. The applicant’s submission is two-fold in that firstly she was not paid for services rendered as a qualified REQV14 educator for the period January to March 2026 and secondly that she should be appointed permanently from 1 January 2026 as she rendered services in a vacant substantive post. The respondent’s view is that she was only entitled to be paid a stipend for the period January to March 2026 as there was no approved post on the staff establishment. The approved post only came into existence on 1 April 2026 with the applicant being appointed into that post.
26. I have considered all the witnesses’ testimonies. The testimony of de Goede did not add much value to the applicant’s claim. She referred to two settlement agreements of 2024 which related to educators not being paid. She also stated that those educators were retrospectively appointed as part of the settlement. However, there is nothing in the agreements to substantiate this statement. She could not recall if these were PL1 vacant posts on the staff establishment and she conceded that the applicant in this instance had applied for a SGB post on Facebook. Her testimony is largely disregarded.
27. The principal, James Isaacs, contradicted himself regarding when the request for the post to be part of the establishment occurred. He stated that he had uploaded the applicant’s documents sometime in February while waiting for Ms. Karriem to confirm the allocation of the position. Mr. Isaacs is newly appointed as a principal and his testimony lends credence to his inexperience. He most certainly did what he believed to be correct even to the extent of asking that the applicant be appointed as an abnormal appointment even though this only occurred on 8 April 2026 and abnormal appointments relate to underqualified educators. While he contradicted himself, this did not have a bearing on his overall testimony which in my view gave a reasonable account of what transpired.
28. In consideration of the applicant’s claims, I will firstly deal with the applicant’s second claim. The applicant applied for a position that was advertised on Facebook as a SGB post. She confirmed that the advert indicated that it was a SGB post so there is no doubt that she would have been well aware that this was not a WCED post. That being said, it is also evident that the school was compelled to replace the unqualified Grade R educator (Pietersen) with a qualified educator as part of the universalisation process of Grade R educators when Pietersen resigned. This Grade R position and role did not form part of the staff establishment. When Petersen resigned, the need for grade R education did not end. Effectively, the school had to find and place a qualified person into a position that ostensibly did not exist until it was approved as a WCED position on the staff establishment.
29. Myburgh referred to Circular 0016/2023 which states “Permanent appointments will be made within three months of the receipt of the documentation to allow for administrative processes to be finalised. Payment will be made from the date reflected on the letter of appointment. Head Office will issue a revised staff establishment reflecting an additional post level 1 position to be utilised for Grade R”.
30. The applicant did not apply for a substantive vacant L1 post that formed part of the school’s staff establishment. She was appointed into the advertised position that she knowingly applied for. She was permanently appointed from 1 April 2026 after her nomination documents were submitted for consideration which would include the allocation of a Grade R post onto the school’s establishment. The applicant is not entitled to be appointed as of 1 January 2026. She did not fill any vacant substantive L1 Grade R post as none existed on the staff establishment at the time of her initial appointment.
31. As for the applicant’s first claim, she was not paid any remuneration for the period January to March 2026 despite rendering services as a fully qualified educator. She had not been paid any monies (stipend or otherwise) by the time that the arbitration commenced and only during the period between the two sittings was she paid an amount equal to the gross stipend amount for 3 months at R48137.25. The respondent’s argument that the applicant was paid this amount because there was no approved post on the staff establishment cannot be sustained on that basis. The applicant is a fully qualified educator, and she rendered services as a qualified educator. The school followed the brief to seek the appointment of a fully qualified educator on the basis of the attrition caused by Pietersen’s resignation. The applicant fulfilled the role as a fully qualified educator despite there being no approved post until later. There is no reason why she should be paid as an underqualified educator when she does not fit into that category of educator.
32. Mr. Baard in his closing argument submitted that the applicant’s claim should be amended to R72413.16 (R120550.41 – R48137.25). I concur with this submission. Therefore, in consideration of the above and in consideration of the opposing interpretations and arguments presented to me, I make the following award:

AWARD:

33. The applicant’s claim to be appointed with effect of 1 January 2026 is dismissed.
34. The respondent is ordered to pay the applicant the amount of R72413.16 which is the difference between what she should have been paid as a qualified educator and what the respondent paid her during the arbitration process. Payment is to be made by no later than 31 December 2026.

L M Taylor
Commissioner