IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case Number: ELRC633-24/25GP

In the matter between:

William Ngoako Sodi Applicant

And

Department of Education Gauteng Respondent

ARBITRATION AWARD

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Email: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration was conducted over 5 days. The first was on 18 and 19 February 2025. The Arbitration proceeded again on 10 and 11 April 2025 and the last hearing was on 6 May 2025, when the arbitration was eventually finalized. During all the hearings, the Applicant, William Ngoako Sodi (Sodi) was present and was represented by Mr Tebogo Ramalekana (Ramalekana) from Ramalekana Attorneys, Inc., whilst the Respondent was also present and was represented by Mr Dumile Dube (Dube), the Respondent’s Senior Education Specialist.

[2] The proceedings were conducted in English and there was no interpreter.

[3] The proceedings were digitally recorded and hand written notes were kept.

[4] All witnesses testified under oath.

[5] Both parties submitted a bundle of documents which was admitted on record to the arbitration which I named bundle “R” for the Respondent and bundle “A” for the Applicant. The authenticity thereof was not questioned.

THE ISSUES TO BE DECIDED

[6] The issues that I am to determine following the Pre-Arb minutes, although not captured verbatim are the following: (a) whether the act of the Respondent in giving Sodi a sanction of one month suspension without pay and a final written warning was a fair conduct or not. (b) Whether the alleged act of the Respondent in delaying/taking long to charge Sodi was a fair act or not. In making this assessment, I will determine it both procedurally and substantively. Under substance: whether the applicant committed the offence he was charged with and whether the sanction was appropriate. Under procedure, whether the alleged act of the Respondent in delaying to charge the Applicant was procedurally fair or not.
BACKGROUND TO THE DISPUTE

[7] Sodi was a teacher at the Nellmapius Primary School and he was also a member of the SGB, representing the teacher component in the SGB.

[8] On or about 22 December 2022, he had signed the School’s Annual Academic Performance Report on behalf of the SGB Chairperson, Mr Msiza (Msiza).

[9] He was charged in terms of section 18(1) (ee) of the Employment of Educators Act 76 of 1998, as amended, was summoned to disciplinary hearing and was put on a 1 month suspension without pay and was also put on a Final Written Warning, for purposes of progressive discipline, short of dismissal.

[10] Sodi was aggrieved by this sanction and had referred a dispute to the Council, praying for the Commissioner to declare the disciplinary hearing procedurally unfair and that the guilty verdict and the sanction thereof be set aside and be replaced with a sanction of “Not Guilty”.

[11] Prior to commencing with the arbitration, a request was made by the Applicant, through his representative, Mr Ramalekana, that the Applicant’s only witness, Mr Gezani Richard Ngobeni (Ngobeni) be allowed to testify first as he was already on retirement and that he cannot wait indefinitely for his turn to testify. The Respondent did not object the request. Upon applying my mind and also considering Ngobeni’s age and health conditions, I had granted the request and had allowed him to testify first.

During Closing Arguments
Both parties submitted their closing arguments in writing, which I had considered in reaching my decision. The parties had to submit their closing arguments in writing on 13 May 2025 and only the Respondent had submitted as arranged whilst the Applicant submitted his closing arguments on 16 May 2025.
SURVEY OF EVIDENCE

[12] The onus is on the Applicant to prove that, the Respondent’s conduct was unfair towards him in terms of section 186(2) (b) of the LRA.

[13] I am guided by Section 138 (7) (a) of the LRA as amended, to deal only with the evidence that is relevant to the issues in dispute.

The following is a brief summary thereof:

The Applicant’s case
The Applicant’s 1st witness was Mr Gezani Richard Ngobeni (Ngobeni) and he testified as follows:

[14] He was currently on retirement (Pensioner) since 28 February 2023. Prior to his retirement, he has been a Principal of the Nellmapius Primary School for the past 24 years, but has 41 years, overall experience in teaching and learning within the Department of Education (hereafter referred to as “GDE”)

[15] He acknowledged document A3 with the subject head “Dysfunctionality of the SGB and the unwillingness by the Chairperson to comply with the GDE Policies” dated 1 December 2021, and confirmed the signature on the last page to be his own signature.

[16] He testified that the document was addressed to the District Director of Tshwane South, Ms Paula Galego, for attention Mr Mdhuli, who was the Circuit Manager, responsible for the Nelmapius Primary School.

[17] The reason for addressing the document to the District office was as a result of the Chairperson of the SGB, Mr Msiza (Msiza), frustrating all processes, not willing to comply with the GDE policies by refusing to sign the School’s Annual Academic Performance Report of 2022.

[18] He testified that the failure to comply with the GDE policies by Msiza impacted the school negatively in that, the school would go for 6 to 12 months without holding any SGB meetings, it compromised the schools performance efficiency and it made it difficult for the school itself to comply with the directives from the GDE regarding leaner performance. The refusal to sign by Msiza also posed challenges regarding the school’s budget for the preceding year.

[19] He referred the arbitration to page 29 of bundle A1 regarding a memo to the SGB, alleged to be from Ms Paula Galego, the District Director, and signed by her. The memo was titled “Notice of intention to recommend section 22 of the South African Schools Act (SASA) 84/1996 for the suspension of the SGB of the Nellmapius Primary School, with immediate effect. The memo was dated 30 June 2022. In the memo, reference was made in para 3 of the memo, that the SGB is informed not to interfere with all activities related to the SGB of the school until further notice.

[20] He referred the arbitration to page 25 of bundle A1 regarding the Annual Academic Performance Report of 2022 and confirmed that he had signed on 1 January 2022 whilst Sodi (Applicant) signed on 9 February 2022.

[21] He testified that, as a result of several attempts being made to request Msiza to sign and him, refusing to sign, he had then instructed Sodi to sign on his behalf. Sodi’s signature was appended 30 days later from the date he, himself had signed. He stated that Msiza’s conduct was a sabotage, intending to hold the school at ransom.

[22] Since the Applicant had signed on 9 February 2022, the GDE had raised no issues about this as Sodi was only charged in August 2023, about a year and a half since he had signed. Upon receipt of the Annual Academic Performance Report of 2022, the Report was approved by the Head of Department (HOD) of the DGE and was implemented and the department never raised any issues as to the signatories on the document and the fact that Sodi had signed as a Chairperson of the SGB. He testified that, the fact that the HOD never raised issues about the report, it means the report complied with all the requirements, and the report was never returned.

[23] When Sodi signed, he was an SGB member, representing the teacher component and was also the Deputy Secretary of the SGB. He testified that as the School Principal, he was an employer at school level representing the GDE. He was at the school as Principal for over a year since giving Sodi an instruction to sign on behalf of the SGB Chairperson. He was not charged having done so by the GDE. In his opinion, the instruction he had given Sodi was not unlawful. He could also not charge Sodi for signing on behalf of Msiza as he was the one who gave him such instruction. He was surprised to hear that Sodi was actually charged after he had left employment as a result of retirement.

During Cross- Examination

[24] He confirmed that he has 41 years’ experience in teaching and learning within the Department of Education and that he is conversant with the policies thereof. He stated that the SGB is composed of the Principal, the teacher component, the parent component, and the administrative staff. He testified that he could not recall how many members in the SGB represented the parent component as that will depend on the roll of the school but stated that, parents were in the majority in the SGB.

[25] He stated that the SGB is responsible for the school governance in that, it must support the Principal and the teachers. He testified that, as the School Principal, he is responsible for the professional matters of the school. He stated that, among all the members of the SGB, the Chairperson, Msiza, was head of the SGB. He testified that as a school principal, he is automatically a member of the SGB and that all the SGB members are elected by him as the School Principal even though parents elect parents to represent them in the SGB whilst teachers elect teachers to represent them in the SGB.

[26] His function in the SGB was to assist in relation to policy documents and implementation. He testified that in the SGB, there is no one having more power than others and all members are equal. He continued to state that the Chairperson of the SGB does not have more powers than the rest of the other members. Dube had put it to him that the Chairperson is the Accounting Officer of the SGB. He kept saying all was equal in the SGB.

[27] The SGB came into office on 1 April 2021 and that on 1 December 2021, he wrote a letter to the District Director, Ms Paula Galego, because the SGB had become dysfunctional. He testified that upon noticing the dysfunctionality of the SGB, despite initiating meetings with it without success, he decided to write a letter to Ms Galego, to complain. Dube asked Ngobeni to provide evidence of the support he gave the SGB by advising it, guiding it prior to lodging a complaint to the GDE. Ngobeni could not adduce any as he stated that he had left everything at the office when he retired and stated that such proof can be made available should a need arise. Dube had put it to him that the essence of document A3 was about the Chairperson refusing to cooperate and Ngobeni disputed this by stating that its essence was about the SGB failing to perform its duties as per its mandate.

[28] He testified that even though he was a member of the SGB, he had complained about the SGB to the DGE by writing a letter and that before doing that, he had referred the same complaint to the SGB. Dube disputed this version stating that Ngobeni’s testimony will be rebutted by one of the Respondent’s witnesses. Ngobeni testified that the hampering of the school’s progress by the SGB lead to him ending up doing everything by himself. Books could not be purchased as Msiza refused to sign the Service Level Agreements with service providers.

[29] Apart from Sodi representing the teacher component in the SGB, there were two other teachers in the SGB. Dube had put it to Ngobeni that, as the School Principal, he represents the employer at the school but that does not make him the employer as he is merely a representative of the employer. Dube had put it to Ngobeni it is common cause that he had instructed Sodi to sign the Annual Academic Performance Report of 2022 and had asked him who had given him such authority. Ngobeni stated that he had done so, relying on the email communication dated

[30] The email communication provided that “ in a case where there is evidence of attempts to seek the chairperson’s signature without any success, the School Management Team (SMT) can request another parent member of the SGB to sign on behalf of the Chairperson, with a disclaimer. He stated that in the event what he did was unlawful, he would have been advised. Ngobeni testified that he had instructed Sodi to sign as a Deputy Secretary of the SGB as he had no authority to remove the SGB from office. Dube asked Ngobeni, why he had asked Sodi to sign and not any of the 2 parents who were in the SGB and Ngobeni stated that it was because Sodi was an office bearer of the SGB whilst the other 2 parents were not.

[31] Ngobeni continued to state that he had asked Sodi to sign, because Sodi was also a parent. Ngobeni referred to bundle A2 to the word “prerogative” and stated that, according to him, the word prerogative means that he had a right to decide who to ask to sign. He had also relied on section 16A of the South African Schools Act (Hereinafter “SASA”) 84 of 1996, regarding the functions and responsibilities of the school principal. Dube disputed this version by Ngobeni and stated that, Sodi had a duty to refuse his instruction as an employee of the GDE. Dube continued to state that, Sodi on page 19 of bundle A1, had stated that, “he was a first time offender” in attempting to mitigate against the harshness of the sanction against him. This to him meant that Sodi knew that what he did was unlawful.

[32] Dube had put it to Ngobeni that there was no refusal to sign by Msiza. Dube had further put it to Ngobeni that it was not true that no one approached him, regarding the signing of the Annual Academic Performance Report of 2022 by Sodi. Dube stated that the fact that the report was implemented does not mean that it was approved. Ngobeni disputed this version by stating that because the report was not returned to the school, in his opinion, it was evident that it had been approved.

[33] He testified that he had pressure to have the report signed and submitted to GDE, hence he had approached Sodi to sign. He had asked Sodi to sign after receipt of the email from Mr Makondo that he can request any member of the parent component of the SGB to sign and in his view, Sodi was in the SGB and was also a parent of a child in the school. Sodi only signed the report on 9 February 2022 whilst he Ngobeni had signed on 1 January 2022.

[34] He testified that when he submitted the report to GDE, he did not explain to the clerks that it was Sodi who signed on behalf of Msiza as there was no need to do so. Dube put it to him that by failing to explain to the GDE regarding Sodi’s Signature, he was actually trying to mislead the GDE. Dube had further put it to Ngobeni that, the GDE only became aware of Sodi’s misconduct regarding the unauthorized signing of the Annual Academic Performance Report of 2022, when a complainant lodged a complaint, leading to him being charged.

During Re-Examination

[35] Ramalekana asked Ngobeni to compare his letter to the District Director, Ms Galego, regarding the dysfunctionality of the SGB dated 1 December 2021 with an email communication, from Makondo, dated 1 February 2022 and was asked if there were no similarities and Ngobeni stated that, the email from Makondo was actually a response to his letter of complaint and that Makondo had actually authorised him to ask any member of the parent component to sign the report, hence, he had asked Sodi to do so. He stated further that Sodi was an office bearer whilst the other 2 parents were not office bearers.

[36] Ngobeni further testified regarding the letter, alleged to have been from Ms Paula Galego, regarding an intention to suspend the SGB from office with immediate effect as per section 21 of SASA 84 of 1996. He had referred to all these documents in proving that he had authority to instruct Sodi to sign the Annual Academic Performance Report of 2022, on behalf of Msiza, the chairperson of the SGB.

[37] Ngobeni testified that had he failed to meet the deadline, he could have been informed to submit or could have even been charged for failure to submit the report. He stated further that his failure to submit would have disadvantaged the learners as their core business as a school is teaching and learning.

[38] As members of the SGB, they are all equal and that the chairperson is not the head of the SGB. He testified that he had worked in the GDE for a period of 41 years and that he understands all the policies and procedures of the GDE and that he relied on these policies before taking any action regarding school activities. He testified that Sodi was instructed by him to sign the Annual Academic Performance Report of 2022, on behalf of the SGB Chairperson, Mr Msiza.

[39] He had never been charged and all his teachers/educators were never charged and that Sodi was charged only after he had left and that he was wrongfully charged. He testified that what Sodi did was to promote and advance the school and the education of their learners. He simply carried out an instruction.

Applicant’s 2nd witness was the Applicant himself – William Ngoako Sodi (Sodi) and he testified as follows:

[40] He has been a teacher/educator at the school since 1 January 2017.

[41] He has never been charged at the school except for the current charge he was charged with. Apart from being an educator at the school, he was also a member of the SGB for 2 consecutive terms, including the period during he was charged. At the time of his charge, he was a Deputy Secretary of the SGB.

[42] He was familiar with the document appearing on page 25 of bundle A1, being the Annual Academic Performance Report of 2022. He testified that he had signed the report on behalf of Msiza, the chairperson of the SGB, by indicating that with the letters ”pp” before his signature. He had signed as such after being given an instruction to do so by Ngobeni. He did not know why Ngobeni had asked him to sign but he was of the opinion that Ngobeni had problems with signatures. He could not refuse to sign because to him, an instruction from Ngobeni was a lawful instruction as it came from the principal of the school.

[43] He referred the arbitration to document “R2” containing the verdict of his case with the GDE and specifically referred to page 7, clause 16.6 where Ms Ndhundhuma, who was the Deputy Principal at the time of Sodi’s charge and who refuted the allegation by Sodi that she had authorised him to sign on behalf of Msiza. Ndhundhuma stated that her role was simply to compile the Annual Academic Performance Report, and pass it to Ngobeni to facilitate signatures. Sodi testified that the statement was not correctly recorded as he had never said that Ndhundhuma gave him the instruction to sign and that at all material times, he had stated that the instruction for him to sign was given by Ngobeni and not Ndhundhuma.

[44] He had received the notice regarding his charge on 21 August 2023 and the hearing was on 23 April 2024. He testified that, between the date on which he had received the notice and the date of the hearing, there has been no correspondence from GDE.

[45] The reason for his charge actually emanated from the animosity within the SGB. There was an investigation by the Special Investigation Unit (SIU) against the SGB. Other SGB members had fights with Ngobeni. During such fights, he would always support Ngobeni’s approach of doing things as the school Principal, and that made him unpopular among other SGB members. After Ngobeni went of retirement, some SGB members started reporting at the school on full-time basis, which was contrary to the rules. He had complaint about this and that made him more unpopular. A certain Malebe reported full-time at the school for the tuck-shop. He testified that his charge was actually a witch-hunt by Msiza and the SGB.

[46] He had benefitted nothing from signing the Annual Academic Performance Report of 2022.

During Cross-Examination

[47] He testified that prior to joining Nellmapius Primary School, he was an educator at Bajabulile Primary School where he also served as a member of the SGB and had served as a Secretary of the SGB for 4 terms. He had a total of 22 years’ service as a teacher/educator.

[48] He disputed the fact that he was a seasoned member of the SGB as he had served a total of 4 terms at both Bajabulile Primary School and Nellmapius Primary School as a Secretary and Deputy Secretary of the SGB respectively. He disputed being seasoned as he stated that learning continues and that no one can allege to know everything.

[49] He confirmed that an instruction must be given by someone with authority to do so. He testified that on 9 February 2022, when he was given an instruction to sign the Annual Academic Performance Report of 2022 on behalf of Msiza, he was at school as his job was basically classroom based, as an educator. He could not remember whether he was at the classroom when he was given an instruction as it was a long time ago. He was given documents to “pp” and it took him a few seconds as it was just to “pp”. He had never applied his mind before he inserted the letters “pp” on the report. He just inserted “pp”, signed and left. He had however, seen that, what he had “pp” for, was the Annual Academic Performance Report of 2022. He had seen that he was signing on behalf of the SGB Chairperson.

[50] He testified that when he signed, he was not a Chairperson of the SGB as he was a Deputy Secretary at that stage. He had not asked Ngobeni why he was asking him to sign as he was aware from other meetings with the Head Office about Msiza’s refusal to sign. At the time of signing on behalf of Msiza, he had occupied a Post Level 1 position as an educator and was in the teacher component of the SGB. He testified that although he was in the Post Level 1 position as an educator, he was also acting as an HOD, forming part of the School Management Team (SMT). He testified that the parent component is the one in the majority in the SGB.

[51] Dube had put it to Sodi that Ngobeni had no authority to give him an instruction to sign on behalf of the Chairperson of the SGB, being Msiza. Sodi disputed this version by Dube and stated that Ngobeni was his employer and that he takes instructions from him. Dube continued to put it to Sodi that Ngobeni had no authority to give him an instruction regarding the SGB matters and Sodi answered by stating that “I do not know about that”.

During Re-Examination

[52] He testified that even though Ngobeni did not possess the authority to give him an instruction to sign on behalf of Msiza, he was never charged until he went on retirement. He testified that he had answered questions in the best ability of his knowledge and that he had never attempted to be evasive.

[53] He had no reason to read before signing the Annual Academic Performance Report of 2022, as the issue was a long standing one and he knew the contents of the report.

The Respondent’s case
The Respondent’s 1st witness was Mr Emmanuel Smangaliso Msiza (Msiza) and he testified as follows:

[54] He was employed by the South African Police Services as a Lieutenant Kennel and that his position falls under Middle Management (SAPS). His job description include policing, organizational development, management establishment and job evaluation, business re-engineering and work improvement.

[55] He had become the Chairperson of the Nellmapius Primary School SGB from 1 April 2021, after being elected by the parents of the children attending the school and he was currently the Chairperson of the SGB. He was elected as a Chairperson of the SGB in 2021 for a period of 3 years and he was re-elected to the same position for the second term which started in 2024. He had never stopped being in the SGB and as a Chairperson.

[56] In 2021 when he was elected as Chairperson of the SGB, Ngobeni was the School Principal. He knew Sodi as he was an educator at the school and was also a member of the SGB occupying the position of Deputy Secretary of the SGB. Sodi was in the teacher component of the SGB. Other components in the SGB included: the parent component, which consisted of 2 parents, the Principal, the Treasurer, the Secretary, the Chairperson, Administrative staff component as well as general workers.

[57] He testified that the Principal is not elected and that, he is an Ex-Officio member and because of that, he is automatically a member of the SGB. To be in the parent component, one has to be a parent of a child in the school or be a legal guardian to a child in the school.

[58] He testified that the role of the Principal in the SGB is to assist the SGB in discharging their roles/mandate. The version that everyone is equal in the SGB is untrue and is misleading. He, as the Chairperson of the SGB is accountable to the entire SGB. The Deputy Chairperson of the SGB steps in when he is not there. He will give the Deputy Chairperson, authority to act in his position when he is not there.

[59] He testified that as soon as one gets elected into the SGB, the GDE conducts an induction and assists with training on what it is expected of them as members of the SGB. Upon becoming a member of the SGB, it was happy moments as Ngobeni was also very happy to have them as the SGB as they were a team of graduates. At the time of resuming office, not much was happening as it was all about training and workshops. There was 100% functionality of the SGB.

[60] He was seeing document A3 for the first time at arbitration which was titled “Dysfunctionality of the SGB and the unwillingness by the Chairperson to comply with the GDE Policies”. He stated that the document was irrelevant as things were running smoothly in the SGB at that moment. He could see that the document was dated 1 December 2021.

[61] He had referred to the Annual Academic Performance Report of 2022, and testified that the report was signed off annually and is submitted to GDE to indicate that the school is performing and that it is functioning properly. He referred to the “Declaration” on the same report and testified that Sodi had signed where he was supposed to sign as the Chairperson and that he did not authorize Sodi to do so. Ngobeni had no right to instruct Sodi to do so. He had no authority to do so.

[62] He testified that in the event he was not available to sign, he could have delegated one of the parents to do so from the parent component. Sodi was a teacher/educator, representing the teacher component in the SGB, although he was a Deputy Secretary in the SGB. He testified that there was not even a resolution taken by other members of the SGB to authorize Sodi to sign. Ngobeni is the one who had instructed Sodi to do so without any authority. The SGB did not even hold a meeting in his absence and took a resolution that he was refusing to sign the report. No minutes of the meeting held was made available to him.

[63] He was made aware that Sodi had signed the Annual Academic Performance Report of 2022 on his behalf by Mr Edward Malebe (Malebe) who was a chairperson of the teacher component in the SGB. Malebe had attended a meeting of the Teacher Learning Management Support (TLMS) with Ngobeni and was provided with a bundle of documents for the meeting. He accidentally came across the Annual Academic Performance Report of 2022 which was signed by Sodi, on behalf of the chairperson of the SGB.

[64] Upon seeing that, Malebe alerted Msiza. He was surprised as he had always relied on Ngobeni to keep him posted on any event that concerned the SGB. He had approached both Ngobeni and Sodi at different times, but they had become arrogant and evasive. There was nothing stopping Ngobeni to call him to come and sign and Ngobeni did not do so, instead, he gave Sodi an instruction to sign on his behalf without his authorization. At that time, he had decided to allow them an opportunity to resolve the dispute among themselves. He did not escalate the issue to the GDE. He had waited for a very long time and after realizing that nothing is happening, he had decided to escalate the issue to the GDE, hence Sodi was only charged on 21 August 2023. The entire SGB was aware that he had intended to escalate the matter to the GDE, including Ngobeni himself.

[65] He testified that Ngobeni was not being truthful when he stated that he had only became aware of the matter when Sodi was charged. At that time, he was already on retirement as he had retired from his position as the School Principal of the Nellmapius Primary School on 28 February 2023. He testified that, had Ngobeni made the GDE of Sodi’s signature on the report, the report would have been nullified.

[66] He testified that he had refused to endorse the recruitment and selection documents which were signed by Malebe and Ngobeni took offence of that, hence he did not provide him with the Annual Academic Performance Report of 2022, for him to sign. He had never refused to sign. He testified that, even if Sodi had a child or children in the school, he was not in the parent component for him to sign on his behalf. He was in the teacher component and had no authority to sign, even if instructed to do so by Ngobeni, as he Ngobeni, had no authority to give such an instruction.

During Cross-Examination

[67] He testified that his core duties as a Police Officer is policing as he had been appointed under the Police Act, although his job description entails other HR related tasks which he performs on daily basis.

[68] He was elected into the SGB as chairperson for 2 consecutive terms from 1 April 2021 and that he was currently an SGB Chairperson. He confirmed the letter written by Ngobeni dated 1 December 2021 and testified that, at that time, they were still new in the office as the SGB members. They had just been inducted and were engaged with training and workshops. There were no issues in the SGB and Ngobeni was happy to have them as the SGB because they were a team of graduates.

[69] Prior to training, he had no knowledge and did not understand the policies and had signed for things without knowledge. One of the things he had signed for was to authorize the unlawful withdrawal of money from the school’s account. He had relied fully on Ngobeni, but after being trained, he had knowledge and had refused to sign for things he did not understand. His relationship with Ngobeni began to become sour. Ramalekana disputed the version by Msiza that he had relied on Ngobeni and had put it to him that ignorance of the law is no excuse, alleging that you relied on someone else.

[70] Ramalekana had put it to him that he was not being truthful when he mentioned that prior to training, he had signed without knowledge as he did not understand the policies. This version was disputed by Msiza stating that, his academic qualifications were not sufficient to run as an SGB Chairperson as he needed training in that line.

[71] He testified that, upon resuming office as Chairperson of the SGB in 2021, nothing was handed over to him, instead, they went to drink alcohol with Ngobeni, as the SGB. Regarding the letter written by Ngobeni on document A3, he was surprised and had alleged that he saw the document for the first time during arbitration. There was no reason for the letter as there were no issues in the SGB in December 2021. He testified that, what Ngobeni wrote was misleading as there were no issues in the SGB at that time.

[72] He disputed ever seeing the letter on page 29 of bundle A, alleged to have been from Ms Paula Galego, the District Director. The letter was written on 30 June 2022, appearing to be a response to Ngobeni’s letter dated 1 December 2021 titled “Dysfunctionality of the SGB and the unwillingness by the Chairperson to comply with the GDE Policies”. Ms Galego’s letter was titled “Notice of intention to recommend section 22 of SASA 84/1996 for the Governing Body of the Nellmapius Primary School. Ramalekana had put it to him that he knows about both letters from Ngobeni and Ms Galego and that he was just being evasive. Msiza disputed this version by Ramalekana.

[73] He testified that he knew about Sodi’s signature on the Annual Academic Performance Report of 2022 through Malebe and had lodged a complaint to the GDE after allowing Ngobeni and Sodi, an opportunity to resolve the issue with him. They had failed to do so and he had decided to report or to lodge a complaint. He had complained of Mr Makondo, the Institution District Support Officer (IDSO).

[74] Ramalekana referred Msiza to bundle A “R1” regarding Msiza’s affidavit in which he was complaining about Sodi having signed the Annual Academic Performance Report of 2022 on his behalf. Ramalekana referred Msiza to this document in order to dispute Msiza’s version that he had lodged a complaint to the DGE personally as he had alleged in [para] 64 above.

[75] Ramalekana had put it to Msiza that he was not being truthful and informed him that the complaint was actually lodged by Mrs. Ndhundhuma who was the Deputy Principal of the school at the time when Sodi signed on behalf of Msiza. Ramalekana had put this version to Msiza in an attempt to question his credibility as a witness. Msiza disputed the version that he is not a credible witness by stating that he had taken an oath and that what he had said was the truth. He continued to state that Ngobeni had given an instruction to Sodi and that he lacked the authority to do so.
During Re-Examination

[76] He testified that his job description as a policeman had nothing to do with Sodi signing on his behalf.

[77] He testified that he is a credible witness and that he had testified under oath and that what he had testified upon was the truth as it was exactly what had happened and that it was not in dispute that Sodi had signed on his behalf and that he had no authority to do so.

The Respondent’s 2nd witness was Mr Edward Simon Malebe (Malebe) and he testified as follows:

[78] He was a member of the Nellmapius Primary School SGB for 3 terms in succession. He was currently a Deputy Chairperson of the SGB.

[79] He was familiar with the Annual Academic Performance Report of 2022. It was used to assess the academic performance of the school. The document was part of the bundle he had received for the meeting he had attended with Ngobeni. The report was actually, accidentally being put in the bundle. Upon seeing the report and that it was signed by Sodi on his behalf, he had immediately notified Msiza who informed that he will take it up with Sodi himself and Ngobeni. On the same day, Msiza informed him that he had approached both Sodi and Ngobeni at different times and they were both arrogant and evasive. He had given them time before reporting the issue but they remained quiet and that indicated to him that they had intended to do what they did.

[80] He had referred the arbitration to the “Declaration” part of the Annual Academic Performance Report of 2022 and stated that Ngobeni had signed where he was supposed to sign but that Sodi signed on behalf of Msiza. He testified that Sodi was not authorised by Msiza and that Ngobeni had no authority to instruct Sodi to do so.

[81] Sodi was an educator at the school and he was also a Deputy Secretary of the SGB. Sodi had represented the teachers in the SGB, being in the teacher component. The only person who could sign on behalf of the SGB Chairperson would have been the Deputy Chairperson or one of the parents from the parent component. Whoever would sign, was to be authorised by Msiza himself.

[82] He testified that upon them being elected into the school’s SGB, things ran smoothly and even Ngobeni was happy to have them as the SGB. The relationship started being sour when Msiza and a certain Dikobe started questioning Ngobeni about unauthorized expenditures from the school funds. He testified that it was not for the first time that someone had signed on behalf of Msiza. The school had received funding from the Motsepe Foundation and that fund was misappropriated where someone was authorised to sign on behalf of Msiza. That person was also charged and was found guilty.

[83] He disputed ever being familiar with document A3 in the Applicant’s bundle regarding the “Dysfunctionality of the SGB and the unwillingness by the Chairperson to comply with the GDE Policies” dated 1 December 2021” He disputed the version that, because Msiza was refusing to sign the Annual Academic Performance Report of 2022, Ngobeni had called a meeting to discuss the issue.

[84] He testified that there was never such a meeting. He stated that, had the Annual Academic Performance Report of 2022 not been sent to him by mistake and having been signed by Sodi on behalf of Msiza, the report would have been submitted to the GDE unnoticed. He testified that, what Sodi did, was a misconduct and he deserved to be charged and to be disciplined. He was not in the parent component of the SGB and that, he was a teacher/educator, representing teachers/educators in the SGB.

During Cross-Examination

[85] He was a member of the Community Policing Forum (CPF) but was also an SGB member of the Nellmapius Primary School. He had knowledge of the document contained on page of bundle “R1” and that it was the Annual Academic Performance Report of 2022 which Sodi had signed on behalf of Msiza.

[86] He testified that signing on behalf of someone else by inserting the letters “pp” becomes fraud if you sign without authorization of the person himself/herself. Sodi had admitted during the Provincial Departmental meeting that the signature on the report was his.

[87] He had never applied for work at the school as he was self-employed. He assisted at the tuck-shop as a member of the SGB as the school was running at a zero budget because Ngobeni had misappropriated the school’s funds. The tuck-shop was assisting the school financially.

[88] He was not aware about the letter written by Ngobeni to the GDE regarding the dysfunctionality of the SGB and the fact that Msiza was refusing to sign the Annual Academic Performance Report of 2022. He had no knowledge that the current principal of the school, Mrs. Ndhunduima, who was the Deputy Principal at the time Sodi had signed the report, had also complaint to the GDE regarding Msiza’s refusal to sign the Annual Academic Performance Report of 2022.

[89] He testified that on 1 December 2021, he was a member of the SGB and that Ngobeni was the Principal of the school. He confirmed that the date on the letter from Ms Paula Galego was 30 June 2022, alleged to be a response to Ngobeni’s letter of 1 December 2021 regarding the dysfunctionality of the SGB. He disputed ever knowing anything about both letters. He stated that all letters from the GDE arrived at Ngobeni’s office and he would decide what to do with such letters.

[90] He confirmed the email on bundle “R3” dated 1 February 2023. The first email was from Ngobeni to Makondo of the GDE complaining about their inability to submit the Management documents as a result of Msiza refusal to sign the documents. On the same day, Makondo responded and stated that “in the event where there is evidence of attempts to sought the Chairperson’s signature without any success, the School Management Team (SMT) can request another member of the parent component of the SGB to sign on behalf of the Chairperson with a disclaimer”. On the same date of 1 February 2023, Msiza responded to Makondo that, amongst others, he had signed the Annual Academic Performance Report.

[91] He had indicated in his email response to Makondo, which documents he had refused to sign. He had refused to sign the documents relating to the appointment of posts which the SGB were not informed about. He made it clear to Ngobeni that he cannot sign for the appointments which the SGB was not a part thereof or had no knowledge about.

[92] He testified that on 9 February 2022 when Sodi signed the Annual Academic Performance Report of 2022 on behalf of Msiza, he was reporting to Ngobeni as the Principal of the school. Ngobeni was not charged despite the fact that, the SGB had reported the matter a long time ago to Makondo, Ramalekana referred Malebe to bundle R1 page 4 regarding his affidavit and had put it to him that, the date on his affidavit is 8 September 2023 and that, it was the date on which he had reported the matter to the GDE. Malebe disputed this version and stated that the SGB has long reported the matter to the GDE.

[93] Ramalekana had put it to Malebe that the GDE was fully aware of who had signed the Annual Academic Performance Report of 2022, and that, there was no confusion as to who Sodi was and that he was in the teacher component of the SGB. Malebe did not respond to this version by Ramalekana.

ANALYSIS

[94] Section 86(2) (b) of the LRA provides that “an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving: the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.

[95] In the matter before me, Sodi was charged for signing the School’s Annual Academic Performance Report of 2022 on behalf of the SGB Chairperson, Mr Msiza, in contravention of section 18(1) (ee) of the Employment of Educators Act 76 of 1998, as amended. He was summoned to a disciplinary hearing, which was finalized on 16 April 2024. He was given a sanction of 1 month suspension without pay and was also put on a Final Written Warning, for purposes of progressive discipline, short of dismissal.

[96] Sodi was aggrieved by this sanction and had referred a dispute to the Council, praying for the Commissioner to declare the Respondent’s conduct in giving him a sanction of 1 month suspension with a Final Written Warning unfair/inappropriate.

[97] In determining the appropriateness of the sanction Sodi was sanctioned with, I must first determine: (a) whether the act of the Respondent in sanctioning Sodi with 1 month suspension without pay and a final written warning was a fair conduct or not. (b) Whether the alleged act of the Respondent in delaying to charge the Sodi was a fair act or not. In making this assessment, I will determine it both procedurally and substantively. Under substance: whether the Sodi committed the offence he was charged with and whether the sanction was appropriate. Under procedure, whether the alleged act of the Respondent in delaying to charge of Sodi was procedurally fair or not.

Procedural Fairness

Whether the alleged act of the Respondent in delaying to charge the Sodi was a fair act or not.

[98] Item 4 of Schedule 8 of the Code of Good Practice: Dismissal provides for a Fair Procedure and states that the employer should conduct an investigation to determine whether there are grounds for dismissal. The employer should notify the employee using the form and language the employee can reasonably understand. The employee should be allowed the opportunity to state his case in response to the allegations. The employee should be allowed a reasonable time to prepare the response ad to the assistance of a trade union representation or a fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably provide the employee with a written notification of that decision.

[99] In the matter before me, Sodi disputed the delay by the Respondent in levelling charges against him. Evidence was presented by the Respondent through two of its witnesses, being Msiza and Malabe. Malebe testified that he had received a bundle of documents for the meeting he had attended with Ngobeni and in that bundle, there was an Annual Academic Performance Report of 2022, signed by Sodi. He had alerted Msiza of same. Msiza testified that on the same day he was alerted by Malebe, he had approached both Sodi and Ngobeni, but at different occasions, to seek an explanation of why did Sodi sign the report on his behalf without his authorization. Both Sodi and Ngobeni became arrogant and evasive. He had decided to allow them some time to discuss the issue with him, which they had failed to do. After a few months after allowing them an opportunity to deal with the issue, he had decided to lodge a complaint with the GDE, as per his affidavit dated 29 June 2023.

[100] Communication was then started by the then Deputy Principal of the School, Mrs. Ndhundhuma, to the GDE as per her letter to the Labour Relations Office with the date stamp of 5 August 2023. During arbitration, the Respondent testified that it had initiated the charges at the time it had become aware of the alleged misconduct by Sodi. Sodi disputed this version by stating that when the report was submitted to the GDE, it was evident prima facie the document that he had signed “pp” indicating that it was not Msiza who had signed. He testified that the GDE did nothing about that and instead, it had decided to implement the document as it was. In terms of the Guide on Managing Discipline in the Public Service of March 2021, under item 5.1; Principles of Discipline Management, discipline should be applied as soon as you become aware of the alleged misconduct.

[101] On a balance of probability, I find that the Respondent’s conduct/act in taking time before charging Sodi was not unfair. I find further that Sodi and Ngobeni had the responsibility to notify the GDE that they had facilitated the signature on behalf of Msiza, without his authorization, instead of submitting the report, hoping that it would go unnoticed. In my opinion, the report was indeed not noticed, until such time that, Msiza had complained regarding Sodi’s conduct.

Substantive fairness

Whether Sodi committed the offence he was charged with and whether the sanction was appropriate.

[102] In Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) [2017] ZALAC the court laid down steps for an enquiry into a breach of a rule and held that in cases of a breach of a rule, commissioners must consider the following:

(a) Whether there was a rule breached?
(b)The nature and importance of the rule breached?
(c) Whether the employee had knowledge of the rule or was expected to
have knowledge of such a rule?
(d) Whether the rule had been consistently applied?
(e) Whether dismissal was an appropriate sanction?

[103] In the matter before me, Sodi was charged for allegedly having signed the Annual Academic Performance Report of 2022 on behalf of Msiza, the Chairperson of the SGB, without his authorization, by inserting the letters “pp” before his signature. He had done so on 9 February 2022. During arbitration, Sodi testified that he had done so after being instructed to do so by Ngobeni, the then Principal of the Nellmapius Primary School, who is currently on retirement. Ngobeni testified that he had instructed Sodi to sign as he had pressure to submit the report to the GDE, and upon realizing that Msiza was refusing to sign, he had instructed Sodi to sign as he was a member of SGB and was also the Deputy Secretary in the SGB. Prior to instructing Sodi to sign, on 1 December 2021, he had written a letter to the District Director, Ms Paula Galego, informing her of the “Dysfunctionality of the SGB and the unwillingness by the Chairperson to comply with the GDE Policies”.

[104] A response from Ms Paula Galego was only on 30 June 2022, to the SGB of the school. In her alleged response, Ms Galego stated in [para 1] of her letter that, “It had come to the attention of the District that there are reasonable grounds to justify that the District should recommend to the HOD of the department that the SGB duties be suspended with immediate effect”. Both witnesses of the Respondent, being Msiza and Malebe disputed ever seeing Ngobeni’s letter dated 1 December 2021 and Ms Galego’s response dated 30 June 2022.

[105] Malebe testified that letters from the GDE were received by Ngobeni and he would decide what he does with such letters. Ramalekana disputed this version by both Malebe and Msiza and stated that, they are under oath, yet they continue to be untruthful. The Respondent further argued that, Ngobeni had no authority to instruct Sodi and Sodi had the responsibility to refuse the instruction. Sodi argued that in his opinion, the instruction was lawful as it came from his employer, being Ngobeni. The Respondent disputed this version by Sodi and stated that Sodi’s employer is the GDE and not Ngobeni.

[106] The Respondent continued to state that, Sodi had sufficient experience as an educator for 22 years within the GDE and having been in the SGB for 4 terms, he had ample knowledge and understanding of the GDE policies, specifically policies and procedures relating to the roles and responsibilities of the SGB. Upon being charged, for contravening section 18(1) (ee) of the Employment of Educators Act 76 of 1998, amounting to dishonesty, Sodi was summoned to a disciplinary and was awarded a sanction of 1 month suspension without pay and was also put on a Final Written Warning for 6 months from the date of the verdict.

[107] During arbitration, Ramalekana referred the arbitration to email communication dated 1 February 2023 from Mrs. Ndhundhuma to Mr Makondo relating to the refusal of Msiza to sign the management documents. In that email, Makondo responded on the same day by stating that, in the event there is evidence of attempts to seek the Chairperson’s signature without any success, the SMT can request another parent member to sign on behalf of the Chairperson, with a disclaimer.

[108] Msiza responded to the email from Makondo and stated that the only documents he had refused to sign were the documents relating to the appointment of posts/job positions which the SGB knew nothing about. Upon applying my mind to this array of emails, I am of the opinion that the emails were not relevant to the charge against Sodi as the Annual Academic Performance Report in dispute was for February 2022. I was alive to the fact that the emails that were used by Ramalekana were for purposes of attacking Msiza’s character for refusing to sign as an SGB Chairperson, but should not be construed to be relevant to the issue in dispute before the arbitration.

[109] On a balance of probability, I find in favour of the Respondent and find that, Sodi had contravened the Respondent’s rule in terms of section 18(1) (ee) of the Employment of Educators Act 76 of 1998, amounting to dishonesty. Ngobeni had no authority to pass a right that he himself did not have. Sodi, as an experienced educator/teacher for the past 22 years and having been in the SGB for 4 terms, had no reason to accept the instruction from Ngobeni, alleging that it was a lawful instruction. As an educator for the past 22 years, he is reasonably expected to have known that his employer was the GDE and not Ngobeni.

Whether the sanction Sodi was given was appropriate?

[110] Clause 3 of Schedule 8: Code of Practice: Dismissal provides for Disciplinary measures short of dismissal and states that all employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will differ from organization to organization depending of the size and nature of the organization. The government is not excluded as an employer. This requires the standards to be made known to employees in a manner they are able to understand such standards.

[111] Clause 3(2) of the same Code provides that, “the Courts have endorsed the concept of progressive discipline. Efforts should be made to correct employees’ behavior through a system of graduated disciplinary measures such as counselling and warnings”.

[112] In terms of Schedule 2 of the Employment of Educators Act 76 of 1998: Clause4 (5) (d) and (e) Code of Good Practice: In cases where the seriousness of the misconduct warrants it, the employer may give the educator a final written warning which will remain in the educators file for a period of 6 months.

[113] Item 2 of Schedule 2 – Principles: provides that (a) discipline is a corrective and not a punitive measure (b) discipline must be applied in a prompt, fair and consistent and just manner(c) discipline is the responsibility of the employer.

[114] In the matter before me, Sodi was charged in terms of section 18(1) (ee) of the Employment of Educators Act 76 of 1998, that provides for dishonesty, in the event the Respondent’s rule was breached. Sodi was charged for signing on behalf of the Chairperson of the SGB, Mr Msiza, without his authorization. He was given a sanction of 1 month suspension without pay as well as a Final Written Warning valid for 6 months.

[115] Sodi was aggrieved by this sanction and had referred a dispute to the Council, praying for the Commissioner to declare the Respondent’s conduct in giving him a sanction of 1 month suspension with a Final Written Warning unfair/inappropriate.

FINDING

[116] Having listened to the evidence presented before me and having regard to the statute and policies regulating the conduct of educators whilst at work, I am of the opinion that, the sanction Sodi was sanctioned with by the Respondent was fair and I uphold the sanction.

AWARD

[117] The Respondent, Gauteng Department of Education (GDE) have not conducted itself unfairly against the Applicant, William Ngoako Sodi.

[118] I further uphold the sanction given to the Applicant, Willian Ngoako Sodi, being 1 month suspension without pay as well as a Final Written Warning valid for 6 months, since the verdict of the disciplinary hearing, being 16 April 2024, against, the Applicant, William Ngoako Sodi, by the Respondent, Gauteng Department of Education (GDE.

[119] The Applicant, William Ngoako Sodi’s case is dismissed and Case Management Officer is directed to close the Applicant’s file.

COMMISSIONER: DIKELEDI GURA
28 MAY 2025