IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
PORT ELIZABETH

Case No ELRC1361-24/25EC

In the matter between

NAPTOSA obo MW Mtanase & LP Lukhwe Applicants

And

Provincial Department of Education: Eastern Cape 1st Respondent
NC Nzweni 2nd Respondent
The School Governing Body (SGB)
Kwazakhele High School (KHS) 3rd Respondent

AWARD

Case Number: ELRC1361-24/25EC
Nature of Dispute: Unfair Conduct relating to Promotion
Date of Hearing: 26 06 2025, 28 & 29 08 2025, 04 11 2025
Closing Arguments: 25 11 2025
Date of Award: 13 01 2026
Panelist: JC Robertson

Education Labour Relations Council
261 West Avenue
ELRC Building
Centurion
Tel: 012663 7446

Details of hearing and representation

1 This matter was set down for arbitration in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995, (LRA), on the dates set out above, at the Nelson Mandela Bay District Office, Provincial Education Department Eastern Cape, Ethel Valentine Building, Sidwell, Gqeberha. Ms N Holby and later Mr A Adams (04 11 2025) (NAPTOSA) represented Mr MW Mtanase (1st applicant) and Mr LP Lukhwe (2nd applicant). Mr S Kralo, Employee Relations Officer, Department of Education Eastern Cape, represented the Provincial Education Department: Eastern Cape (1st respondent) and Ms NC Nzweni (2nd respondent). Ms L Mntanya, the chairperson of the School Governing Body (SGB) of Kwazakhele High School attended on its behalf (3rd respondent). Ms A Matata acted as interpreter. The hearing was recorded. The parties submitted written closing arguments which I received by 25 11 2025.

Preliminary matters

2 The 2nd respondent, Ms NC Nzweni and the 3rd respondent, the SGB of KHS were joined as a parties to this dispute by way of joinder rulings dated 25 March 2025 and 26 June 2025. The respondent’s objection in limine relating to jurisdiction was dismissed as per ruling dated 26 June 2025. The 2nd applicant’s late referral of his dispute was condoned by way of a condonation ruling dated 20 July 2025 (Case no. ELRC313-25/26EC) and heard together with the 1st applicant’s dispute.

Issue to be decided

3 I am required to determine whether the respondent acted unfairly towards the applicants in not appointing (promoting) them to the post of principal post no. 195, principal Kwazakhele High School, and dependent thereon appropriate relief.

Background to the dispute

4 The applicants’ claims in this matter arise out of the appointment of the 2nd respondent Ms NC Nzweni to the post of principal, post no. 195, Kwazakhele High School (KHS), advertised in Bulletin Vol. 3 of 2024. Shortlisting was held on 20 11 2024 and interviews on 29 11 2024. The interview panel (IP), comprised of 3 members of the SGB parent component, one member of the SGB teacher component and one SGB member of the non-teaching members of staff (A41) . Ms Nqari, a member of the parent component, who testified at the arbitration, was chairperson of the IP. Ms Nzweni was appointed with effect from 1 March 2025 which was after the appointment of other principals .

5 As to relief, it was argued during opening statements that the appointment of the incumbent be set aside and the post be readvertised alternatively compensation be awarded. In the applicants’ written closing argument the relief sought was that the appointment be set aside and that the process is redone by an independent panel. The respondents sought that the status quo ante remains and that the applicants’ case is dismissed

6 The parties handed up several bundles of documents, the applicants Exhibit A1-A49, the 1st respondent, Exhibit R1-R112 and RS1-RS43, the contents whereof were not in dispute, were relevant and admissible and admitted as evidence in this arbitration of what they purport to be and required no further proof as to authenticity delivery and receipt.

    Survey of evidence and argument

7 The applicants, Mr MW Mtanase, a post level 1 educator at KHS, with 28 years teaching experience and Mr LP Lukhwe, a post level 2 educator and departmental head at Loyiso Senior Secondary School with 28 years teaching experience including 7 years as departmental head, each testified on their own behalf. Ms V Nqari, a member of the SGB (parent component) and chairperson of the Interview Panel (IP), testified on behalf of the 1st applicant. Ms C Gabriel the Circuit Manager (CM) for Algoa CMC 3, Nelson Mandela Bay District, testified on behalf of the 1st respondent. Ms NC Nzweni, the 2nd respondent, did not testify. The 3rd respondent, the SGB of KHS did not testify.

8 It was common cause alternatively not disputed that:
8.1 The applicants and the 2nd respondent met the minimum requirements of the post advertised as post no. 195 Principal, KHS, in bulletin Vol 3 of 2024.
8.2 The applicants and 2nd respondent were shortlisted and scored as set out in Schedule 1 hereto.
8.3 The recommendation of the SGB was based on scores
8.4 The appointment of the 2nd respondent as principal of KHS was made by the District Director (duly delegated thereto by the Head of Department) from the list of SGB recommended candidates.

9 The SGB Interview Panel (IP) initially wished to shortlist 6 candidates, and were supported in this by the union observers, but were persuaded by Ms CM Gabriel, Circuit Manager (CM), her superiors in the department and eventually by Human Resources that the person did not qualify to be shortlisted and had been sifted out by the department. The candidate in question had not attached a copy of their curriculum vitae and had not properly completed the application form. Emotions had also run high when the IP insisted on shortlisting a post level 1 candidate, the 1st applicant, Mr Mtanase. The CM, who acted as resource person at the shortlisting, was of the view given that the school was an underperforming school that they needed someone with management and leadership skills and that the IP should concentrate on candidates possessing such experience. Such skills could only be obtained by persons acting as head of department or deputy principal. In addition, the advert called for someone with management and administration. The IP had been of the view that the candidate in question had a B Ed Honours in school management, curriculum development and school improvement programmes, that the advert specified that a certificate in management and leadership will be an advantage (A13) and that there was no prohibition in the advert against shortlisting a post level 1 educator and that he should be shortlisted and he was accordingly shortlisted. The CM testified that while she felt humiliated and undermined by the conduct of the IP and unions at the shortlisting process, that this did not necessarily make it unfair.

10 The shortlist comprised of Mr M Yumata, Ms N Maneli, Ms N Nzweni (2nd respondent), Mr L Lukhwe (2nd applicant) and Mr M Mtanase (1st applicant) (A46). The respective details, qualifications, experience and scores allocated by the IP of the top 3 ranked candidates, as ratified and recommended by the SGB, are summarized in Schedule 1 attached hereto.

11 Ms Gabriel, the CM gave a list of about 50 questions to the IP from which to select 5 questions and amend as they needed. The IP had selected 5 questions. The IP refused however to include questions on management and made it clear that it was their choice as to who they appointed as principal. She had also assisted the IP as to what model answers would comprise. During the interview the unions had warned certain panelists not to allocate marks prior to the candidate answering the question. She had collected the allocations of marks awarded by the panelists and had noticed that the three parent members had each marked Mr Mtanase at 100%. It was the CM’s view that her interventions with the IP at the interviews constituted guidance. Ms Nqari, who testified for the 1st applicant, stated that she was satisfied with the process of the interviews.

12 The appointment of the principal was delayed and the SGB, in particular the parent component of the SGB became highly dissatisfied with the department. The department met on one occasion with the full SGB and on another with the parent component when the teacher component failed to attend. The SGB underwent a split, with the teacher component distancing themselves from the parent component after the issue of “appointing Mr Mtanase”. The parent body of the SGB resorted to social media to convey their displeasure over the appointment of a principal. They encouraged parents to air their views on Facebook and told them that they had appointed Mr Mtanase but that the department had changed this. This led to dissatisfaction amongst the parent body and to educators from the school reporting to the department that they were afraid to report for teaching because they had a protest at the school. Put to her during cross-examination that the HOD / District Director had the prerogative to appoint, and with regard to the managerial experience of the 1st and 2nd applicants compared with that of the 2nd respondent (R 29 Mtanase, R30 Lukhwe and R 31 Zweni), the District Director had appointed the 2nd respondent (R80) on the basis of proven management experience. She responded that she too would have approved it. She however took issue as to why they were not informed sooner as R80 was dated 31 01 2025.

13 The CM testified as to the numerous meetings held inter alia with the SGB, SGB parent component, the school including the parent body and learners and other interested stakeholders, e.g. Unions and the representative organization of SGB’s .

14 The CM did not agree with the recommendation of the SGB for principal and indicated this at Part 3 of HRA: Form C1 (R79) under the heading “COMMENTS” directly below the table headed “RECOMMENDATION SUPPORTED / NOT SUPPORTED / SUPPORTED AS AMENDED”. She endorsed the following “I don’t recommend candidate nr 1, MW Mtanase, instead I recommend candidate nr 2, LP Lukhwe. See attached. The attached, is a letter addressed to the District Director by the CM on 8 01 2025, recommended by her superior, the CMC Head Algoa CMC, Nelson Mandela Bay District on 14 01 2025 (R28). In this letter the CM disagrees with the recommendation of Mr Mtanase as candidate number 1, points out that the bulletin indicated one of the criteria was management experience, Mr Mtanase had no management experience and the school was an underperforming school. She recommended the 2nd choice of the SGB, namely Mr Lukhwe who had management experience and held a PL 2 position.

15 The CM was taken to task in cross-examination for unduly influencing the District Director. She did not agree, pointing out that she had remained within the SGB’s proposed candidates. She was cognizant of the fact that the SGB made the recommendation. In any event she did not believe she influenced the District Director who made his own decision .

16 The 1st applicant, Mr Mtanase, was of the view that he should have been appointed as he had scored the highest of all the candidates, see Schedule 1 hereto, and had been recommended for appointment as principal by the SGB. The bulletin made no mention that Post level 1 educators were excluded from applying and a certificate in management and leadership was listed as an added advantage in the bulletin. The District Director should have looked for a person with a theoretical background rather than practical experience. He had a B Ed Honours in School Management and was of the view that although he had little exposure in management (approximately 5 days) he would be able to manage the school. He had 28 years teaching experience and all that was required in terms of the bulletin was 7 years. The interview had gone well and he was treated 100% fairly. He had aced the interview. The District Director had acted unfairly in not appointing him. He took issue with the delay by the department in announcing the outcome of the appointment of the principal.

17 The 2nd applicant, Mr Lukhwe, testified to the effect that the process was fair and the interviews went well. He had received no feedback on the outcome of the interviews. His union informed him of the appointment of the 2nd respondent on 26 06 2025 . The principal should have been appointed by 01 01 2025, but the successful incumbent only commenced on 03 03 2025. He had become aware of the letter written by the CM, (R28) , which supported his appointment as principal. The CM was present at the interviews and would know what transpired. The CM attended interviews on behalf of the District Director as resource person and therefore the District Director should rely on her. The District Director had appointed the incumbent who was ranked number 3 by the SGB. This was unfair as the District Director was not at the interviews. He was aware that the prerogative to appoint rested with the District Director. He could not understand on what basis the District Director would pick the number 3 ranked candidate in place of the number 1 ranked candidate. There was nothing in the bulletin to exclude post level 1 or post level 2 applicants or that only deputy principals would be considered. Given the contents of the CM’s letter he could not explain why he was not appointed. He agreed that the District Director did not rely on the information contained in the CM’s letter however he then returned to his assertion that the District Director relied on the information obtained from the CM. He ventured the view that Ms Maneli, the other shortlisted deputy principal, should have been appointed above the incumbent. He, however had scored higher than both of them.

The applicants’ arguments

18 The applicants argued that the process was irregular, contrary to prescripts and contrary to the recommendation of the SGB resulting in an unfair labour practice and ought to be redone before an independent panel. to the following effect:
18.1 In terms of section 20(1)(ii) of the South African Schools Act 84 of 1996 (SASA) an SGB recommends candidates for appointment.
18.2 Section 6(3)(b) of the Employment of Educators Act 76 of 1998 (EA) required that the HOD must consider the SGB’s recommendations and could only depart from these where:
18.2.1 Non-compliance with procedural requirements for appointment
18.2.2 The candidate did not meet the requirements for appointment
18.2.3 Undue influence
18.2.4 The candidate is unsuitable
18.3 The HOD was required to provide a fully reasoned and objective written justification. If the HOD declines the SGB’s recommendation he was required to state reasons and request a new list. This had not occurred. The discretion was required to be rational fair and based on the evidential record, not on extra factors or misinformation supplied after the process. The processes were not in accordance with the framework set out by the above legislation and the Personal Administrative Measures PAM.
18.4 The applicants also referred to caselaw to the effect that:
18.4.1 An arbitrator must determine whether the employer’s decision was arbitrary, capricious, or biased or based on irrelevant considerations.
18.4.2 Discretion in appointments must meet Constitutional requirements of lawfulness, reasonableness, and procedural fairness,
18.4.3 Where an appointment decision-maker cannot justify the deviation from ranking or scoring, the decision is irrational and must be set aside.
18.4.4 Administrative decision-making must be based on evidence, not speculation or post hoc rationalisations.
18.4.5 State decision-making must be rationally connected to the evidence before the decisionmaker. In the instant case the District Director had no evidence-he did not attend the interviews, contradicted the bundle and ignored SGB recommendations.
18.4.6 The power of the Head of Department to appoint an educator is contingent on receiving a valid recommendation from the SGB, which requires the SGB to have followed the correct procedures. In this matter the procedure followed by the SGB was not proper as there was interference in the process by both the circuit manager and the observers. When the SGB fails to make a proper recommendation, the HOD cannot proceed with the appointment. This prevents the HOD from bypassing the SGB’s role entirely or from making an appointment based on a faulty process.
18.5 The District Director did not attend the interviews, in the result his decision was not based on direct assessment but on the post interview influence of the circuit manager who was inexperienced, misunderstood her role, created independent scoring analysis (impermissible), made factual errors and provided contradictory recommendations. In violation of PAMSAS and legality principles.
18.6 The SGB complied with the law; the employer did not. The SGB scored candidates properly, kept minutes, followed ranking procedure , recommended in the order: 1. Mtanase, 2. Lukhwe, 3. Nzweni …
The HOD’s deviation from this list required a reason based in law, there was none.
18.7 Management experience was not tested at the interviews. In this regard Mr Lukhwe and Ms Maneli had more management experience than the appointee and the applicant had a B Ed Honours in management – an explicit advantage.
18.8 The District Director’s reason was therefore irrational, factually wrong, contradicted by the bundle and not connected to the evidence.
18.9 The role of the circuit manager was improper and intrusive in that she prepared questions, motivated in writing for preferred candidates, provided an analysis to the District Director outside of the process, used incorrect factual assertions, and influenced the outcome despite having no relative role.
18.10 The District Director failed to testify. The outcome caused school instability. In all, the cumulative effect resulted in an unfair labour practice and the evidence showed that the applicant was the best performing candidate. The SGB lawfully recommended him. The District Director’s deviation was irrational, factually incorrect, based on extraneous influence and procedurally unfair.

The respondents’ arguments
19 The 1st and 2nd respondent argued to the following effect:
19.1 The applicants relied in the main on the non-approval of the SGB’s recommended candidate by the HOD without addressing the need of the school for a principal with proven practical experience in management and administration. The HOD was not required to approve the recommendation of the SGB and retained the prerogative of whom to appoint. The applicants had been unable to show that they were the best candidate/s for the post, as such the appointment of the incumbent could not affect them. I.e. no causal nexus was demonstrated. Given that the applicant’s stood no realistic chance of appointment it would be futile to order the process redone on the basis of a procedural irregularity. Notwithstanding that the applicants’ witnesses corroborated one another on issues of procedural unfairness this did not amount to proof. Unhappiness or a perception of unfairness did not establish unfairness, more was required and included the interest of all parties. Without any proven managerial and administration experience the respondent could not appoint Mr Mtanase to the position of principal. The incumbent’s practical experience in management and administration far outweighed that of the applicants. Like-wise the total number of years teaching on their own carried no weight as what was important was the managerial and administration practical experience.

20 The 3rd respondent, the KHS SGB did not submit any closing arguments.

Analysis of evidence and argument
21 I have considered all the evidence and argument, but because the Labour Relations Act 66 of 1995 requires brief reasons (Section 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and my award.

22 Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
…

23 The LRA requires employers to treat employees fairly when they apply for promotion . An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all the elements of his/her claim on a balance of probabilities . The CCMA / Bargaining Council does not have a general unfairness jurisdiction and an employee referring an unfair labour practice dispute in terms of Section 186 must demonstrate that it falls within the section . The employee must prove not only the existence of the labour practice , but also that it is unfair .

24 A child’s best interests are of paramount importance In all matters concerning the child . In education matters, given that the context within which educators operate i.e. dealing with the education of minors / children this imperative must always be considered.

25 The reality of promotion disputes is that “[t]he process of selection inevitably results in a candidate being appointed and the unsuccessful candidates being disappointed. This is not unfair” .

26 In Noonan v Safety & Security Sectorial Bargaining Council & others (2012) 33 ILJ 2597 (LAC), the court summarised the position of the court a quo relating to promotion as follows:
“14 There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
(e) As a general rule the appropriate remedy is to refer the decision back in order to allow the complainant a fair opportunity to compete. The exception being where there has been discrimination or victimization and there are compelling constitutional interests at stake or if the applicant proves that but for the unfair conduct, he or she would have been appointed.”

27 In Pamplin and WCED & others Case No. C1034/2015 (9 May 2018) (LC), the Labour Court held, with regard to promotion, that the overall test is one of fairness as emphasized in City of Cape Town V SAMWU obo Sylvester & others (2013) 34 ILJ 1156 (LC) , and held as follows :
“[24] The obligation in terms of section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments . The exercise of that prerogative is nonetheless not immune from scrutiny, as instances of gross unreasonableness in its exercise may lead to drawing of inferences of bad faith . To that end, it is trite that central to disputes pertaining to appointments or promotion of employees is the principle that courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions . Any form of interference should be with the objective of dispensing fairness to both parties.
[25] The onus to establish that conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The employee must therefore be able to lay the evidentiary foundation for his or her claim of an unfair labour practice. Mere dissatisfaction with the outcome of a recruitment or selection process is not sufficient to sustain that claim. In order to succeed with a claim related to promotion or failure to appoint, an employee must inter alia, demonstrate that as against the successful candidate;
i. he/she met all inherent requirements of the position;
ii. he/she was the best candidate for the position;
iii. that not being promoted caused unfair prejudice to him/her;
iv. and that there is a causal connection between the unfairness complained of and the prejudice suffered .
[26] The mere fact that the employee has the required experience, ability and technical qualifications for the post is however not sufficient, nor is it sufficient for the employee to merely assert that he or she scored higher in the interview process or some other criterion linked to the selection process. There is still a burden on him/her to demonstrate that the decision to appoint someone else to the post in preference to him or her was unfair. Provided the decision by the employer to appoint one in preference to the other was rational, no question of unfairness can arise .
[27] In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others it was also emphasised that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.”

28 Unless an applicant can show that s/he was the best candidate over and above the successful candidate and the rest of the shortlisted candidates, it is not possible to establish any causal connection between the irregularity (i.e., but for the unfair conduct of the respondent) and the fact that the applicant was not appointed. See National Commissioner of the South African Police Service v Safety and Security Sectoral Bargaining Council and Others (LC) JR11802 2002 (21 April 2005) [10]-[12].

29 “Central to appointments or promotion of employees is the principle that courts and commissioner alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions . In my view, good cause would entail a consideration of the factors set out in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others as above ” . Where an employer can rationally justify the promotion in question, arbitrators should be slow to interfere and conversely “[e]ven though an employer has a prerogative to choose who to promote, its decision will be found to be irrational if it is not able to justify it .”

30 In order to be successful, on the basis of their averments, in their respective claims of an unfair labour practice relating to promotion, the applicants are required to show:
30.1 In so far as they testified that they were the best candidate , that they were better than all the candidates including the 2nd respondent.
30.3 That the selection procedure was unfair, and prejudiced them in the presentation of their candidature .
30.4 That the 1st respondent acted irrationally in appointing the 2nd respondent over them / Conduct on the part of the 1st respondent leading to their not being promoted and that this was unfair and prejudiced them.
30.4 A causal connection between the conduct complained of and the prejudice suffered (i.e., but for the conduct complained of, they would have been offered a fair opportunity to present their candidature / been promoted ).

Were the 1st and 2nd applicants the most suitable candidate?

31 It was common cause that:
31.1 The 3 candidates in question qualified for shortlisting.
31.2 The advertisement was for the appointment of a principal, post level 4 with management and administration, at KHS (A32) with inter alia 7 years actual teaching experience and that a certificate in management and leadership would be an advantage (A13).
31.3 The 1st applicant was a post level 1 educator with 28 years teaching experience, the 2nd applicant was a post level 2 educator with 28 years teaching experience 7 of which involved managerial duties. The 2nd respondent was a deputy principal with 15 years teaching experience, 3 of which as a deputy principal and 5 as a departmental head.
31.4 KHS was an underperforming school.

32 Mr Mtanase met the qualification requirements. He argued that he was theoretically equipped to manage the school . There is, as everyone knows, a huge gap between practice and theory. Mr Mtanase was scored at full marks by the parent component of the IP and scored the highest marks overall at 61.1. He met the requirement of 7 years teaching experience, but had no management or administration experience.

33 Mr Lukhwe was a post level 2 educator, met the qualification requirements and had 7 years management and administration experience as a departmental head. He also met the requirement of 7 years teaching experience. He was scored by the IP at 2nd highest namely 48.

34 Ms Nzweni was a post level 3 educator, met the qualification requirements and had a total of 8 years management and administration experience, 5 years as departmental head and 3 years as deputy principal. The IP scored her at 3rd highest at 44.5.

35 Ms Nqari, the chairperson of the IP and who testified on behalf of the applicants agreed with the respondent that she too would have appointed the 2nd respondent had their respective management experience been drawn to her attention.

36 “When making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by candidates together with performance during interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in the curriculum vitae become irrelevant after short listing.” In context, this is relevant to this dispute as:
36.1 KHS was an underperforming school and needed a principal with strong leadership and management and administration experience.
36.2 The position advertised was for a principal post level 4 with management and administration.
36.3 The appointment of a candidate with management and administration experience would clearly be in the best interests of the child / learners at KHS.
36.4 The 2nd respondent although being awarded a lower score than Mr Mtanase, (who had no management experience) and Mr Lukhwe, (who had limited management experience) had, by far, the most management and administration experience having not only been a head of department but also a deputy principal.

37 In the circumstances I find that neither of the applicants were the most suitable candidate for promotion to the post of principal KHS, of the candidates, who applied and were shortlisted.

Was the selection procedure unfair and prejudiced the applicants in the presentation of their candidature
38 The applicants were shortlisted. Evidence was led that both the unions and the IP wished to include a 6th candidate. This candidate had not attached a curriculum vitae and had not completed the application forms as required. The CM pointed this out and advised against this. The IP did not agree and it was only after the CM had contacted two of her seniors and finally HR that the IP agreed and the candidate in question was not shortlisted. The CM had pointed out the need to focus on management and administration experience given that KHS was an underperforming school. The IP appears not to have taken this guidance to heart in refusing to include management-based questions and shortlisting a post level 1 candidate without management or administration experience. It appears, on the probabilities, that in the case of the 1st applicant, they considered that a certificate in management and leadership will be an advantage (A13). The IP’s list of questions were not interfered with and the post level 1 educator was shortlisted. The fact that the CM gave the IP a list of approximately 50 questions from which to choose 5 to pose to candidates, cannot render the process unfair. In addition, both Mr Mtanase and Mr Lukhwe were shortlisted, and awarded the highest marks 61.1 and 48 respectively in the interviews. Both applicants testified that they found the interviews fair.

39 In all the circumstances I find that the shortlisting and interview process was not unfair toward either of the applicants or prejudiced them in the presentation of their candidature.

Did the 1st respondent act irrationally in appointing the 2nd respondent over the applicants / Was there conduct on the part of the 1st respondent leading to the applicants not being promoted and was this unfair and prejudiced them.
40 The SGB recommended the 1st applicant for appointment and according to Ms Nqari (Chairperson of the IP) expected that if the HOD did not accept their 1st ranked candidate he would appoint the 2nd ranked candidate. She later agreed, in view of the 2nd respondent’s greater experience in management and administration and KHS being an underperforming school that she too would have appointed the 2nd respondent. In my view this was a concession properly made.

41 The CM testified that she had not agreed with the IP / SGB as to their 1st choice in view of the underperformance of KHS in the light of the lack of management and administration experience on the part of the 1st applicant. She was of the view that the 2nd applicant who had management experience should rather be considered. She then at the request of the District Director prepared and submitted the profiles of the 5 candidates recommended by the SGB (R29-R37 dated 30 01 2025). The applicants argued that this amounted to undue influence in the decision of the District Director. I do not agree. The HOD or his delegate, in this instance, the District Director, is tasked with appointing candidates to advertised position and is required to make their own decision. The CM’s representations constitute a summary of the information before the IP / SGB, the scores awarded and the SGB’s ranking of candidates. In so far as she disagrees with the recommendation for the principal’s post and favours the 2nd recommended candidate (2nd applicant), it is abundantly clear that the District Director was not influenced by the CM as he decided on the 2nd respondent.

42 “The Head of Department as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates. The employer is however not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so” .

43 An SGB is required to submit in order of preference to the HOD a list of at least three names of recommended candidates (PAM. Par. B.5.4.13 and B.5.4.13.1.). Paragraph B.5.5.3 of PAM provides that “Despite the order of preference (paragraph B. 5.4.13) and subject to paragraph B . 5.5.1, the HOD may appoint any suitable candidate on the list. …” (emphasis added). Where the HOD declines the recommendation different considerations apply. Similar provisions apply in terms of section 6(3)(c)(i) and section 6(3)(f) of the Employment of Educators Act 76 0f 1998. This is subject to the HOD ensuring that the SGB complied with the requirements of section 6(3)(b) the Employment of Educators Act 76 0f 1998 / PAM 5.4.7.

44 The SGB submitted a list of 5 names in order of preference. The District Director did not accept the first or second recommended candidate and appointed the 3rd recommended candidate, namely the 2nd respondent. The District Director set out the reason for his decision as being “Proven Management Experience”. Given the circumstances, the District Director’s decision cannot be faulted as sound reasons existed for not appointing either the 1st or 2nd ranked candidates recommended by the SGB and for appointing the 3rd recommended candidate. It is not necessary to repeat such factors as they have been adequately canvassed above. For the same reasons the 1st and 2nd applicants cannot be said to have been prejudiced either in presenting their candidature or in not being appointed.

45 For the reasons set out above I find that the 1st respondent acted rationally and fairly in appointing the 2nd respondent, and not the 1st or 2nd applicant, to the post in question. In addition, it is self-evident, on the facts, in particular that KHS at the time was an under-performing school, which a candidate with strong management and administration experience was required and that the 2nd respondent who met these requirements was appointed, is in the best interests of the child.

Causal connection
46 The applicants were afforded an opportunity to present their candidature and I have found that the decision of the 1st respondent not to appoint them was rational and fair. Consequently, the applicants have not established any causal connection or made out a case for the relief sought. I make the following award.

Award

47 The applicants, Mr MW Mtanase and Mr LP Lukhwe, have failed to prove that the 1st respondent, the Provincial Department of Education: Eastern Cape, committed an unfair labour practice relating to promotion as envisaged in Section 186(2)(a) of the Labour Relations Act No. 66 of 1995, against them.

48 The claims of the applicants, Mr MW Mtanase and Mr LP Lukhwe, concerning an unfair labour practice relating to promotion, referred under Case No. ELRC1361-24/25EC and ELRC313-25/26EC, are dismissed.

Signature:
Panelist: JC Robertson
ELRC
Sector: Public: Education

Case No ELRC1361-24/25EC

SCHEDULE 1

SCHEDULE 1