30 January 2026 – ELRC150-25/26KZN

IN THE ELRC ARBITRATION
BETWEEN:

SADTU on behalf of its member, NKOSI Applicant
and
THE DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st Respondent
B. NXUMALO 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC150-25/26KZN
Last date of arbitration: 24 NOVEMBER 2024
Date of submission
of closing arguments: N/A
Date of award: 04 DECEMBER 2025

C. VENKETIAH
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

The arbitration was initially scheduled for 15 September 2025. The matter was postponed to 17 and 24 November, where testimony commenced and concluded.
The arbitration was held virtually on the MS Teams Online Platform.
SADTU, a trade union, referred this dispute on behalf of its member, Mr. Robert. M. Nkosi (hereinafter referred to as the Applicant.) Mr Nathi Mseleku, an official of the trade union, represented the Applicant.
The Respondent was represented by Mr Musa Mabaso. A bundle of documents, marked exhibit A, was submitted on behalf of the Respondent. The second Respondent, Mr Bongani Nxumalo, also attended the proceedings.
The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration is in respect of a referral by the Applicant alleging that the Respondent acted unfairly when it failed to appoint him as the deputy principal and appointed the second Respondent instead.
I am tasked to decide whether Respondent’s decision to appoint the second Respondent instead of the Applicant constituted an unfair labour practice, and if so, whether the Applicant is entitled to the relief that he seeks.

BACKGROUND

The Applicant is employed as an educator at Gelekedle Secondary and serves as department head of social sciences. He has been employed at this school for 15 years, since January 2010.
The Applicant applied for the position of deputy principal per HRM 20/2024. He was shortlisted and later interviewed on 7 February 2025. He was not successful, and the second Respondent was appointed in the post. SUMMARY OF EVIDENCE AND ARGUMENTS
The evidence of the parties is summarized herein and includes testimony in chief, cross examination, re-examination and any questions asked by myself for clarity. Only the most pertinent information and salient argument is reflected in this summary.

The Applicant’s case (Testimony)

The Applicant made it clear that he did not have any “issues” with regards to the second Respondent’s competence in the post. His contention was that the interview process was tainted because “money was involved.”
He testified that prior to the interview he was informed by his colleague, Mr. Mdlalose, that there was proof of “post buying” in respect of the contested post. After the interview there were rumors circulating among staff and people were talking about Mr. Nxumalo as being the successful incumbent, however, the Applicant waited for official confirmation.
The Applicant testified that he did inform the principal of the allegations of post buying / selling and that he had evidence. The principal said in front of staff he knew nothing yet called the Applicant later and asked why he didn’t ask him privately instead of in front of other staff. The Applicant learnt about the appointment of Nxumalo on 28 March 2025 which was the last day of the term. He went to SADTU the next day and spoke to Mr Cebekulu who showed him the WhatsApp messages that the Applicant provided today in support of his case. Cebekhulu advised him to lodge a dispute with the ELRC. He testified that the WhatsApp messages are between an interview panel member (Mthunjwa) and Mdlalose, who is an educator who is on the School Governing Body (SGB) as part of the teacher component.
The messages form part of the record and are translated into English by the interpreter.
The WhatsApp messages between Mthunjwa and Mdlalose are as follows: [As translated by interpreter Mr Madlakazi]:

Mthunjwa: How are u? Mthunjwa is talking here. If u get a chance can
we meet I am in town.
Mdlalose: Ok its alright
Mthunjwa: I already boarded will get off at KFC, principal just phoned ow.
Said it’s going to be sorted out. Stop calling the inspector
Mdlalose: at least its better if he says so
Mthunjwa: yes nyanda (thumbs up emoji). The gentleman said he will
speak to Bongani about the price to negotiate on so he can say what he will be paying
Mdlalose: he must say by himself how much he offers
Mthunjwa: who must say price he or us?
Mdlalose: hear from him
Mthunjwa: ok will do so
Mdlalose: ok no stress
Mthunjwa: sure mfo

FRI 15 NOV
Mthunjwa: listen I will tell you I met with Zwide he asked for my number and didn’t call

For context, the Applicant testified that the reference to Nyanda is a clan name for Mdlalose and Zwide is a clan name for Nxumalo, while Bongani is the first name of the 2nd Respondent.
The Applicant also testified that he believes these messages indicate that the appointment procedure was tainted because “payments are illegal”. He stated that while the messages cannot conclude that they received money, however, when the 2nd Respondent was appointed, he concluded that he had “bought” the post. Further, he testified that the principal is named in the conversation, and he believes that the principal and other SGB members are involved in this matter. He stated that colleagues had advised him that the 2nd Respondent had told them that he was not concerned about the interview because he had “already paid”, however those colleagues refused to come forward and testify. He also stated that he had a good relationship with Mdlalose and had travelled with him for over a year. Mdlalose also applied for this post and thus did not form part of the IC. He (Mdlalose) also handed these messages over to SADTU. The Applicant noted that the last message was sent on 15 November 2024, and that this was sometime before the interviews were held.
The Applicant testified that Mdlalose had made him aware of the allegations before the interviews but he just told Mdlalose that he was busy preparing for the interviews. He also conceded under cross examination that he was also aware after 10 January that the interviews did not proceed because Cebekhulu had accused the principal of corruption.
The Applicant testified further that he was informed by Cebekulu that when he (Cebekulu) attended the 1st sitting of interviews on 10 January 2025, he arrived early and found all the other IC members sitting in principal’s office. They sent Cebekhulu to library. They had already held a pre-meeting and Cebekhulu was not part of the meeting. The IC members also advised Cebekhulu that they had already drawn up the agenda for the day. Cebekhulu confronted the principal with the allegations, and the principal recused himself. He was replaced by an SMT (school management team) member. The Applicant is of the view that the person who replaced the principal on the panel had a duty to investigate the allegations and also remove Mthunjwa from the panel. The interviews did not occur on 10 January after the principal recused himself and continued 7 February 2025.
The Applicant also testified that he believes that he was the best candidate since he performed well at the interview. He also stated that he was very good at his job, undertaking staff collaborations and supporting the learners. He is also a member of the SGB (in the teacher component) and contributes to school management.
Under cross examination the Applicant conceded the following:
a) His testimony was hearsay in the event that Mdlalose and Cebekhulu did not testify.
b) He could not testify with certainty that Mdlalose and Mthunjwa did meet and / or whether they received any money.
c) The name of the principal (Kunene) is not mentioned in the messages, and neither is the post mentioned.
d) There are no phone numbers attached to the WhatsApp messages and therefore it cannot be verified that the conversation did indeed occur between Mdlalose and Mthunjwa. The date is also not apparent and further “15 November” does not have a year.
e) The name Bongani in the messages was not followed by Nxumalo and therefore it is possible that it is not the 2nd Respondent that was named. The reference to Nyanda being a clan name for Mdlalose could have referred to anyone called Mdlalose and in fact there were two Mdlalose’s in the school, an educator and a security guard. He also conceded that Zwide was a clan name for Nxumalo as well as Ndwandwe and that a large number of people in Kwa Zulu Natal had the above-mentioned names.
f) Both he and the 2nd Respondent were departmental heads at the time of their applying for the post. The Applicant was in charge of Social Science (geography, life orientation, history) whilst the 2nd Respondent oversaw the science subjects (mathematics, physics, biology) and thus the 2nd Respondent oversaw the scarce subjects.
g) Sifiso Khumalo of SADTU replaced Cebekhulu at the interviews to observe the proceedings in the interest of its members. He signed the documents and thus it could be said that he oversaw the interests of the SADTU members.
h) He was aware of the allegations and the messages before the interviews but did not raise the issue with the interview panel. He also admitted that if he did get the position he would not have raised the issue regarding the alleged buying of the post.

The Respondent’s case

Mr Mabaso declined to call any witnesses and instead submitted that the Applicant had not discharged the onus to prove that the appointment of the 2nd Respondent was unfair. He submitted the following oral argument in support of the Respondent’s case:

a) The Applicant party has failed to discharge the onus in terms of S186(2) of the Labour Relations Act.
b) The Applicant and other candidates including the 2nd Respondent applied for disputed post viz, Deputy Principal of Gelekedle Secondary, post number 2014 HRM 20/2024. The Applicant, 2nd Respondent and others were shortlisted and interviewed for the post. The 2nd Respondent was recommended on his scoring, and the Applicant was the 2nd recommended candidate. Thereafter, the Applicant lodged a dispute of Unfair Labour Practice stating that the principal may have influenced the process or the post might have been sold.
c) In his testimony, the Applicant relied on what he was told by his Union official who observed the 1st shortlisting process. That union official, Mr Cebekhulu in turn had relied on what he was told by one of the candidates, Mr. Mdlalose, and the WhatsApp messages, which were produced in this matter. It is the submission of the Respondent that the Applicant relied on hearsay evidence, and such evidence cannot be admitted. Further, there was no application to admit such evidence by the Applicant. Cebekhulu and Mdlalose are alive and are fit to testify, however, the Applicant failed to present them. The clarifications on the clan names made by the Applicant should have been made by Mdlalose.
d) There are no numbers attached to the WhatsApp messages to link people named by the Applicant. There is also no mention of the post or the name of the school. The Messages therefore cannot be admitted into evidence.
e) The Applicant also failed to prove that he was the better candidate. Both he and the 2nd Respondent were department heads. The Applicant admitted that the 2nd Respondent is the best candidate and a very good educator. The Applicant admitted that science subjects are regarded as scarce subjects which means that the 2nd Respondent was able to manage a department which is providing teaching of scarce subjects
f) The Respondent prays for the dispute to be dismissed.

SUMMARY OF CLOSING ARGUMENTS

The Applicant

Mr Mseleku submitted the following arguments:
i. He submitted that the Applicant party conceded that in terms of the law of evidence hearsay is inadmissible regarded as untrustworthy and other party cannot cross examine it.
ii. He stated that however, admissible evidence must stand on 3 legs ie consent, having the original source testify and the Courts discretion. He stated that the Applicant party didn’t have the Respondent’s consent. In respect of the original sources, the Applicant had difficulty in securing the 2 witnesses. Further, they experienced a conflict of interest in that the Applicant and 2nd Respondent are both members of SADTU in good standing. Both witnesses are leaders of the union and thus it is difficult for them to testify. In respect of the “Courts discretion” the Applicant asks for the Commissioner to exercise discretion in considering that the witnesses could not testify.
iii. The testimony of the Applicant cited serious matters which need to be tested. The Applicant submits that performance in an interview is very important. If not for the “3rd force”, he would have been recommended as number 1 and not number 2. The Applicant believes his testimony was sufficient in discharging the onus and prays that the matter won’t be dismissed.
iv. Mr Mseleku asked for an indulgence to supplement his argument with precedents in writing by 26th November 2025. To date, no supplementary argument was received either by the Council or myself.

The Respondent

Mr Mabaso reaffirmed his above presented argument in closing.

ANALYSIS OF EVIDENCE AND ARGUMENT

I am tasked to determine whether the Respondent committed an unfair labour practice by not appointing the Applicant to the post of Deputy Principal. There are two issues for me to deal with in this dispute as follows:
a) Whether or not the testimony of the Applicant, coupled with the WhatsApp messages amount to hearsay and therefore inadmissible and;
b) Whether the Applicant has discharged the onus to prove that he should have been promoted instead of the 2nd Respondent
Section 15 of the Electronic Communications and Transactions Act 25 of 2002 (ECTA) provides that a data message should not be denied admissibility solely on the grounds that it is in electronic form. However, we must appreciate that electronic evidence remains subject to the ordinary requirements of admissibility which are relevance, authenticity, and reliability. In this dispute, the WhatsApp messages are in the form screenshots containing the communication of two persons who are purported to be Mthunjwa and Mdlalose.
The Law of Evidence Amendment Act 45 of 1988 governs hearsay considerations. This Act is relevant in this dispute because the Applicant’s testimony was almost entirely hearsay. Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 (the Hearsay Act) defines ‘hearsay evidence’ as ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’. As a general principle, hearsay evidence is inadmissible
The Constitutional Court in Kapa v S 2023 (4) BCLR 370 (CC) the apex Court derogated from the normal application of the rules of evidence and the majority finding was that hearsay evidence was admissible if it served the interests of justice. In that case, the witness to the accused of murdering a person was deceased and the state sought to introduce the statement of the deceased as evidence. Whilst the minority judgement was that its admission infringed the accused’s rights to a fair trial, the majority view was of the opinion that its admission would service the interests of justice, since the deceased was the sole witness.
The matter before me materially differs from the findings of the Constitutional Court in that, herein, the witnesses are neither deceased or untraceable. Both are union officials, and the selfsame union represented the Applicant. They made a conscious decision not to call these witnesses and somehow are labouring under the impression that a “conflict of interest” justifies an exception to the rules of admissibility.
In the case of Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 the Labour Appeal Court held that hearsay evidence is allowed if it is in the interest of justice and such evidence is confirmed by other evidence. It is trite that in the case before me, no witness or document was presented to corroborate the testimony of the Applicant.
The Applicant testified that he was the best candidate for the post, despite admitting that he and the 2nd Respondent were both equally qualified for the post and that the 2nd Respondent was a good educator. There was nothing in the testimony of the Applicant to prove that he was indeed the better candidate or that he had any qualification, experience or skill that was better than that of the 2nd Respondent. Although he mentioned that he performed well in the interview, he conceded that he did not know how the 2nd Respondent fared in the interview.
In the case of Ndlovu v CCMA and others [2000] ZALC 153, the Labour Court found at paragraphs 11 and 12:
“It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously, a person who is not so qualified cannot complain if they are not appointed.
The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant, was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational, it seems to me that no question of unfairness can arise. (my emphasis).
In the case of Department of Higher Education and Training v Commissioner Bheki Smiza Not Reportable Case no: JA53/2022 (LAC JHB), the Labour Appeal Court found:
“To succeed in an unfair labour practice claim related to promotion usually requires an employee to prove that they were not given a fair opportunity to compete for a post. This may involve evidence that the process was unfair and that despite the employee having the necessary experience, ability and technical qualifications for the post, an unfair appointment decision was taken.” (my emphasis).
It is thus my finding that the Applicant did not discharge the onus to prove that the Respondent committed an unfair labour practice when it failed to appoint him to the post of Deputy Principal of Gelekedle Secondary, viz post 2014 HRM 20/2024.
At the close of this case, I made clear on record that whichever way this decision goes, there was a serious allegation of corruption and that it was incumbent on the Department (Respondent) to investigate the allegations seriously. If the allegations were found to be true, then the perpetrators should face criminal consequences. It is unfortunately outside my purview and power to decide whether the WhatsApp messages are prima facie proof of “post buying.”
I must, necessarily comment on the actions of SADTU in this matter. Mr Mseleku stated that Mr. Cebekhulu and Mr. Mdlalose did not testify because there was a conflict of interest, in that both the Applicant and second Respondent are members of SADTU in good standing. In my view this stance is severely prejudicial to the Applicant and also highly irresponsible on the part of SADTU. It was the union itself that handed the WhatsApp messages to the Applicant and advised him to lodge a dispute with the ELRC. Mdlalose was the purported owner of the messages and one of the persons in the communication. It appears that Mdlalose was a shop/site steward and Cebekhulu a full-time union official. If the allegations were untrue, then the witnesses would have had no problem with testifying to this. However, if the allegations of corruption are in fact true, the actions of the witnesses failing to testify on the basis of conflict of interest are highly inappropriate. It necessarily means that they have preferred the wrongdoer over the person seeking justice. It is in my view that such people should face disciplinary consequences for their actions or lack thereof. It is unfortunate that the Applicant has put his faith in the union that has not done due diligence in advancing his dispute.