IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PINETOWN

ARBITRATION AWARD

Case Number: ELRC154-25/26 KZN
Commissioner: Protas Cele
Date of Award: 12 January 2026

In the ARBITRATION between

SADTU obo Buthelezi KS and 1 other

(Union / Applicant)

And

Department of Education KwaZulu Natal

(Respondent)

Details of hearing and representation

1. The matter was set down for arbitration at the Department of Education, Pinetown District Office, no. 41 Voortrekker Street in Pinetown, on 30 September 2025, 11 November 2025 and 28 November 2025.
2. The Applicants appeared in person and were represented by Mr. Themba Mazibuko, an official from SADTU. Mr. Itumeleng Makhooe, Assistant Director, Employee Relations, appeared on behalf of the 1st Respondent, Department of Education. The 2nd Respondent, Ms. Thembelihle Makhoba was neither present nor represented at the arbitration proceedings.
3. Mr. Mazibuko presented a 3-page document which was marked exhibit 2 (a)(b) and (c), and Mr. Makhooe produced a bundle of documents which was marked bundle A (A1 -41) respectively.
4. The proceedings were conducted in English and isiZulu and digitally recorded. The interpreters were Ms. Khumalo and Ms. Nyamazana.

Issue(s) to be decided

5. I am required to decide whether or not the 1st Respondent perpetrated an unfair labour practice against the 1st and the 2nd Applicants.

Background to the dispute

6. The 1ST and the 2nd Applicants are employed by the 1st Respondent as post level 1 educators at Ziphathele High School in Pinetown District.
7. The 1st Respondent advertised a promotional post of a Departmental Head of Science in HRM Circular no. 20 of 2024 under post no. 574. Both Applicants applied for the post and were shortlisted and interviewed.
8. At the end of the selection process the 2nd Respondent was appointed to the post. The 1st and the 2nd Applicants, aggrieved by the decision, lodged an unfair labour practice dispute at the ELRC.
9. They seek for the appointment of the 2nd Respondent to be set aside and for the process to be redone.
10. Their case was that the selection process was characterised by corruption and bribery, and that the 2nd Applicant was denied the post because he refused to pay a bribe.
11. The 1st Respondent disputed the allegations and the 2nd Respondent did not attend the arbitration proceedings.

Survey of evidence and argument.
Applicants’ evidence

12. Mr. Nqobizwe Victor Masuku is the 2nd Applicant. He testified that he started his career as a temporary educator at Ziphathele High School in 2001. In 2003 he was appointed as a permanent educator.
13. In August 2023 he started to act as a Departmental Head of Technology. In 2024 the post was advertised as post no. 570. During the same period a post of a Departmental Head of Science was also advertised as post no. 574 and he applied for both positions.
14. After he submitted his CV he was approached by Mr. Shange who was both the SGB and IC chairperson. He told him that he knew that he had applied and that he must pay a sum of R50,000 in order to secure a post.
15. He testified that he was shocked and told Mr. Shange that he is a religious person and that it would be unethical to pay a bribe in order to secure a post. Mr Shange insisted and also told him that there were other candidates who were willing to pay the bribe.
16. Mr. Shange further told him that the amount would be shared with IC members and continued to persuade him through WhatsApp messages Exhibit 2 (a)(b) and (c). In some of the messages written in isiZulu and translated into English he asked him if he was in or out and then told him that he had two answers, how much and when.
17. He also came to the school to speak to him and told him about the pain he would feel if he did not get the post and persuaded him to pay. He explained that October was his bonus month and that he would have been able to pay the bribe if he wanted to. He did not pay because he believed that there was a process, and an ethical one.
18. He stated that he reported the matter to Mr. Ngubane, Deputy Principal, Ms. Mweli, SADTU site secretary and to SADTU. Several meetins were held to discuss about the matter. Mr Ngubane and Ms Mweli subsequently told him that in one of the meetings, Mr. Shabangu, who was an HOD for science and then promoted to the post of Deputy Principal, confirmed that he secured the post after he was told to pay a bribe.
19. He testified that after the 2nd Respondent was recommended by the IC as the most suitable candidate for the post, he lodged a grievance. On 7 March 2025 the grievance committee recommended for the process to be redone from the interview stage. After the process was redone the outcome however remained the same.
20. He then lodged a dispute at the ELRC whereupon in September 2025 he was approached by Mr. Cele, an SGB member and a close associate of Mr. Shange, who asked him to withdraw the dispute. He tried to convince him that another post would be available when the Principal Dr. Mhlangu retired.
21. During cross-examination when it was put to him that Mr. Shange would testify and deny the allegations, he stated that he would be lying and that it would be unfortunate if he did so.
22. He confirmed that Mr. Shange was a chairperson and a scorer during the process and stated that because of his roles he was a person with influence on the IC members and on the process itself.
23. He stated that Mr. Shange was removed as an SGB member in a neighbouring school, Zakhele Primary School, after rumours started circulating that he was taking bribes from educators to secure posts.
24. He stated that the failure by the 2nd Respondent to appear before the tribunal was shocking and disrespectful and that it makes the probability stronger that she paid a bribe in order to get the post.
25. Thembeka Mweli is an educator at Ziphathele High School since 2013. She testified that she was an SGB member and a secretary at the IC during the first process which was subsequently redone.
26. They started with the short-listing process for post no. 570 and post no. 574 on 25 – 26 January 2025. The interviews were conducted on 1 – 2 February 2025 for both posts.
27. On 1 February 2025 they were supposed to interview five candidates from 09h00. The interview would be 30 minutes per candidate. When they finished with the 4th candidate the 2nd Respondent was still not at the venue.
28. While they were still waiting for her to arrive Mr. Shange, the Chairperson, asked why she still had not come when she lives just down the road. He also said that she is an educator at Eric Mtshali School.
29. She explained that she had not met any of the candidates before the interviews although she send them messages as a secretary because she had their contact details. She found what the chairperson had said, to be odd and it gave her the impression that he and the 2nd Respondent knew each other.
30. She stated that the 2nd Respondent eventually arrived at 11h30. After the interview process was completed, the 2nd Applicant told Ms. Khanyile, Ms. Buthezi and her, who are all site committee members, that an IC member had asked him to pay a bribe in order to be appointed.
31. She knows Mr. Shange for more than 20 years. When he was an SGB member at Ziphathele High School, he was also the chairperson of the SGB at Zakhele primary school, and he would be co-opted at Zakhele Primary School for promotion selection processes. There were rumours about him and Mr. Cele at Zakhele Primary School, that they were extorting money from educators to get posts.
32. Mr. Shabangu who was recently promoted confirmed in one of the meetings that he was asked to pay a bribe in order to be appointed to the post. However he did not give them all the details.
33. During cross-examination she stated that as a secretary she was not scoring in the IC. She did not participate in the 2nd process. She stated that the 2nd Respondent arrived for the interview at her own time, she was not co-operating at the pre-arb meeting and that she decided not to attend the arbitration hearing, which is odd and disrespectful.
34. She stated that the SGB’s in Clermont are notorious for selling promotional posts to the extent that at Langa high School the process was eventually taken over by the Department.
35. Khethani Sibongiseni Buthelezi is the 1st Applicant. He testified that he commenced his employment with the 1st Respondent on 7 February 2019. He was subsequently appointed as a post level 1 educator on 6 February 2020.
36. On 30 January 2025, two days before the interviews were conducted, Mr. Masuku, the 2nd Applicant, asked him if he was also approached to pay a bribe and proceeded to tell him that Mr Shange told him that he must pay R50,000 in order to secure the post.
37. He was shocked because at the beginning of the school term they were complemented for doing well in the previous year. The conversation with the 2nd Applicant affected his preparation for the interview thinking that he would not be considered because he did not pay any money.
38. However he attended the interview although he was emotionally distraught and demoralised. He subsequently lodged a grievance based on what the 2nd Applicant had told him. The grievance was upheld and one of the recommendations was that Mr Shange should be removed from the panel when the process was redone.
39. After the grievance committee had made its recommendations, some of the SGB members ostracised him and made utterances in his presence, showering the 2nd Respondent with praise and saying “here is this girl who outshined them all.” He did not attend the interviews when the process was redone because he feared for his life.
40. Mr. Cele is a policeman and a close associate of Mr Shange. He was afraid because some police officers are capable of using state resources and engage in criminal activities.
41. He believed Mr. Masuku when he told him about Mr. Shange because he had no reason not to. He knows him as a pastor and that he made immense contribution to the school. He organised a science laboratory and sponsors for the school.
42. During cross-examination he stated that the 2nd Respondent was not the best candidate, instead the 2nd Applicant has more experience than her. She arrived 2½ hours late for her interview during the first process which was suspicious.
43. At the pre-arb meeting she showed them a bank statement in an attempt to convince them that she did not pay a bribe, but some of the transactions were clearly erased or removed from the statement and she was also not co-operating.
44. He believes that she paid a brie to secure the post otherwise she would be attending the hearing. Her absence shows that she is not taking the Department and the tribunal seriously.
45. Swelihle Bhekabakuko Ngubane is a Deputy Principal at Ziphathele High School since 2019. He testified that he started at the school as a post level 1 educator in 2004.
46. The 2nd Applicant told him that Mr. Shange approached him and asked him to pay a bribe. He also showed him WhatsApp messages from Mr. Shange. He then informed Ms. Mweli, a member of the SGB, about the allegations.
47. He also spoke to Mr. Shabangu who confirmed that he did pay a bribe in the previous HRM after he was bullied by the IC members. Mr. Shange and Mr. Cele had said that either he paid or he would not get the post.
48. He stated that the 2nd Applicant also told him about Mr. Cele’s attempt to persuade him to withdraw the dispute because he would soon get another post. He further told him that Mr. Cele explained why he (2nd Applicant) did not get the post.
49. He said that it was firstly because he refused to pay and secondly that if he was appointed he would be closer to him (Ngubane), which would not be an ideal situation because their plan was to isolate him (Ngubane).
50. He stated that he also spoke to the Principal, Dr. Mhlanga, about all these allegations. Formal reports were written by the Principal, Mr. Shabangu, Mr. Ngema, Mr. Masuku, Ms. Mweli and himself, and sent to the Circuit Manager.
51. The Circuit Manager subsequently came to the school to speak to them. She was very dismissive and merely told them that if they had complaints they should lodge a dispute at the ELRC and that whoever felt that they were threatened should go to the SAPS.
52. During cross-examination he stated that the 2nd Respondent was at the school when the ELRC called the principal as a reminder of the hearing when she did not appear in one of the sittings.
53. He stated that Mr. Shange and Mr. Cele were also implicated in soliciting bribes at Zakhele Primary School, where Mr. Shange was the chairperson of the SGB.
54. He stated that the 2nd Applicant was the most suitable candidate for the post. He majored in Physical Science and Mathematics whereas the 2nd Respondent studied life sciences and Mathematical Literacy. The post is for a Departmental Head, Science.

Respondents’ evidence

55. The 1st Respondent did not call any witnesses to testify at the arbitration proceedings. The 2nd Respondent was notably absent in all the sittings scheduled under the auspices of the ELRC in the matter.

Closing Arguments
Applicants’ Argument

56. Mr. Mazibuko argued that the Applicants demonstrated that the process was tainted and compromised, and that the chairperson most probably solicited a bribe from the 2nd Respondent.
57. The 2nd Applicant was the most suitable candidate for the post. The 2nd Respondent did not meet the requirements of the post in terms of her qualifications and experience.
58. The post was for a Departmental head: Science, which means that Physical Science and mathematics are basic requirements. The 2nd Respondent’s qualifications are life sciences and Mathematical Literacy. The 2nd Applicant majored in Physical Science and Mathematics.
59. The bank statement presented by the 2nd Respondent at the pre-arb meeting which showed blank spaces or deleted transactions together with WhatsApp messages from Mr. Shange to the 2nd Applicant, raise a strong possibility that the post was sold.
60. He argued that the Applicants were denied the opportunity to compete for the post in a fair and objective manner. He prayed for the appointment of the 2nd Respondent to be set aside in order for the process to be redone.

Respondents’ Argument

61. Mr. Makhooe submitted on behalf of the 1st Respondent that the conduct of the 2nd Respondent is odd to say the least. She refused to be part of the arbitration despite warnings and cautions.
62. He does not defend promotion applications at all costs or seek to win cases by hook or crook. If she left the award to fate, who is he to defend. She was the only one qualified to come and deny payment of the bribe under oath.
63. What is also disconcerting was the evidence that she was treated differently during the interview process. The Resource Person, Mr. Shange and her were the witnesses who would have shared light as to why she came for the interviews at her own time.
64. None of them came to testify despite the available opportunity to do so. None attendance at the arbitration was not accidental but deliberate. They are all at the same school as the Applicants and their witnesses, and they are SMT members. Mr. Shange had a lot to rebut in relation to WhatsApp messages to the 2nd Applicant.
65. However he failed to come and testify despite full awareness to do so. He submitted that the 1st Respondent will abide by an award that will be informed by the findings that the arbitrator will make, as it pleases the Council.

Analysis of evidence and argument

66. In terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (The ACT), unfair labour practice means any unfair act or omission that arises between an employer and an employee.
67. In IMATU obo Visagie v Mogale City Municipality (JR86/15) [2017] ZALC JHB 432, the Court held that the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee.
68. In Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT (handed down on 9 May 2018), the Court emphasized that the Employer is obliged to defend challenges on the substantive and procedural fairness.
69. It held that there is an obligation on the Employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence it would be irrational and unreasonable to conclude that the Employer acted fairly, regardless of where the onus lies.
70. In the present case I have only one version before me because the 2nd Respondent and certain witnesses whose evidence was crucial in determining whether or not the decision not to promote either of the two Applicants was taken in a biased manner influenced by bribery, did not testify.
71. The Applicants led the evidence of four witnesses whose evidence I found to be credible and reliable. On their version which I have found to be inherently probable, the integrity of the selection process was compromised by corruption and attempts to solicit bribes from candidates to secure the post.
72. The Applicants further testified that the 2nd Respondent was appointed to the post because she probably paid a bribe. They infer this from the chairperson’s statement to the 2nd Applicant that if he did not pay, there were other candidates who were willing to pay.
73. I accept their version because I have no reason to reject it and the absence of the 2nd Respondent at the arbitration proceedings makes the probability stronger and lends credence to the Applicants’ contention.
74. It is therefore my finding on a balance of probabilities that the Applicants discharged the onus placed on them to prove (show) the existence of the unfair conduct complained of which constitutes an unfair labour practice.
75. The evidence also established that the 2nd Applicant is the most suitable candidate for the post in terms of his qualifications, experience and contribution to the school which I find to be in the best interest of the learner.
76. The evidence further established that the 2nd Applicant along with the 1st Applicant successfully lodged a grievance and the process was redone, albeit the outcome remained the same. The 1st Applicant did not participate in the second process.
77. If the process is once again redone it would be for the 3rd time and based on the claims of corruption/bribery which are said to be permeating the SGS in the district, there is no guarantee that the process will be fair and rational.
78. In Aries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held that the ambit of the decision making powers inherent in the exercising of a discretion by a party, ought not to be curtailed.
79. In further held that it ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised, or that the discretion was not properly exercised, or that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
80. In the circumstances it would be irrational and unreasonable to conclude that the 1st Respondent acted fairly. It would also not be in the best interest of the learner and good governance for the process to be redone given the reputation of the SGB’s.
81. I therefore make the following award; Award
82. The selection process was not fair and rational and it constituted an unfair labour practice against the Applicants.
83. The appointment of the 2nd Respondent, Ms. Thembelihle Makhoba, to the promotional post of a Departmental Head: Science under post no. 574, is hereby declared unfair, invalid and set aside with immediate effect.
84. The 2nd Applicant, Mr. Ngobizwe Victor Masuku is hereby appointed to the said post of a Departmental Head: Science as the most suitable candidate for the post.
85. The appointment will be effective from the first day of the first school term on 14 January 2026 at Ziphathele High School in Pinetown district.
86. The 1st Respondent must introduce him as the new incumbent to the staff and the SGB on the assumption of his duties at Ziphathele High School.
87. I make no order as to costs.

P Cele: ELRC Commissioner