IN THE EDUCATION LABOUR RELATION COUNCIL
Case Number – ELRC 575-25/26 LP
PANELIST: MMAKGARE SHAI
DATE : 18TH OF DECEMBER 2025

IN THE MATTER BETWEEN
LETSOALO ME APPLICANT
And
LIMPOPO DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was heard on the 18th of November 2025, at the Department of Education offices – Limpopo, Corner Hospital and Biccard Street, Polokwane, Limpopo Province.
2. Both parties were present. The applicant was represented by advocate M Makgaa, instructed by Matuba Maponya Attorneys, whereas Ms. Portia Modiba represented the respondent.
3. Parties were directed to file closing arguments by the 25th of November 2025 and same were considered herein.
4. The proceedings were digitally recorded.
   ISSUE TO BE DETERMINED
5. I am called upon to determine whether the applicant was entitled to an acting allowance or not. If I find that the applicant was entitled to an acting allowance and therefore owed such an entitlement, I will order the respondent to pay such acting allowance. If I find otherwise, I will absolve the respondent.
   BACKGROUND TO THE ISSUE
6. The applicant is employed as an educator by the respondent and was stationed at Malesa Primary School. As a result of restructuring, he was declared in excess and redeployed to Masekwameng Primary school. At the time of redeployment, he held the position of Head of Department (HD). At the time of his redeployment to Masekwameng Primary school, the principal of the school Mr. Moabelo was absent from the school, hence he became the senior educator.
7. The circuit manager, when introducing him to the staff and the school governing body, stated that he would be taking care of the school in the absence of the principal.
8. The applicant fulfilled this role from 3rd of May 2021 to 24th of July 2024. He is now claiming acting allowance in compensation for his services.
   The respondent opposes this claim.

SURVEY OF EVIDENCE AND ARGUMENT FOR THE APPLICANT

MR MMAKADI ELIYA LETSOALO TESTIFIED UNDER OATH AS FOLLOWS

9. He was employed as an educator on the 1st of April 1994 and was stationed at Malesa Primary school. He was promoted to the Head of the Department (HD) while at Malesa primary school. He worked there until the 2nd of May 2021 when he was declared in excess due to restructuring.
10. He was then deployed to Masekwameng primary school from the 3rd of May 2021. The circuit manager, M.s Masegela asked him to take care of the management of the school in the absence of Mr. Moabela, the principal, who was absent due to ill health but later due to misunderstanding between him and a member of the community who made his life unbearable at school. This request was also communicated to both the staff and the school governing body.
11. On the 9th of September 2021, he submitted rationalization and redeployment report, and every staff member was absorbed including himself.
12. As a result of the request to manage the school, he was saddled with the duties of an HD – Head of Department and that of a principal.
13. From 3rd of May 2021 to 24 July 2024, he had been engaging with the circuit manager with regards to his non-payment of the acting allowance for his services as acting principal. When he did not get the joy with the responses he was receiving from the circuit manager, he formalized his claim for an acting allowance.
14. Further to that his legal adviser alerted him to the provisions of circular S7/1/2 of 2005 and Collective agreement no: 8 of 2002 which allude to the fact that he is entitled to an acting allowance.
15. The above circular states that as the senior educator automatically, he should take over the management of the school. Furthermore, the Head of Department, in extraordinary circumstances, may intervene where the school governing body neglected to recommend any person for appointment as an acting officer in the circumstances that he should have been appointed.
16. In formalizing his claim for acting allowance, he wrote several letters to the circuit manager and the regional director. When he did not get any joy, he then referred the matter to the Education Labour Relations Council, hence these proceedings.
17. In his cross examination, he insisted that he regards himself as having been appointed as an acting principal and the circumstances were conducive for such an appointment. He conceded that he had no letter of appointment though.
18. All in all, he acted for a period of four years.

SURVEY OF EVIDENCE FOR THE RESPONDENT

MS MALEHU RAHAB MASEGELA TESTIFIED FOR THE RESPONDENT UNDER OATH AS FOLLOWS:

19. She is a circuit manager for Mamabolo area and knows the applicant. He is Head of Department (HD) of Masekwameng primary school in Mamabolo circuit. The applicant previously worked at Malesa Primary school and was declared in excess due to rationalization in 2021. The applicant was deployed to Masekwameng primary school as Head of Department (HD), where he was eventually absorbed.
20. At the time of the deployment of the applicant to Masekwameng Primary school, the principal Mr. Moabelo had challenges with a member of the community who kept on coming to school and insulting him and making his life unbearable and finally was given a few days’ sick leave and later instructed to report to the circuit office and no longer at school.
21. When the applicant reported at Masekwameng primary school, she introduced him to staff and the school governing body. Further that she gave the applicant the responsibility of taking care of management of the school in the absence of the principal as a senior educator at the school. However, that did not mean that he was appointed as an acting principal as he had no such authority. No process of appointing him as an acting principal was followed.
22. The provision relating to the payment of acting allowance requires that he be appointed in writing following a recommendation by the school governing body.
23. The reason why Mr. Moabelo, the principal reported to the circuit office was because he could not be matched to any school in the circuit.
24. She admitted receiving correspondence from the applicant as he testified to including several meetings she held with him. The applicant could only qualify for an acting allowance if he had a letter of appointment.
25. Under cross examination, she stated that the reason why the applicant could not be appointed as acting principal was because the position was not vacant. She further conceded the scenario of the applicant falls squarely within paragraph 5(1) of Annexure to Collective Agreement number 8 of 2002 and if he could get a letter of appointment he would qualify for acting allowance. She further conceded that the applicant as a senior educator at the school had to assume the management of the school.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
26. Section 186 (2) of the Labour relations Act 66 of 1995 as amended defines Unfair Labour Practice as meaning any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer relating to the provision of benefits to an employer.
27. The dispute herein concerns alleged unfair Labour practice relating to failure to pay acting allowance to the applicant by the respondent.
28. The common law principle of ‘he who alleges must prove’ applies, thus the onus lies with the applicant to prove the alleged unfair labour practice.
29. The facts are briefly as follows:
    The applicant was at the time of the incident holding the position of Head of Department (HD) at the Malesa primary school. It is common cause, that he was declared in excess and redeployed to Masekwaneng primary school where he was eventually absorbed. It is further common cause that at the time, the principal Mr. Moabelo was absent from the school and redeployed to the circuit office due to internal conflicts at the school. It is further common cause that the applicant being the senior educator at the school, the circuit manager M.s Masegela instructed him to take care of the management of the school in the absence of the principal.
    It is further common cause that the applicant took care of the management at the school from the 3rd of May 2021 to 24 July 2024.
30. The applicant regards this period as the one in which he acted as principal. The applicant, however, conceded that he was not formally appointed to the position. He further contended that he should have been formally appointed and that he cannot be held liable for the negligence of the school governing body, he is therefore entitled to acting allowance.
31. To obtain the acting allowance, he made several representations which were acknowledged by the witness of the respondent.
32. The witness of the respondent, Ms Masegela conceded that the applicant would be entitled to the acting allowance if he was formally appointed as acting principal. She further stated that the reason the applicant was not appointed was because the respondent could not match Mr. Moabelo anywhere in the circuit and hence his post was not vacant.
33. In a circular directed to the district Senior managers dated the 6th of December 2005 item 3.1 says the following:
    “If for some reason the most senior educator (principal) of the school exits the system, or become unavailable, the next senior educator ( deputy principal) from the same school should automatically assume the acting role. These criteria (of seniority and same school) should accordingly apply to other levels”.
34. Annexure A of resolution no 8 of 2002 provides that:
    1) An educator complying with the minimum requirements in paragraph 2 (2) of chapter 8 of the personnel administrative measures, shall be appointed, in writing, by the employer to act.
    2) An educator may only be appointed to act in a post that is one post level higher than his/her current position.
    3) Within fourteen days of notification by the employer, a school governing body/ council for a further education and training institution shall be requested to recommend to the employer, the educator, to be appointed to act in a higher post where the permanent incumbent is absent.
    4) In extraordinary circumstances, the employer may deviate from clauses 2 and 3 above (including instances where the governing body/council for a further education and training institution fails to make a recommendation.
35. Annexure A further states that an acting allowance will be paid only to an educator who acts:
    “In such a post where the permanent incumbent is absent due to the following:
    a. Maternity
    b. Sick leave
    c. Study leave
    d. Suspension
    e. Secondment
    If the period of appointment is longer than (12) weeks but limited to a maximum of 12 months”.
36. In this case it is common cause that the applicant was not formally appointed in writing. However, there is an acknowledgement from the respondent’s witness that he was instructed to perform the principal duties in addition to his Head of Department duties. The witness further conceded that had it not been the fact that the respondent was unable to find a match for the principal, the applicant would have been appointed, and acting allowance would be due to him. In other words, she conceded that the applicant qualifies for appointment in all respects save for absence of a written appointment.
37. The respondent’s witness conceded that Mr. Moabelo was seconded to the circuit office due to his problems at the school.
38. In my view, the school governing body has neglected to make a necessary recommendation. Should the applicant be prejudiced by the negligence of the school governing body? That would seem unfair if the applicant was instructed to perform the principal duties and he did so. Those who instructed him should have ensured that they regularize their instruction by recommending him, so he be appointed formally. This was not done.
39. The respondent should have acted in line with Annexure A item 4 by regularizing the appointment of the applicant.
40. Further that it cannot be correct that an educator can only be appointed in an acting capacity if the higher position is vacant. The case in point herein is when the incumbent is on sick leave. In our case the incumbent was seconded to the circuit office and the applicant should have been appointed as an acting principal and be accorded the acting allowance.
41. I consequently find that the applicant is entitled to acting allowance.
42. In determining the amount of acting allowance, I will consider the evidence of the respondent’s evidence that in circumstances where the appointment is not made in time the acting contract will be renewed.

AWARD

43. I find that the respondent committed Unfair Labour Practice by not paying the applicant acting allowance for his services.

44. I order the respondent to pay the applicant an amount of R 274 935,00 (Two hundred and seventy four nine hundred and thirty-five rand only) equivalent to his acting allowance from 3rd May to 24th
of July 2025.

45. The above amount must be paid on or before the 18 January 2026.

Piet SHAI
ELRC PANELIST