30 January 2026 -ELRC672-25-26GP

DEPARTMENT OF EDUCATION – GAUTENG “the Respondent”
MATHEBULA SEKA ALICE “2nd Respondent”

ARBITRATION AWARD

Case Number: ELRC672-25/26GP

Date of award: 08 December 2025
Gcina Mafani
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

1.1. The arbitration was scheduled for the 28th of October 2025 and proceeded as such. Both parties were present, the applicant was represented by Mr. Johannes Leshata Seanego the Union Official of SADTU and the First Respondent was represented by Mr. George Mbonde the Employee of the Respondent and the Second Respondent Ms. Seka Mathebula was represented by Mr. D. M. Makitla the Union official of SADTU.
1.2. The Arbitration was held at Soshanguve Teacher’s Centre to mitigate against postponements due to network and connectivity issues .

1.3. The arbitration was finally concluded on the 25th of November 2025

1.4. Before the start of the arbitration process, the Respondent submitted their bundle of documents which was later marked Exhibit “A”, and the Applicant his own bundle marked “R”.

1.5. The parties agreed to file their closing arguments by close of business on the 1st of December 2025. Respondents 1 and 2 agreed to submit one closing document.

1.6. The submissions of both parties were carefully considered, but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

BACKGROUND

2.1. The Applicant Tsakani Caroline Masingi is a PL2 educator at Lesedi Primary School, Persal number 82087351 and SACE number:1070533
2.2. Ms. Masingi applied for a Deputy Principal Post, Post No: TW25ED1016 with Leadership, Management and Administration as requirements held on the 21st of June 2025 at Lesedi Primary School.
2.3. She was shortlisted and subsequently interviewed for the Post. During the Interviews the Applicant was ranked no 2 by the Interview Committee and was one of the incumbents recommended to the Department for selection and appointment.
2.4. The Department appointed Ms. Sake Mathebula to the position.
2.5. The Applicant contends that the selection process was flawed, as some of the individuals serving on the interview Committee, Mr. Sefamela and Sibanyoni, were not members of the School Governing Body (SGB) at the time. Accordingly, they were not eligible to participate in the interview process.
2.6. Dissatisfied with her non appointment, the Applicant referred a dispute to the ELRC for unfair labour practice.
2.7. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
2.8. Given the above, the Commissioner is required to determine whether the first Respondent committed an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 when it failed to promote the Applicant to a Deputy Principal Post NO: TW25ED1016 and if so to order an appropriate relief to.

APPLICANT’S EVIDENCE AND ARGUMENTS

3.1. The Applicant testified under oath and stated that she is a qualified educator, a Departmental Head responsible for Languages, English Home Language, IsiZulu, Sepedi, and Setswana. She testified that she is the coordinator for SBST (School Based Support Team) she supports learners academically, socially, etc. She founded an NGO which assists the learners. She attends and supports the learners that struggle academically and refer them to the DBST.
3.2. The Applicant Ms. Masingi testified that Mr. Sefamela and Mr. Sibanyoni were not supposed to be part of the interview panel. Their participation rendered the process flawed.
3.3. She testified that the parent component in the selection panel Committee must be more than other members. This also rendered the whole recruitment process flawed.
3.4. Under cross examination she conceded that she was short listed, that she was interviewed, and that she was rated number 2 in the category for the Deputy Principal Post. She was further amongst the three candidates that were recommended to the District for appointment.
3.5. When referred to bundle “R” page 80, Ms. Masingi conceded that according to section 23 (6) of the SA Schools Act the SGB may Co-Opt a member or members of the community to assist the SGB in discharging its functions.
3.6. She further conceded under cross examination that according to Section 23 of the SA Schools Act membership of the Governing Body comprises of Co-Opted members (See bundle “R” pages 79 to 80)
3.7. (It must be noted that this witness was very evasive and argumentative)
3.8. Ms. Masingi argued that Mr. Mkhabela was not part of the meeting, yet his name appears in the minutes, she argued that there is a problem with the minutes, they are not a true reflection of what transpired on the day. (see page 35)

SECOND WITNESS FOR THE APPLICANT CASE
MS. TUMELO MATLALA An Educator at Klipfontein Primary

4.1. She testified that she is a grade 1 teacher, teaching English, Sepedi, Life Skills and Maths. She has five years’ experience as an Educator.
4.2. She testified that she was a member of the SGB when she was at Lesedi Primary School from April 2024.
4.3. That the nomination of the Co-Opted members did not go through the proper steps, the Principal recommended the names of Mr Sefamela and Mr Sibanyoni to be Co-Opted as members of the School Governing Body in 2024. She stated that it was their first time as members of the SGB and so they did not understand that they could object, save to say there was no objection by any of the members of the SGB.
4.4. She testified that the SGB must select the members of the interview committee, however she does not understand how the names of Mr. Sefamela and Mr. Sibanyoni came up because they are not part of the SGB.
4.5. Under Cross Examination she conceded that she was reassigned in January 2025 to another school and therefore cannot talk to the events of 2025 at Lesedi.
4.6. She further conceded that the absence of the Human Resources Person does not invalidate the recruitment process.
4.7. The witness was referred to pg. 36 the bundle and the respondent submitted that the SGB can and does have Co-Opted members, to which the witness responded by saying legally Co-Opted members.
4.8. The witness was referred to page 35 meeting of the SGB which took place in June 2025 and asked if she was part of the meeting, she conceded that she was not part of that meeting, conceded that she was detached from the Governance of Lesedi Primary and conceded that she cannot speak with authority on the affairs of the SGB because she is no longer part of the SGB.

THIRD WITNESS IN THE APPLICANT’S CASE
BETTY LEBOHANG (SGB MEMBER, SOSHANGUVE EAST SECONDARY)

5.1. She testified that she is a treasurer for the SGB in Soshanguve East secondary School.
5.2. She testified that Mr. Sefamela is an SGB member at Soshanguve East. She testified that she has known him for the past three years, she was Co-Opted last term and she found Mr. Sefamela there as an existing SGB member.
5.3. Sefamela is a soldier and sometimes they go without seeing him for over three months.
5.4. She testified that, this year however he did not qualify to be a member of the SGB, but he was again selected because two of their SGB members were unable to take office as SGB members.
5.5. She concedes that she is not an expert in matters of the SGB, but they attend training as SGB members.
5.6. She conceded that she was not part of the recruitment process at Lesedi and did not know anything about that.

FOURTH WITNESS FOR THE APPLICANT’S CASE
ENTHEA MKHABELA (PL 1 Educator at Lesedi Primary)

6.1. She testified that she joined the school 20 years ago, and Ms. Masingi joined the school in 2006.
6.2. They worked together in foundation phase, then she went on to intermediate Phase. She testified that Ms. Masingi is easy to work with, respectful and dedicated to her work.
6.3. She testified that she was present when the SGB members were elected.
6.4. She knows Mr. Sefamela, he has been there for many years, first with the previous Principal who retired and again with the current Principal. He is military personnel; she has seen him dealing with maintenance issues at the school. He is always present at the school, sometimes she wonders when he reports at his own employment.
6.5. She conceded that she did not know how Mr. Sefamela and Mr. Sibanyoni got to be in the SGB as she is not an SGB member.
6.6. She conceded that the Applicant was ranked second by the interview Committee and was in the list of recommended candidates.

RESPONDENTS EVIDENCE AND ARGUMENTS
1st Witness for the Respondent
JIMMY RAMBOHO (Chairperson of the SGB Lesedi Primary)

7.1. He testified that Page 13 has the list of names of people who were selected to be in the interview panel and unfortunately the names of Mr. Sefamela and Mr. Mkhabela were erroneously omitted.
7.2. He testified that page 15 is the attendance register of the SGB meeting which sat to make the selection of the interview Committee.
7.3. He testified that the SGB was a full complement and did not have any vacancies at the time. Mr. Sefamela’s name was proposed to assist with security and maintenance and Mr. Sibanyoni’s name was proposed to assist with Finance and Administration, they were proposed by the Principal of Lesedi Primary Mr Pheta. All the SGB members supported and endorsed the proposed names to be Co-Opted into the SGB.
7.4. He confirmed by reading an extract from the SASA section 23, which states that the SGB can Co-Opt members.
7.5. He confirmed by reading an extract from the ELRC Collective Agreement 1 of 2021 Clause 8.1.2 (iii) which states that the panel consists of SGB members with the exclusion of teachers who have an interest”. That any member of the SGB can be nominated to be in the interview panel regardless of whether they are Co-Opted or not
7.6. He testified that Clause 8.1.1 contradicts what was read on page 36 and stated that if there is a contradiction, the Act always supersedes the Collective Agreement, and therefore the extract from SASA supersedes the Collective Agreement.
7.7. He testified that the normal process of nominations is followed when there is a vacant position in the SGB, if however, the SGB has a full complement, then members can be Co-Opted as per the need of their expertise.
7.8. He testified that Ms. Mkhabele was ranked number 2 by the interviewing Committee.
7.9. The interview Committee submitted three names, which were the names of the top three in the interviews to the District. The Applicant’s name was amongst the three submitted names. The work of the SGB is done upon submission of the recommended names.
7.10. The department has the power to select from the names recommended.
7.11. He submitted that the recruitment process was fair to all and particularly to the Applicant because she was shortlisted, interviewed, and recommended. Nothing could have been unfair with the process.
7.12. Ms. Matladi had Setswana, and the Applicant didn’t. Ms. Matladi has Setswana as her home language in her certificate at the University. That was taken into consideration.
7.13. Under cross examination the witness was asked about the parent teacher components in the SGB, he submitted that they followed the SASA recommendations and SASA is silent on the numbers.
7.14. He reiterated that Mr. Sefamela and Mr. Mkhabela were selected to be part of the panel, their names were erroneously omitted, Mkhabela was selected to be the Usher. The declaration of Confidentiality is proof they were selected.
7.15. The Witness was asked about his signatures which did not look the same on different documents, and he confirmed that sometimes he is not available to sign off certain documents, when that happens, he usually authorises the SGB Secretary to sign on his behalf.
7.16. He reiterated that the two names were Co-Opted based on the needs of the SGB.

SECOND WITNESS FOR THE RESPONDENT’S CASE.
LINDELANI BONGANI MDLOLO (The Secretary of the SGB)

8.1. Mr. Mdlolo testified under oath and stated that he is the Secretary of the SGB, and he is part of the teacher component.
8.2. Page 13 is the selection of the interview panel, some of the names were erroneously omitted by him, those are the names of Mr. Mkhabela who was the usher on that day as well as Mr. Sefamela. He apologised for the error and stated that he takes full responsibility for the error.
8.3. He testified that page 15 is the attendance register of the SGB meeting, the purpose of this meeting was to select the interview committee.
8.4. He testified that the meeting of the 17th of October 2024 was to prepare for the AGM budget.
8.5. He testified that the SGB Co-Opted Mr. Sefamela for safety reasons at the school as he lived close to the school and was able to attend to emergencies, and he had the necessary experience. Mr. Sibanyoni was Co-Opted for Finance and Administration duties. The SGB treasurer was not familiar with that role, and she needed assistance and Mr Sibanyoni was brought in to assist her.
8.6. He testified that the SGB members were all in agreement with the proposal of Mr Pheta. He stated that if someone had raised a different name, they would have taken it to a vote, however because everyone agreed, there was no need, the proposal was carried.
8.7. He read page 41 Extract from the ELRC Collective Agreement 1 of 2021 and testified that any member of the SGB can be part of the interview Committee except educators who have an interest and have applied for the advertised post.
8.8. He testified that the Applicant Ms. Masingi was ranked number two by the Interview Committee with a score point of 260. The SGB submitted the names of the three candidates that were in the top three to the District. The Head of the Department chooses and appoints a suitable candidate from the recommended three names, regardless of the recommendation by the SGB. The final decision is taken by the District.
8.9. Under Cross examination who made the recommendation to the District, the panel or the SGB, to which he responded by saying after the Committee has finished its work, the SGB ratifies the interview then the SGB makes the recommendation.
8.10. Under cross examination the Representative submitted that the Applicant was more experienced than the 2nd Respondent, and the witness declined to answer that question stating that he signed a declaration of Confidentiality.
8.11. He stated that the non-allocation of the Human Resources personnel by the DD does not invalidate the process.
8.12. He reiterated that nothing prohibits the Co-Opted members of the SGB to take part in the interviews.
8.13. He stated that the file sent to the District was prepared by the SGB.

ANALYSIS OF EVIDENCE

9.1. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the respondent amounted to an unfair labour practice as defined and distilled from the applicable jurisprudence and as envisaged in the law.
9.2. Section 186(2)(a) of the LRA reads as follows: Unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissal for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.
9.3. I am required to determine whether the First Respondent acted unfairly or not in its recruitment processes. Whether the Applicant was treated unfairly during the process and whether the First Respondent acted fairly or not in appointing the second respondent into the Deputy Principal position.
9.4. In the present matter the Applicant testified that she applied for the position of a Deputy Principal Post no: TW25ED1016 with Leadership, Administration and Management as requirements which she was qualified for, went through an interview process and was amongst the preferred three candidates, whose names were sent to the District for selection. The Applicant was not appointed as only one candidate could be appointed.
9.5. On the side of the Applicant three witnesses were called. The first witness being the Applicant who testified that she is qualified for the post. In her testimony, the Applicant averred that she answered question 4 in the interview better than the Second Respondent. It is very difficult to say 100 percent that you have answered the question better than the other candidate unless you have the interviewer’s internal scoring and their priorities, further the interviewers consider many other things in deciding. Choosing one question and based on that saying you answered the question better than the other candidate is naïve.
9.6. The Applicant argued that certain members of the SGB were not duly or lawfully appointed, and that these individuals were, non the less, selected to constitute part of the interview committee. The Applicant, however, failed to establish or demonstrate the manner in which the alleged irregular composition of the SGB prejudiced her interests. The mere presence of individuals who had been Co-Opted as SGB members does not, in itself render the recruitment process procedurally unfair, absent evidence showing that such individuals acted to her detriment or were, in any way opposed to her appointment.
9.7. The First Respondent, on the other hand, established that the process complied with the applicable procedural requirements. The Applicant was duly shortlisted, interviewed and included among the three candidates whose names were forwarded to the District for consideration.
9.8. In Noonan vs Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2597 (LAC) The Court held that an employee does not have a right to “promotion” per se, but only a right to a fair opportunity to compete for a post.
9.9. As a legal concept unfairness cannot exist in abstraction. Therefore, an applicant in the promotion dispute also needs to establish a causal connection between the alleged irregularity or unfairness and the failure to promote. To do so she needs to show that, but for the irregularity or unfairness she would have been appointed to the post. This necessarily means that she must show that she was the best of all the candidates who applied for the position.
9.10. The Statutory obligation to make the final appointment vested in the District, irrespective of the SGB’s recommendation.
9.11. In the matter of Aries v CCMA and others (2006) 27 ILJ 2324 (LC) our Labour Court held that there are indeed limited grounds upon which an arbitrator or a Court may interfere with a discretion which had been exercised by a party competent to exercise that discretion, The reason for this is clearly that the ambit of the decision-making powers, inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not be curtailed. It ought to be interfered with only to the extent that it can be further demonstrated that the discretion was not properly exercised. The court further held that an employee can only succeed in having the exercise of the discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for unsubstantial reasons, or based upon any wrong principle, or in a biased manner.
9.12. In George vs Liberty Life Association of Africa Ltd (1996) 17 ILI 571 (IC), the Court held that “an employer has a prerogative or wide discretion as to whom he or she will promote or transfer to another position. The Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogative should be respected unless bad faith or improper motive such as discrimination are present.

9.13. There was no evidence to prove that the Applicant Ms. Masingi was better qualified than the Second Respondent. qualified than the second Respondent. The Applicant led no evidence to demonstrate that her qualifications or competencies exceeded those of the Second Respondent.
9.14. In this case I am satisfied that at the time the Second Respondent was better qualified than the Applicant.
9.15. It is important further to note that the Applicant conceded that she was shortlisted for the post, that she was interviewed and rated number 2 on the score sheet, the Applicant was further recommended for selection along with two other candidates. The Applicant’s gripe based on the evidence was not on the recruitment process itself but on the selection which process was done at District level.
9.16. The Applicant appeared to be clutching at unsubstantiated assertions, levelling unfounded allegations against the Respondents’ witness. It was contended, without evidentiary basis, that Mr. Mdlolo deliberately allocated the Second Respondent elevated scores in order to position himself for appointment to her Head of Department post upon her anticipated promotion to Deputy Principal. This allegation was devoid of any factual foundation and appeared to have been advanced out of sheer frustration.
9.17. grasping at straws, making all kinds of allegations against witnesses for example Mr Mdlolo was accused of rating the Second Respondent high so that he would be able to take her position of Head of Department. This allegation had basis, but was thrown in out of frustration
9.18. In Provincial Administration Western Cape (Department of Health and Social Services) vs Bikwani and Others, the Court held “there is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process”
9.19. Sun International Management (Pty) ltd vs CCMA and others (LC) The Courts and Tribunals should only interfere when there is evidence that the employer acted on unreasonable, irrelevant, arbitrary, or invidious grounds. Procedural fairness, lack of discrimination and rationality are baseline. If those are satisfied, then the employer’s choice stands.
9.20. Ordering that the process must be repeated is a drastic remedy that disrupts the lives of the learners and educators. It is therefore my view that in an unfair labour practice dispute relating to promotion, an arbitrator must order that the process must be repeated unless persuaded that the Applicant stood a realistic chance of being appointed. This is a sensible approach because it not only protects the rights and interests of the aggrieved educator, but also the educators who have gone through the selection process and have a realistic chance of being appointed.

FINDING

10.1. I find that the Applicant Ms. Tsakani Caroline Masingi failed to prove on a balance of Probabilities that:
(i) She was better qualified to be appointed in the Deputy Principals post No: TW25ED1016
(ii) The presence of Mr Sibanyoni and Mr. Sefamela in the SGB then subsequently in the Interview Committee prejudiced her in any way.
(iii) She was treated unfairly by the Interview Committee.

10.2. I accordingly make the following award