Panellist: Khuduga Tlale
Case Reference No.: ELRC1253-24/25NC
Date of award: 26 September 2025

In the matter between:

Nthabiseng Cecilia Mofamere Applicant

And

Department of Education – Northern Cape 1st Respondent

JS Mabotsa 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Nthabiseng Cecilia Mofamere (“the Applicant”) and Department of Education – Northern Cape (“the 1st Respondent”) and Mr. JS Mabotsa (“the 2nd Respondent”) was held on 30 May 2025, and concluded on 08 September 2025 at Mosalakae Primary School in Barkly West. The applicant appeared in person, and Adv. J Solomon, represented her. Mr. Otsile Pisane, Acting DCES: Labour Relations, represented the 1st respondent, and Mr. Thabiso Natetshang, SADTU full-time shop steward, represented the 2nd respondent.
2. These proceedings were conducted in English, and were digitally, and manually recorded. The parties agreed to submit the written heads of argument on Monday, 15 September 2025. They both submitted.

Issues to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the applicant when she was not promoted to the position of Principal at Mosalakae Primary School at Frances Baard District. Background to the dispute
4. The 1st respondent advertised the position of a Principal of Mosalakae Primary School in circular 1 of 2024 with post reference number PL3 (2024/07/012) on 22 July 2024. The applicant occupied the position of a Deputy Principal, PL3, when she applied for the said position. The applicant was shortlisted, and interviewed for the said position, but she was not successful. The applicant earned R44 839, 13, per month.
5. The 2nd respondent was joined as a party to the proceedings. The applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“ELRC”) alleging that her non-promotion was procedurally, and substantively unfair. She sought setting aside the appointment of the 2nd respondent, or compensation. The dispute was not resolved at conciliation, and it was referred for an arbitration.
6. The parties submitted bundles of documents, and marked bundle “A”, and “R”.

Survey of Evidence

THE APPLICANT’S EVIDENCE

First Witness: Ms. Nthabiseng Cecilia Mofamere

7. The witness testified under oath that she was the applicant in this matter, and she acted for three (3) years in the disputed position. She was not challenging the appointment of the 2nd respondent. Her dispute was about the irregularities during the selection process that prejudiced her. She stated that the interviews were held on 19 September 2024. The circuit manager, Mr. Semau, came to the school after the 26th of September 2024 to complete the recommendation of the school governing body. She became aware on 06 December 2024 that the position was filled, but she heard about the interviews outcome on 05 December 2024.
8. On 06 December 2024, Ms. Jantjies came to her office to do payments. She stated that Ms. Jantjies was the member of the school governing body. She asked Ms. Jantjies how come they appointed someone else, and she replied by saying that Mr. Mbizeni, SADTU observer, interfered with Ms. Tsinyane’s scoring. Ms. Jantjies further said that Mr. Mbizeni informed them that should they say anything outside the process; it would cost the 1st respondent. Ms. L Hobeni, member of the school governing body came in, and she said that they tried to fight for her without success.
9. She stated that Mr. Mbizeni interfered with her scoring. The reason she was saying that Mr. Mbizeni interfered with her scoring was because Ms. Tsinyane scored her high, but her scores were lowered. Mr. Mbizeni was not satisfied with her scoring from Ms. Tsinyane as the panel member. It was only her score that was lowered. She had no knowledge how Mr. Semau as the resource person handled this matter. The interviews panel consists of the following members; Mr. K Mogato, as chairperson, Ms. Jantjies, as the secretary, and the scorers were, Mr. Mabeka, Ms. Hobeni, and Ms. Tsinyane. The observers were Mr. Mbizeni from SADTU, and Mr. Atlaretse from PEU.
10. She stated that Mr. Mbizeni did not disclose his relationship with the 2nd respondent. She was told by Mr. Olifant that Mr. Mbizeni and the 2nd respondent had a relationship, and they attended the university together. They had a social relationship even at SADTU. The 2nd respondent was the deputy provincial chairperson of SADTU, while Mr. Mbizeni was Dikgatlong branch secretary. According to her knowledge the observer was not supposed to take an active role during the selection processes, but to observe how the processes unfold.
11. She stated that if Mr. Mbizeni did not interfere with her scoring, the outcome would be different, therefore, there was no fairness in the whole process. She further stated that Mr. Mbizeni’s interference influenced the interviews outcome. She was not comfortable with Mr. Mbizeni being part of the process because they are relative. She knew Mr. Mbizeni personally because they came from the same farm.
12. She had reservations about Mr. Mbizeni. She did not know about the 2nd respondent, and Mr. Mbizeni’s relationship prior to the interviews. She did not raise her objection about the presence of Mr. Mbizeni during the interviews process. She had no knowledge whether the observer could play an active role during the interviews process. She was requested to print NCK16 form by Mr. Semau because the form was missing after the interviews. Mr. Semau was with Ms. Jantjies, and Ms. Hobeni when she gave them the NCK16 form as per “A27”. She did not observe any irregularities when she was interviewed, and she was treated fairly. She was rendered unsuitable by the irregularities. She sought promotion to the disputed position or the selection processes start afresh. 1st Respondent
13. Under cross-examination, she confirmed that Mr. Mbizeni interfered with her score. Mr. Mbizeni told the scorer that she was not listening, but quick to score. The panellist sits apart from the observers. The scores were shared with the panel members, and the interference came in. She had no knowledge how the sharing happened. She was told by Ms. Jantjies. Mr. Mbizeni was hammering Ms. Jantjies with her scoring, and compared with the score of the 2nd respondent. The concern of Mr. Mbizeni was that her scoring was not in line with the manner she answered the questions.
14. Document “R49” was the roles of observers. She believed that Mr. Mbizeni interfered because there was infringement. She confirmed that the panel members would agree on the procedure to be followed during the interviews. She confirmed that paragraph 9 of document “R48” does not talk about the observers, but the panel members. She stated that she had no relationship with Mr. Mbizeni. She confirmed that she did not know the 2nd respondent personally prior to the interviews. She had no knowledge about the 2nd respondent, and Mr. Mbizeni’s relationship, except what she was told about their relationship.
15. According to the collective agreement, the observer can be actively involved during the process as per “R49”. She had no knowledge whether there were problems with other candidates scores. She had no knowledge how Mr. Mbizeni interfered with the scoring. She confirmed that Mr. Mbizeni was not the scorer. She confirmed that Mr. Mbizeni was correct to raise his concern as per the collective agreement. She stated that Mr. Mbizeni did not contravene the collective agreement by not disclosing his alleged friendship with the 2nd respondent. She stated that it was NCK15 form, not NCK16 form that was missing. NCK15 form was about the recommendation of the panel members. She later stated that it was NCK16 that got lost as per her conversation with Ms. Jantjies.
16. She stated that there was a school governing body meeting after the interviews as per “R36-R37”. She had no knowledge whether the school governing body concluded its recommendation on the said meeting on 19 September 2024. She confirmed that document “R33” was NCK16 form. She had no knowledge what transpired during the meeting that took place after the 26th of September 2024. Documents “R26-R33” was the recommendation of the 2nd respondent. According to the records, the school governing body did not change the interviews panel’s recommendation. 2nd Respondent
17. Under cross-examination, she stated that the presence of Mr. Mbizeni made her uncomfortable. She confirmed that the relationship between Mr. Mbizeni, and the 2nd respondent was based on social. They attended university together, and they were active in SADTU.
18. Under re-examination, she stated that the questioning of her scoring was part of the procedure. Messrs. Mbizeni, Olifant, and 2nd respondent knew each other from university. The observer was not entitled to question the scoring allocated to the candidates. Mr. Mbizeni tampered with the scoring when interfering with her score.
19. Under clarity questions, she stated that NCK16 form was supposed to be completed immediately after the interviews, on 19 September 2024. She stated that all three (3) pages of NCK16 form got lost. She could call Ms. Jantjies to confirm this allegation. She stated that the missing of NCK16 form did not prejudice her. Mr. Mbizeni interfered with her scoring, and her score had to be lowered. She was told by Ms. Tsinyane about this allegation, but she did not tell her how her score was lowered. Mr. Mbizeni was an observer, not a panel member. She had no knowledge how the interview panel ranked her after the interviews. She had no knowledge whether she was the recommended candidate. Second Witness: Mr. Odirile Phillip Olifant
20. The witness testified under oath that the 1st respondent employed him as an educator (PL2) at Mosalakae Primary School. He told the applicant that the 2nd respondent and Mr. Mbezeni knows each other. He stated that he knew both of them from the university. He stated that both the 2nd respondent and Mr. Mbezeni were comrades, and they met at SADTU activities. It would not be correct to say that Mr. Mbizeni and 2nd respondent were not friends. 1st Respondent
21. Under cross-examination, he confirmed that he told the applicant about the friendship of the 2nd respondent and Mr. Mbizeni. He had no knowledge whether they were social friends. He denied the allegation to say that he told the applicant that the 2nd respondent and Mr. Mbizeni were social friends. They had close relationship at SADTU due to their union positions. 2nd Respondent
22. Under cross-examination, he stated that his wish was to see someone from the school be appointed in this position. The other school governing body members agreed that the promotion must be internally, and the failure to do so, would be a sabotage.
23. Under re-examination, he stated that social friends meets after work, and during the weekends. Political friends meet at political events. The 2nd respondent and Mr. Mbizeni knew each other before coming to SADTU. He was not mandated to speak on behalf of the school management team. Third Witness: Ms. Keatlaretse Kgosieng
24. The witness testified under oath that the 1st respondent employed her as an educator (PL1) at Boresetse High School. She was an observer during the selection processes of this position, representing PEU. She had no knowledge of the selection processes. She was told to observe the fairness of the process. The selection processes were observed by two unions, namely, PEU and SADTU. SADTU was represented by Mr. Mbizeni. Mr. Mbizeni was taken notes of the candidates, and he had a problem with the scoring of the applicant.
25. The scoring panel members made a mistake, and they requested the new scoring sheets. The resource person indicated that the scorer must score per questions. It was not fair for the scorers to re-score because they scored what they heard. Mr. Mbizeni did not tamper with the scores. If SADTU did not object, the scores were not going to be changed. The scores of candidates 2,3 and 4 were not changed, only the scores of the 2nd respondent and applicant.

1st Respondent

26. Under cross-examination, she confirmed that they drafted questions for the candidates prior to the interviews, and the observers were part of that process. The panel members agreed in their absence the procedures to be followed, and the possible answers. The 2nd respondent answered as expected, and the applicant, did not go beyond. She was not aware of the collective agreement 1 of 2023. She stated that Mr. Mbizeni was not wrong to raise his concern during the proceedings.
27. The scorers made a mistake with the scoring of the 2nd respondent. She had no knowledge the reason the scorers changed their scorers. There was nothing wrong done by Mr. Mbizeni during the proceedings. Mr. Mbizeni’s concern was appropriate based on the applicant’s response to the questions, and the scores allocated to her. There was nothing wrong with the interview processes. 2nd Respondent
28. Under cross-examination, she confirmed that the applicant’s answers were brief. She confirmed that the applicant was given high marks for brief answers.
29. Under re-examination, she stated that it was not fair to score the candidate too high. She was not changing her testimony by saying that the interview process was fair. She does not agree that the scores of the 2nd respondent and the applicant were changed. She had no knowledge of the initial and changed scores.
30. Under clarity questions, she stated that she had no knowledge what mistake the scorers made. It was the scorers who said that they made a mistake, and they requested the new scoring sheets. She had no knowledge whether the scores were changed. She had no knowledge of the applicant’s initial and changed scores. She assumed that the applicant’s initial score was too high. Fourth Witness: Mr. Kaelo Bogoto
31. The witness testified under oath that he has been a school governing body member for three (3) terms. He was given training on how to conduct the selection processes. The selection panel members knew what was expected from them. There were minutes of the shortlisting, and interviews processes. The NCK16 form had two pages for recommendation, and motivation. It was not correct to say that Mr. Mbizeni questioned the scoring of the candidates. The secretary was the one who raised her concerned about the scoring of the 2nd respondent and the applicant.
32. The 2nd respondent and the applicant were not scored correctly. The panel members did not interfere with the scoring of the candidates. The 2nd respondent was initially scored low on question 1, and the scoring was corrected for that question. The applicant was initially scored too high. The interview process was fair because the panel members were able to correct their mistakes in order to apply fairness to all the candidates. The process would not be fair, had they continued with those scores.
33. The school governing body agreed with the recommendation of the interview panel members. The members of the school governing body did not complete part two of NCK16 form, as per “R34”. Document “R33” was completed during the school governing body meeting, and signed by the chairperson. Document “R34” was completed later after the school governing body meeting. 1st Respondent
34. Under cross-examination, he stated that Ms. Tsinyane and Ms. Hobeni were the scorers who did not comply with the set interviews rules. It would not be correct for two members to score candidate a low mark, where such candidate had responded beyond expectation, to questions posed to him at the interview. It was his responsibility as the interview chairperson to make sure that the panel members scored fairly. He confirmed that the 2nd respondent was scored low, and the applicant high. Those two members conceded that they made a mistake, and it was the first time they conducted the selection processes.
35. He does not think their conduct were deliberate. The issue of scoring was picked-up by the secretary, not Mr. Mbizeni. He confirmed that the interview process was fair. He does not think if the scores were not changed, the applicant would be ranked number one. The changing of the scores did not prejudice the applicant. Document “R33” was NCK16 form dealing with the recommendation, and it was completed on 19 September 2024. Document “R34” was NCK16 form dealing with motivation, and it was completed on 26 September 2024. The school governing body did not complete the part of motivation on NCK16 form because they did not change the interview panel members ranking of candidates, and recommendations. 2nd Respondent
36. Under cross-examination, he stated that the school governing body accepted the motivation of the candidates. The school governing body did not change the ranking order of the interview panel.
37. Under re-examination, he confirmed that the changing of the scores did not prejudice the applicant. THE 1ST RESPONDENT’S EVIDENCE First Witness: Mr. Galorekwe Semau
38. The witness testified under oath that the 1st respondent employed him as a circuit manager. He played a role of a resource person during the selection processes of the position in dispute. The NCK15 form did not get lost. He came back to the school on 26 September 2024, and he requested the school governing body to reconvene. He requested Ms. Jantjies to inform the chairperson to convene an urgent school governing body meeting relating to motivation. The issue of the motivation was discussed, but the interview panel recommendation was not changed, and the school governing body took a decision not to complete their motivation.
39. The 1st respondent human resources realized that the motivation of the recommendation was not attached. The part of the NCK16 form relating to recommendation was completed by the school governing body on 19 September 2024. The only part that was not completed was about motivation. The part of motivation was completed, and submitted to the 1st respondent human resources on 26 September 2024. The disclosure during the interview was only applicable to the panel members, not the observers. Mr. Mbizeni was the observer during the interview. It was not correct to say that Mr. Mbizeni was actively involved during the interview process.
40. The interviews panel members independently scored candidates, and submitted their scores to the secretary. The secretary raised an issue of inconsistency relating to scoring. Her concern was about the marks allocated as per the answers provided. Mr. Mbizeni said that if the scores were unfair, he was going to lodge a dispute. He stated that the scores of the 2nd respondent and the applicant were amended. The panel members agreed that the two members must be given a clean sheet to re-score independently. The applicant did not respond to the questions as expected, but she was scored high. The 2nd respondent was under scored. It was the correction that was effected. It was difficult to say whether the lowering of scores prejudiced the applicant.
41. Under cross-examination, he stated that his role during the interview was to guide, and to ensure fairness to the process. He believed without any doubt that he had done the same. There was no need to write a report about the school governing body motivation. The NCK16 form was part of the entire documentation, but the part of the motivation was not completed. The only part of the NCK16 form that was not completed was motivation. Resolution 1 of 2023 stated that the NCK16 form on motivation must only be completed when there was a change of ranking of candidates. The part of motivation was completed on 26 September 2024.
42. The motivation was completed by Ms. Jantjies, and it was correct for her to complete it because the ranking order of candidates were not changed. He confirmed that the panel members score independently. The scoring was changed by the same members. He maintained that the issue of scoring was raised by the secretary. There were discrepancies on the allocation of scores. The scoring was not consistent with the responses. All the candidates were scored in terms of their responses. The applicant was not under scored after the change was effected.
43. Under re-examination, the panel members were not told how to re-score the 2nd respondent and the applicant. The meeting held on 26 September 2024, did not change the decision of the 19 September 2024. The completion of motivation on 26 September 2024, was not flawed, and also did not prejudice the applicant.
44. Under clarity questions, he stated that they did not check the total scores, only discussed the answers provided by the candidates. The applicant was scored between 4-5, but not sure in which questions. Two members under and over score the 2nd respondent and the applicant. The applicant was allocated 2-3 marks. The amended score was based on the expected possible questions. All the candidates were treated fairly. The non-completion of the motivation on NCK16 form did not prejudice the applicant. The concern of Mr. Mbizeni was about the scoring. The issue of scoring was raised by the secretary, not Mr. Mbizeni. Second Witness: Ms. Mapaseka Rachel Tsinyane
45. The witness testified under oath that she was elected as the treasurer of the school governing body. She was part of the selection processes when filling this disputed position. She was trained how to conduct the selection processes. The interview panel members agreed about the procedures, questions, and scoring of the candidates. She went to the school on 06 December 2024, and she found that an approval was granted for the appointment of the 2nd respondent. Mr. Olifant said that they were cowards, and they performed outside the mandate.
46. She denied the allegation to say that she informed the applicant that there were irregularities during the selection processes. She denied the allegation to say that Mr. Mbizeni interfered with the scoring. She told the applicant that the interview process was confidential. The scoring of the candidates was done by four panel members. She agreed that her and other member scored the 2nd respondent low. She further stated that the 2nd respondent’s performance was excellent. She scored the applicant very high because she sympathised with her. The applicant’s performance during the interview was average. She denied the allegation to say that she scored the applicant without listening to her.
47. It was the secretary who noticed that the 2nd respondent and the applicant were not scored correctly. They revisited their scoring by checking the answers provided by the candidates, and they realized their mistakes. Their mistakes were to score the 2nd respondent low, and the applicant high, and they rectified their scores. They scored the candidates according to their understanding. The applicant would not emerge as the first ranking candidate if the scores were left unchanged. She had no knowledge that the NCK15 form get lost. Document “R33” was the NCK16 form, were the candidates were ranked, and it was completed after the interviews. She was present during the school governing body meeting when the recommendation of the interview panel was accepted on 19 September 2024.
48. The school governing body did not complete their motivation on NCK16 form because they did not change the recommendation of the interview panel. Mr. Semau came to the school, and informed them that they needed to write their motivation. The following school governing members were present when the motivation was completed on 26 September 2024; herself, Ms. Hobeni, Mr. Lekgetho and Ms. Jantjies. 2nd Respondent
49. Under cross-examination, she stated that she realized after the reflection that the 2nd respondent performed exceptionally well. She was not coerced to change the scoring. The applicant was ranked number 5, after the interviews. Applicant
50. Under cross-examination, she denied the allegation to say that she informed the applicant about any irregularities during the selection processes. She had no knowledge how the applicant got that information. She denied the allegation to say that she informed the applicant that she was the recommended candidate to be appointed. She confirmed that the panel members were independent, and they scored according to their understanding. She confirmed that even if the scores were not changed, the applicant would not be ranked number one. She would not remember the scores that were changed.
51. She confirmed that the applicant’s performance during the interview was average. She scored the applicant because they worked with her. She stated that her conduct was a breach of standard procedure, and she does not agree that the process was irregular. There were no scoring issues with candidates’ number 2, 3 and 4. She could not remember her initial and changed scores to the 2nd respondent and the applicant. She stated that the school governing body was supposed to do their own motivation, and the failure to do so rendered the interview process flawed.
52. Under re-examination, she stated that they were only dealt with motivation on 26 September 2024, not a recommendation. Document “R36-R37” was the school governing body minutes of the 19th of September 2024. There were no minutes for the 26th of September 2024. The selection process was fair. Third witness: Ms. Gosalamang Jantjies
53. The witness testified under oath that she was the secretary of the school governing body. She was part of the selection process, and secretary. Mr. Mbizeni’s concern came after she raised her concern about the scoring. The 2nd respondent’s interview performance was beyond expectation, and he was scored only 2-3. She was advised by the resource person to raise it with the entire panel members. They went through the scoring of the 2nd respondent. Mr. Mabeka, and Ms. Tsinyane realized their mistakes. The issue of incorrect scoring only occurred during the interview of the 2nd respondent and the applicant.
54. There was no NCK15 form or NCK16 form that got lost. She got a telephone call from Mr. Semau that there was no motivation completed on NCK16 form, and he requested her to convene the school governing body to complete it. She called Messrs. Karels and Mabeka, but she did not find them. She managed to get hold of Ms. Tsinyane, Ms. Hobeni, Ms. Lekgetho. The three, including herself met with Mr. Semau to complete the motivation on NCK16 form. Mr. Bogoto indicated that he was not available.
55. She was the one who completed motivation on NCK16 form, by copying the motivation of the interview panel members as per “R34”. The recommendation of the interview panel was not changed. The interview process was fair, and she does not believe that if the scores were not changed, the applicant would have emerged as candidate number one. The applicant maybe would be number 3 or 4. The applicant’s answers were very short during the interview. 2nd Respondent
56. Under cross-examination, she stated that she was not aware of the school governing body meeting held prior to the interview, and their mandate. Applicant
57. Under cross-examination, she stated that she was the secretary at the interviews. She confirmed that she was trained how to conduct the selection processes. All the interview panel members understood the questions because they drafted questions and answers prior to the commencement of the interviews. She had no knowledge of any influence relating to scoring. She knew her role as the secretary. All the candidates were treated equally and fairly. She knew nothing about the irregularities during the interview process. She knew nothing about Mr. Mbizeni’s questioning the scoring. She denied the allegation to say that Mr. Mbizeni interfered with the scoring.
58. She confirmed that the scores of the applicant and the 2nd respondent were changed. She confirmed that she was the one who raised a concern about the scoring of the applicant and the 2nd respondent. She stated that no one was coerced to change the scores. She was the one who completed NCK15 form for recommendation as per “R26”. She was not present during the SGB meeting on 19 September 2024. The 2nd respondent was currently acting SADTU provincial chairperson in Northern Cape. The trade unions that observed the interviews were SADTU and PEU. She knew the 2nd respondent from SADTU activities. The fairness of the selection process was important to the school governing body and the 1st respondent.
59. Under re-examination, she stated that she was not the scorer, but the secretary during the interviews. The non-completion of the motivation did not cause any irregularity, and it did not prejudice the applicant.

THE 2nd RESPONDENT’S EVIDENCE

60. The 2nd respondent’s representative stated that they are not going to lead evidence. The 2nd respondent was cautioned about their decision, and its implication, but they maintained that they were not going to lead any evidence.

Survey of Arguments

THE APPLICANT’S ARGUMENT

61. The applicant’s representative submitted that it is common cause that the applicant’s scores were changed. The applicant suffered prejudiced, and if her scores were not changed, she would have been placed in a position to have been fairly scored, and to compete for the disputed position. The change of scores unbalanced the competition in the process, and that constituted an unfair labour practice. The evidence of the 1st respondent’s witnesses contradicted each other.
62. The applicant, and 1st respondent did not provide any material evidence to support their cases, except referring to the enabling collective agreement. There was no reasonable basis for changing of the applicant’s scores. The late completion of the NCK16 form did not have any prejudicial effect on the applicant. The 1st respondent’s conduct was unreasonable, irrational, arbitrary and unfair. The applicant sought protective promotion or compensation.

THE 1ST RESPONDENT’S ARGUMENT

63. The 1st respondent’s representative submitted that towards the end of the proceedings, the applicant’s party withdrew point (a) under issues that are in dispute. He was going to address only issues that are in dispute. The applicant party failed to apply for the amendment of the pre-arbitration minutes. The alleged form that got lost should be NCK15, and not NCK16 form. It must be noted that NCK15 did not get lost. The applicant failed to lead evidence in as far as the attendance register which she claimed got lost is concerned. The evidence led by the applicant was not in relation to the issues that were in dispute.
64. The applicant testified that she was not challenging the appointment, but the irregularities. There was an admission by the applicant that Mr. Mbizeni did nothing wrong. The applicant failed to make a case that Mr. Mbizeni was actively involved in the scoring of candidates. The applicant’s testimony was based on hearsay. She had nothing concrete to put forth as her case collapsed from the beginning. The 1st respondent proved its case, and the applicant failed to rebut it. The decision not to promote the applicant was both rational and reasonable. THE 2ND RESPONDENT’S ARGUMENT
65. The 2nd respondent’s representative submitted that the SADTU observer was never involved in the scoring of the candidates. The interview panel members were not prohibited from discussing candidates, and it does not amount to undue influence. The changing of scores does not undermine the integrity of the process. The applicant’s application be dismissed, and the 2nd respondent appointment be upheld.

Analysis of evidence and arguments

Introduction

66. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• 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 benefits to an employee.

67. The dispute before me relates to an alleged unfair conduct by the 1st respondent relating to promotion. In a case of promotion, the onus is on the applicant to prove that she was a suitable, and better candidate for the position in question. In short, the applicant has to demonstrate that the failure to promote her, was unfair. On the other hand, the 1st respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.
68. Promotion is an area of managerial prerogative unless the applicant can prove bad faith, or improper motives. It is not the commissioner’s function, or responsibility to choose the best candidate for promotion for the 1st respondent, but simply to ensure that in selecting candidates for promotion, the 1st respondent does not act unfairly. All that the 1st respondent was required to do in these proceedings were to show that it had a rational basis for its decision.
69. The employee who complains that the employer’s decision, or conduct in not promoting her constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision, or conduct is proved, the enquiry into whether the conduct was unfair can then follow.

Pre-arbitration minutes

70. At the commencement of the proceedings, the parties concluded the pre-arbitration minutes, and they were placed on record as per “A3-A7”. They were cautioned that these minutes bound them, and they cannot deviate from them. The parties requested me as the commissioner to decide on the following issues; whether or not the SADTU observer disclosed his personal relationship with the 2nd respondent; whether or not the SADTU observer was actively involved in the scoring of the candidates; and whether or not NCK15 form for recommendation and its attendance register was no longer available.
71. In Sethole and others v Dr. Kenneth Kauda District Municipality (JS 576/13) (2017) ZALACJHB 484; (2018) 1 BLLR 74 (LC) (handed down on 21 September 2017), the Court, in dealing with an agreement to limit issues as contained in a pre-trial minute, referred to the decision by the Labour Court in NUMSA and others v Driveline Technologies (Pty) Ltd and another, where it was held:
    “I think it is necessary immediately to accept as a point of departure that, where a litigant is a party to a pre-trial minute reflecting agreement on certain issues, our Courts will generally hold the parties to that agreement or to those issues…”
72. The Court also referred to the judgment in GE Security (Africa) v Airey and others, where the Court was again confronted with a situation where a litigating party sought to rely on issues outside the ambit of a pre-trial minute and the Court held:
    “The respondents’ counsel submitted, relying on the matter of Shill v Milner 1937 AD 101, that the issues in the pre-trial minute had been broadened because of a lack of an objection to the questions put to Mckenzie…I reject this submission for two additional reasons:
    21.1 Firstly, there was never any formal application made to withdraw the admission.
    21.2 Secondly, the appellant’s counsel was not obliged to object to questions which sought to elicit an answer to a common cause fact which had been settled and was entitled to remain silent and argue at the end that the Court could ignore the answer of a witness that was at variance with what were the agreed facts. A Court does not have the power to go beyond the agreed common cause facts in the absence of fraud or the granting of an application to withdraw an admission….”
73. It was accordingly held that the employees be held to that which they had agreed when the trial started. It is impermissible to seek to change positions basically halfway through the trial. The question that needs to be asked is whether the applicant party led evidence on the issues that they were agreed upon? The applicant party led evidence on the following issues that were not agreed upon at the commencement of the proceedings; non-completion of the NCK16 form, failure to keep the record of the meeting held on 26 September 2024; Mr. Mbizeni’s interference with the scoring; and the amendments of the scoring of the applicant and the 2nd respondent. The applicant’s representative did not make an application to amend the issues in dispute as per the pre-arbitration minutes. I, therefore, conclude that I am not going to decide on the issues that were not part of the pre-arbitration minute. Whether observer scored candidates?
74. The applicant alleged that the SADTU observer, Mr. Mbizeni was actively involved in the scoring of the candidates. There was no evidence led during the proceedings regarding this allegation. I, therefore, conclude that the applicant party failed to prove this allegation. Whether NCK15 form get lost?
75. The applicant alleged that NCK15 form for recommendation and its attendance register were no longer available. There was no evidence led during the proceedings regarding this allegation. I, therefore, conclude that the applicant party failed to prove this allegation. Disclosure of personal interest
76. It is the applicant’s allegation that the SADTU observer, Mr. Mbizeni, and the 2nd respondent had a personal relationship. It is the respondents’ version that Mr. Mbizeni and the 2nd respondent are in the leadership of SADTU. On this issue, the applicant party was expected to prove that the relationship of 2nd respondent and Mr. Mbizeni, involved knowing and caring about the other person’s well-being in their own right. It is the respondents’ undisputed evidence that this was a trade-union relationship, not a personal relationship as alleged by the applicant party. I, therefore, conclude that the applicant party failed to prove that the 2nd respondent and Mr. Mbizeni had a personal relationship. Conclusion
77. In these circumstances, I find the applicant failed to discharge the onus to prove that she suffered an unfair labour practice relating to promotion against her by the 1st respondent. Award
78. The applicant, Nthabiseng Cecilia Mofamere, has failed to prove that she was the victim of an unfair labour practice in terms of Section 186(2)(a) of the Act, relating to promotion, by the 1st respondent, the Department of Education – Northern Cape.
79. The applicant’s application is dismissed.

Signature:

Commissioner: Khuduga Tlale
Sector: Education