IN THE MATTER BETWEEN:

P.D.S MABASO Applicant

And

KWAZULU-NATAL-DOE 1st Respondent

S.C.M GWALA 2nd Respondent

ARBITRATION AWARD

Case Number: ELRC199-23/24KZN

Date of Award: 26 October 2025

ELRC Arbitrator: T. Mtolo

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. The arbitration was conducted under the ELRC. Commenced in 2023 and concluded on 22 September 2025, closing arguments were submitted on 10 October 2025. The Applicant, Ms P.D.S. Mabaso, was represented by Mr. Ntshangase (SADTU). The First Respondent, KwaZulu‑Natal Department of Education, was represented by Mr Yunus Ramcheron. The Second Respondent, Mr S.C.M. Gwala, was represented by Sibusiso Madondo (PSA). The matter relates to the post of Principal: Xolani High School, HRM Circular 5 of 2022.
   ISSUE TO BE DECIDED
2. The Council was required to determine: (i) whether an unfair labour practice relating to promotion occurred; (ii) whether any alleged irregularities (no ratification) were material and outcome‑determinative; and (iii) what relief, if any, is competent.
   BACKGROUND TO THE DISPUTE
3. The dispute concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA. Two processes arose: a first SGB‑led process culminating in the HOD’s appointment of Mr Gwala; and a later departmental take‑over that was initiated and produced no appointment. Bundles and rulings. Bundles A–G were used. On 26 August 2024 the ratification minutes and registers (Bundle D) were admitted; authenticity to weight.
4. The Department of Education was initially represented by the late Mr Charles Ngcobo, Director: Employment Relations, who passed away during the course of the proceedings. Following his demise, his Personal Assistant, Ms Bonisiwe Sikhakhane, attended to administrative duties and testified about the retrieval of departmental appointment documents, including the EHR-11 form and appointment letter, which were missing after his death.
5. Pre –arbitration minutes: the following items were identified as the issues in dispute ie
   -Whether the applicant was recommended by the Interview Panel that sat on 2 December 2022 and the panellist to issue an appropriate relief
   -There was a 2nd process after the launch of a grievance
   -That the joinder attended both processes
   -That the office of the MEC conducted an investigation on the first process
   -No ratification was conducted on the first process.
   .

PRELIMINARY ISSUES
BACKGROUND TO THE DISPUTE

6. The Applicant brought an application following the 1st Respondent’s failure to comply with a disclosure ruling dated 9 December 2024. The application seeks a ruling addressing the persistent non-production of specific documents relevant to the recruitment and appointment process of the Principal and Deputy Principal at Xolani High School. The Respondents oppose the application but make certain material concessions.
7. The documents sought are:
   a) EHR9 – Composite of shortlisted candidates
   b) EHR11 – Schedule of recommended candidates
   c) Invitation to Organised Labour for the SGB ratification meeting
   d) Receiving register for documents exchanged between the SGB, District, and HOD
   e) Register for candidate CVs handed over by Circuit Officials to the SGB
   f) Schedules of appointments for Post No. 870 (Deputy Principal) and 871 (Principal).

ISSUE TO BE DECIDED

8. Issue to be determined is whether the documents submitted by the Respondents, specifically the ratification minutes and attendance registers contained in Bundle D, should be admitted into evidence in the arbitration proceedings.

SURVEY OF EVIDENCE AND ARGUMENTS

Respondent’s Concessions

9. In their written submissions, the 1st Respondent made the following explicit concessions
10. Item (c): There was no invitation to organised labour for the SGB ratification meeting. The 1st Respondent stated that there is no legal requirement for such invitation and confirmed none was issued.
11. Item (b): The 1st Respondent stated that the EHR11 form was not completed or signed by the SGB as required, and that only partial information was compiled.
12. Item (f): The 1st Respondent conceded that no schedules of appointment relating to the Deputy Principal post are available or were preserved.
13. Given these express admissions, it is both reasonable and appropriate for the Commissioner to pronounce that items (b), (c), and (f) are not in existence for the purposes of these proceedings.
14. In respect of the remaining items — (a), (d), and (e) — the 1st Respondent does not admit non-existence, but also fails to produce the records or offer a sufficient explanation. Reference was made to the passing of Mr. Ngcobo, who allegedly held the documents in his possession, but no affidavit, inventory, or recovery effort from district HR structures was submitted to support this.
15. The relevant HRM Circular No. 5 of 2022 prescribes clear custodial obligations on the Department to retain such documentation at district and HOD level for no less than two academic years. Repeated postponements and procedural indulgences were granted for the purpose of disclosure, yet no documentation materialised.
16. Accordingly, in line with clause 8.6 of the ELRC Promotion Dispute Guidelines, the Commissioner is empowered to draw an adverse inference where a party fails to disclose documents without valid justification.
17. The arbitration will proceed strictly in accordance with the issues recorded in the parties’ pre-arbitration minutes. In line with the ELRC Constitution and the judgment in NUMSA v CCMA & Others [2012] 6 BLLR 606 (LAC), the Commissioner has no authority to determine issues outside of those formally placed in dispute. Any matter not captured in the pre-arbitration agreement is outside the scope of the current proceedings.

Ruling

18. Based on the 1st Respondent’s submissions, it is hereby pronounced that the following documents do not exist for the purpose of these proceedings:
    • (b) EHR11 – Schedule of recommended candidates (not completed or signed)
    • (c) Invitation to Organised Labour for the SGB ratification meeting
    • (f) Appointment schedules for Post No. 870 (Deputy Principal)
    In respect of the remaining documents:
    • (a) EHR9 – Composite of shortlisted candidates
    • (d) Receiving register for document exchange
    • (e) CV register from Circuit Officials to SG
    The Commissioner finds that the 1st Respondent has failed to comply with the disclosure ruling of 9 December 2024 and has not provided sufficient justification for continued non-production. An adverse inference is therefore drawn regarding their contents, origin, and procedural relevance.
19. Due to the demise of Mr Ngcobo, the 1st Respondent may still lead oral evidence to address issues arising from the non-disclosed documents. However, the evidentiary weight of such testimony will be evaluated in light of the documentary absence.
20. The arbitration shall proceed on the basis of the disputes and issues as recorded in the pre-arbitration minutes. Any matter falling outside the scope of that agreement shall not be.

PRELIMINARY ISSUE

SUBMISSIONS BY THE APPLICANT

21. The Applicant raised a point in limine challenging the admissibility of the documents in Bundle D. The Applicant argued that these documents, which include ratification minutes and attendance registers, contain significant discrepancies that cast doubt on their authenticity.
22. Discrepancies in Initials: The Applicant pointed out inconsistencies in how Ms. Sidu signed the attendance registers. In one instance, she used only her first names, while in another, she added her surname. The Applicant argued that such variations could indicate tampering or inconsistency in the handling of official documents.
23. Omission of Mr. Nsutsha: The Applicant highlighted that Mr. Nsutsha, who was recorded as present in the handwritten minutes, did not sign the attendance registers. Furthermore, his name was deliberately omitted from the typed minutes. The Applicant argued that this omission could suggest selective editing of the records, raising concerns about the integrity of the documentation.
24. Missing Content in Typed Minutes: The Applicant noted that a specific sentence present in paragraph four of the handwritten minutes was missing from the typed version. This omission was presented as potential evidence of tampering or alteration, further undermining the reliability of the documents.
25. Given these issues, the Applicant argued that the documents in Bundle D should not be admitted into evidence as they do not accurately reflect the events of the ratification process. The Applicant urged the Commissioner to exclude these documents from consideration in the arbitration proceedings.

SUBMISSIONS BY THE RESPONDENTS

26. The First Respondent, represented by Mr. Ramcheron, and the Second Respondent, represented by PSA Union Official S. Madondo, countered the Applicant’s objections by defending the authenticity of the documents in Bundle D. The Respondents argued that the documents, including the ratification minutes and attendance registers, are critical to establishing the legitimacy of the promotional process in question.
27. The Respondents acknowledged the discrepancies identified by the Applicant but argued that these discrepancies were minor and attributable to human error. The Respondents maintained that the differences in how Ms. Sidu initialled the documents could easily be explained but it was not any attempt at forgery or tampering.
28. The Respondents argued that errors did not materially affect the substance of the minutes or the legitimacy of the ratification process. The Respondents urged the Commissioner to admit the documents, arguing that they were essential for a fair and complete understanding of the ratification process and the overall arbitration.

WITNESS TESTIMONY

29. The Respondents called Mr. Thembelani Khumalo, the Deputy Chairperson of the School Governing Body (SGB), as a witness to support the authenticity of the documents. Mr. Khumalo testified that he was present at the meeting on 19 and 22 August 2022, where the ratification minutes were recorded. He confirmed that he personally distributed the attendance registers and witnessed each member, including Ms. Sidu, signing the register. He explained that while there were differences in how Ms. Sidu signed the registers, these variations were minor and did not indicate any fraudulent activity and he cannot speak further on signatures of other people, but he maintained that she signed in his presence.
30. Mr. Khumalo further explained that Mr. Nsutsha attended the meeting but left early without signing the attendance register. The decision to omit Mr. Nsutsha from the typed minutes was made by the Interview Committee as a result of his unnotified departure. Mr. Khumalo emphasized that this omission was not an attempt to alter the minutes but was a decision based on the circumstances. Addressing the Missing Content: Regarding the missing sentence in the typed minutes, Mr. Khumalo acknowledged the error but maintained that it was a clerical oversight that did not compromise the overall accuracy of the minutes since hand-written minutes formed part of the bundle.
31. During cross-examination, the Applicant’s representative, Mr. Muzi Ntshangase, challenged Mr. Khumalo’s testimony on several fronts: The Applicant questioned Mr. Khumalo on the inconsistent signatures’ of Ms. Sidu, suggesting that the variations could indicate forgery or manipulation of the documents. Mr. Khumalo reiterated that he personally observed Ms. Sidu signing both registers and that the differences were likely due to normal variations in how individuals sign documents but maintained that she signed both registers in his presence. He did not wish to dwell on signatures that were not his.
32. The Applicant pressed Mr. Khumalo on the decision to omit Mr. Nsutsha from the typed minutes, arguing that this selective omission could be perceived as an attempt to manipulate the records. Mr. Khumalo defended the decision as a justified action by the Interview Committee, emphasizing that it reflected the actual events of the meeting.
33. The Applicant also scrutinized the missing sentence in the typed minutes, suggesting that this could indicate tampering. Mr. Khumalo admitted that the omission was a mistake but denied any intentional alteration of the documents and attributed it to an administrative error or printing error.

CLOSING ARGUMENTS
Applicant’s Closing Argument:

34. The Applicant reiterated their position that the documents in Bundle D should be rejected due to significant discrepancies in initials, attendance records, and missing content. They argued that these issues raised serious doubts about the authenticity and reliability of the documents, which could not be trusted as accurate representations of the ratification process. The Applicant concluded that given the potential for forgery or tampering, the documents should not be admitted into evidence.

Respondents’ Closing Argument:

35. The Respondents countered by emphasizing the relevance and materiality of the documents in Bundle D to the arbitration process. They argued that the discrepancies were minor and attributable to human error rather than intentional alteration. The Respondents maintained that the documents accurately reflected the proceedings and were crucial for demonstrating the fairness and legality of Mr. Gwala’s appointment as principal. They urged the arbitration to admit the documents as evidence, asserting that they were essential for establishing the validity of the ratification process.

ANALYSIS OF SUBMISSIONS AND EVIDENCE

36. In arbitration proceedings, documents that are relevant to the dispute are generally admissible, subject to their authenticity and reliability. The arbitrator has the discretion to determine the weight to be attached to each piece of evidence after it has been fully examined and tested during the arbitration process. This principle is supported by case law such as Moloi v Euijen NO 1997 (4) SA 1196 (O), where the court emphasized that the admissibility of evidence should not be confused with the weight it carries.
37. The documents in question are central to determining whether the ratification process, which is a core issue in this promotional dispute, took place as claimed. Although the Applicant has raised valid concerns regarding discrepancies in the documents, these issues will be addressed in the course of the arbitration. The credibility, authenticity, and reliability of the documents will be evaluated through witness testimony, cross-examination, and any necessary expert analysis.
38. Relevancy: The documents are deemed to have significant relevance to the dispute at hand, as they pertain directly to the issue of whether the ratification process occurred, which is central to the legitimacy of the promotional decision under scrutiny.
39. Weight of Evidence: The weight to be attached to these documents will be determined after the arbitration has been fully ventilated. The concerns raised by the Applicant regarding discrepancies and omissions will be thoroughly examined during the hearing, and the credibility, authenticity, and reliability of the documents will be assessed accordingly.

RULING

40. The documents contained in Bundle D, including the ratification minutes and attendance registers, are hereby admitted into evidence for the purposes of this arbitration.
    SURVEY OF EVIDENCE AND ARGUMENT
    Witness1: Applicant’s Witness 1: Mr. Thomas Mavimbela (Resource Person – First Process)
41. Mr. Mavimbela testified that he has been a principal for four years and was appointed as a Resource Person for the process at Xolani High School. He explained that his role as a Resource Person was to provide procedural guidance and ensure compliance with the Department’s policies during the shortlisting, interviews, and ratification phases. He stated that interviews for the post were conducted on 19 August 2022, and ratification was scheduled to take place shortly thereafter. He referred to a letter dated 06 April 2023, which he had written explaining what transpired during the interviews. He said he was not present during the ratification and was not invited to attend. He insisted that he did not give permission for the SGB to proceed with the ratification in his absence. He said that, as the Resource Person, he expected to be invited and present at all formal processes, particularly the ratification, as it is the final stage before submission to the District Office. He felt aggrieved that the SGB and Chairperson of the IC went ahead with the ratification without his participation. He stated that the written SGB minutes for ratification (in Bundle C, page 91) incorrectly reflect that he gave the “go-ahead” for the process to proceed. He denied having given such authority. He emphasized that he never signed any document granting permission for ratification to occur without him.
42. He further testified that he had never been part of any ratification process before, and therefore he was relying on procedural guidance from the Department and on Circulars to understand his duties. He read from the HRM 55 of 2015, highlighting that all ratifications must include both union observers and the Resource Person, and that proper minutes must be recorded and signed by all parties. He referred to Bundle C, pages 92–103, reading specific paragraphs confirming that the Resource Person is integral to ensuring procedural compliance and that absence from such meetings undermines the credibility of the process. He said that the SGB conducted the ratification without his attendance and failed to invite him formally. He reiterated that he was only informed after the fact that the ratification had been completed. Mr. Mavimbela read several portions of the HRM Circulars and procedure manuals, confirming that the ratification process should include union observers (CTU-ATU, SADTU) and that all signatories must confirm attendance. He noted that CTU-ATU did not sign, and he had reported this irregularity to the Department. He also raised concerns about a circulating audio recording purportedly involving members of the SGB, which had not been investigated by the Department. He testified that after he raised the issue of missing signatures and the audio recording, he received a letter dated 22 August 2022 relating to the Department’s decision to take over the process. He said he was uncertain about the reasons cited in the letter but maintained that the takeover occurred soon after his concerns were raised. He further stated that his role as a Resource Person was to ensure compliance with both procedural and substantive fairness. He confirmed that the IC recommended Mr. Gwala as the top-ranked candidate. He emphasized that he had no power to change rankings or interfere with scores, but he expected to validate the final ratification as per protocol.
43. He read from Bundle C, pages 103–106, stating that the Resource Person must ensure that the process is concluded within two months and that grievances are resolved before ratification. He said that if a grievance had been raised, he would have been informed or present, but he was not. He acknowledged that CTU-ATU’s non-signature was an irregularity and that he reported it to the Department, but he was never called to give evidence or participate in any formal investigation about the alleged grievance or the takeover decision. He reiterated several times that he felt excluded from the ratification process, that he had not given consent for it to proceed in his absence, and that he viewed the Department’s subsequent actions as procedurally unfair. During cross-examination, he confirmed that the interviews had taken place smoothly, and he did not observe any irregularities during that stage. His concern arose only after the ratification took place without his attendance. He repeated that he did not authorize the SGB to proceed, that no formal communication was made to him, and that his subsequent letter of 06 April 2023 was written to place his grievances and clarifications on record.
44. He conceded that the Head of Department holds the final authority to appoint but maintained that the SGB’s process must be procedurally compliant before such appointment. In re-examination, he reaffirmed that the absence of the Resource Person and union observers at ratification rendered the process procedurally defective. He said that if he had been invited, he would have attended and ensured all procedural requirements were fulfilled.
45. Witness 2: Sphelele Khoza (SADTU Observer; Applicant Witness)
46. Evidence-in-Chief: Mr Khoza testified under oath that he attended the shortlisting and interview proceedings for Post 871 at Xolani High School as the duly mandated SADTU observer. He confirmed receipt of the formal invitation and his presence throughout the interviews reflected in Bundle C (pp 92–95). He described the panel as correctly constituted under PAM and HRM 5 of 2022, with SGB members forming the Interview Committee, a departmental resource person present, and observers seated without voting rights. He stated that identical questions were put to each candidate, that panel members completed scoring sheets immediately after each interview, and that consolidation occurred contemporaneously in the interview venue. He signed the attendance and score documentation once totals were agreed. He recorded that the consolidated preference list placed Mr S.C.M. Gwala first with 36.66, followed by Ms P.D.S. Mabaso and the remaining candidates in descending order. He emphasised that no grievance or objection was recorded by any participant or observer during or after the interviews and that the process was conducted transparently and without undue influence.
47. Cross-Examination: In response to questions from the Applicant’s representative, he confirmed that he was not invited to and did not attend the SGB ratification meeting; he therefore could not testify to deliberations at ratification. He accepted that some unions do not attend ratification as a matter of practice, as ratification is an SGB function. Confronted with the proposition that the Applicant scored 42.65 and should have been first, he stated that he could only speak to the officially consolidated score sheets he saw and signed, which reflected Mr Gwala as highest. He confirmed that the scoring template was standard, that no category weighting was altered, and that he observed no attempt to manipulate scores. He noted that any later differences between typed and handwritten minutes would be administrative rather than reflective of the proceedings he observed.
48. Re-Examination: He reiterated that his mandate was oversight of procedural integrity; had there been any non-compliance he would have reduced it to writing. As none arose, he signed off on the process as procedurally sound and still stands by the official consolidated scores recorded on the day.
49. Applicant’s Witness: Mr M.H. Nkosi (CES – Chairperson of the Independent Panel, Second Selection Process): Evidence-in-Chief. Mr Nkosi testified that he is a Chief Education Specialist and has been employed by the Department of Education for a period of thirty years and five months. He confirmed that he chaired the second selection process for Post 871 at Xolani High School. He explained that he was appointed by the Department to serve as Chairperson of the Independent Committee (IC). He read from the shortlist register, which contained the names of the shortlisted candidates. SADTU attended the interviews, while other invited unions did not attend. He referred to the minutes of the interviews and confirmed that Ms P.D.S. Mabaso was the highest scoring candidate with a total of 42.65 points. At the conclusion of the interviews, the panel finalised the ranking order and made a recommendation for Ms Mabaso as the highest-ranked candidate. He testified that no grievances were raised by any of the unions during the process and that the proceedings ran smoothly and in compliance with the prescripts

Cross-Examination

50. During cross-examination, the witness was referred to page 92 of the record and confirmed that he was appointed by the Department to facilitate the process. He read out the opening and welcome of the interview proceedings, which stated that the panel had been appointed by the Department to facilitate the process. He said he did not know the reasons he was appointed; he was only informed that he must go to the office of the District Director, who appointed him to chair the process for the posts of Deputy Principal and Principal of Xolani High School. The District Director was the author of the appointment letter, not the Head of Department.
51. He reiterated that he had served thirty years and five months in the Department and that it was not his first time conducting a process where the SGB was not involved. He could not remember how many times he had been appointed in such independent panels but confirmed that the District Director had always been the one appointing him in those circumstances. He detailed his employment history: appointed Post Level 1 in January 1995, Deputy Principal in January 2000, Principal in 2005, Circuit Manager in May 2006, acted as CES from 2018 to the end of 2019, and appointed CES for Circuit Management in 2020 to date.
52. He stated that he was familiar with the Department’s policies and understood that he was duty bound to implement them. All employees of the Department were expected to comply with the policies and laws governing education. If a procedure was not followed, it would be up to the Department to determine whether the irregularity rendered a process unprocedural. In terms of law, the Head of Department was the employer. His duty as Chairperson ended with the recommendation of a candidate; the HOD was responsible for making appointments. The panel’s duty was to ensure that a recommendation was made, and it would have been ultra vires for the panel to follow up after submission. He added that it would have been inappropriate for him to do so in any event because the school fell outside his district.
53. He was referred to HRM Circular No. 55 of 2015, which regulates the takeover of selection processes by the Department. He confirmed that the Circular provides that if two months lapse and an SGB has not concluded a process, the Department may appoint an independent panel to take over. However, before doing so, the Department must write to the SGB, advising of its intention to take over, and afford the SGB at least five days to make representations. He read paragraph 1.2 of the Circular, which emphasises that delays by SGBs compromise the performance of schools. The purpose of the Circular was to ensure that selection processes were completed within stipulated timeframes. If an SGB concluded the process timeously and in compliance with policy, the Department should not take over. He stated that if the first process had proceeded without problems, it should not have been interfered with.
54. He read paragraphs 2.2.1 to 2.2.7 of the Circular and confirmed that paragraph 2.2.7 requires that the SGB be given five days to make representations before a process is taken over. He acknowledged that sometimes it is difficult to adhere strictly to timeframes due to practical challenges such as internal disputes or unavailability of SGB members, but he maintained that the minimum requirements must still be observed to ensure compliance with the Circular.
55. He was referred to page 84, which contains the letter of taking over the process from the SGB signed by the District Director. He said he could not determine whether the takeover was procedural or not because he was not the author of the letter and did not know the reasons or allegations that led to its writing. He confirmed that the District Director was the author and would have been in possession of the facts that motivated the decision. He read from the letter, which referred to “serious allegations,” but said he could not confirm what those were. He explained that sometimes the Department may take over where an SGB is not constituted or where there is conflict that prevents progress, and in such cases the Director may act in the interests of the school.
56. He said that the HOD has the power to take over a process that has collapsed under the SGB, but that the HOD delegates functions to district officials. He read the memorandum and letter of 22 August 2022 and noted that both documents bore the same date. He confirmed that the Head of Department, Mr G.N. Ngcobo, signed the approval memorandum. He stated that he was not the author of these documents and could only speak from his understanding. He saw no issue with the same date being used for the letter and the memorandum, explaining that officials are often accused of inefficiency, and drafting them together could have been an attempt to meet administrative deadlines. He could not comment on whether the Department caused confusion.
57. He described that under normal circumstances, the interview committee conducts interviews, prepares a ranking order, submits the outcome to the full SGB for recommendation, and then forwards the EHR11 to the circuit or district for appointment. He could not comment on the first process since he was not part of it. He further stated that grievances, if any, would be lodged with the chairperson of the panel or observers, and that the existence of a grievance does not necessarily stop the process unless the matter involves physical altercations, in which case an attempt should be made to resolve the issue.
58. He read paragraph 2.2.2 and 2.2.3 of HRM 55 of 2015, explaining that the Head of Circuit Management Services must convene a committee meeting to present delayed posts and reasons for delay. He said he did not know what was reported by the circuit manager in this particular case. He stated that schools do not conduct all selection stages on the same day and that the circular requires officials such as CESs and circuit managers to compile reports for record purposes.
59. Regarding the composition of the panel, he read from page 92 that the approved members were: Nkosi (CES – Chairperson), S.P. Shozi (Admin Clerk), M. Ndaba (DCES), and R.B. Nkosi (DCES). He said he assumed the HOD had approved the panel as recommended by Adv. Masuku, but noted that the memorandum had initially recommended two circuit managers or DCESs and three principals. In the panel he chaired, there were no principals. He said that in his opinion, the mandate of the HOD should have been followed, but he did not know the reasons for the deviation or whether it was procedural or not. His mandate was limited to chairing the process. He confirmed that Ms P.D.S. Mabaso was recommended by the panel but assumed that the HOD later declined that recommendation.

Re-Examination

60. He read paragraph 2.2.7 of HRM 55 of 2015 again and clarified that a process can be taken over by the Department not only when two months have lapsed but also when there has been a failure to conduct the process. He pointed out that the letter on page 84 does not state that two months had lapsed. He also read paragraph 4 of the same letter, which referred to “serious allegations,” and said he did not know what those allegations were. He emphasised that the SGB is a legal persona, and if it disagreed with the takeover, it could have written to the District Director to record its objection or provide reasons. He noted that the wording of the letter used “recommended” and not “directive,” which meant it was a recommendation rather than an order. He concluded by referring to paragraph 2.3.1 of HRM 55 of 2015, which applies to schools that failed to submit their processes, and confirmed that in his view, the Independent Committee completed its process and recommended Ms P.D.S. Mabaso as the successful candidate. The applicant thereafter closed her case. RESPONDENTS CASE
61. Witness: Thembelani Khumalo (SGB Deputy Chairperson / IC Chair at Ratification Stage; Respondents’ Witness)
62. Evidence-in-Chief: Mr Khumalo confirmed that he served as SGB Deputy Chairperson and chaired both the Interview Committee and the ratification meetings on 16 and 22 August 2022. He described circulation of the attendance register and confirmed that Ms Sidu signed in his presence. He stated that Mr Nsutsha attended initially but left before closure and did not sign; his presence appears in handwritten notes but was omitted from the typed version due to a clerical transcription oversight. He testified that the SGB achieved quorum, deliberated on the Interview Committee’s ranking, and resolved to ratify the recommendation of Mr S.C.M. Gwala as preferred candidate in alignment with the interview records. He stated that the minutes and attendance registers forming Bundle D were generated contemporaneously under his chairpersonship and that the complete pack was transmitted via the Circuit Manager to the District Office for onward submission to the HOD.
63. Cross-Examination: He rejected the suggestion that the ratification documents were fabricated post hoc. He explained that minor signature variations and the typed-versus-handwritten differences were administrative and did not change the decisions taken. He reiterated that observers and resource persons are not SGB members and therefore not participants at ratification. He stated that the SGB did not alter the Interview Committee’s rank order and that no union lodged a grievance at the time.
64. Re-Examination: He reaffirmed that quorum existed at decision point and that the ratification outcome was unanimous in favour of Mr Gwala. He explained that the second sitting on 22 August 2022 addressed administrative confirmations before dispatch to District and did not entail any change to the recommendation.
65. Cross-Examination: He indicated that verification of qualifications is handled by HR and not by the resource person. He denied that any alternative score sheet reflecting a different outcome was generated during the interviews he attended. He confirmed that the SGB may not change rank order absent reasons and prescribed process and that in this case no alteration occurred. He was not involved in any subsequent departmental take-over and had no knowledge of its rationale.
66. Re-Examination: He clarified that he does not vote and does not control outcomes; his role is advisory on procedure. He confirmed authenticity of the score sheets he signed and that the interviews concluded within applicable timelines.
67. Witness 5: Indrani Pillay (Deputy Director: Human Resource Management, Umlazi District; Respondents’ Witness). Evidence-in-Chief: Mr Pillay outlined his career from educator to Deputy Director and his qualifications (bachelor’s degree, BA Honours in Teaching, LLB). He detailed the governance framework: under section 6 of the EEA, the SGB recommends and the HOD appoints; the SGB’s power is statutory and not sub-delegable; observers and resource persons have no decisional role. He drew attention to Bundle G paragraph 3(a) and emphasised that an SGB’s failure to conclude within two months allows HOD intervention, typically guided by HRM Circular 22 of 2015, to protect learners’ interests consistent with section 29 of the Constitution. He confirmed that a take‑over requires prior written HOD approval and that District Directors lack the authority to assume a process unilaterally. He identified a submission dated 22 August 2022 requesting such approval and confirmed written approval was only granted on 6 September 2022; action before approval would be ultra vires. He distinguished a completed appointment dispute (promotion ULP) from a legality challenge where no appointment resulted (s158(1)(h) LRA review)
68. Cross-Examination: He stated he could not attest to whether the SGB recommendation in this case was physically before the HOD on the day of appointment but reiterated that the HOD cannot lawfully appoint absent the prescribed pack (including EHR‑11, ratification minutes, and scoring records). He agreed that ultra vires conduct can be reviewed but repeated that promotion relief presupposes a completed employment decision. He declined to opine on the ultimate merits, confining himself to framework and approvals chronology.
69. Re-Examination: He confirmed that only the process culminating in an appointment can ground a ULP; any issues with the later take‑over fall within Labour Court review. He reiterated that the dates—22 August submission, 6 September approval—indicate that any pre‑approval take-over would have been beyond power.
70. Witness: Bonisiwe Sikhakhane (Personal Assistant to Director: Employment Relations; Respondents’ Witness)
71. Evidence-in-Chief: Ms Sikhakhane testified that she served as PA to the late Director Charles Ngcobo and was responsible for administrative handling of case files. She recalled making four copies of a bundle for Xolani High School that contained an appointment letter and an EHR‑11 form. She recognised the documents by format and headings but did not read content in detail. Following Mr Ngcobo’s passing, she assisted with retrieval efforts at his home; a work bag and laptop were located but were empty, the laptop having been wiped.
72. Cross-Examination: She could not confirm whether the documents she copied were originals or where they originated, stating that she assumed HR involvement because the pack included HR forms. She did not see the documents again after copying and had no role in transmission to the HOD.
73. Re-Examination: She clarified that her function was purely administrative and reaffirmed that an appointment letter and EHR‑11 for Xolani High School existed contemporaneously in the Director’s possession, although they were later not retrievable.
74. Closing Arguments (Filed 10 October 2025)
75. Applicant (SADTU-Mr Ntshangase): Argued that Bundle D is unreliable due to signature variance, omissions between handwritten and typed minutes, and absence of observers at ratification; submitted that without a verifiable EHR‑11 pack the HOD could not lawfully appoint; contended that the departmental take‑over irregularities render the process tainted.
76. Respondents (Department – Mr Yunus Ramcheron; PSA – Mr Sibusiso Madondo): Submitted that interviews were regular and fairly scored with Gwala first; that ratification occurred with quorum and Bundle D anomalies are clerical; that observers are not SGB members; that an appointment pack existed contemporaneously (per Sikhakhane); and that the second process, even if irregular, is a review issue and not dispositive of a promotion ULP.
    ANALYSIS OF EVIDENCE AND ARGUMENT
77. Section 23(1) of the Constitution of the Republic of South Africa, 1996, which guarantees that “everyone has the right to fair labour practices.” This right extends to all employees within the public service, including educators. It establishes the constitutional foundation for equity, transparency, and fairness in recruitment and promotion processes within state institutions.
78. This constitutional right is operationalised through the Labour Relations Act 66 of 1995 (LRA). Section 186(2)(a) defines an unfair labour practice as “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to promotion, demotion, or training of an employee.”
79. The Education Labour Relations Council (ELRC), established under Section 37 of the LRA, has jurisdiction over disputes involving educators employed in public education. Promotion disputes within the sector are determined in terms of the Collective Agreements and Resolutions concluded within the ELRC, which supplement statutory provisions with sector-specific procedures and ethical standards.
80. The central regulatory framework is contained in Resolution 5 of 1998, incorporated into the Personnel Administrative Measures (PAM). This resolution outlines a comprehensive process for the advertisement, shortlisting, interviewing, ratification, and appointment of educators to promotional posts. The procedures are guided by principles of equity, redress, representivity, and transparency, ensuring alignment with Section 195(1)(a)–(i) of the Constitution, which imposes on public administration a duty to maintain a high standard of professional ethics and fair employment practices.
81. In particular, Section 6(3)(a)–(f) of the Employment of Educators Act 76 of 1998 (EEA) specifies that:
    The School Governing Body (SGB) recommends candidates in order of preference after following due process.
82. The Head of Department (HOD) must consider the recommendation, verify compliance with statutory and procedural requirements, and may either appoint any candidate from the recommended list or decline to accept the recommendation if it is procedurally defective. The South African Schools Act 84 of 1996 (SASA) complements this by providing in Section 20(1)(i) that SGBs have a statutory function to “recommend to the Head of Department the appointment of educators at the school, subject to the Employment of Educators Act and any applicable collective agreement.” The jurisprudence of the Labour Court and the ELRC illustrates that not every flawed process amounts to unfairness, and that fairness, not correctness is the decisive standard. In Ndlovu v CCMA & Others [1999] 6 BLLR 701 (LC), it was held that the employer’s discretion in promotional appointments is subject only to rationality and fairness; the employee must prove that the employer acted arbitrarily or capriciously. In SAPS v Safety & Security Sectoral Bargaining Council & Others (2010) 31 ILJ 2711 (LC), the Court reiterated that an employee must establish a causal link between the alleged irregularity and the failure to promote them, showing that but for the irregularity, they would probably have been appointed.
83. Therefore, in determining whether an unfair labour practice occurred in promotion disputes, the enquiry must consider: Whether the prescribed procedures under the EEA, PAM, and relevant collective agreements were followed. Whether the decision was rational and based on objective criteria; and Whether the employee has discharged the burden of proving that, but for the alleged irregularity, they would probably have been appointed.
84. The applicant’s relief in respect of the second process must be understood within the confines of Section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA), which defines an unfair labour practice as an unfair act or omission that arises between an employer and employee involving unfair conduct relating to promotion, demotion, or training. The ELRC commissioner’s jurisdiction under this section is limited to determining whether the employer’s conduct was procedurally or substantively unfair in relation to an employee’s promotional prospects. Where no appointment has been made, and the process was left incomplete or abandoned, the commissioner’s powers are limited. The ELRC may determine whether the employer’s conduct constituted unfair treatment, but it cannot compel the employer to make or finalise an appointment, nor can it pronounce on the lawfulness or validity of administrative inaction.
85. In terms of the Employment of Educators Act 76 of 1998 (EEA), the power to appoint, decline, or refer back recommendations lies solely with the Head of Department (HOD). The School Governing Body (SGB) merely recommends candidates in order of preference after due process. The HOD retains the discretion to appoint any of those recommended candidates or to reject the recommendation if procedural or substantive defects exist. When the HOD does not act—whether by omission, delay, or failure to decide—the matter transforms into an administrative law question, not a labour-relations issue. In such cases, the appropriate remedy does not fall within the jurisdiction of the ELRC but within the Labour Court, acting under Section 158(1)(h) of the LRA or under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The Labour Court, not the ELRC, is empowered to review such inaction, compel the HOD to act, or set aside unlawful administrative decisions.
86. Accordingly, in the context of the second process, where no appointment was affected, and the process effectively lapsed, the applicant’s relief within the ELRC is constrained. The ELRC may not substitute or direct the HOD to appoint, nor may it declare the process abandoned in administrative law terms. The commissioner’s function is limited to recording whether, on the evidence, the process was not concluded and determining whether any unfair conduct occurred within the employment relationship. Remedies such as mandamus (to compel a decision) or review and substitution fall squarely within the Labour Court’s jurisdiction. Therefore, any claim arising from the non-appointment or alleged abandonment of the second process must be pursued before the Labour Court as a review of administrative conduct, rather than through arbitration proceedings before the ELRC.
87. Mr. Khoza testified that as the SADTU observer during the selection process, he was not invited to the ratification stage of the SGB, nor were other observers notified. He argued that this omission rendered the process irregular and contrary to the principles of transparency and fairness under the PAM and Resolution 5 of 1998. He maintained that the absence of union observers could have allowed procedural manipulation, and he linked this omission to the eventual appointment of the second respondent. In analysis, the pre-arbitration minutes recorded as common cause that the HOD appointed upon receipt of an SGB recommendation. However, this does not nullify the applicant’s contention rather, it defines the factual pivot. The applicant’s case rests on the quality and completeness of the recommendation, not its mere transmission. Mr. Khoza’s testimony substantiates that the ratification process did not include observer oversight, yet he did not establish that this omission was legally mandatory under PAM or that it invalidated the SGB’s authority to recommend. Section 6(3)(b) of the Employment of Educators Act 76 of 1998 empowers the SGB to recommend up to three candidates in order of preference, but it does not require observer signatures as a precondition for validity. His evidence therefore demonstrates a procedural oversight in practice, but not a statutory breach rendering the process void.
88. Mr Nkosi’s testimony was peripheral to the core dispute. He chaired the second departmental process, not the SGB-led process that produced the appointment under challenge. His evidence confirmed that the applicant was ranked first in the later independent process, but that process never resulted in an appointment. He gave no first-hand account of what occurred during the initial SGB process, nor of the HOD’s decision-making when Mr Gwala was appointed. Accordingly, while his version shows that the Department later attempted to regularise matters through a second process, it carries no probative value in determining whether the first process was unfair. His statements regarding HRM Circular 55 of 2015 are accepted as accurate background but are context only, not proof of procedural irregularity. The determinative inquiry, therefore, remains confined to the fairness of the first process that culminated in the HOD’s appointment of Mr Gwala.
89. Mr. Thomas Mavimbela (Department Resource Person) Mr. Mavimbela, a departmental resource person during the interviews, confirmed that the resource person’s role is limited to ensuring compliance with procedure and not to influence ranking or recommendation. He confirmed that the interviews and shortlisting were conducted, that the minutes were prepared, and that the SGB later convened a ratification meeting in his absence. Mavimbela’s testimony was primarily procedural and centered on his perceived exclusion from the ratification stage of the first process. He raised concerns that the official attendance register (EHR11) and some interview records were not properly signed or filed, and he vehemently denied granting the SGB a “go ahead “with the process of. Mr. Mavimbela’s evidence supports the procedural sequence of the first process: interviews were conducted, an SGB ratification occurred, and a recommendation list was compiled. His testimony affirms that procedural steps were taken, but administrative lapses occurred in documentation. However, those lapses do not, on their own, vitiate the validity of the SGB’s recommendation or the HOD’s appointment, provided that the appointment pack contained sufficient documentary compliance at the point of submission. This aligns with the evidence of Ms. Bonisiwe Sikhakhane, who confirmed the existence of a complete pack before the death of Mr. Ngcobo, the official custodian. The documents went missing only later, after the appointment was finalized, which suggests post-facto record loss rather than an incomplete submission to the HOD. On this basis, Mavimbela’s evidence is credible on administrative imperfections but not probative of procedural unfairness rising to an unfair labour practice.
90. Khumalo testified that interviews for the post were conducted on 19 August 2022, followed by the ratification meeting on 22 August 2022, which he chaired as SGB Chairperson. He confirmed that he personally initiated and circulated the attendance register, that Ms Sidu signed in his presence, and that a single member left before conclusion and therefore did not sign. He explained that the omission noted between the handwritten and typed minutes was a clerical oversight with no impact on substance. He further confirmed that the SGB adopted the Interview Committee’s recommendation without alteration and that no deviation from the original scores or ranking occurred.
91. I accept Khumalo’s testimony as credible and reliable first-hand evidence of how the ratification was conducted. His version was consistent with contemporaneous records, and no contrary evidence was led by any other person who attended the 22 August 2022 meeting. The evidence supports that the ratification was properly convened, procedurally compliant, and conducted without malice or manipulation, even though the Resource Person was absent. On a balance of probabilities, the SGB’s recommendation reflected the Interview Committee’s authentic outcome and was validly adopted.
92. The witnesses for the applicant party namely; Mr Mavimbela and Mr Khoza both testified that they participated in the shortlisting and interview process. The scores of candidates were the same as contained in the minutes of the ratification process as per Khumalo and evidence proffered.
93. MR GWALA- POSITION – 1- 36.66
94. Mr NKOSI -POSITION- 2 – 32,66
95. MS J GULE -POSITION – 3-32,01
96. MR NGWENYA-POSITION 4 -21,33
97. Pillay provided the critical legal architecture. He confirmed that a take‑over requires prior HOD approval; that District Directors lack that power; and that action prior to approval is ultra vires. Pillay testified that he appeared as an independent departmental witness and did not engage with the merits of the selection processes. His evidence centred on the jurisdiction of the Council and the statutory limits of the SGB’s role under section 6 of the Employment of Educators Act. He explained that the second process was abandoned before any appointment was made, and as such, no employment decision arose for the Council to adjudicate under section 186(2)(a) of the LRA. According to him, where no appointment or promotion materializes, the dispute falls outside the ELRC’s jurisdiction and would instead lie with the Labour Court or the High Court in terms of section 158 of the LRA. He reasoned that if the SGB had indeed finalized an appointment in the first process, then it must have also completed the ratification, since the Head of Department cannot appoint in the absence of properly constituted and compliant documentation.
98. Sikhakhane established that an appointment pack (including an appointment letter and EHR‑11) existed contemporaneously within the Department. This rebuts any suggestion that documentation needed for the HOD decision was fabricated post hoc during the second process. Her testimony is accepted.
99. Nkosi (CES / IC Chair). The second process did not culminate in an appointment and cannot be leveraged to impeach the first process via ULP arbitration. Because no appointment emanated from the second process, there is no comparative‑merit decision to interrogate. Substantive fairness under Noonan/SAMWU presupposes an employer choice among candidates. In its absence, the Council cannot craft promotion relief.
100. The ratification on 22 August 2022 mirrored the IC scores. No deviation occurred. Khumalo’s testimony is accepted as first-hand and credible. Sidu’s signatures differ stylistically (initial not signed), not substantively; variance is benign. One SGB member exited early and therefore did not sign; this explains the gap without implying fraud. I accept the submission that parts of the bundle went missing after retrieval by the late Mr N. Ngcobo for arbitration purposes. His demise plausibly accounts for gaps. The missing papers do not rebut the primary facts: interviews on 19 August, ratification on 22 August, adoption of the unchanged ranking, and transmission of EHR11.
101. The Head of Department (HOD) derives authority to appoint educators from Section 6 of the Employment of Educators Act 76 of 1998, which provides that only the HOD may make an appointment after considering the recommendation of the School Governing Body (SGB). The Act requires the HOD to be satisfied that the SGB complied with Section 6(3)(b), ensuring adherence to principles of equity, redress, and representivity, as well as compliance with any procedure determined by the Minister for appointments, promotions, or transfers. Before making an appointment, the HOD must also verify that the recommendation is free from undue influence and accompanied by supporting documentation such as the EHR11, interview minutes, attendance registers, and ratification records.
102. In addition, Section 20(1)(i) of the South African Schools Act 84 of 1996 empowers SGBs to recommend candidates to the HOD but not to appoint. The HOD, as the employer, exercises discretion over final appointments. This distinction means the HOD acts administratively, but his discretion is fettered by procedural compliance and the evidentiary completeness of the recommendation.
103. the inference is drawn that the HOD in this case acted within lawful bounds. The appointment could not have been made without the complete, compliant documentation originating from the school process. The argument that the MEC appointed the successful candidate was not canvassed during arbitration and thus cannot be entertained in closing submissions. No evidence was presented that the HOD’s authority under Section 6 was usurped or misapplied, and therefore his exercise of power stands as procedurally and substantively sound.
104. A protected promotion is a remedial measure granted in exceptional circumstances within the ELRC framework under Section 186(2)(a) of the LRA, read with ELRC Collective Agreement 3 of 2016. It is used when an employee proves that an unfair labour practice in a promotion process caused them to lose a legitimate advancement opportunity.
105. In the current dispute, the applicant’s reliance on a “protected promotion” is misplaced because her claim stems from the second process, which produced no appointment. Protected promotion presupposes an existing appointment made under irregular circumstances — not a process that was abandoned. Without proof that she was unfairly excluded from the first process where the HOD lawfully appointed Mr. Gwala based on a valid SGB recommendation, there is no legal or factual basis for such a remedy.
106. After careful consideration of the oral and documentary evidence, I find that the respondent’s witnesses, Mr. Thembelani Khumalo and Bonisiwe Sikhakhane were credible, consistent, and directly involved in the contested process and the latter interacted with Xolani high school appointment documents. Both provided structured, factual accounts grounded in firsthand participation.
107. By contrast, the applicant’s witnesses were largely speculative or absent from critical stages of the first process, particularly the ratification phase, the contested process or stage. Their versions were often based on assumptions or retrospective interpretation rather than direct observation.
108. The interviews were held on 19 August 2022, and ratification took place on 22 August 2022. The School Governing Body (SGB) properly adopted the Interview Committee’s ranking without alteration, ensuring alignment between the interview scores and the final recommendation. The recruitment process leading to the appointment of Mr. Gwala was, in essence, procedurally fair.
109. I further find that the appointment was substantively fair. Mr. Gwala met all the minimum requirements of the advertised post, performed credibly in his interview, and was ranked first by the Interview Committee. The SGB ratified that ranking without deviation, and the Head of Department (HOD), acting under section 6(3)(a) of the Employment of Educators Act, exercised his statutory authority to appoint.
110. This award concerns only the first selection and appointment process that culminated in the appointment of Mr. Gwala. The Council’s jurisdiction and findings are confined to that process, which was found to be procedurally and substantively fair. The second process, initiated later by the Department, was not the subject of any appointment and therefore falls outside the scope of this determination. Should the applicant wish to pursue any relief or administrative remedy relating to that process, it may appropriately be sought in another forum vested with such jurisdiction, such as the Labour Court or the High Court under section 158 of the LRA.

Award

111. The applicant, Ms. P.D.S. Mabaso, has failed to prove on a balance of probabilities that the Department of Education, KwaZulu-Natal, committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the Labour Relations Act.
112. The first respondent, the Department of Education – KwaZulu-Natal, is found to have conducted the recruitment and appointment process for Post 871 at Xolani High School in a manner that was both procedurally and substantively fair.

ELRC Arbitrator:

Date: 26 October 2025