IN THE EDUCATION LABOUR RELATIONS COUNCIL
ON PAPER RULING

In the matter between:

MOKHANELI RAPULANE NATANEL Applicant

And

DEPARTMENT OF EDUCATION FREE STATE Respondent

BEFORE : COMMISSIONER TEBOGO MORAJANE

AWARD

05 June 2024

Introduction
1. This is an Award in the matter that was referred by the Applicant, Mokhaneli Rapulane Natanel, against the Respondent, the Department of Education, Free State. The proceedings were held under the auspices of the Education Labour Relations Council (ELRC). The matter was referred as an unfair labour practice dispute, in terms of section 186(2) of the Labour Relations Act 66 of 1995 (as amended) (LRA). The Award is issued in terms of section 138(7) of the LRA.

2. The proceedings took place on 17 and 18 January 2024 and on 5, 6 and 7 February 2024. The final closing arguments were submitted on 22 and 23 February 2024. Following a preliminary point that was raised on an issue of delay and the issue not dealt with sufficiently during the leading of evidence, a directive was issued on 7 March 2024, caling upon the parties to make wriiten submissions on 15 March 2024, on whether the Respondent delayed in charging the Applicant, and if so, whether such a delay amounted to a condonaton of the Applicant’s alleged acts of misconduct and/or waiver of the Respondent’s right to charge the Applicant. The Applicant filed the written submission on the issue of delay and waiver of rights. The Respondent did not submit written submissions on the issue of delay and waiver of rights, but submitted an application to lead evidence, which amounted to an application to open a closed case. The parties were thus required to address the Commissioner on their written submissions relating to the issue of delay and waiver of rights, and on the Respondent’s application to lead evidence in a closed case, on 12 April 2024. The Applicant, on 12 April 2024, objected to the application of the Respondent, to lead evidence in a closed case and applied for costs against the Respondent for bringing a frivolous and vexatious application that was intended to delay the proceedings.

3. The Applicant was present in the proceedings and represented by Mr. Ruan Kramer, a legal practitioner from Kramer Weihmann Incorporated. The Respondent was represented by Mr. Solomon Moloi, the Repondent’s Labour Relations Officer. The proceedings were digitally recorded and I typed notes during the proceedings. The services of an interpreter were not required.

Issue to be decided
4. I am called upon to determine whether the demotion of the Applicant, as a disciplinary sanction, amounted to an unfair labour practice.
5. If I were to find that the demotion of the Applicant amounted to an unfair labour practice, I must make an appropriate finding on the recourse sought. The Applicant sought relief in a form of a reinstatement into the position of a principal with retrospective effect. The Applicant also sought relief in a form of compensation for substantial and procedural unfairness.
Background

6. The Applicant referred an unfair labour practice dispute relating to demotion in terms of section 186(2)(a) of the LRA, on 16 February 2023. The matter was set down for Conciliation on 8 March 2023. The matter remained unresolved and a certificate of no resolution was issued. The Applicant then referred the matter for Arbitration. On 29 June 2023, which was the first day of Arbitration, the matter was postponed. The Applicant had applied for the disclosure of documents, such as, the investigation report; the signed off minutes of all the School Governing Body (SGB) meetings for the years of 2017 and 2018; the signed off minutes of all the Financial Committee meeting for the years of 2017 and 2018, and the signed off minutes of the disciplinary hearing. Commissioner Mothusi Maje, issued a Ruling, which orldered the Respondent to disclose the ducuments that the Applicant required disclosure of, on or before 31 July 2023. On 1 November 2023, the matter was set down as an Arbitration before me (Commissioner Morajane). The Respondent had not complied with the Ruling of Commissioner Maje and as such, I ordered the Respondent to comply with the Ruling of Commissioner Maje, on or before 30 November 2023 and I ordered the Respondent to pay the ELRC the daily cost of the Commissioner’s fee,l to the amount of R3 120.00 . The parties also finalised the pre-arbitration minutes that and duly signed them on 1 November 2023.

7. The Applicant was employed as the principal, on post level 4 salary, at the Bethlehem Combined School, from 18 July 2016. On 30 July 2021, the Applicant was charged with twenty-eight (28) charges of misconduct relating to mismanagement of funds for the financial years ending 2017 and 2018. On 5 September 2022, the Applicant was found guilty of twenty-six (26) charges and was given a sanction of demotion as a deputy principal at Sekoko Public Primary School in Paul Roux, Free State and a salary reduction. His gross salary of R 53 911.75 was reduced to R 50 786.00 per month. The Applicant was not found guilty of charges 1 and 12.

8. On 5 September 20222, the Applicant appealed against the findings and sanction meted against him. The Respondent effected the salary reduction from 5 September 2022. He received the outcome of the appeal on 15 November 2022, which confirmed both the finding and the sanction. The Applicant then referred an unfair labour practice dispute, on 15 February 2023 following the outcome of the appeal.
Survey of evidence and arguments
All the witnesses testified under oath and all relevant testimony as well as documentary evidence was duly considered. I only referred to the salient facts that are relevant and material to the dispute and which forms the basis of my finding. The parties were allowed to make written closing arguments. The parties were futher required to make both written and oral submissions on the issue of delay, waiver of rights and/or condonation of acts of misconducts. The Applicant made both the written and oral submissions on delay and waiver of rights. The Respondent only made oral submissions on the issue of delay. The Respondent also made an application to lead evidence on the issue of delay, after both parties had closed their cases. The issue of delay and the application to lead evidence afer the case was closed are dealt with when determining whether the act of demotion was procedurally fair or not.

Documentary evidence
9. The Applicant submitted a five hundred and twenty two (522) paged document which was marked “Bundle A” and a fourteen paged document which was marked “Bundle A2”. The Respondent submitted a two hundred and seven (207) paged document which was marked “Bundle B”. The documents submitted by both parties were admitted into evidence for what they purported to be. The Applicant also submitted a bundle of documents which comprised of 68 pages on the issue of delay and waiver of rights.The Respondent did not make written submissions on delay and waiver of rights.

Survey of Evidence and Arguments
Applicant’s evidence
Rapulane Natanel Mokhaneli, the Applicant, testified under oath as follows:

10. He started working as an educator in 1993. In 1998 he was promoted to the position of the Head of the Department at Toriso Primary School in Hoopstad. In 2003 he was promoted to the position of a Deputy Principal at Bothlokong Primary School in Bethlehem. In 2008 he was promoted to the position of a principal at Bothlokong Primary School in Bethlehem. In July 2016 he was appointed as a principal of Bethlehem Combined School. He served as a Principal of Bethlehem Combined School until his demotion on 5 September 2022, which was confirmed on 15 November 2022. His position, after his demotion was that of a Deputy Principal, at Sekoko Public Primary School in Paul Roux.

11. He further testified that he was not found guilty of charges 1 and 12. With regard to charge 2, which dealt with his alleged wilful mismanagement of the school finances, to the amount of R9 909.00, which he allegedly used to service his private car. He testified that since 2016 when he took over as the principal of Bethlehem Combined School, the school had a shortage of teachers in important subjects, such as Mathematics, Physical Science, Accounting, Economics and Business Studies. In 2017 the issue pertaining to the shortage of teachers became serious, as the performance of learners had dropped to a 40% pass rate. As such the SGB gave him powers to do everything possible to improve the learners’ pass rate. He went out of his way to assist the school in getting teachers. He undertook a number of trips to the district office, in Qwaqwa and to the Provincial office, in Bloemfontein, using his own vehicle, as the school did not have its own car. The numerous trips he undertook to Bloemfontein were as a result of the decision that the Department took in 2014, to centralise functions that related to the post provisioning. The function of post provision, as per page 3 of Bundle A2, was taken from the districts and centralised to the Human Resource Administration (HRA) Directorate in Bloemfontein. As such, he used his car and spent more of his own money in assisting the school, to the extent that his car broke down. He then approached the SGB for assistance with the servicing of his car, since he was using his own car for school related purposes as the school did not have its own car. The cheapest quotation for the service of his car was R19 819.20. He referred to the signed minutes of the School Governing Body Meeting (SGBM) meeting that was held on 9 March 2017, where the SGB resolved that the school will, as per page 274 of Bunlde A, pay 50% of the service amount of his car and he will be responsible for the remaining 50%. As such, the school, as per page 34 of Bundle A, paid into his account an amount of R9 909.60, which was 50% of the service amount. He then paid the remaining 50% of the service amount.

12. He further testified with regard to charge 2, that charge 2 related to wilful mismanagement of school funds. He testified that the SGB took the school’s finance policy into account when they resolved to pay 50% of his service amount. He referred to page 352 of Bundle A, which was on the school finance policy, to testify that, the Finance Committee could approve payment of incidental expenses within the approved budget of between R5 000 and R10 000. He testified that the procedure was that, the proposal was first tabled by the Finance Committee before the SGB, who would then grant approval of the transaction, and the Finance Committee would then authorise the payment, by signing the payment authorisation form. The authorisation would then be attached to a source document such as a cheque or proof of electronic payment and be kept in a file. He further testified that no cheques could be made or electronic transfer made without the full complement of signatures, on the authorising document, as per item 20(c) on page 355 of Bundle A. As such, the authorisation would be approved by himself as the accounting officer and co-signed by the treasurer. He referred to pages 34-35 of Bundle A. Page 34 was the payment authorisation form for the payment of R 9 909.60 which was for service of his car. The signatories were himself as the accounting officer and the treasury, Ms Sonja. The reason for payment, namely, “to pay for service of the car for school uses” was stated on the authorisation form. He then referred to page 35 to show the ABSA online proof of payment to himself, to prove that the payment of R9 909.60 was made to himself, and that such an amount of money, corresponded with the information that was tabled in the minutes of the SGB. He thus testified that based on the above, he was unfairly charged of charge 2, as the payment was not done prior to the authorisation by SGB, who were fully aware of the amount and the reason for such a payment. Therefore, he did not wilfully mismanage the finances of the school as the payment was for the service of his car, which was used for school related matters.

13. He futher testified that charges 3-11 dealt with transacting with various service providers prior to authorisation and approval of the said transactions was complete. He testified that charges 3 to 11, related to incidental or emergency transactions, of the amount that were below R5 000.00, and which were paid to service providers, such as Top Red garage, for fuel purchases; Pick ‘n Pay and Super Save Cash and Carry, for purchase of tuck shop goods for fundraising purposes; Three Rivers Store, for the purchase of fruits and vegetables for the Grade 12 winter vacation classes; and service providers, such as Mr Mofokeng TJ, for his labour in the maintenance of the school. He further testified that the charges 3 to 11 dealt with his alleged failure to ensure that authorisation was complete and approved before the transactions took place. He testified that all the transactions which formed part of charges 3 to 11 were approved and confirmed before payment was made. He further testified that the transactions in charges 3 to 11, fell within the delegated authority of the accounting officer, being himself as the school principal; and that as per item 7(a) of the school Finance Policy, which was on page 352 of Bundle A. The principal as the accounting officer, was granted the authority to approve incidental expenses within the approved budget of up to a maximum of R5 000.00 per item. The SGB resolved, in its meetings, such as the meeting held 9 March 2017 (as per page 273 of Bundle A, of the signed minutes of the SGB meeting) and the meeting of 19 April 2019 (as per page 285 of Bundle A, of the signed minutes of the SGB meeting), that the principal was to make an arrangement with the service provider, Top Red, within the principal’s approval powers of transacting, which was R5 000.00 and below, for the purchase incidental items, such as petrol or diesel, which purchase would then be followed by approval, by way of completion of the payment authorisation form, which would then be followed by the actual payment.

14. He further testified that the reason for the SGB to take a resolution for a credit sale to take place with Top Red garage, was due to the fact that the SGB meetings were held once a month, and transaction needed to take place outside the SGB meetings. Thus the SGB resolved, in line with the Finance Policy. that the principal could make an arrangement for credit purchases with Top Red garage, for the transactions of R5 000 and below, and that the principal, would, after the credit purchase, be required to submit the receipt of the purchase, for authorisation of payment and approval thereof. He referred, as an example to page 40 of Bundle A, which reflected a transaction slip from Top Red, dated 16/01/2017 and page 39, which reflected the payment authorisation form, dated 20/01/2017 and the proof of payment dated 20/01/2017 with a bank stamp dated 25/01/2017, to prove that the actual transaction of petrol as per the SGB resolution was made in terms of an arrangement of credit payment, and that the authorisation was signed by him, as the accounting officer, and co-signed by the treasurer. He further testified that actual payment, was after the authorisation. Based on the above, he testified that transactions in charges 3 to 11, were paid for, only after they were authorised and approved. As such, the Applicant testified that he could not have been guilty of charges 3 to 11, which dealt with his failure to ensure that the authorisation was complete and approved before the transactions took place.

15. He testified, in relation to miscellaneous transactions, that the SGB, had acted in terms of the Finance Policy on page 352 item 7(c), to approve ex gratia payments such as food, and that the SGB had approved a stipend amount of R100 for food. The SGB was empoered by the Finance Policy to approved ex gratia payments. He thus testified that the purchase of miscellaneous things, such as a bottle of still water, during his trips for school related purposes, fell within the approval powers of the SGB, to approve ex gratia payments, of R100 and below.

16. He further testified that charges 3 to 11 were based on receipts from service providers which were no longer visible, given that the receipts were for transactions that took place in 2017. He used charge 6 and 7 as examples to demonstrate that the receipts that were attached to documents on pages 57 and 71 to 72 of Bundle A, were receipts of transactions that took place in 2017, and as such, the receipts faded and were no longer visible. Thus it was difficult for him to answer to the allegations in charge 6 and 7 to the effect that, the receipts attached to charges 6 and 7 were for amounts which were less than the amounts which were claimed. He further testified that his representative had expressed concerns about the documents quality, but no assistance was provided. He thus testified that the delay in charging him affected the quality of the evidence and made it difficult for him to remember transactions and amounts due to the number of years that have lapsed. Thus, the delay in charging him, made it difficult for him to properly defend his case. He testified further that source documents were lost by the Respondent when a number of investigating teams were sent to the school to uplift the documents.

17. In relation to charges 13 to 28, he testified that, charges 13 to 28 dealt with his alleged failure to ensure the safe keeping of the source documents, which were supporting documents, for the transactions in the charges. He referred to page 120 of Bundle A, to demonstrate from the school log-book, that a number of investigation teams went to the school in 2019 to request the source documents. Advocate Makoko, who worked in the anti-corruption unit, collected the source documents from the school. He asked Advocate Makoko to make an entry of the source documents, which he uplfted and to make copies thereof. However, Advocate Makoko did not do so and assured him that the documents he collected will be safe. The school assumed that the documents that were uplifted, were returned safely to the school. He testified further that the logbook entries, were operated by the investigating team, which did not want anyone on the books. Thus, the documents which were removed from the strong room at the school, by the investigating teams, were taken to the staff room, and only the investigating team worked on them. He further testified that four (4) teams of investigators worked on his case. As such, that might have affected the safety of the uplifted source documents. He thus testified that the number of investigating teams and the substantial delay, contributed to the alleged loss of the source documents. The SGB, the staff and himself were not allowed to assist with the documents. Therefore it was unfair to hold him responsible for the loss of the documents that were uplifted by different investigating teams.

18. He also referred to the clean audit report, that Bethlehem Combined School received, for the financial year end of 2017 and 2018. He further testified that the audit was before the investigation team had uplifted the source documents, and that the school obtained a qualified audit report, to the effect that the annual financial year end of 2017 and 2018, presented fairly. He thus testified that the school would not have received such a report, if indeed multiple source documents, as alleged were missing. Thus, he testified that he never contravened any rules, and acted within the scope of the school’s Finance Policy.

19.. With regard to the delay in charging him, he testified that the Respondent at the very least, became aware of the alleged acts of misconducts, that he was charged with, towards the end of October 2019, after Dr Nhlapo and the officials from the district office, went to the school to investigate such alleged acts of misconduct, following a march at the school, where thirteen (13) parents, participated and handed a memorandum of grievances to the school. The memorandum of grievances was never made available to him. The logbook on pages 120-124 of Bundle A, was proof to the effect that, the Respondent became aware of the alleged misconduct as early as in October 2019.

20. He further testfied regarding the delay in charging him that with reference to section 2(b) of Schedule 2 of the Employment of Educators Act, disciplinary procedures are to be concluded in a prompt, fair and consistent manner and within the shortest possible time frame. In his case, the notice to attend the disciplinary hearing was issued in July 2021, which was in relation to misconducts that were alleged to have been committed in 2017. He received a notice to attend the disciplinary hearing in July 2021 and the proceedings were concluded in May 2022. He, however, received the outcome of the disciplinary hearing on 5 September 2022, and he received the sanction of demotion. This was contrary to section 7(18) of the Employment of Educators Act which required the outcome of the disciplinary hearing to be communicated, within five days from the date of conclusion of the disciplinary proceedings. In his case, the outcome of the disciplinary hearing was communicated to him in three and half months, and not 5 days. He lodged an appeal against the finding and the sanction, but the Respondent effected the sanction from 5 September 2022, despite the fact that the appeal outcome only came out on 15 November 2022. His salary cut was given effect to, from 5 September 2022, and he remained non-functional until he received a letter to become deputy principal at Sekoko Public School, in Pual Roux, which is 39 kilometres away from Bethlehem.

21. He further testified that he attempted to expedite the process of the disciplinary hearing as he never requested a postponement of the hearing. The delay in finalising the disciplinary hearing was caused by the Respondent. The actions of the Respondent, which caused the delay in finalising the disciplinary hearing, included, amongst others, the presiding officer not showing up, on the first of the disciplinary hearing; the initiator not present on the second day of the hearing; the presiding officer not present on the third day of the hearing and the Respondent’s chief witness not present on both the fourth and fifth day of the hearing. The disciplinary hearing finally commenced on the sixth date of set down of the hearing, as his union representative raised a concern about the delay in commencing with the proceedings. His representative also raised an issue with the delay that the Respondent took in charging him. The Respondent did not dispute the issue of delay, but the presiding officer opted not to deal with the issue of delay. The proceedings were not delayed by him as the Respondent would have relied on the provisions of section 7(6) of Schedule 2 of Employment of Educators Act to proceed with the disciplinary hearing in the absence, if his absence was without a valid reason.

22. He further testified that the delay in charging him had a severe prejudicial effect on him. The length of time that the Respondent took before charging him, negatively affected his ability to prepare for the hearing. Some of the source documents upon which the case was based, had faded away and were no longer clear. Other source documents got missing, following the upliftment of such documents, by the Respondent. The witnesses were no longer at the school. The School’s Finance Clerk, Ms Alinah, who could have been a key witness, passed away in 2023. She could not also testify at the disciplinary hearing as she fell sick.

23. The delay in charging him and in finalising the disciplinary hearing had a detrimental effect on him. His health was affected, which led to stress and depression. He was faced with allegations of misusing the school funds, when he used his personal money and assets, such as his car, for school purposes. This caused him stress and marital problems, as he received allegations that he mismanaged school funds, despite having used his money and assets to promote the interests of the school. He had to even move out of his marital home. He had to even sell his car. His wife saw him as a useless husband. His standing in the community was tainted. The unfairness that was caused by the delay “ruined his life to pieces”. All of these were done to him, despite the fact that he improved the pass rate of the Bethlehem Combined School from 40% pass rate to 90% pass rate. He would not want to be reinstated to a position of principal at the Bethlehem Combined School. He would prefer to be reinstated to the position of a school principal in another school.

24. He testified under cross-examination that, from 2016 to the date of the hearing, he did not, in his capacity as a school principal, attend training on finance. He further testified he was guided by the School Finance Policy, on how to conclude transactions. The Finance Policy allowed him, as the school principal, to approve incidental transactions, of amounts below R5 000, such as replacement of a burglary doors. He further testified that he did not contravene section 5(2) of the Free State Provincial Regulation 154 of 2001, which required the school to make payments only after completion and approval of an authorising document by the person designated by the governing body; as he transacted on credit, in cases of emergency, as guided by the Finance Policy. He further testified that although he pleaded guilty at the disciplinary hearing, he initially pleaded not guilty. He testified further, in cross examination, that the process of transacting, in relation to charges 3 to 11, was that, approval by the SGB came first. The SGB would instruct the Finance Committee to authorise the transaction. The Finance Committee would then carry out the instruction, by completing the authorisation form and authorise payment. He further testified that an invoice was obtained before the service was rendered and a receipt of a credit transaction was provided after the service was provided.

25. He further testified under cross examination, that he travelled numerous times to Bloemfontein to secure the appointment of teachers. He first used to work with the district office and he used to send documents by way of email to Mr Xaba and Mr Mothusi. Such emailed documents did not reach the Department. The district office later informed him that the appointment of teachers was centralised and that the names of potential teachers had to be sourced by the Department, from its database. He referred to Bundle A2, Circular 46 of 2013, on centralisation of posts, which provided under item 3.1.5, that, a PO20/2013 form was to be used as a submission for approval for the placement of an educator, and that such a form would be completed by the principal. The principal would then submit the PO20/2013 form, to the HRA Directorate, by email or to be delivered to the specific HRA Official, in their case, Mr Tshepo Mothusi, for further handling, completion and approval. His numerous travels to Bloemfontein were due to the fact that he needed teachers who could teach in Afrikaans and the trips were due to the centralisation of appointments of educators.

Ms Christinah Khethiwe Sonja, the Applicant’s first witness testified under oath as follows:

26. She knew the Applicant, during her term as the treasury at Bethlehem Combined School from 2015 to 2019. She testified that the SGB resolved to service the Applicant’s car when they passed a resolution to pay 50% of the Applicant’s service fee. The resolution was due to the fact that the Applicant used his car for school related matters, such as numerous trips to Bloemfontein, for the purpose of procuring the appointments of teachers, as sch appointments were centralised from the Department. She further confirmed that the signed minutes of the SGB meeting, which was held on 9 March 2017, as they appeared on pages 270-275 of Bundle A, were a correct reflection of the decision of the SGB. Thus, she confirmed that the SGB gave the Applicant mandate to make arrangements for the purchase of petrol on credit, with the service provider, Top Red. She further testified that the SGB made approvals of incidental transactions. Authorisation followed the credit transaction and no payment would be made without authorisation. The payment authorisation form would then be signed by Ms Sonja and the Applicant, in line with the Finance Policy. She further testified that she was part of the SGB meetings where approvals of transactions such as the fund raising, the purchase of fruits and vegetables at Three Rivers, were made, and that such approvals were made prior to authorisation for payment. Thus, payment was preceded by approval by the SGB and was also preceded by the authorisation to pay. She further testified that the clean audit finding that the school obtained in 2017 and 2018, did not warrant the charges that the Department levelled against the Applicant. She also testified that the Department did not interview the SGB members. They only went to collect the books from the school.

27. She testified under cross-examination, that, since the SGB members were not always present at the school, they resolved, in line with the school’s Finance Policy, to allow the principal to make incidental purchases of amounts not more than R5 000 and the principal would report to the SGB after the transaction had taken place.

28. She further testified in re-examination that the Department’s delay in charging the Applicant was unfair as some documents might be missing. She further testified that Ms Alinah, the Finance Clerk, who used to work with slips, passed away and that she would have been the relevant witness to testify on source documents. She further testified that her memory too was affected by the delay, as she could not remember the dates. She also testified that charging the Applicant was more personal.

Ms Evelyn Bridgette Katlake, the second witness of the Applicant, testified under oath as follows:

29. She was an additional member of the SGB committee from April 2017 when the Applicant was the principal. In April 2018 she was the deputy chairperson of SGB. From 2019 to 2020 she was the chairperson of the SGB. She testified that there was a huge shortage of teachers and centralisation of posts meant that the principal had to travel from Bethlehem to Bloemfontein, and sometimes from Bethlehem to Phuthaditjhaba in Qwaqwa, to obtain approval of appointment of teachers. Thus, the SGB resolved that, due to the huge problem of shortage of educators, the principal should travel to Bloemfontein to request the appointment of educators.

30. She confirmed that, as per pages 282 to 285 of Bundle A, which referred to the signed minutes of SGB meeting that was held on 19 April 2017, the SGB resolved to give the Applicant, mandate to make arrangements with Top Red, the service provider, for the purchase of petrol on credit. The Applicant, as the accounting officer, could conclude emergency transactions, of the amounts less than R5 000, and he would then inform the SGB of such transactions, for authorisation and payment. She further testified that the SGB had also approved the allowance of R100 for refreshments, when the principal travelled to Bloemfontein. Thus, the transactions were in line with the Finance Policy. She further testified that the school would not have received a clean audit in 2017 and 2018, if they were not in compliance with the Finance Policy, and if they had missing source documents in their files. She further testified that the source documents started to miss when different investigating teams started to handle them.

31. She testified under cross examination that the SGB instructed the Applicant to get educators and approvals of posts, as there was a crisis of shortage of teachers at the school. She further testified that authorisation came before a transaction, but that, for the transaction of R5 000 or below, the principal as the accounting officer, could conclude them and authorisation for such transactions would follow.

Respondent’s evidence
Mr Tshepo Marvin Mothusi, the first Rspondent’s witness, testified under oath as follows:

32. He was as the Assistant Director, Recruitment and Selection. His responsibilities included overseeing the district; monitoring, supporting, guiding, and training on policy etiquettes related to recruitment and selection for educators. He confirmed his awareness of the circular, which focused on centralising the appointment of educators at the Head Office, to ensure effective coordination with district and school officials. He further testified that the Applicant went to the Department in Bloemfontein, to discuss post provisioning matters, in line with the circular. He, however, regarded such visits as not mandatory, and that the Applicant could have liaised with him telephonically or by means of emails. He further testified that, although the Applicant’s visits were unplanned, he assisted him whenever the Applicant went to his office.

33. He conceded under cross-examination, that the circular on centralisation of positions did not prohibit the Applicant from travelling to the Department in Bloemfontein, to procure appointment of teachers and that the PO20/2013 form for post provisioning could be delivered to him for handling and approval, as per the circular. He also conceded that the circular did not include names of other officials, but that it included his name, and that it made sense for the Applicant to travel to Bloemfontein to meet him for post provisioning.

Ms Geraldine Hescock, the second Respondent’s witness, testified under oath as follows:

34. She was a member of the SGB in 2016 and 2017 and she served as a chariperson of the SGB. She collaborated with the principal and conducted meetings. She testified that Mr. Mokhaneli used school finances to service his car. She further testified that she knew nothing about a resolution taken by the SGB to pay 50% of Mr Mokhaneli’s serve for his car. She testified that she only learned about the service money from Mr Sejake during the investigations. She also testified that she was not aware of the emergency funds that the Applicant was authorised to approve.

35. Under cross-examination, she testified that she cannot remember when she became the chairperson of the SGB, but testified that it could have been in June 2017. She disputed being part of a meeting held on 27 March 2017, where a resolution was taken to pay 50% of the Applicant’s service amount, although she conceded that the signature on the minutes of the SGB meeting was her signature and that the signature proved that she attended the SGB meeting that was held on 27 March 2017, but insisted on seeing the original documents, despite being made aware that the minutes were stamped and signed to show that they were copies on the original minutes. She relied on the fact that she did not receive the minutes of such meetings as the reason why she was not aware of resolutions taken. She also testified that she did not remember signing the attendance register of the March 2017 meeting. She confirmed that the SGB gave the Applicant mandate to travel to Bloemfontein, to procure educators. She however testified that she was not aware of the Applicant’s petrol expenses, when he travelled to Bloemfontein.

36. She further testified that during her tenure, there were no discussions or consideration about the finance policy. She also conceded that she was not part of the Finance Committee. She testified further that she had no knowledge of the school’s arrangement with Top Red. She further testified that the SGB were never given the bank statement to peruse, although she conceded that she would not have been given the bank statements to peruse as she was not part of the Finance Committee. When it was put to her that she was an unreliable witness, with contradictory testimony, she testified, that, her testimony relating to her period of tenure as a chairlady of the SGB was subject to uncertainty, but reiterated her inability to recall resolutions regarding the Applicant’s car service. When it was put to her whether she agreed that if the minutes of March were correct and a reflection of the SGB’s resolution to pay 50% of the Applicant’s car service, then the Applicant would not be guilty, she testified that she did not agree to anything, but stood by her testimony that she had no knowledge of the resolutions relating to the Applicant’s car. She testified during clarity seeking questions that all decisions relating to finances were made by the Finance Committee and that such decisions were then send to the SGB for approval.

37. Under re-examination, she confirmed that she had no knowledge of the Applicant’s car that was serviced, and a resolution that the SGB took to pay 50% of his service fee. She further confirmed that the minutes of the SGB meetings were never made available to her.

Mr Seithleko Daniel Sejake, the third Respondent’s witness testified under oath as follows:

38. He supervised the Applicant in 2020. He was part of the investigation team that investigated the Applicant for mismanagement of funds. He referred to a 2017 investigation where the Applicant transferred R10,500 from the school account to his personal account for car servicing. He testified that the law required school’s financial instruments to be signed by three people, but in the case of Bethlehem Combined School, only two people signed them. The Finance Clerk was the third person who was required to sign. The principal was supposed to inform the SGB about policy and legislation. He further testified that when he supervised the Applicant, the funds mismanagement charges were already preferred against the Applicant. He further testified that the delay in finalising the disciplinary hearing was due to the Applicant’s temporary incapacity leave and the shortage of the presiding officers.

39. He testified under cross examination that he was mandated by the District Director to conduct an investigation against the Applicant, pertaining to the alleged act of misconducts. He conducted the investigation in 2017. His investigation revealed the missing funds. He further testified that his investigation revealed that the Applicant entered into transactions without the authorisation of the SGB. He further testified that the authorisation forms were signed only by the Applicant and the treasurer, contrary to the law that required three signatories. He testified in response to a clarity seeking question, that section 5 (4)(b) of Provincial Regulation 154 of 2001, was the law that required three signatories to financial instruments. He testified that, he submitted his investigation report somewhere towards the end of 2017, but just before he left for another district, in 2017. However, he could not confirm if a hearing against the Applicant took place, following his investigation report. He also could not express any views on why the Department took a long period before they saw the necessity of conducting an investigated against the Applicant in 2020. During re-examination, he confirmed that the Applicant transferred school funds into his personal account.

Advocate John Mokete Makoko the fourth Respondent’s witness testified under oath as follows:

40. He was responsible for investigations, particularly those that related to fraud and corruption within the Department of Education. He knew the Applicant as he investigated his alleged acts of misconduct. He referred to transactions which took place before the payment authorisation form was signed. He testified that such transactions were not good practices and were not supposed to be entered into before authorisation. He further testifies that whenever the school needed to purchase, the authorisation form was supposed to be concluded first before any purchase could take place. He further testified that according to regulations, such as the Free State Education School Act, the principal is responsible for ensuring proper financial management and to prevent maladministration. Failure to comply with the legislation would constitute misconduct. He further testified that the school together with the SGB must first agree on a transaction, then authorisation must be completed for a transaction to take place.

41. He further testified that he was guided by the South African School Act; the Free State Education School Act and the Provincial Regulation 154 of 2001, on measures relating to minimum requirements of financial records statements and school funds of public schools. He testified further, that, after the completion of a particular form, the school will then purchase. The school may only make payments after approval and authorisation of documents, by a person designated by the SGB. He further testified that his findings regarding the alleged acts of misconduct of the Applicant, were that, there were transactions which occurred without the proper authorisation. He further testified that, according to the South African Schools Act, the principal’s responsibility is to ensure that there was a proper financial management, to prevent maladministration. Failure to comply with the legislation constitutes a misconduct.

42. He further testified that responsibility for record-keeping at the school, was on both the principal and the SGB. He further testified that the persons who were charged of similar offences in the past were either dismissed, demotes or suspended without income. He testified, under cross examination, that the SGB cannot draft policies that are in contradiction with the law. He further testified that the legislation requires that there must first be an approval of transactions and such legislation is very clear that, approval and authorisation by the relevant parties, must take place before that transaction takes place, thus credit transaction are contrary to legislation. He however, responded to a clarity seeking question, that he was not sure if credit transactions were prohibited. He further testified that although the regulations and legislation prohibited the payment before approval and authorisation, the words “transaction” and “payment” might have been used interchangeably.

43. He further testified under cross examination, that he did submit his investigation report when he completed his investigation. He further testified that the law required investigations to be completed within 90 days and that the investigation into the Applicant’s case, would have taken 4 to 5 weeks. He testified, in cross-examination, after being referred to the logbook entries on page 124 of bundle A, that, his office commenced with the investigation of the Applicant’s case in November 2019. He further submitted that he would have submitted his report in January 2020. He further testified that his office was the only office that investigated the Applicant’s case and that the office was not aware of the investigation that was conducted by Mr Sejake in 2017. He further testified that Mr Sejake might have conducted the investigation on his own. He further testified that numerous investigations were conducted by the finance teams and that Mr Sejake’s investigation might have been one of such investigations. He further denied having lost source documents, which as per the school’s log book he uplifted. On the issue of the time the Department took before it charged the Applicant, he testified that Mr Mokoena would be the right person to testify on the issue of delay.

44. Under re-examination, he confirmed that he telephonically contacted some, but not all members of the SGB in his investigation. He further testified that the school Financial Policy, that was unsigned was not valid, and could not be relied upon. He further testified that the Applicant’s actions were in breach of the regulations and the South African Schools Act.

Closing arguments
Applicant’s closing arguments

45. The Respondent had an obligation to prove that the Applicant breached a workplace rule, even though the case against the Applicant was an unfair labour practice case of demotion. This is due to the fact that the sanction of a demotion was as a result of the misconducts that the Applicant was alleged to have committed. The Applicant’s testimony was that he did not breach any workplace rules. The Applicant’s testimony was corroborated by the testimony of the treasury, Ms Catherine Sonja and the SGB Chairperson, Ms Evelyn Bridgette Katlake. His testimony, in relation to charge 2, was that the SGB resolved to make a 50% payment towards the servicing of his car, and that the payment was made after approval and authorisation.

46. The transactions in charges 3 to 11, were in compliance with the school Finance Policy, and the Applicant obtained pre-approval of such transactions. The payments which were made, in respect of transactions, were made after proper approval and authorisations were obtained. The evidence of the Respondent’s witnesses such as that of Ms Hescock was unreliable and dishonest, as Ms Hescock denied attending SGB meetings and taking resolutions to approve the transactions in question, although she signed the SGB attendance register and confirmed her signature. Such evidence must be disregarded as unreliable.

47. The Respondent, based their case on section 5(2) Regulation 154 on Measures Relating to the Minimum Requirement of Financial Records, Statements and the School Funds of Public Schools, which requires payment to be made after completion and authorisation by a person designated by the SGB. The Respondent’s witness, Advocate Makoko, attempted to use the words, “transactions” and “payment” interchangeably. In addition, Advocate Makoko attempted to suggest that the regulation required three signatories, contrary to section 5(2) which require approval by a person designated by the SGB. No mention is made in the regulations, of three signatories. The transactions covered in charges 3 to 13 were in terms of the school’s Finance Policy which, in accordance with the South African Schools Act, was lawful.

48. With regard to charges 13 to 28, the Applicant could not have failed to ensure the safe keeping of the source documents, when the school, as per the independent auditor’s report for the year 2016, 2017 and 2018 received an unqualified report that showed that the financials of the year presented fairly.

49. On the basis of the above, the Applicants argued that the he did not contravene any workplace rule and thus should not have been found guilty of the misconducts. He argued further that he should not have been demoted. As such, the Applicants argued that, the sanction of demotion was not appropriate and was thus unfair.

Respondent’s closing arguments

50. The Respondent argued, with regard to charge 2 on the payment of service of the Applicant’s car with the school’s funds; that the Applicant contravened section 38A (1) of the South African Schools Act 84 of 1996, which prohibited the governing body from making payment of unauthorised remuneration or from giving financial benefits in terms of the Employment of Educators Act 76 of 1998, to an employee. The Respondent further argued that, the Applicant contravened section16A(2)(h) and section 16A(2)(k) of the South African Schools Act 84 of 1996, which required the principal to take reasonable steps to prevent any financial maladministration or mismanagement by any staff member or governing body member at the school.

51. The Respondent further argued that, the Applicant contravened section 16A(2)(f), which required the principal to inform the governing body about policies and legislations, such as the South African Schools Act. As per the testimony of Mr Sejake, the Applicant transferred R10 500 to his personal account for service of his own car. The Applicant’s defence was that the transaction of car service was as a result of the SGB’s resolution to pay 50% of the Applicant’s service amount, as the Applicant used his car to travel to Bloemfontein for provisions of posts of educators. The Applicant, as per the testimony of Mr Mothusi, travelled to Bloemfontein on issues that he could have resolved telephonically. In addition, Ms Hescock Geraldine, the SGB chairperson in 2017 to 2018, vehemently denied having knowledge of the resolution taken to pay for the service of the Applicant’s car.

52. With regard to charges 3 to 11, the Applicant pleaded guilty to the charges at the disciplinary hearing. In addition, section 5(2) of the Provincial Regulations 154/2001 required public schools, to make payment from the school’s banking account, only after completion and approval of authorising documents by a person designated by the governing body.

53. With regard to charges 13 to 28, section 16A(1)(a) of the South African Schools Act 84 of 1996, provided that the principal of a public school represents the Head of the Department in the governing body meetings, when he acted in the official capacity as a principal. Section 16A(2)(a)(v) required the principal to carry out the duties of safekeeping of all the school records.

54. On the basis of the above, the Respondent argued that the Applicant was guilty of the charges he was charged with and that the sanction of demotion, in the place of dismissal, was very lenient and therefore appropriate. The Respondent, thus, prayed for dismissal of the Applicant’s case.

Submissions on the issue of delay in charging the Applicant

The submissions on the issue of delay followed a directive that Commissioner Morajane issued on 7 March 2024, in terms of which the representatives were required to make written sumissions on whether the Respondent delayed in charging the Applicant, and if so, the implications thereof. As alluded to above, the Applicant made both written and oral submissions. The Respondent only made oral submissions. The submissions, together with the evidence that was led by parties and their witnesses, and the closing arguments were considered in making a finding on the issue of delay in charging the Applicant and the waiver of rights and/or condonation of the misconducts

Applicant’s written and oral submissions on delay and waiver of the right
Mr Ruan Kramer submitted as follows:

55. It was clear that, the Respondent caused the delay and that, such a delay was blatantly unfair. From the evidence of Mr Sejake, the Respondent became aware in 2017, of the alleged misconducts that, the Applicant was alleged to have committed, when Mr Sejake furnished the Respondent with an investigation report. Advocate Makoko, also conducted an investigation in November 2019 and issued the Repondent with an investigation report, in January 2020. Thus the Respondent waited four (4) years from the date it knew of the misconduct, to the date it actually charged the Applicant. The Respondent, thus acted contrary to the objective of prompt resolution of disputes. In addition, the Respondent delayed in concluding the disciplinary hearing, contrary to the sprit of prompt completion of the disciplinary hearing. The disciplinary hearing commenced in July 2021 and was concluded on 5 September 2022.

56. Relying on the factors as outlined in the Stokwe v Member of the Executive Council: Department of Education, eastern Cape and Others [2019] JOL 40796 (CC) the Applicant’s submission was that the delay of the Respondent in charging the Applicant was inodinate, unreasonable and without any explanation tendered by the Repondent, for the lengthy delay. The completion of the investigations by Mr Sejake in 2017 and Advocate Makoko in January 2020 was an indication that the nature of the offences the Applicant was charged with, did not warrant the excessive delay that the Department took in charging the Applicant and in concluding the disciplinary proceedings. The delay was inexcusable, as no explanation was offered by the Respondent, except for unreasonably blaming the Applicant as responsible for causing the delay, with no basis for blaming the Applicant. The Applicant insteadt took steps to speedy up the process. The postponements during the disciplinary hearing were caused by the Respondent. The Applicant never applied for postponement of the disciplinary hearing. The delay caused mateial prejudice to the Applicant.

57. The Respondent waived the right it had to charge the Applicant. Waiver of rights and ending the proceedings on the basis of delay flows from the consideration of fairness. An employer who fails to undertake disciplinary proceedings against the employee within a reasonable period is deemed to heve waived their right to sanction the employee. Relying on the case of National Union Of Metal Workers of SA v Intervale (Pty) Ltd and Others [2015] 36 ILJ 363 (CC), the Respondent, having full knowledge of a right to charge the Applicant, abondoned the right. The intention of the Respondent in delaying for 4 years, was inconsistent with the intention of enforcing its right. The position, flowing from case law, is that, an employer who delayed in charging an employee, and who failed to tender an explanation or reasons for the delay, waives their right to effect a disciplinary sanction against an employee. Thus, the delay by the Respodent was unreasonable; inexplainable and prejudicial. The unjustified and inexplainable lengthy delay of 4 year before the Respodent charged the Applicant is grossly unfair and materially prejudicial to the Applicant. The Respondent had full knowledge of the alleged misconducts, from 2017 and therefore abondoned its right to charge the Applicant, thus vitiating the guilty finding and the sanction of demotion.

58. Applicant’s prayer and compensation: The Applicant, thus, prayed that the commissioner must rule that the Respondent waived its right to discipline the Applicant, due to the inordinate, unreasonable and inexplainable delay. Based on the ruling, the commissioner must then set aside the Applicant’s gulity finding and the sanction of demotion. The commissioner must also award the Applicant compensation and be guided by the judgment in Fourie v Capitec Bank [2005] 1 BALR 29 (CCMA) and Johnson & Johnson (Pty) Ltd v CWIU [19998] 12 BLLR 1209 (LAC) to award the Applicant compensation for the actual loss suffered due to the salary reduction as well as compensation for the unfair labour practice, which is to be determined by the commissioner.

Respondent’s submission on delay
Mr Solomon Moloi, the Respondent’s representative, submitted as follws:

59. The delay in the matter was caused by the Applicant. The Respondent, during the investigation, struggled to obtain the co-operation of the Applicant. The Applicant was on numerous occassions on sick leave, which is what cased the delay.

Analysis on evidence, arguments and submissions
I now proceed, hereunder, to analyse the evidence and arguments above, which I considered in the analysis below. Section 138 (7) of the LRA requires me to provide brief reasons for the award and therefore, any non-reference in my analysis, to evidence that was referred to in the arbitration, does not imply that such evidence was not been considered in making my decision.

Procedural unfairness

60. The spirit and purport of the LRA, amongst others, is to resolve disputes effectivey (section 1(d)(iv) of the LRA). The principle of effective resolution of disputes should underlie all disciplinary processes. Thus, failure to heed to this pricniple, will compromise procedural fairness of disputes. In addition, section 2(b) of schedule 2 the Employment of Educators Act 76 of 1998 (EEA) requires disciplinary proceedings to be concluded in the shortest possible time frame.

61. In the case before me, the Applicant has testified and made submissions, in writting and orally, to the effect that the Respondent failed to comply with the provisions of section 2(b) of schedule 2, of the EEA. The Applicant’s further testimony and submissions was that the Respondent failed to apply discipline promptlly, as the Respondent delayed in charging him. Furthermore, the Applicant testified and submitted that the Respondent also delayed in concluding the disciplinary proceedings against him. The Applicant’s further submission, based on the evidence of Mr Sejake, was that the Respondent first became aware of the misconduct that the Applicant allegedly committed, in 2017, when Mr Sejake submitted the report that he produced after investigating the Applicant. Mr Sejake’s submission was that the investigation was as per the request of the Director and that he submitted the investigation report before he left for another distirct, towards the end of 2017. The Applicant’s further testimony was that the Applicant received the notice to attend the disciplinary hearing in July 2021, which was four (4) years from the first time the Respondent became aware of the misconducts that the Applicant was alleged to have committed. The Respondent’s testimony, as per the testimony of Advocate Makoko was that there were numerous investigations that were conducted by the finance teams and that Mr Sejake’s investigation could have been one of those. Advocate Makoko’s further testimony was that his investigation was the only official one. The Respondent’s further evidence on delay, as per the testimony of Mr Sejake was that the delay in finalising the disciplinary hearing was due to the Applicant’s temporary incapacity leave and the shortage of the presiding officers.

62. It must be noted that none of the finance teams who allegedly conducted the numerous investigations, that were referred to by Advocate Makoko, testified. It must further be noted that no documentary evidence was led on the Applicant’s temporary incapacity, its period and how it affected the institution and/ or finalisation of the disciplinary hearing. It is however, disturbingly questionable that after the investigation report of Mr Sejake, the Department took three (3) years, from end of the year in 2017 to November 2020, to conduct an official investigation against the Applicant. Instead, the Department, having investigated, and determined that there were possible transactions that the Applicant was entering into, prior to finalisation of authorisation, allowed such transactions to proceed, even in 2018.

63. The importance of speedy resolution of labour disputes was emphasised by the Constitutional Court in National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town & Others 2003 (3) SA 1 (CC) para 31 where the Constitutional Court stated that:

By their nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly…It is in the public interest that labour disputes be resolved speedily.

The importance of speedy resolution of disputes was also emphasised by the Constitutional Court in the Constitutional Court in the case of Mohlomi v Minister of Defence 1997 (1) SA 124 para 11 where the Constitutional court stated that:

Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.

64. The Labour Court case of Riekert v Commission for Conciliation, Mediation and Arbitration [2005] ZALC 90 para 22 must be noted, where the court held that

When an employer does not comply with aspects of its disciplinary procedure, there must be good reason shown for its failure to comply with its own set of rules. An employer must justify non-compliance with its own code and having regard to all the relevant circumstances, the employer bears the onus to satisfy the objective requirement that their conduct was substantially fair, reasonable and equitable.

65. In Zuma v Pillay N.O & Others 2014 ZALCD 46 the Labour Court took issues with the Commissiioner who failed to deal with the delay of almost two years before the Department of Education, KZN disciplined the Applicant (Zuma) who was a principal of a high school. The Labour Court pointed out that there was a significant delay in disciplining Mr Zuma and that the Department of Education could not provide any meaningful reason for the delay. The Labour Court further pointed out that a reasonable decision maker, without giving consideration to the delay coulld not reasonably come to the conclusion that the dismissal of the Applicant (Mr Zuma) was fair. The court further pointed out that Commissioner Pillay did not give regard to the legal principles set out in Van Eyk v Minister of Correctional Services and Others (2005) 26 ILJ 1039 (E), Riekert v CCMA (2006) 27 ILJ 1706 (LC) and National Union of Mineworkers and Another v CCMA and Others (2008) 29 ILJ 1966 (LC) and that he did not determine whether it was fair to continue with the disciplinary action after so long and never considered the fact that the facts did not point to a breakdown in the relationship between the Department of Education and Mr Pillay (Zuma v Pillay N.O & Otherspara 35).

66. It must be noted that the spirit of speedy resolution of disputes is applicable from the institution of disciplinary proceedings, when investigations are conducted and continues until finalisation of the disciplinary proceedings. Thus the promptness of resolving disputes runs throughout the entire process of dispute resolution. In light of the fact that prompt resolution of disputes is a legislative requirement, it thus becomes of paramount importance, to make determination, on whether there was a delay, that was unreasonable, unjustifiable and inexplanable. The Constitutional Court case of Stokwe v Member of Executive Council: Department of Education, Eastern Cape and Others (2019) 40 ILJ 773 (CC) para 72 is authority on the issue of delay in prosecuting labour disputes. The Constitutional Court in the Stokwe v Member of Executive Council: Department of Education, Eastern Cape and Others, relied on the case of Moroenyane v Station Commander of the South African Police Services, Vanderbijlpark [2016] ZALCJHB 330 to give clarity on the determination of the delay in prosecuting labour disputes and held that:

(a) The delay has to be unreasonable. In this context, firstly the length of the delay is important. The longer the delay, the more likely it is to be unreasonable.
(b) The explanation for the delay must be considered. In this respect the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.
(c) It must be considered whether the employee has taken steps in the course of the process to assert his or her rights to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood and did nothing.
(d) Did the delay cause a material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.
(e) The nature of the alleged offence must be taken into account. The offence may be such that ther is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.
(f) All the above considerations must be applied, not individually but holistically.

67. In the matter before me, as alluded to above, as per the evidence of the Respondent’s witness, Mr Sejake, the Respondent became aware of the alleged misconduct when it was furnished with the investigation report of Mr Sejake, towards the end of 2017, before Mr Sejake left for another district. The Respondent alleged that Mr Sejake’s report might have been part of the finance team that also investigated the Applicant. Mr Sejake’s testimony was that his investigation was as per the instruction of the District Director. As alluded to above, it is disturbingly questionable that the Department, after being furnished with a report, in 2017, that warranted charges to be preferred against the Applicant, chose to wait for three (3) years before it saw a need of conducting an official investigation in 2020. The Department knew of the alleged acts of misconduct of the Applicant in 2017 and chose to allow such acts to continue in 2018, thereby condoning them. It is common cause that the Applicant was served with a charge sheet and the notice to attend the disciplinary hearing in July 2021. Thus the Respondent took four (4) years before it charged the Applicant. A delay of four (4) years is contrary to prompt resolution of disputes. In addition, in line with the Stokwe case, the period of four (4) years is excessively long and thus unreasonable, except where there is an explanation for the delay

68. With regard to the explanation for the delay: It must be noted that the Respondent as per the testimony of Sejake, attributed delay on the the Applicant temporary incapacity and unavailability of dicsiplinary chairpersons, as the reasons for the delay. The Respondent’s however offered no evidence to support the allegation of temporary incapacity and the period thereof. The Applicant on the otherhand denied that his temporary incapacity leave contibuted to the delay in disciplining him. The Applicant was only charged in July 2021, when the investigation report of Mr Sejake was made available to the Department, in 2017. The Respondent only placed blame on the Applicant’s illness, without adducing evidence on the length of the Applicant’s illness and how the Applicant’s illness prevented the Respondent from charging the Applicant in the period of four years. Surely a temporary incapcity leave, although no evidence was adduced to prove the temporary incacity leave, could not have run for four (4) years, and thus could not be a reasonable excuse for not charging the Applicant. Thus, the Respondent provided no explanation that can reasonably serve as an excuse. Therefore the delay of four (4) years was inexcusable, unjustified and with no reason.

69. With regard to the steps taken by the Applicant: The Applicant testified that the investigating team did not want his assistance and that of the SGB members when they were conducting an investigation. He further stated that the investigation team only wanted to be provided with the source documents, which the school made available Thus, the Applicant co-oporated in making the source documents available to the investigation team, hence the Department saw no reason to place him on a precautionary suspension during his investigation. The Applicant also testified that the Respondent, after charging him in July 2021 delayed in commencing with the disciplianry hearing, as a result of a number of postponements. The Applicant’s testimony, was that there were five postponements that were all caused by the Respondent, which caused a delay in the commencement of the case. His testimony, further, was that on the sixth set down date, his representative raised a concern about the delay, thus the proceedings commenced. It must be noted that the testimony of the Applicant remained unchallenged. It must also be noted that the disciplinary hearing report, despite the Ruling on its disclosure, and the directive, which directed the Respondent to comply with the disclosure ruling of Commissioner Maje, was never disclosed to the Applicant. The report could have been used to either support the testimony of the Applicant on the postponements or it could have challenged such a testimony. Based on the fact that the Applicant’s testimony remained unchallenges, his testimony is as such, taken as the only correct testimony. Therefore, the Applicant took steps to assist with the commencement of his disciplinary hearing, as there were no postponement requests from his side.

70. With regard to the prejudice: The Applicant testified about the effect of the delay on his ability to prepare, for his case. He testified about a number of source documents, which faded away, and became unclear, and were as such, difficult to rely on, in defending his case. He further testified about his own memory loss, as the events of the case took place in 2017 and 2018. The witnesses of the Applicant and of the Respondnet also alluded to their memory loss. The Respondent’s witness, Ms Geraldine Hescock, who was the chairperson of the SGB, as pe, confirmed her signature on the attendance register of the SGB meeting that she attended in March 2017, but had no memory of the resolutions that were taken in that meeting. Furthermore, the Applicant testified about some of the witnesses who were no longer SGB members, and as such, the Applicant could not locate them, to use as his witness. A key witness, Ms Alinah, who was the School’s Finance Clerk passed away and as such was not available as a witness. Clearly this unreasonable delay was materially prejudicial to the Applicant.

71. On the basis of the Respondent’s testimony, no reasons were provided on what transpired, after the investigators reports were made available, that prevented the Respondent to prefer the charges against the Applicant. If the Respondent needed to further investigate the alleged acts of misconducts of the Applicant, following the investigarion report of 2017, the second investigation report was completed in January 2020, but the Respondent only charged the Applicant in July 2021. No explanation was offered by the Respondent, for the inactive decision pertaining to the Applicant’s matter and the sudden decision to charge the Applicant in July 2021, which is four (4) years after the first investigation report and one year, seven months (1year and 7 months) after the second investigation report of Advocate Makoko. It must also be noted that at all stages with the 2017 and 2019-2020 investigations, the Applicant was never suspended and continued to work as the principal of Bethlehe Combined School.

72. The Constitutional Court in Bothma v Els [2009] ZACC 27 para 35 the Constitutional Court pointed out that:

The delay in the present case must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the tiral if it were to commence.

73. In the matter before me, having determined that the delay of four (4) years was unreasonably lengthy, inexcusable and materially prejudicial, it becomes relevant to determine whether such a delay, inevitably and irremediably tainted the substantive fairness of the case, and thus amounted to a waiver of the Respondent right to discipline and in this case, to demote the Applicant. Waiver was described by the Constitutional Court in the case of National Union of Metal Workers of SA v Intervale (Pty) Ltd & Others [2015] 36 ILJ 363 (CC) paras 60-61 as a legal act of abondoning a right on which one is otherwise entitled to rely on, and that the party assenting waiver is required to establish that the right holder, with full knowledge of the right, decided to abondon their right. Thus the Court in National Union of Metal Workers of SA v Intervale (Pty) Ltd & Others held that, waiver depends on the intention of the right holder, which can be proved either through express action or by conduct plainly inconsistent with the intention to enforce the right.

74. In the matter before me, as alluded to above. The Respondent having being furnished with the investigation report in July 2017 (of Mr Sejake) and the second investigation report in January 2020 (of Advocate Makoko), provided no explanation on why there was no action to charge the Applicant, until July 2021. The passiveness or inaction can be regarded as a tacit declaration of an intention by a righholder, with full knowledge of the right to charge, to abondon or to waive its right to prosecute. In Union of Pretoria Municipal Workers and Another v Stadsraad van Pretoria 1992 (1) ILJ 1563 at 1570 D-E ( see also Department of Public Works, Roads & Transport v Motshoso & others [2005] 10 BLLR 957 (LC) it was held that “[t]he failure to convene an enquiry promptly… is so grossly unfair that it vitiates the decision to dismiss.” Furthermore, the Labour Court in Moroenyane v Station Commander of the South African Police Services, Vanderbijlpark [2016] ZALCJHB 330 para 43 remarked that “because of the delay, it has to be inferred that the employer has waived its right to take disciplinary action against the employee.”

75. Thus, in the matter before me, the lengthy delay of four (4) years, when the Respondent was seating, first with investigation report of Mr Sejake and and secondly with the delay of one year and seven month, when the Respondent set with the report of Advocate Makoko; is a grossly unfair, unreasonable, inexplainable and a materialy prejudicial delay. The effects of delay in charging was well explained by the Constitutional Court in Mohlomi v Minister of Defence as, amongst others, causing damage to the interests of justice; prolonging the uncertainty of all concerned about their affairs and resulting with an impossibility to adjudicate satisfactorily on cases that have gone stale, as witnesses may no longer be available to testify; memories of ones whose testimony can still be obtained may have faded and become unreliable and documentary evidence may have disappeared. In the case before me, the effects of delay as explained by the Constitutional Court in Mohlomi v Minister of Defence were seen from faded memories of witnesses, missing documentary evidence, unclear documentary evidence, the witnesses who were no longer available to testify through movement away from the school and a witness who has passed away, namely, the School Finance Clerk.

76. It is thus clear from this case that the delay was unreasonable and inexplainable. The delay of 4 years resulted with prejudice as evidenced by unclear source documents, untraceable witnesses and the passing-away of a key witness. This is the kind of delay that the Constitutional Court in Bothma v Els regarded as a delay that inevitably and irremediably taints the overall substantive fairness of the case and thus calls for the inferrence that the Respondent waived its right to discipline. It is thus clear that delay in case, as demonstrated above, in procedurally unfairness. Although, the Courts have held inexplainable and unreasonably lengthy delays to vetiate the right to charge, the LRA mandates a Commissioner to assess both procedural and substantive fairness (if in dispute) in determining the fairness of an alleged unfair labour practice dispute or of an alleged misconduct dispute. In the case before me, both substantive and procedural fairness are in dispute. I therefore move to address substantive fairness of demotion, which was a short of dismissal sanction.

Substantive fairness

77. As alluded to above, the Applicant was charged with 28 charges. He was not found guilty of charges 1 and 12. The parties in leading evidence dealt with the charges in 3 categories, namely, charge 2, which dealt with wilful mismanagement of the school finances, in that the Applicant used school money to the amount of R9 909.00, to service his private car; charges 3 to11, which dealt with a number of transactions that the Applicant concluded prior to approval and authorisation being completed; and charges 13 to 28 which dealt with the Applicant’s faillure to secure the safety of the source documents. In analysing substantive fairness, the charges are dealt with in the above three categories that the parties used in leading evidence.

78. As alluded to above, the demotion of the Applicant was a sanction short of dismissal in a misconduct dispute. Thus an assessment of the fairness of the demotion requires an assessment of the fairness of the guilty finding in a misconduct dispute. Tthus item 7 of Schedule 8 Code of Good Practice: Dismissal, read together with item 77 of the CCMA Guidelines on Misconduct Arbitration becomes relevant in determining the substantive fairness of the Applicant’s demotion. Item 77 requires a determination of the following:

78.1. whether there was a rule/policy or practice that the employee contravened,
78.2. whether a rule/policy or practice was contravened,
78.3. whether the employee was aware or could reasonably be aware of the rule,
78.4 whether the rule has been consistently applied by the employer, and
78.5. whether the dismissal was an appropriate sanction.

In the matter before me, the issue in dispute in relation to item 77 of Schedule 8, Code of Good Practice, was whether the Applicant breached the rule or committed the offences for which he was charged, as such, only the issue pertaining to Applicant’s breach of the rule is addressed.

79. With regard to Charge 2, the Applicant was charged for breach of section 18(1)(b) of the Employment of Educators Act 76 of 1998 for wilfully mismanaging the finances of the school. The Respondent’s case , from the evidence led, was that that the Applicant also contravened section 38A (1) of the South African Schools Act 84 of 1996, which prohibited the governing body from making payment of unauthorised remuneration or from giving financial benefits in terms of the Employment of Educators Act 76 of 1998, to an employee. The Respondent further argued that, the Applicant contravened section16A(2)(h) and section 16A(2)(k) of the South African Schools Act 84 of 1996, which required the principal to take reasonable steps to prevent any financial maladministration or mismanagement by any staff member or governing body member at the school. The question is whether the principal wilfully mismanaged the school’s finances when the SGB resolved to pay 50% of his car service fee. In addressing the question additional questions on whether payment made to the principal was unauthorised and whether the principal failed to take steps to avoid mismanagement are addressed, although charge 2 only addresses wilful mismanagement of funds.

80. The Applicant’s case in relation Charge 2, was that, he did not breach any workplace rule as the decision to pay him R9 909.00 followed a resolution of the SGB in a meeting held in March 2017 to the effect that, the SGB resolved to pay 50% of his service fee, which amounted to 50 % of R19 819.20, being R9 909.00. The Applicant’s case was that he used his car, numerous times, for school related functions, which related to the provisioning of teachers. The Applicant’s case further was that the post provisioning function, followed the centralisation of the post at provincial level and that post provision was as per the instruction of the SGB, upon his assumption of the post of Principal, “to do everything in his power to improve the school pass rate” and that it was as a result of the instruction to improve the pass rate, that he started to get teachers who could facilitate in Afrikaans and as such, he had to travel first to the District office in Qwaqwa from Bethlehem and later to the provincial office in Bloemfontein, using his personal car. Thus, the decision taken by the SGB for the Applicant to pay 50% and school to pay the other 50%. The Respondent’s case was that although a circular centralised post provisioning, the Applicant could address post provisioning by way of email. The Applicant’s case on the other hand was that his attempts to provision teachers by was of email were not successful.

81. It must be noted that it was not in dispute that the school (Bethlehem Combined school) did not have its own car and that as such the Applicant used his own car to fulfil school related functions as mandated by the SGB. The Applicant’s case was that he incurred service-related expenses as a result of fulfilling school related function of provisioning educators to ensure that the pass rate improved. Section 16A of the Schools Act 84 of 1996, on the functions of the principal in a public school, provides for, inter alia, that a principal of a public school, must annually, prepare a plan setting out how academic performance will be improved (S16A(c)i). Thus, post provisioning, for the purpose of addressing the problem of shortage of educators and low pass rate, fall within the functions of the principal. The question is whether a decision taken by the SGB for the services expenses to be shared equally between the Applicant and the school amounts to a wilful mismanagement of funds or a maladministration of funds or unauthorised remuneration as alleged by the Respondent. It must be noted that although the Respondent’s witness, Mrs Heschkock’s testimony was that the SGB never took a decision to pay 50% of the service fee of the Applicant, her signature, which she confirmed as hers, appeared on the minutes of the SGB, where a decision to pay 50% of the Applicant’s service fee was taken. Thus, Mrs Heschckock’s testimony in denying that the SGB’s decision to pay 50% of the service fees, does not seem credible, with her signature appended on the same minutes where the decision was taken. It must be noted that section 27 of the South African Schools Act allows for reimbursements of governing body members for necessary expenses incurred in the performance of one’s duties. The Applicant, from his testimony, used his car over a number of times to fulfil a school related activity of post provisioning, which was a necessary task, in light of the challenge of the shortage of teachers and low pass rate. The principal as per section 23 of the School’s Act, is a member of the SGB. Thus, the resolution taken by the SGB to pay 50% of the service fee, after mandating the principal to do everything in his power to improve the pass rate and address the shortage of teachers was a reimbursement for necessary expenses incurred in terms of section 27 of the Schools Act. It follows therefore that the Applicant cannot be guilty of wilful mismanagement of school’s funds as per Charge 2. I therefore do not find the Applicant guilty of charge 2, which deals with wilful mismanagement of schools funds

82. With regard to charges 3 to 11 as alluded above deals with a number of transactions that took place in 2017 and 2018, where the Applicant was said to have acted contrary to section 18(1)(a) of the Employment of Educators Act, the Provincial Regulation 154 of 2021 and section 16A(2)(ii) of the South African Schools Act by failing to ensure that authorisation and approval were complete before transacting. It must be noted that most of the source documents, upon which the Respondent based its case had faded. However, it was not in dispute that the transactions in question, such as the purchase of petrol to travel to Bloemfontein, or the petrol for the lawnmowers etceterra were transaction that fell within the approval amount of R5 000 and below. In terms of the Schools Financial Policy, the principal is given authority to enter into transactions of the amount below R5 000. However, authorisation of such transations would still be required. The School Financial Policy also allowed the principal an allowance of R100 for refreshments with authorisation still required. It was not in dispute that the transactions took place before authorisation. The Applicant’s case was that the transactions were on credit and the SGB passed a resolution for an arrangement of a credit transaction to be made with a service provider called Top Red. The Applicant’s case was that prior approval was in terms of the SGB/s resolution and the Finance Policy and authorisation followed. The question is whether a credit transaction, approved by the SGB prior to its conclusion, followed by authorisation, then payment is in contravention of Regulation 154 of 2021 and section 16A of the Schools Act.

83. It must be noted that the purpose of Regulation 154 of 2021, as per section 2, purpose section, is to set minimum requirements and control at public schools, which public schools are required to comply with. Section 5(2) of Regulation 154 on payments from banking accounts, provides that the school may only make a payment after the completion and approval of an authorising document by a person designated by the governing body. Section 5(4)(a) of Regulation 154 further provides that no cheques may be issued without the relevantk authorising documents that are duly completed by the person or persons appointed by the school governing body. Section 5(4)(b) of Regulation 154 further provides that all cheques must be signed by the relevant signitaries as mandated by the governing body, one of them being the accounting officer, who in terms of section 1 is the school principal. The Respondents’ case was that the transactions in charges 3 to 11 were concluded prior to authorisation and that the signatories were required to be three and not two. As per section 5(4)(a) of Regulation 154, what is prohibited is payment prior to completion of approval and authorisation. It is not in dispute, that in the matter before me, payment took place after authorisation. What took place prior to authorisation is a credit transaction. The Applicant in his testimony testified about emergency transactions which cannot await a Financial Committee Meeting or an SGB meeting, hence the SGB approved the principal to transact below R5 000 and authorisation and payment would follow. It follows therefore that the Applicant cannot be guilty of charges 3 to 11 as payment was made after the credit transaction was approved by the accounting officer and the treasury as appointed by the SGB. I therefore do not find the Applicant guilty of charges 3 to 11, which all deals with payments made prior to approval and authorisations.

84. With regard to charge 13 to 28, the Applicant was charged with the failure to secure the safe keeping of the source documents for the period of 2017 and 2018 and as such contravened section 18(1)(a) of the Employment of Educators Act and section 16A2(a)(v) of the School’s Act. The Applicant’s case was that the Applicant cannot be guilty for failure to ensure the safe keeping of the source documents when during both the 2017 and 2018 audits, As per pages 415 and 433 of the Applicant’s bundle, the auditor’s findings for both the 2017 and 2018 financial years was that the annual financial statements presented faily in all material respects and that the financial position of Bethlehem Combined School as at both 31 December 2017 and 31 December 2018 and its cash flow for the year ended in accordance with the international reporting standards for small and medeum sized entities and the requirements of the Schools Act of South Africa. It is not in dispute that the investigating teams uplifted source documents and that the Applicant was not allowed near to be near the uplifted source documents. It is absurb that the Respondent, having uplifted and taken source documents can charge the Applicant for missing source documents that were in their possession, when the audit finding of the yeas in question, gave the school a qualified audit finding within the standard required. Thus the Applicant cannot possibly be guilty of securing the safety of documents that were uplifted by the different investigating teams. I therefore do not find the Applicant guilty of charges 13 to 28, which all relate to failure to secure source documents.

85. On the basis that the Applicant is not found guilty of all the charges, it follows therefore the demotion of the Applicant was unfair substantively and procedurally and therefore amounts to an unfair labour practice.

Appropriate recourse

86. Section 193(4) ot the Labour Relations Act, provides that, an arbitrator appointed in terms of this Act, may determine any unfair labour practice dispute referred, on the terms that the arbitrator deems reasonable, which may include, ordering a reinstatement, re-employment or compensation. In the case before me, the Applicant sought reinstatement to his position as a school prinicpal, however at a different school other than Bethlehem Combined School. The Appliant’s demotion was with a salary cut. His demotion was was effected with a salary cut from from 5 September 2022 to date. The Applicant’s monthly salary of R 53 911.75 was reduced to R 50 786.00 with the demotion. In terms of section 193(4) of the LRA, the Respondent is ordered to reinstate the Applicant into his original position as a principal. Although the Applicant in his evidence testified that if he were to be reinstated, his reinstatement should be in a different school. It must be stated that a commissioner does not have the power to appoint educators. Thus, the Applicant is reinstated into his position as the principal of Bethlehem Combined School.

87. Furthermore, I order that the Applicant’s original position of a principal be reinstated with backpay. Thus, the difference between the original salary of the Applicant (R53 911.75) and the salary with the demotion (R50 786.00) be paid from the date of the reinstatement (1 July 2023) to the date of the demotion (5 September 2022). Thus, the Respondent is ordered to compensate the Applicant, an amount of (R53 911.75-R50 786.00 = R 3 125.75 multiply by the number of 21 months, amounting to R 65 640,75.

Costs

88. Rule 54.1 of the ELRC Rules allows a commissioner to exercise the discretion to grant an order as to the payment of costs. A commissioner is required to take into consideration, amongst others, factors such as fairness that weighs in favour of, or against the granting of a cost order and whether a party acted in a frivolous or vexatious manner in proceeding with or defending the dispute or in the manner in which a party conducted themselves in the proceedings. In the matter before me, the cost application was against the Respondent, for allegedly delaying the proceedings with a frivolous and vexatious application to reopen a closed case. On 15 March 2024, during submissions on delay in disciplining the Applicant, the Respondent applied to open a closed case and to lead evidence in a closed case. The Applicant opposed the Applicant, as an attempt to delay the proceedings and prayed for costs in terms of Rule 54.1. The Respondent applied to open a closed case on 15 March 2024 by leading thee evidence of the Deputy Director Human resource, Mr Teboho Mokoena, on the basis that he was out of Bloemfontein on 6 and 7 February 2024. The testimony that Mr Mokoena was to lead, was to submit leave recors of the Applicant. The Applicant in opposing the Respondent application to re-open the closed case, had to serve and file the application to oppose the leading of evidence, together with the opposing affidavit and the supplementary heads of arguments. As such, the Applicant incurred costs of drafting the legal documents Thus, the Respondent, is, as per Rule 54.4.2 of the ELRC Rules, ordered to pay the Applicant the cost of Four Thousand Rands (R4 000.00), which are costs for a frivolous and vexatious conduct where a party is represented by a legal practitioner. The Applicant, was represented by a legal practitioner.

Award
89. I find that the Respondent, the Department of Education, Free State, in demoting the Applicant, Mr Mokhaneli Rapulane Natanel, committed an unfair labout practice
90. I also find that the demotion of the Applicant was procedurally unfair and substantively unfair.
91. The Respondent, the Department of Education, Free State, in ordered to reinstate the Applicant, Mr Mokhaneli Rapulane Natanel, to his original position, as the principal of Bethlehem Combined School, on 1 July 2024.
92. The Appplicant’s reinstatement is with his salary, prior to his demotion, which salary is R 53 911.75
93. The Respondent is ordered to pay the Applicant an amount of R 65 640.75, as per clause 87 above, which amount must be paid to the Applicant on or before 30 June 2024.
94. The Respondent is further ordered to pay the Applicant an amount of R 4000 .00 as per clause 88 above. The amount of R4 000.00 is payable to the Applicant on or before 30 June 2024.

95. Based on the above, the Respondent is thus, ordered to pay the Applicant an amount of R65 640.75 + R4 000 = R69 640. 75 less statutory deductions on or before the 30 June 2024.

ELRC Arbitrator/ Panelist