SADTU obo DILEBO vs DEPARTMENT OF EDUCATION GAUTENG

FORUM : ELRC ARBITRATOR : BASHIER VALLY CASE NO : DATE : 26 MARCH 2000 Weight - Failure by department to put its version to union witnesses in cross- examination means that this evidence should be accepted as unchallenged. Legal principal examined. Appointment - Department sidestepping the SGB in making a decision to appoint another person other than the Applicant when he had been recommended by the SGB during an earlier selection process and had been promised that his appointment was a formality. Violation of SA Schools Act - Applicant had a "legitimate expectation", not necessarily to be appointed by the Department, but to be heard when Department decided to change their mind about his appointment. - while Applicant had no right, per se, to be appointed, Department stopped from not appointing him when its conduct indicated a clear election to treat Applicant as the defacto principal whilst processing the termination of the de jury principal. Relief - principal of Law allowing an arbitrator to make an appointment in a promotion dispute rather than refer the matter back to the appropriate structure, summarized. ______ARBITRATION AWARD ______

This arbitration was conducted in terms of Resolution of 7 of the Education Labour Relations Council (“the ELRC”). It was conducted over a number of days. The union and the complainant were represented by Mr Sunil Narian and Ms Mphengoa Phooko of Creadle Thompson and Haysom Attorneys. The department was represented by Mr Jeff Thipe of the department and Ms Amanda de Beer from the State Attorney. I thank all of them for their able assistance in this matter. 2

The arbitration was established as a result of the union and the complainant registering a dispute with the ELRC. The dispute concerned a complaint with the conduct of the department. The dispute was registered in terms of item 2 (1) (b) of Schedule 7 of the Labour Relations Act No 66 of 1995 (“the Act”).

Most of the facts in this case are common cause. In fact, there seems to be only a few disputes of fact. To resolve these disputes of fact, four days of evidence was received.

This dispute involves the post of a Principal at Zifuneleni Junior Secondary School (“Zifuneleni”/”the school”) in Meadowlands.

Before dealing with the facts of the case it is incumbent upon me to say that the union presented its case first. The union called two witnesses, the complainant and one Mr Jabu Knosi (“Mr Knosi”). Mr Nkosi was the chairperson of the School Governing Body (“the SGB”). During cross- examination of these witnesses, most of their testimony was not challenged. Neither was the department’s case put to these witnesses. It was submitted on behalf of the department that it was not necessary for the department to put its case to these witnesses. I disagree with this submission. It is well accepted legal practice that in any action (as opposed to an application) the party that begins is entitled to learn via the cross-examination of its witnesses by the other party what the other party’s case is. Recently the Constitutional Court unanimously held : “[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross- examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was 3 enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts.

[62] The rule in Browne v Dun is not merely one of professional practice but “is essential to fair play and fair dealing with witnesses”. It is still current in England and has been adopted and followed in substantially the same form in the Commonwealth jurisdictions.

[63] The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be place.” (emphasis added)

President of the RSA v South African Rugby Football Union 2000 (1) SA 1 (CC) at paras [61] – [63]

Thus, I am of the view that it would have been correct to hold that much of the testimony of the union’s witnesses must be accepted. It would be most unfair to declare that they were not candid when they were not given an opportunity to defend themselves. However, I do not accept their testimony on this basis alone. I accept their testimony to be reflecting the truth on the basis of their demeanour and on the basis of the inherent probabilities in this case. I have no doubt that they were honest witnesses.

I will now deal with the facts. I make findings regarding any disputes as I go along.

The complainant was employed at a High School in Diepkloof. In June 1995 he was asked to act as Principal of the school. This he did. There is a 4 dispute as to whether he was asked by the union or by the Soweto Education Crisis Committee. Nothing turns on this dispute as it is common cause that he was accepted by all the stakeholders at Zifuneleni. He was introduced to all the stakeholders at a meeting in June 1995.

At the time that the complainant was asked to act as Princi8pal at Zifuneleni, Mr Twala was the Principal of Zifuneleni. As Mr Twala was absent from school for most of the time, there was very little order at the school. Therefore, the complainant was asked to act as Principal.

In December 1995 the department advertised the post of Principal at Zifuneleni. Both Mr Mali and Mr Mnisi testified that this advertisement in 1995 was issued erroneously. It was erroneous in that the post was already occupied by Mr Twala. This, in my view, was a complete fabrication. It must be borne in mind the the advertisement was never withdrawn, and the actual process of filling the post in terms of the advertisement was pursued by the department. This fact is crystallized in the light of the department’s conduct discussed more fully below.

The complainant applied for the post soon after it was advertised as being vacant. He was duly interviewed by the SGB. There are two disputes of fact concerning the interviews. These are :

 Whether the department was a party to the establishment of the interviews; and  Whether its officials were present at the interview as observers.

The department denied that it played any part in the establishment of the interviewing process and that any of its officials were present during the interviews. The denials were presented in the testimony of Mr Mali, one of the department witness.

Mr Nkosi testified that in August 1995 the SGB had a meeting with the department wherein it was told that the post would be advertised, applicants 5 would be short listed, proper interviews with the short-listed candidates were to be conducted and an appropriately recommended candidate would be appointed. The department, according to Mr Knosi, played a prominent role in establishing the interviewing panel, in choosing he dates for the interviews, and in informing the respective candidates of the interviews. This testimony was never refuted.

Both the complainant and Mr Knosi testified that the department was represented at the interviews by Ms Poppy Khala (“Ms Khala”), Ms Thandi Motau and Mr Ramagoga. Mr Mali’s version was never put to the complainant or Mr Knosi. Ms Khala was not called to testify in rebuttal of the complainant’s version. Hence, I find that the officials of the department were present and that Mr Mali was not candid with the arbitration when he claimed categorically that no official was present at the interview.

It is common ground that after the interview the complainant was recommended for the post by the interviewing panel and by the SGB on 23 rd March 1996. There is a dispute of fact about what happened after the recommendation of the SGB was forwarded to the department.

According to the complainant and the union the department accepted the recommendation of the SGB, but was busy arranging for Mr Twala to exit the system before it could implement the recommendation. The complainant and Mr Nkosi testified that they were told on different occasions that appointment of the complainant was delayed because Mr Twala was still holding the post. They were informed separately that once Mr Twala had exited the post, the complainant would be appointed. Both testified that Mr Mali and Mr Mnisi informed them separately that the complainant’s appointment is merely delayed because the department is processing Mr Twala’s exit from the department’s employ, and that the appointment would be a mere formality. The complainant testified that there were other members of the department that informed him that his appointment would be finalised as soon as the departure of Mr Twala was finalised. These persons are : Ms Khala, one Mr A van Wyk, ons Mr Ramagaga and one Mr Solly Maontjane. During cross- 6 examination the complainant was not challenged on this. Nor were any of the individuals mentioned called to rebut his testimony.

Mr Twala left the service of the department in April 1997. The department readvertised the post in November 1998, almost twenty months after Mr Twala had left the department. The complainant’s version is that all this time he queried why the appointment was taking so long. Each time he was reassured that the process would soon be completed. He, being aware of the lengthy delays caused by the bureaucratic nature of the department, was not flustered by it taking so long to be finalised. However, in November 1998 he was surprised to find that the post was advertised. He together with the union not only queried the advertisement but lodged a dispute with the Education Labour Relations Council (“the ELRC”).

The department denies that the complainant was told that the recommendation of the SGB was accepted, but that is would only be implemented once Mr Twala had exited the system. Both Mr Mali and Mr Mnisi deny telling either the complainant of Mr Nkosi that the complainant’s appointment would be finalised as soon as the department had finalised the position of Mr Twala. However, their versions were never put to either the complainant of Mr Nkosi.

Having regard to the demeanour of both Mr Mali and Mr Mnisi I have no hesitation to hold that they were untruthful witnesses. As witnesses they were both very disappointing. Their lack of candour was at times breathtaking. In specific, I find their denials to be disingenuous.

The true fact is that, for reasons best known to themselves, they chose not to formalise the appointment of the complainant after Mr Twala left the services of the department. In my view, they were determined to pursue their decision not to proceed with the formalisation of the appointment of the complainant at all costs. In the course of pursuing this decision they became incapable of distinguishing fact from fiction. After very carefully and anxiously considering the facts in this case, I must say that I have no hesitation in holding that their 7 conduct, after they decided not to proceed with the formalisation of the appointment of the complainant, was most unprofessional.

It must also be noted that the department failed to provide an acceptable explanation as to why it took eighteen months to advertise the post. Mr Mnisi testified that the reason for such a long delay was because the department advertises only occasionally. When it advertises, it advertises for all available posts in the Province at once, and since the departure of Mr Twala no advertisement was issued. In other words, his testimony was that for eighteen months the department had not advertised any posts. During cross- examination it was shown to him that this was not true. In a timorous tone he conceded that he was not telling the truth.

It is common cause that neither the management team of the school, nor the SGB, requested that the department advertise the post. As far as both were concerned the post had been filled by the complainant. They held this view in the light of the following facts :

 An advertisement for the post had long been issued by the department;  The complainant had been interviewed by the SGB with the involvement of the department;  He had been recommended by the SGB;  The department did not inform the SGB that its recommendation had been rejected;  The complainant and the Chairperson of the SGB were told on numerous occasions that the complainant would be appointed to the post as soon as the department finalised the departure of Mr Twala;  It was only the bureaucratic operations of the department that held up the appointment of the complainant.

Given that I have found the above to be the true facts, I hold that the view of the management team of the school and the SGB was not unrealistic. 8

It is necessary to mention that a month or two prior to readvertising the post of principal ship in November 1998 the complainant, as acting principal, was approached by the department to indicate which posts were available at the school. He indicated that there were three posts available. He signed the necessary documentation authorising the department to advertise the three vacancies. He was not alerted to the fact that the department intended to advertise the supposed vacancy of principal ship. His testimony was neither challenged during cross-examination, nor refuted by the department’s witnesses.

After the advertisement was published and came to the attention of the complainant and the union, they declared a dispute with the department. The dispute was declared at the ELRC. The dispute was declared on 8 th March 1999. By this stage the process of short-listing applicants had not begun. The dispute letter reads :

“RE: Declaration of Dispute of GDE Advertisement of the Principal Post of Zifuneleni J Secondary School

We present I S L Dilebo Persal No. 11962291 who is a member of our union and a Principal (sic) at Zifuneleni J Secondary, Paypoint: 133314 in Orlando East.

Our member applied for this post as advertised in Gauteng Department of Education list of vacancies November 1998. The member was short listed, interviewed and appointed.

To our member’s dismay the Department has re-advertised the post and that’s what we dispute. The relief that we are seeking is :

1.Rescind the latest advertisement of the post. 2. That Mr I S L Dilebo continue to be the Principal of the school as per the decision of the interviewing panel result of 24 March 1996. 9

We request that (sic) ELRC set up a conciliation meeting to resolve the abovementioned matter”.

According to the union a copy of the letter was, in terms of the relevant ELRC Resolution, served on the department.

On 16th March 1999 the union wrote to the department complaining that the department was ignoring the declaration of the dispute. The letter wad addressed to Mr Clive Mtshisa. It reads :

“ RE : DISPUTE OF ZIFUNELENI JUNIOR SECONDARY SCHOOL (COMBINED PRIMARY)

This serves to bring to your attention that the union has declared a dispute with (sic) ELRC in relation to the appointment of Mr I S L Dilebo who is a member of our union.

We request your intervention in that the District C3 is going ahead with the filling of that post despite the existing dispute on the matter. Short listing was conducted at Cista University on the 13th March 1999. Find attached a copy of the letter from the ELRC confirming the registration of (sic) dispute.

We trust that you will find the above in order.”

It is common cause that the above letter was received by the department’s Head Office and that it was not responded to. However, both Mr Mali and Mr Mnisi, both of whom it will be recalled operate at the District Level, claimed that they were never informed that a dispute was declared. They claimed that they actually sought to find out if a dispute had been declared. Their searches revealed that no such dispute had been declared. They deny ever being informed by the Head Office personnel that a letter was received from the union indicating that a dispute regarding the post had been declared. While their denial was not very convincing, it must be noted that whether they 10 received this information or not is really insignificant. I discuss this later on when examining the importance of the declaration of the dispute.

The department ignored the declaration of the dispute and continued with the process of “filling” the post. Eventually one Mrs Seleogo was appointed to the post. This occurred in July 1999.

The appointment of the complainant is governed by the Educators Employment Act of 1994 (“the EED, 1994”). The appointment of Mrs Selebogo is governed by Educators Employment Act of 1998 (“the EEA, 1998”).

Those then, are the facts of this case.

The complainant and the union maintain that the failure to appoint the complainant as principal of the school is an unfair labour practice as stated in item 2 (1)(b) of Schedule 7 of the Labour Relations Act, 1995 (“item 2 (1)(b)”). Item 2(1) (b) provides :

“2 Residual unfair labour practices

(1) For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving – (a) … (b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee;”

The complainant argues that his appointment is covered under “conduct relating to promotion” and, the failure to appoint him is an “unfair act”. While the department denies that its conduct constitutes an unfair labour practice it, nevertheless, agreed that this matter should be adjudicated in terms of item 2 (1) (b). 11

The crux of the department’s case is that the post was erroneously advertised in 1995 when the complainant applied. Consequently, the process that followed the advertisement was null and void. The department, so it was argued, cannot be faulted for refusing to recognise a void act. As I have found that the advertisement in December 1995 was not issued erroneously, there is no need for me to deal with this argument.

As I have found that the department promised the complainant that it would be appointing him as principal as soon as Mr Twala vacates the post, it is necessary for me to examine the consequences of this promise. The department submitted that the promise made to the complainant after the recommendation of the SGB was invalid because it was made by persons who lack the necessary authority to make such a promise. I find this argument to be slightly disturbing. Effectively, it means this : we the department can advertise a post, allow the SGB to interview the candidates, participate in the interviews, accept the recommendation of the SGB regarding the suitable candidate, promise the suitable candidate that s/he will be appointed in due course, and then, finally renege on the promise, nullify the entire process and re-start the process and in so doing breach the applicable statutory provisions, appoint someone other than the candidate originally recommended by the SGB. All this for no apparent reason other than we are the department we can do as we please. The department makes no effort to even justify its conduct. This, surely, cannot be a correct reflection of the law. At the very least the rights of the candidate(s) must be taken into account. They cannot be trampled so callously without justification by the department. The complainant is guaranteed a “right to fair labour practices” by s 23 (1) of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”). Should the department’s submission be upheld, the complainant’s right is more than just limited. It is eliminated. As the department failed to provide any justification for its conduct, I cannot attempt to balance the department’s interests and rights with that of the complainant. Thus, I cannot examine whether there is a need to limit the rights of the complainant. 12

Before closing on this it is necessary for me to say that in my view the department is estopped from arguing that it is not bound by the promise made to the complainant and SGB that the complainant will be appointed as soon as Mr Twala vacates the post. It must be recalled that even though Mr Twala was the principal, de facto he did not perform the duties of a principal. These were performed by the complainant. Mr Twala’s departure was to be a mere formality. The department accepted this state of affairs for two years. Mr Twala departed company with the department in April 1997. The department continued to accept the services of the complainant as acting principal until December 1998 when inexplicably it chose to readvertise the post. During the process of readvertising the post the department cared little about the statutory provisions concerning advertisements for posts. I deal more fully with this aspect below. In the light of these facts it is my view that the department is estopped from arguing that it is not bound by the promise it made to the complainant and the SGB.

“The legal doctrine here involved may perhaps best be described as that of election. But in a situation such as this the exact nomenclature is less important that a recognition of the fundamental principle that a contracting party who has once approbated cannot thereafter reprobate.”

Adminsitrator, Orange Free State, and Others v Mokopanele and Another 1990 (3) SA 780 (A) at 787 G

Further, the Court held :

“ The principle of election finds ready application in the contractual relationship of master and servant. Se Chamber of Mines of South Africa v National Union of Mineworkers and Another 1987 (1) SA 668 (A) where the following was said at 690 D-G: One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternatives and entirely inconsistent courses of action or remedies. The principle that in this 13 situation the law will not allow that party to blow hot and cold is a fundamental one of general application. A useful illustration of the principle is offered in the relationship between master and servant when there comes to the knowledge of the former some conduct on the part of the latter justifying the servant’s dismissal. The position in which the master then finds himself is thus described by Briwtowe J in Angehrn and Piel v Federal c old Storage Co Ltd 1908 TS 761 at 786:

“It seems to me that as soon as an act or group of acts clearly justifying dismissal comes to the knowledge of the employer it is for him to elect whether he will determine the contract or retain the servant … He must be allowed a reasonable time within which to make his election. Still, make it he must, and having once made it he must abide by it. In this, as in all cases of election, he cannot first take one road and then turn back and take another. Quod semel placuit in electionibus amplius displicere non potest (see Coke Litt 146, and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an unequivocal act has been performed, that is, an act which necessarily supposes an election in a particular direction, that is conclusive proof of the election having taken place.”

Mokopoanele (supra) at 788B-F (emphasis added)

In my view, should the department be allowed to escape the consequences of its conduct the complainant would be forced to suffer extensive prejudice.

“The principle of “estoppel by election or waiver: (as it was called by Hoexter JA in Chamber of Mines of SA v National Union of Mineworkers 1987 (1) SA 668 (A) at 690J) has been applied to labour law, both against a union (the Chamber of Mines case above) and an employer (Administrator, Orange Free State and others v Mokopanele and another (1990) 112 ILJ 963 (A)). The principle is based on “considerations of elementary fairness” (Chamber of Mines case at 690J) and for this reason I do not agree with Mr Campbell’s submission that once made, an election cannot be undone. Where fairness sictates it, and it causes no injustice to the other party, I see no reason why a 14 party cannot change his or her mind (in a labour context) on this kind of issue (compare Mshumi and others v roben Packaging (Pty) Ltd t/a Untrapark (1988) 9 ILJ 619 (IC) at 625-I)”.

Maluti Transport corporation Ltd v Manufacturing Retail Transport & Allied Workers Union & Others (1999) 20 ILJ 2531 (LAC) at para [35]

Having found that the department is bound by the promise made to the complainant it is now necessary to examine the effect of this. It, according to Mr Narian, gave rise to a legitimate expectation that his appointment as principal would be formalised. The concept of legitimate expectation has been firmly established in our law for some time now. Corbett CJ approved the following meaning of the concept :

“ It is clear from these cases (list of English cases) that in this context “legitimate expectations” are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis. ….. The nature of such a legitimate expectation and the circumstances under which it may arise were discussed at length in the “Council of Civil Service Unions and Others v Minister for the Civil Service (1984) 3 All ER 485 (HL). The following extracts from the speeches of Lord Fraser and Lord Roskill are of particular relevance :

“ But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Courts will protect his expectation by judicial review as a matter of public law. … Legitimate, or reasonable, expectation may arise form an express promise on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. …..” Per Lord Fraser at 943j-944a (My emphasis)” 15

Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 (A) at 756G-I.

Mrs de Beer argued that I should be cautious to apply this doctrine without qualification. I agree with her. It is, after all, as Corbett CJ said, “an unruly horse”. She referred me to an unreported decision of Nugent J. I am grateful to her for this reference. Nugent J said :

“I think like many other labels which are used in various areas of Ia, the term “legitimate expectation” is often though to be a remedy for all ills without recognising its limitations. The term came to be introduced into the legal parlance of this country in Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 (A). It was introduced in the context of determining in what circumstances the rules of natural justice, and in particular the audi alteram partern rule applies. …. The proper application of the doctrine appears from page 754J of the report in which the following was said, relying upon the speech of the House of Lords in Ridge v Bakdwin & Others, in which the following passage was adopted : “…. An administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say”. There is no suggestion in that case that a person is entitled to be granted a right merely because he has a “legitimate expectation” that it will be granted. Nor am I aware of any decision in this country. Or in the United Kingdom, in which it has been held that rights may be created by a “legitimate expectation” that that they would come into existence. At most, it has been held that a person might not be deprived of a legitimate expectation of being accorded a right without a fair administrative process. 16

Accordingly, even if the applicant had a “legitimate expectation” of being granted the permits, I know of no legal principle in this county which provides the foundation for the actual acquisition of those rights. Perhaps he was entitled to be heard, and to have a fair administrative process adhered to, in the decision making process as to whether a permit should be issued, but that is not what the complaint is in the present case.”

Leonardo Safaris v The Premier of the Gauteng Province and Others (Unplublished Case No : 98/18201, Witwatersrand Local Division, 30th July 1999 at p 7 – 9)

I agree with Nugent J that the doctrine creates no more than a right to be heard.

In casu the complainant had a right to be heard before the decision to withdraw the appointment was made. This arises not only from the promise made to him and to the SGB, but from the fact that his rights were being adversely affected. In other words the right to be heard need not, in casu be predicated upon the doctrine of legitimate expectation as it falls swuarley in the realm of the audi principle.

Section 6 (3) of the EEA, 1998 dealing with the powers of employers on appointment, promotion and transfers provides the following :

“(a) Any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of the public school ….. (c ) If the head of the department declaims the recommendations in terms of paragraph (b), the governing body or concerned shall make 17 another recommendation in accordance with paragraph (a), for consideration by the head of department.” (My emphasis)

It is common cause that this was not applied in the case of Mrs Selebogo’s appointment. It was, however, alleged by the department that the SGB ceased to function, therefore, this statutory requirement could not be complied with. This allegation has no substance.

The South African Schools Act, 1996 provides for the withdrawal of the functions from a governing body should the governing body be unable to perform any of its functions. Section22 provides:

“(1) The head of the department may, on reasonable grounds, withdraw a function of a governing body. (2) The head of the department may not take action under subsecton 1 unless he or she has – (a) informed the governing body of his or her intentions so to act and the reasons therefore; (b) granted the governing body a reasonable opportunity to make representations to him or her relating to such intention; and (c) give undue consideration to any such representations received.

(3) In cases or urgency, the head of the department may act in terms of subsection 1 without prior communication to such governing body, if the head of the department thereafter – (a) furnishes the governing body with reasons for his or her actions; (b) gives the governing body a reasonable opportunity to make representations relating to such actions; and (c) duly considers any such representations received.”

Section 25 dealing with the failure by the governing body to perform functions provides for the following : 18

“(1)If a governing body has ceased to perform its functions, the head of the department must appoint sufficient persons to perform those functions for a period not exceeding three months.

(2) The head of the department may extend the period referred to in subsection 1, by further periods not exceeding three months each but the total period may not exceed one year.

(3) The head of the department must ensure that a governing body is elected in terms of this Act within a year after the appointment of persons contemplated in subsection 1.”

It is common cause that Head of Department did not withdraw the functions of the SGB. The Head of Department also did not appoint anyone else to perform the functions of the SGB. Hence, it must be accepted that for all intents and purposes the SGB is fully functional. It is for this reason that I find the allegation of the SGB being dysfunctional to be baseless.

It is common ground that the SGB played no role in the re- advertisement of the post and in the subsequent appointment of Mrs Selobogo.

As the requirements laid down in the above quoted statutes were not complied with by the department when it readvertised the post and subsequently appointed Mrs Selebogo. Mr Narian invited me to declare the appointment of Mrs Selebogo to be invalid as a result of the department’s admission that if tailed to comply with the relevant statutory requirements. This, I am unwilling to do. Mrs Selebogo was not a party to the arbitration. Regardless of what the department admitted to concerning her appointment, it is not for me to declare her appointment invalid without her being heard on the matter. She was not heard. As far as I am concerned the main issue is not appointment of Mrs Selebogo, but the conduct of the department in failing to act on the 19 recommendation of the SGB to appoint the complainant to the post which he was already acting in for some time and for which he was properly recommended by the SGB. The failure of the department to honour its promises to the complainant and the SGB is also a matter of grave concern.

Furthermore, the department was alerted to the fact that the correctness of the re-advertisement was disputed. The complainant and the union declared a dispute and registered it with the ELRC. Subsequently, the union even brought it to the attention of the department that it was ignoring the dispute. The department obstinately persisted with the process of filling the “vacancy” as re-advertised. The department acted in direct breach of its obligations in terms of Resolution 1 of the ELRC (“Resolution 1”). Resolution 1 is a collective agreement to which the department is a party. It provides :

“7.11 The employing department must satisfy itself that procedures as agreed upon were followed, and that there are not disputes from any of the parties involved before making the final appointment.”

According to Resolution 1 the department is not allowed to proceed with an appointment of someone if the post to which the person is to be appointed is subject of a dispute at the ELRC. The department should not have gone ahead and appointed Mrs Selebogo until the dispute was resolved. This arbitration was established to resolve that dispute. If effect, the department’s conduct bordered on contempt for the dispute resolution process of the ELRC. It should have waited the outcome of the dispute resolution process before it decided to appoint Mrs Selobogo. (See Adonis v Western Cape Education Department and Another (1997) 8 BLLR 1005 (LC). It must now bear the consequences of its actions.

Given that the complainant was not heard before it was decided not to appoint him despite the recommendation of the SGB, should the matter 20 be referred back to the department for consideration? I think not. The department had an ample opportunity to hear him before deciding to unfairly nullify the entire process leading up to the recommendation of the SGB. The department seemed to be deliberately oblivious to his plight. The department’s lack of sensitivity is disturbing. More importantly, the department has failed to show that sending the matter back to the relevant structure would make a difference. It would, it seem have to appoint the complainant as from the date of the departure of Mr Twala as there exists no reason to reject the recommendation of the SGB. The approach I choose to adopt here is not novel. The following remark of Colman J, which has been followed in many cases is apposite to our case:

“In Johannesburg City Council v The Administrator of the Transvaal 1969 (2) SA 72(T), Hiemstra J summarised, conveniently, the considerations which have been recognised in the relevant authorities. In the ordinary course, he said, a matter of this kind will be referred back, because the Court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary. But C it may do so –

(a) if the end result is a foregone conclusion and a reference back will merely waste time; this criterion will be of particular importance if delay will be prejudicial to the applicant; (b) if the tribunal of functionary has exhibited bias to such a degree that a reference back would be unfair to the applicant; (c) if the tribunal or functionary has exhibited incompetence to such a degree that it would be unfair to the applicant to refer the matter back. (I have paraphrased and rearranged the language of the learned Judge.)”

Agricultural Supply Association (Pty) Ltd v Minister of Agriculture 1970 (4) SA 65 (T) at 72A – D 21

See also : Aircondi Refrigeration (Pty) Ltd v Ruskin NO and Others 1981 (1) SA 799 (W) at 805D – H; Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W) at 368 – 9. Traube v Administrator, Transvaal, and Others 1989 (2) SA 395 at 408A – D The question of whether to send the matter back or to finalise it with an appropriate award is to be resolved by being fair to all the parties involved. (Agricultural Supply (supra) at 71H). As this matter is brought in terms of item 2 (1) (b) of Schedule 7 of the Act, I am< no doubt required to deal with it in terms of this section. Item 4 (2) of Schedule 7 spells out the terms on which the dispute should be determined. It reads :

“The arbitrator has the power to determine any dispute that has been referred to it in terms of item 3 on reasonable terms”.

According to The New Shorter Oxford English Dictionary “reasonable” means :

“ endowed with the faculty of reason; rational; in accordance with reason; not irrational or absurd; proportionate”

In my view, the consideration of fairness to both sides, referred to in Agricultural Supply (supra), is applicable. The requirement of fairness to both sides, would ensure that the award is both rational an proportionate. It must not be forgotten that adopting the test of fairness would be consonant with the thrust and tenor of the Act.

Having given the matter extensive consideration and attention I have come to the conclusion that the appointment of the complainant is a foregone conclusion. The complainant would suffer great prejudice should the matter not be resolved once and for all. He would have to endure unnecessary anxiety and uncertainty. In my view, no material prupose would be served to send the matter back to the department. 22

To conclude, for all the above reasons I find that the department committed an unfair labour practice in not appointing the complainant as soon as Mr Twala parted company with the department. I, therefore, issue the following award :

The complainant is appointed as Principal of Zifuneleni Junior Secondary School. His appointment is from 1st May 1997. The department is to remunerate him as a Principal as from 1st May 1997.

Dated on this the 26th March 2000 and signed at Johannesburg.

Bashier Vally Arbitrator Chambers