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[2023] ZALAC 25
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Buthelezi v MEC Department of Education KZN and Others (DA10/2022) [2023] ZALAC 25; (2023) 44 ILJ 1891 (LAC) (23 May 2023)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA,
DURBAN
Not Reportable
Case no: DA10/2022
In
the matter between:
C.T
BUTHELEZI
Appellant
And
MEC
DEPARTMENT OF EDUCATION KZN
First
Respondent
HEAD
OF DEPARTMENT OF EDUCATION KZN
Second
Respondent
EDUCATION
LABOUR RELATIONS BARGAINING COUNCIL
Third
Respondent
A.S
DORASAMY N.O
Fourth
Respondent
Heard:
16 May 2023
Delivered:
23 May 2023
Coram:
Waglay JP, Musi JA
et
Gqamana AJA
JUDGMENT
WAGLAY JP
Introduction
[1]  The Labour
Court confirmed the fairness of the dismissal of the Appellant in an
application brought by the Appellant to
review and set aside the
arbitration awarded handed down by the Fourth Respondent (arbitrator)
under the auspices of the Third
Respondent (Education Labour
Relations Bargaining Council).
[2]  The Labour
Court, however, found that the Appellant should not have been found
to have committed misconduct in respect
of the first two of the four
counts of misconduct preferred against him and that the arbitrator
had correctly found the Appellant
guilty of the other two charges and
held that the Appellant’s dismissal was an appropriate
sanction. The Labour Court did
not interfere with the findings of the
arbitrator that the dismissal of the Appellant was procedurally
unfair and in that respect,
ordered the First and Second Respondents
(Respondents) to pay the Appellant compensation equal to the salary
that the Appellant
would have earned over a period of two months. As
the cross-appeal was made out of time, condonation for the late
filing of the
cross-appeal was dismissed.
[3]  This appeal is
with the leave of the court
a quo
.
Background
[4]  This matter has
a long history dating back to 2008. The Appellant was appointed as
the principal of Isolemamba Senior
Secondary School in KwaZulu-Natal
in 1998 following the fatal shooting of his predecessor on school
grounds.
[5]  He had been
employed with the Department of Education, KwaZulu-Natal for a period
of 23 years and whilst employed as the
principal of Isolemamba Senior
Secondary School, he, as was required to, served as a member of the
school’s governing body
(SGB).
[6]  Following
receipt of an anonymous complaint detailing allegations of financial
mismanagement on the part of the Appellant,
in July 2006, the
Department instructed its internal control and risk management
directorate to commence an investigation into
the finances of the
school. This investigation included conducting interviews with staff
and auditing financial documents to determine
whether the allegations
were valid. During the investigation, it was discovered that the
school failed to appoint a financial committee
for 3 consecutive
years, 2004 – 2006. At the commencement of the investigation,
the Appellant refused to cooperate with the
investigators as he
sought to be provided with a copy of the anonymous complaint for his
perusal, the investigators refused to
provide him with the complaint
on the basis that they wished to protect the identity of the
“whistle-blower”. The Appellant
was informed that he was
required to provide the investigators with the school’s
financial documents regardless of the content
of the anonymous
complaint and this is when he stated that the school had been burgled
and some of the financial documents sought
had been among the items
stolen.
[7]  Interestingly,
he informed those investigating the complaint that the documents that
were stolen included, amongst others,
monthly reconciliation
statements, deposit books, educators’ individual request
letters for refundable advancements, SGB
minute book and monthly bank
statements. One wonders why a thief would want to steal these
documents. He said that the theft occurred
in or about June 2005. He,
however, reported the theft to the police on 19 September 2005 and in
that report, he indicated that
the theft had taken place on 18
September 2005.
[8]  He also
indicated to the investigators that as a result of the break-in and
theft at the school, he decided to remove
the financial and other
crucial documents still on the premises and retained some of them at
his home and others in the boot of
his vehicle. He later claimed that
there was a leak of battery acid in the boot of his vehicle which led
to the documents in his
vehicle being destroyed.
[9]  From the
documents received from the Appellant and other sources, the
investigators were able to determine
inter alia
that payments
were made without supporting documentation being provided which
amounted to R410 151,65; that loans were paid
to educators
during 2004 and 2005 which had not been repaid; that cash cheques
were issued in contravention of the rules; school
funds were utilised
for celebratory functions and to contribute towards a “benefactor’s”
funeral; and finally,
that monies collected for school funds from
were not deposited into the school’s banking account.
[10] The investigation
took almost 2 years to complete with the result that on 26 March
2008, the Appellant was issued with a notice
to attend a disciplinary
enquiry to answer four counts of misconduct. The charges can be
summarised as follows –
10.1
Charge 1:
related to the misappropriation of R410 951.65;
10.2
Charge 2:
related to the Appellant operating a “money-lending scheme”
for employees;
10.3
Charge 3:
related to the issuing of cash cheques in contravention of
departmental regulations; and
10.4
Charge
4:
related to the failure to deposit into the school’s banking
accounts money collected for the school amounting to about R75 000,00

in contravention of section 18(1)(a) of the Employment of Educators
Act
[1]
(EEA).
[11] A disciplinary
hearing was duly convened. At the hearing, the Appellant applied to
be allowed legal representation, this was
refused and he proceeded
with having a trade unionist representing him. He was found to have
committed the misconduct for which
he had been charged and was
dismissed.
[12] The Appellant,
believing his dismissal to be unfair, referred the matter to the
Third Respondent for conciliation and when
that failed, for
arbitration. The Appellant did not raise procedural unfairness at the
arbitration. The arbitrator found the Appellant’s
dismissal to
be fair.
[13] The Appellant,
aggrieved with the arbitration award referred the matter to the
Labour Court on review. Surprisingly, the record
of the arbitration
hearing could not be traced and for that reason, it appears, the
matter was referred back to the Third Respondent
for a hearing
de
novo
.
[14] At the rehearing of
the arbitration, the Appellant took issue with both the procedural
and substantive fairness of his dismissal.
In respect of procedural
fairness, the Appellant took issue with the chairperson’s
refusal to allow him legal representation
at the disciplinary
hearing; the delay between the time he was charged and the
commencement of the disciplinary hearing; the Respondents’

failure to suspend him pending the disciplinary hearing and the
formulation of the charges.
[15] In respect of the
substantive fairness of his dismissal and more particularly, in
respect of charge 1, the Appellant argued
that the Respondents failed
to explain or otherwise justify how it came to the conclusion that
the Appellant had misappropriated
funds amounting to R410 951,65
stating that the Respondents merely put up a total amount without
justification or reasoning
on how this amount was determined. The
Appellant further averred that the school had been burgled in June
2005 and that certain
key financial documents had been stolen. The
theft of the documents, as stated earlier, prompted the Appellant to
keep the remaining
financial information and documentation at his
house and/or in his car for safekeeping however due to the spillage
of battery acid
in the boot of his car, some of the documents in his
possession were damaged.
[16]
In respect
of charge 2, the Appellant said that the charge is not competent in
terms of section 18 (1)(w) of the EEA
[2]
as he did not benefit from the alleged misconduct and further that he
did not operate a ‘money lending scheme’ but
rather had
approached the SGB to obtain salary advances or loans in order to pay
the school’s educators who had not been
paid by the Department
in accordance with their employment contracts. The Appellant argued
that no one, including himself, benefitted
from the salary advances
and that the ultimate decision maker in advancing the employees’
salaries was the SGB, not him.
[17] In respect of charge
3, he denied ever having issued any cash cheques as the duties
relating to the issuing and signing of
cheques fell to the
chairperson of the SGB and its treasurer. Further that, at the time
he became principal of the school, he was
not aware of the School
Fund Regulations nor was he informed by the Department that neither
he nor the SGB were allowed to issue
cash cheques. He alleged that at
the time of his appointment as the principal of the school, it was a
chaotic environment given
the circumstances surrounding his
appointment and as such, certain induction or training documents were
not handed to him at the
commencement of his employment as principal
nor was he adequately trained on the financial management of the
school. Accordingly,
he was not aware of certain policies and
procedures that applied at the school.
[18] In respect of charge
4, the Appellant denied mismanaging school funds and failing to
deposit certain amounts owing to the school.
He argued that as the
school did not have a financial committee, the duties relating to the
financial management of the school
fell on the SGB adding that the
Department was aware that the school did not have a finance committee
and had not complained about
that or the manner in which the school
was managed. He said that where monies collected were not deposited
in the school banking
account, it was because he had to ensure that
school service providers who had requested to be paid in cash, were
paid in respect
of the provision of services to the school and that
the monies received from learners and or other sources were used for
the benefit
of the school and/or its learners.
[19]
In respect
of the functions and obligations of a school principal insofar as it
relates to the financial management of the school,
the Appellant
argued that prior to the 2007 amendment of the South African Schools
Act
[3]
(SASA), principals of public schools were not responsible for the
financial management of schools and that these duties, as set
out in
the amendment, only arose after the alleged misconduct was committed.
Further, a principal of a school was not responsible
for the
management of the school’s funds and accordingly, he was not
responsible for the financial management of the school
including,
informing the SGB about the applicable policies and legislation,
managing the school funds and reporting maladministration
of
financial matters.
[20] The Respondents’
evidence on the other hand was that when the appellant applied for
the position of principal in Isolemamba
Senior Secondary School, he
responded to an advertisement and was aware of the requirements that
had to be met as a principal.
Upon the appellant’s assumption
of duties in 1998, he was aware that he was responsible for all
managerial decisions taken.
Also during his first year, he
encountered a problem with teachers at the school wanting to be in
the finance committee, he then
convened an SGB meeting and motivated
that the finance committee that existed at the time to be disbanded
and it was.
[21] Furthermore, when
principals are appointed, induction and training sessions are held in
order to provide the principals with
the relevant policy documents
and that as the principal of each school is responsible for the
financial management of the school,
it is reasonable to expect the
principal to guide the SGB in the implementation of the relevant
policies. In respect of the duties
and functions of the principal,
policy documents indicate that the principal is responsible for the
upkeep of the school accounts
and records for the benefit of the
learners.
[22] The Respondents
argued that during his tenure as principal, the Appellant was
subjected to training workshops at which relevant
training documents
on financial management were provided to him. Over and above the
workshops, quarterly meetings would be held
with the principals and
the respective circuit manager who acted as the direct supervisor of
the principals and the go-between
the schools and the Department in
terms of communication and problem-solving. During these quarterly
meetings, the Appellant, along
with the other principals and the
circuit manager, would discuss issues relating to
inter alia
the management of their respective schools, HR matters, school
governance and financial management matters.
[23]
In 2003,
the Appellant on behalf of the school and the SGB, made an
application for the school to be given section 21
[4]
status and in its application, he confirmed that he had the relevant
financial training and that the school had the capacity to
administer
its own finances. The school obtained section 21 status and in the
circumstances, the Appellant and the SGB would have
been familiar
with the financial policies, procedures and regulations relating to
the financial management of the school and particularly,
the school
funds. School funds are allocated to specific activities or functions
relating to the functioning of the school and
can only be used for
the specific activity for which they are allocated.
[24] The Respondents
conceded that it is possible that educators may not be paid on time,
however, when this occurs, the principal
of the school does not have
the authority to use school funds to provide loans or salary advances
to unpaid educators, particularly
where such unpaid educators were
employed by the SGB and not the Department. School funds are not
allocated for the purpose of
rectifying the non-payment of
SGB-appointed educators, but rather the responsibility falls on the
SGB to resolve the issue internally.
Where Department-appointed
educators are not paid, the Department must be approached to rectify
the issue. Further, as circuit
managers act as the communicators
between the principals and the Department, principals have always
been encouraged to raise any
issue or complaint during the quarterly
meetings to seek the advice of the circuit manager and where a matter
is urgent, the principal
need not wait for the next quarterly meeting
to raise an issue but can approach the circuit manager to arrange an
urgent meeting
to resolve any issues facing the school.
[25] Also, the
Respondents said that as the principal of each school is the
accounting manager of the school, the principal is provided
with a
document entitled the ‘school fund departmental instructions’
and other documents relevant to the financial
management of the
school in order for the principal to carry out their duties
accordingly. Due to the nature of the work done by
principals, a
principal occupies a position of trust in respect of the governance
and financial management of the school and charges
relating to
mismanagement of school funds can only result in the dismissal of
such a principal who has failed in his duties.
[26] Evidence was also
led to the effect that cash cheques were issued amounting to about
R40 000.00 despite the school fund departmental
instruction stating
that no cash cheques may be issued by a school. When questioned on
this during the investigation, the Appellant
repeated the mantra that
the cash cheques had been issued because certain suppliers or service
providers did not have bank accounts
or had requested that payment
for services be made by way of cash cheques.
[27] Finally, and in
respect of charge 4, the evidence was that where learners made
payments to the school for school fees, such
payments were collected
by Mr Zwelihle Ngcobo (Mr Ngcobo), a member of the SGB and signatory
of the cheques issued by the school,
who would then give the money to
the Appellant in order for same to be deposited into the school’s
bank account. It was discovered
that the Appellant did not always
issue receipts to Mr Ngcobo as proof of receipt of the payments but
rather that the Appellant
recorded the collection and depositing of
the money in a book which was subsequently and conveniently stolen in
the burglary. It
was also discovered that there was a shortfall in
the amount of money deposited between 2004 and 2005 and the Appellant
again repeated
his mantra that, where learners pay their school fees
in cash, such cash would be used to defray any expenses incurred by
the school
such as to service providers who did not have bank
accounts, or for the use of hosting celebratory events at the school
and that
the records proving payment to the service providers using
the cash received had been stolen.
[28] The arbitrator found
that the Appellant had not taken steps to prevent the mismanagement
of the school’s finances and
failed to act in accordance with
the Department’s policies and regulations to ensure that the
correct financial procedures
and policies were followed and
accordingly, the Appellant’s dismissal was substantively fair.
In respect of procedural fairness,
the arbitrator found that due to
the complexity of the matter and the Appellant’s lack of
knowledge in respect of the Department’s
policies, the refusal
to allow the Appellant legal representation at the disciplinary
hearing was procedurally unfair, accordingly
in this respect, the
Appellant was awarded compensation equal to two months’ salary.
[29] The Appellant
launched a review application against the arbitration award that the
dismissal was substantively fair and the
Respondents launched a
cross-review application on the findings relating to procedural
unfairness. The cross-review was filed late
and the Respondents
sought condonation, which was refused.
[30] On the Appellant’s
review application, the Labour Court was not satisfied that the
arbitrator could have found that the
Appellant had committed
misconduct as alleged in the first two charges, on the evidence
presented at the arbitration and as such,
set aside the arbitrator’s
finding of the Appellant’s guilt on the first two charges of
misconduct. Since no appeal
lies in respect of this finding by the
Labour Court, I shall refrain from making any comment thereon save to
say that the basis
upon which the court
a quo
failed to
sustain those misconduct charges were:
30.1  In considering
the charge of misappropriating school funds, the court
a quo
found that the Appellant’s version regarding the stolen
invoices was implausible however it held that it was clear from the

report prepared by the Department that some of the cheques issued
were made out to legitimate vendors of the school and therefore
the
amount of about R410 000 is an overestimation of what amounts were
actually misappropriated and for which the Appellant was
responsible
for. The court further held that missing invoices is not sufficient
evidence of misappropriation and accordingly, the
evidence did not
support a conviction on charge 1.
30.2  In respect of
charge 2, the court
a quo
found that the Appellant was not
merely an intermediary between the educators seeking the loans and
the SGB who would ultimately
issue the loan, rather the Appellant had
acted as the gatekeeper to the loans, determining which request was
deserving of receipt
of the loans and when the issue of repayment of
the loans was canvassed during the investigation, the Appellant took
it upon himself
to recover the outstanding loans, disallowing the
investigators from interacting with the educators who had received
the loans
in order to pay back the money. Accordingly, the court
a
quo
found him to have acknowledged that he was accountable for
making the loans and that he was instrumental in the issuing of the
loans. However, the court
a quo
found that this did not
justify the conviction on this charge where the charge categorised
the loans as a “money lending
scheme” and giving its
ordinary meaning, the issuing of loans did not constitute a money
lending scheme. Further, the evidence
did not establish that the
Appellant had derived any benefit from the loans in accordance with
the provisions of section 18(1)(w)
of the EEA.
[31] While I find the
setting aside of the “convictions” on the first two
charges rather curious, there is no cross-appeal
before this Court
and as such, the decision of the Labour Court in that respect stands.
[32] In respect of the
other two charges, the Labour Court was satisfied that on the
evidence presented at the arbitration, the
findings of the arbitrator
were within the band of reasonableness and also that dismissal was an
appropriate sanction.
[33] In the result, the
Labour Court dismissed the application for review.
[34] The Appellant
appeals the decision of the Labour Court and essentially, his grounds
of appeal can be summarised as follows:
34.1  the court
a
quo
failed to consider the Appellant’s argument that the
misconduct charges relating to the period of 2004 – 2005 fell
within the responsibility of the SGB and not the Appellant as the
principal;
34.2  the court
a
quo
miscategorised charges 3 and 4 as wasteful expenditure
charges and the charges related to the failure to abide by the
procedures
and policies of the Department;
34.3  The court
erred in finding that the Appellant did not deny receiving training
in respect of his duties;
34.4  The court
erred in its interpretation and application of the principles of
inconsistency; and
34.5  the court
erred in finding that the trust relationship had become intolerable.
Responsibility for the
financial management of schools
[35]
The
Appellant led evidence that the responsibility of managing a school’s
finances, prior to the 2007 amendments to the SASA
[5]
,
fell exclusively on the SGB and not on him as the principal.
[36] The SASA is intended
to provide a uniform system for the organisation, governance and
funding of schools, this includes regulating
the governance and
management of public schools, setting out the functions and duties of
a school’s governing body and regulating
the funding of public
schools.
[37] In terms of section
16 of the SASA, the governance of a public school is vested in its
governing body which may perform only
the functions and obligations
as set out in the Act. Section 16(3) of the Act provides that the
professional management of a public
school “
must be
undertaken by the principal under the authority of the Head of
Department
”.
[38] Section 23 of the
SASA provides that the membership of an SGB comprises the elected
members, the principal in their official
capacity and co-opted
members.
[39] The functions of a
governing body where such a school has been given section 21 status
may include the purchasing of textbooks
and educational materials for
the school, paying for the services provided to the school and such
other functions consistent with
the SASA and any applicable
provincial law.
[40]
It is the
argument of the Appellant that, at the time of the commencement of
the alleged misconduct, the financial management of
the school vested
solely in the SGB and that, in accordance with the SASA, his
responsibility was limited to guiding the SGB in
its role, functions
and responsibilities. This argument flows from the judgment of
Schoonbee
and others v MEC for Education, Mpumalanga & another
[6]
where the court held that –
‘…
On a
careful look at the provisions of the Act, which are by no means
replete or comprehensive, no specific duties relating to assets,

liabilities, property, financial management are entrusted to or
vested in the principal. In my view, the proper interpretation
is to
regard the principal as having a duty to facilitate, support and
assist the SGB in the execution of its statutory functions
relating
to assets, liabilities, property, financial management of the public
school and also as a person upon whom specified parts
of the SGB's
duties can properly be delegated. On any of these interpretations the
principal would be accountable to the SGB. It
is the SGB that would
hold the principal accountable for financial and property matters
which are not specifically entrusted upon
the principal by the
statute.’
[41] What the Appellant
fails to consider is that the evidence establishes that the
Appellant, as principal of the school, was delegated
specific
functions relating to the financial management of the school in
addition to his statutory duties of professional management
as set
out in section 16(3) of the SASA. Further and in some instances, the
Appellant even made himself responsible for certain
financial duties
such as his decision to act as the custodian of the school’s
financial documentation following the alleged
burglary, his acting as
the point of communication and motivator between the SGB and the
educators in order to secure the loans
and their subsequent repayment
or his decision to use school funds to pay service providers in cash
or to pay for celebratory events
for learners.
[42] In respect of his
delegated financial responsibilities, where the school was required
to make payment to its service providers,
payments would be made by
way of cheque and prior to the issuing of the cheque, a payment
advice would be prepared setting out
the relevant details of the
proposed payment. This payment advice would be approved by the
Appellant as the principal, thereafter
the cheque would be signed by
the chairman of the SGB and one other member of the SGB, Mr Ngcobo.
Accordingly, although the Appellant
was not the ultimate signatory of
the cheques, his approval was required before cheques could be issued
and without his approval,
no cheque could be issued.
[43] Further, when
learners made payments to the school by way of cash, the Appellant
would be responsible for the recording and
subsequent deposit of the
funds into the school accounts.
[44] Based on the
evidence presented, it cannot be said that the Appellant was in no
way responsible for the financial management
of the school, at least
in certain aspects, it is clear that during 2004 – 2005, he had
made decisions (and in some instances
alone) relating to the finances
of the school, including causing the issuing of a cash cheque in
order to purchase computers to
the school and causing the issuing of
loans to educators and then taking responsibility for the repayment
of such loans following
the institution of the investigation. These
duties go beyond ‘professional management’ as envisioned
by section 16
of the Act and accordingly, it can be said that the
Appellant was most certainly responsible for the financial management
of the
school.
Miscategorisation of
charges 3 and 4 as wasteful expenditure charges by the court
a quo
[45] Charge 3 relates to
the issuing of cash cheques by the Appellant despite the regulations
stating that no cash cheques could
be issued, while charge 4 relates
to the failure to deposit school funds into the school’s bank
account.
[46] More specifically,
charge 3 relates to the issuing of cash cheques and in one instance,
a cash cheque for the purchase of computers
for the school. It was
the Appellant’s evidence that a cash cheque had been issued
because the supplier of the computers
was unable to receive the funds
in its bank account. The court
a quo
noted that in the
Respondents’ investigative report, the purchased computers
could not be found on the school’s premises
and on questioning,
the Appellant informed the investigator that the computers had been
sent away to be upgraded, although these
computers have still not
materialised. The court referred to the purchase of these computers
as an instance of ‘wasteful
expenditure’.
[47] Similarly, charge 4,
which relates to the Appellant using cash received from learners to
pay service providers and/or pay for
celebratory events at the
school, was referred by the court
a quo
as an instance of
wasteful expenditure.
[48] The court did not
find the Appellant guilty of wasteful expenditure in respect of
charges 3 and 4, rather the court had referred
to the evidence led
relating to the charges as amounting to instances of wasteful
expenditure on the part of the Appellant, particularly
where
computers, which were purchased for the benefit of the school, had to
be sent offsite to be upgraded thus could not be used
by the learners
until the upgrade process was completed, or school fees received were
used to pay for celebratory events for learners
or given to a Mr
Makhanya to pay for a family member’s funeral.
[49] Clear and specific
rules existed concerning the issuing of cash cheques and the
depositing of school fees into the school’s
banking account,
the Appellant had failed to apply these rules and procedures, had
admitted to not following the rules in respect
of these charges and
even sought to justify his actions. Accordingly, he was found guilty
of the charges. Referring to the instances
which gave rise to the
charges as ‘wasteful expenditure’ cannot be said to be a
miscategorisation or change in the
charges that the Appellant was
found guilty of. In any event, what should be evident is that what
the Court categorised as wasteful
expenditure is not what is
generally understood to constitute wasteful expenditure.
Training of appellant
in his duties
[50] The court
a quo
acknowledged the Appellant’s defence that he was not aware of
the Department’s rules and policies due to a lack of
training
during his tenure as principal of the school. The cumulative evidence
of the Respondents was that newly appointed principals
would be
provided with induction training, that documentation referred to as
the “green and red” books which contained
the
Respondents’ regulations and rules would be provided to the
principals and that the documentation was self-explanatory
and
further training on its content was not necessary. Further, quarterly
meetings with the circuit manager were held to discuss
school
governance, financial and operational matters and workshops would be
arranged where principals would receive further training
on aspects
relevant to their position.
[51] Even if it can be
accepted that the Appellant did not at any point receive induction
training, receive the green and red books
or was informed that
specific rules and procedures existed in the governance and
management of schools, it is difficult to accept
that the Appellant,
who had experience in the Department for 23 years and was employed at
the school as the principal since 1998
until his termination in 2008,
did not have
any
knowledge of the rules and policies which
govern schools. Further, it is not disputed that quarterly meetings
were held with the
circuit manager and thus if the Appellant felt at
odds with his preparedness to act as principal of the school, this
would have
been an opportunity for him to raise his concerns. The
Appellant also conveniently forgot that in both his application to be
principal
and in his application to have the school declared a
section 21 school, he represented that he was well aware of the
requirements
in respect of the financial duties he had to carry out.
Inconsistency in the
application of discipline
[52] The Appellant argues
that the Respondents were inconsistent in the application of
discipline, specifically between himself
and Mr Ngcobo and further
that the court erred in concluding that the test for inconsistency is
based on the employer’s prerogative
to impose discipline.
[53] The parity principle
in its simplest terms relates to the equal treatment of employees who
commit the same misconduct and that
it would be unfair to discipline
an employee for an infraction which in the past was condoned by the
employer.
[54]
In
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)
[7]
,
this
Court was faced with the argument by a senior employee who alleged
inconsistency in the discipline meted out between himself
and his
subordinates. This Court held that –
‘
As
regards the dereliction of duties by his subordinates, if any acts of
misconduct were to be proven against any particular individual,
it
remains plain that they had no managerial role and it is illogical to
draw a comparison as contemplated by the factor of inconsistency.

Moreover, it would be a paradox if the appellant could legitimately
invoke the failure of the very subordinates he was accountable
to
manage effectively to exonerate or mitigate his managerial neglect by
managing them ineffectively. There is no room to contemplate
the
factor of inconsistency of discipline by invoking the probability
that no subordinates were disciplined (or that it is unknown
whether
they were disciplined) for their infractions. The reason for this is
that if it is assumed that a cogent concrete basis
could be put up to
identify which persons acted irresponsibly in relation to their
specific functions and responsibilities, it
would still not be a
failure by them to manage the fitment programme and be conduct
comparable to the misconduct committed by the
appellant.’
[55]
The Appellant, as principal of the
school was vested with the duty of the professional management of the
school and as set out in
Schoonbe,
had a duty to “
facilitate,
support and assist the SGB in the execution of its statutory
functions relating to assets, liabilities, property, financial

management of the public school”
.
Mr Ngcobo, as the Appellant’s subordinate and fellow SGB
member, did not have a managerial role in the school comparable
to
that of the Appellant and accordingly, he took instruction and
guidance from the Appellant in the completion of his duties.
He was
told by the Appellant when to sign cheques and when to prepare
payment advices. It cannot be said that the Respondents’

failure to discipline Mr Ngcobo constituted an inconsistent
application of discipline as the Appellant occupied a managerial role

within the school and ultimately instructed and guided Mr Ngcobo in
the (incorrect) completion of his financial duties.
Breakdown
in trust relationship
[56]
The Appellant’s final ground for
appeal is the Respondents’ alleged failure to argue a breakdown
in the trust relationship
to justify the dismissal of the Appellant.
it is clear from a reading of the transcript of the arbitration
proceedings that the
Respondents considered the failure of a
principal to abide by the Department’s policies and rules to be
a serious offence
especially where such principal used school funds
for purposes for which they were not designated. Further, the court
a
quo
was correct in saying that the
Appellant showed no contrition for his actions considering the
seriousness of the charges he faced.
If it said that the school
principal has a duty of professional management towards the school
and is tasked with guiding and facilitating
the SGB in its duties,
then it is clear that the Appellant has failed on both counts and
accordingly, he cannot be trusted to continue
to act as the principal
of the school.
[57]
The above notwithstanding, the conduct
of the Appellant during the investigation was not what is expected of
the leader of the school.
Also, his evidence at the arbitration was
correctly rejected as a consequence of the inherent improbabilities
in his version. It
is clear from the evidence that the Appellant was
the final authority who approved the authorised payments. It was also
clear that
he made decisions without the intervention of the SGB
hence the convenient absence of the minutes of the SGB which would
have exculpated
him. He had a duty to ensure the safety of school
records and failed to do so. His poor explanation, that such records
were stolen
or conveniently damaged, must be rejected as
fabrications.
[58]
In all the circumstances it cannot be
said that the award by the arbitrator that the dismissal was
substantively fair is open to
be set aside; it is demonstrably based
on the evidence presented at the arbitration and is an award which is
within the band of
reasonableness.
[59]
In the result, the following order is
made:
The
appeal is dismissed with no order as to costs.
Waglay
JP
Musi
JA and Gqamana AJA concur.
APPEARANCES
For
the Appellant
A
Naidoo of Angeni Naidoo Law Firm
For
the First and Second Respondents:
Adv
Deshin Pillay
Instructed
by the State Attorney
[1]
Act 76 of 1998. Section 18(1)(a) of the EEA provides that:
“[
m]isconduct
refers to a breakdown in the employment relationship and an educator
commits misconduct if he or she… fails
to comply with or
contravenes this Act or any other statute, regulation or legal
obligation relating to education and the employment
relationship…
”
[2]
Section 18(1)(w) provides that: “
an
educator commits misconduct if he or she…operates any
money-lending scheme for employees for his or her own benefit
during
working hours or from the premises of the educational institution or
office where he or she is employed
…”
[3]
Act 84 of 1996.
[4]
Section 21 of the SASA provides that a school’s governing body
may apply to the Head of Department to become responsible
for
specific functions relating to the school including but not limited
to, maintaining and improving the school’s property;

purchasing of textbooks, education materials or equipment for the
school; paying for services to the school or any other function

consistent with the South African Schools Act and any applicable
provincial law.
[5]
In 2007, an amendment to section 16 of the SASA was introduced in
which the functions and responsibilities of a principal of
a public
school were set out. In terms of section 16A, the principal
represents the Head of Department in the governing body
when acting
in an official capacity and must,
inter
alia,
manage educators and support staff; implement policy and legislation
and inform the SGB of same; and keep safe all school records.
[6]
(2002) 23 ILJ 1359 (T) at 1365C-E.
[7]
(2014) 35 ILJ 2406 (LAC) at para 28.