THE LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Of interest to other judges
Case no: C335/2022
In the matter between:
CYNTHIA BUYELWA MBOYA Applicant
And
THE PREMIER OF THE WESTERN
CAPE
First respondent
MELVIN ARENDSE Second Respondent
THE GENERAL PUBLIC SERVICE
SECTOR BARGAINING COUNCIL
(GPSSBC)
Third Respondent
JACQUES BUITENDAG (N.O.) Fourth Respondent
Heard: 7 November 2024
Delivered: 29 September 2025
Summary: (Review- Unfair labour practice relating to promotion – central
dispute concerned whether the process leading up to the shortlisting and
interviews was fair, and if not whether the applicant would have been appointed
– Despite not giving applicant an opportunity to act pending advertisement of
vacant post and despite evidence that advertisement was delayed until acting
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candidate had the necessary qualification , arbitrator finding no evidence that
the selection and interview process was flawed – Contention that delay in
advertising the post denied applicant being appointed reliant on too many other
imponderable factors to justify such a claim – Arbitrator’s decision, while not the
only possible outcome, was not so untenable that no reasonable arbitrator could
have reached it - review application dismissed)
JUDGMENT
LAGRANGE, J
Nature of the application
[1] This is an application to review and set aside an arbitration award of the
fourth respondent (‘the arbitrator’) in which he found that the applicant, Ms
B Mboya (‘Mboya’) a deputy director in the directorate of Land Safety and
Transportation of the office of the fourth respondent (‘the Premier’) had
been given a fair opportunity to compete for the post of the director of the
same directorate. Accordingly, he dismissed her unfair labour practice
claim relating to the premier’s failure to appoint her to the position. The
second respondent, Mr M Arendse ( Arendse’), was the successful
candidate.
[2] The premier’s answering affidavit was filed on 21 July 2023, some four
and a half months late. Mboya filed an objection to the failure to file the
answering affidavit in terms of rules 11.4.2 of the Labour Court Practice
Manual
1. The condonation application was filed on 28 August 2023. Given
the delay between Mboya’s request for the enrollment of the application on
30 March 2023 and the enrollment state of 7 November 2024, Mboya no
longer opposed the late filing of the answering affidavit . An issue of costs
1 Clause 11.4.2 has now been superseded by Rule 36(2) of the Labour Court Rules.
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had been raised by Mboya, but the parties had resolved this issue too by
the time argument commenced.
[3] A number of other preliminary objections had been raised by the Premier,
but at the commencement of the hearing the court was advised that none
of these would be pursued either.
Brief factual background of the dispute
[4] In November 2009, Mboya was appointed as a deputy director.
[5] In October and November 2014, Mboya acted in the Director's post when
the Director was on leave and received an exceptional performance
assessment.
[6] The existing director in the directorate resigned on one December 2014
and the director’s post became vacant. Ms Ribbonaar (‘R1’) was
appointed to act in the post May 2015. In April 2015, Ribbonaar called a
meeting to inform middle management that she had appointed the second
respondent, Mr. M Arendse (‘Arendse’) from the License Directorate as the
acting Director in the vacant post with effect from 1 May 2015.
[7] During a meeting in April 2015, when R1 announced that a new person
would be joining the team acting in the post, Mboya raised objections
during the meeting as to why she and the other deputy director were not
appointed to act in the vacant post. Ribbonaar admonished her in a private
meeting for challenging her authority and informed Mboya that she needed
a male person to manage the directorate.
[8] At the time, Mboya held a Bachelor's degree and an Honours and have
five years' experience in middle management
[9] Arendse continued to act uninterruptedly for three years until September
2018, which Mboya argues was contrary to the Public Service Regulations
which provide that a person may not act in a director's post for an
uninterrupted period of more than 12 months. In addition, the Western
Cape government Recruitment and Selection policy (‘the RSP’) dated 1
August 2018 stated that a vacant funded post had to be advertised within
six months of becoming vacant and filled within 12 months.
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[10] At the time of his acting appointment, Arendse did not have a Bachelor's
degree. He only acquired this in November 2017. The same month, R 1
sought authority to advertise the post for a permanent appointment. The
post was advertised in early February 2018.
[11] By 30 April 2018, three candidates including Mboya and Arendse were
selected for shortlisting and interviews were held by the end of May 2018.
Each candidate had to complete a practical exercise and answer a set of
structured questions during the interview after completion of the practical
exercise.
[12] The respective scores obtained by the three candidates were 64 5% for
Mboya, 87% for Arendse and the third candidate obtained a score of
43.5%. The interview panellists had determined the interview scores on a
consensus basis, which meant that they agreed on a common score for
each issue they evaluated. As a result, their respective ratings were
identical.
[13] On 28 August 2018, Arendse’s appointment as the new director was
approved with effect from 2 September 2018. Mboya was informed that
she was not the successful candidate on 10 October 2018. She referred
her unfair labour practice dispute to the bargaining Council on 12
November 2018.
[14] Prior to the commencement of the arbitration, the parties agreed on a pre-
arbitration minute. Among other things, the parties agreed that the “ issue
to be decided was whether the process leading up to the shortlisting and
interviews were fair ” and, if not , whether Mboya should have been the
successful candidate for the post.
The award
[15] The arbitrator incorrectly captured the essence of Mboya’s complaint,
which had three primary components. Firstly, she was overlooked as an
acting appointment, whereas Arendse, who did not have the necessary
qualifications or relevant experience for the post was about to acting the
position for about three years. Secondly, the employer did not comply with
public service regulations which prohibited a person occupying a funded
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vacant post in an acting capacity for more than twelve months and failed
to comply with its own recruitment and selection policy that required such
a post to be advertised within six months of becoming vacant. Thirdly,
Mboya had challenged the scoring during the interview process on the
basis of consensus and expressed concerns about the composition of the
interviewing panel.
[16] He noted that the employer had claimed it was not feasible for Mboya2 act
in the position because of staff shortages and her own operational duties.
The arbitrator appear to accept at face value the employer’s evidence that
restructuring measures and a budget freeze the reason why the post was
only advertised in 2018. He noted the employer’s evidence that the
questions had been drafted in a way that would not give an advantage to a
candidate acting in the position. Also appears to have accepted the
evidence that the panel awarded points on a consensus basis.
[17] The arbitrator referred to case authority to the effect that an employee
does not have a right to be promoted, barring any statutory provisions to
the contrary, but only a right to be given a fair opportunity to compete for a
post. Provided that such an opportunity was afforded to the employee, the
selection process itself is only assailable if the appointment was arbitrary
or motivated by an improper reason. He also considered the case of
Department of Justice, which held that an unfair labou r practice relating to
promotion concerns conduct relating to the actual promotion or non-
promotion and conduct related thereto. Further, he cited authority that
having the necessary qualifications and experience for a post is simply the
first hurdle that a complainant must overcome. Thereafter, as long as the
employer’s decision to appoint another qualifying candidate is rational, the
issue of unfairness cannot arise. Moreover, to establish a claim to be
appointed to the post or to be given protected promotion, the claimant had
appointed to the post or to be given protected promotion, the claimant had
to establish that if it had not been for the unfair conduct they would
necessarily have been appointed to the post.
[18] He found that:
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18.1 The delay in advertising the post did not amount to unfair labor
practice because Mboya applied for the post wound was advertised
and was interviewed.
18.2 The fact that the interview panel consisted of three coloured persons
and one black female was not i rregular even though the last
mentioned member of the panel was on the same salary level as the
post advertised.
18.3 There was no evidence to support Mboya’s claim that the black
member of the panel was unduly influenced by the more senior panel
members.
18.4 He accepted that Mboya had not been given an opportunity to act
owing to various operational reasons, the employer’s failure to give
her that opportunity did not constitute and unfair labou r practice
concerning promotion, even though it may have been unfair not to
offer her an opportunity to act, because the appointment of Arendse
to the post was not automatic but the result of a competitive selection
process. Even though i t might have been unfair to allow Mboya to
have the same opportunity to act as Arendse, that did not justify
appointing Mboya in his place.
18.5 The arbitrator rejected the contention that the post had been
reserved for Arendse. He accepted that the interview panel
comprised four and there was no evidence of collusion between
them. The eight questions put to each candidate consisted of four
technical questions and for managerial skills questions. He accepted
the unchallenged testimony that the questions did not favour a
candidate who had acted in the post. The panel had deliberated and
reached consensus on the evaluation of each applicant’s response to
each question. In the upshot, he concluded that Mboya was not
appointed to the position simply because she did not do as well as
Arendse did.
18.6 Lastly, he dismissed suggestions the qualification which Arendse
had eventually obtained because this was not part of the issues in
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dispute recorded in the pre- arbitration minutes, nor was it raised in
the opening statement made by Mboya’s representative. In any event
no evidence was presented that there were any irregularities
discovered during the third-party qualification vetting process.
[19] The arbitrator concluded that, on the evidence presented, he could not find
that Mboya was a better candidate than Arendse, or that he delegated
authority unfairly exercised its discretion to appoint Arendse.
Grounds of review
[20] Mboya raises a number of grounds of review, which may be summarised
as follows: The arbitrator:
20.1 ignored the requirement to advertise the post within 6 months and fill
it within 12 months;
20.2 Overlooked the impact of the irregular acting appointment on
Mboya’s promotional prospects;
20.3 committed errors of law in failing to apply Regulation 63 of the Public
Service Regulations, 2016, which limits acting appointments to 12
months and requires competency, and section 11 of the Public
Service Act: Requires fair, objective, and transparent appointment
processes.
20.4 committed an error of law in failing to take account of the
Recruitment and Selection Policy, which mandates advertising and
filling of posts within specific timeframes.
20.5 made untenable findings in concluding that the delay in advertising
the post did not constitute unfairness, and accepting that Arendse’s
acting appointment was based on operational requirements, despite
evidence that nineteen other management posts were filled during
the same period;
20.6 in relation to the latter issue, the arbitrator ignored the fact that the
evidence of operational and budgetary reasons for denying Mboya
the opportunity to act, and for delaying advertising the post were not
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put to Mboya during cross -examination, and as such should have
been disregarded;
20.7 failing to consider that Mboya would have been promoted but for
Arendse’s irregular appointment.
20.8 finding that Mboya had equal opportunity to compete, despite being
denied the chance to act in the post and despite the post only being
advertised once Arendse had obtained his degree, and
20.9 focussing only on the selection process after the post was
advertised.
Evaluation
[21] A fundamental question in the review is how far back the inquiry into the
fairness of the promotion process could go. Mboya argued that the
appointment process kicked off essentially when the post became vacant.
In this regard, she relied on the RSP which required a vacant post to be
advertised within six months and filled in twelve months. Accordingly, she
argued, any unjustified conduct during that period which prejudiced to her
ability to compete for the post once it was advertised ought to have been
considered in deciding whether the employer had acted unfairly . The
employer argued that the unfair promotion dispute could not refer to
events occurring prior to the date on which she claimed the dispute arose
in her referral form to the bargaining council, namely 12 November 2018.
[22] The significance of drawing a line between events before and after the
date is that it determines whether the arbitrator ought to have taken
account of the evidence that the post was not advertised for nearly four
years on account of the employer having apparently earmarked the job for
someone who did not yet qualify to occupy the post and then advertising it
as soon as they had obtained that qualification. It also would determine if
the evidence that Mboya had been denied an opportunity during that entire
period of acting in a position, despite having prior experience in that
directorate, which Arendse lacked, could be considered.
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[23] The employer sought to minimise the negative inference that might be
drawn against it from this evidence, by contending that various
restructuring measures, budgetary constraints and the difficulty of Mboya
not performing her existing operational role if she was appointed to act in a
position as a director were the real reason that the post was not advertised
earlier. Mboya argued that there was ample evidence of numerous senior
management posts being permanently filled over the same period. It is a
striking feature of the evidence led that, when Mboya was cross-
examined, there was little more than a vague allusion to the possibility of
restructuring being an explanation for the delay.
[24] The arbitrator plainly erred in taking the evidence which was not put to
Mboya into account. Although he did acknowledge that it had been unfair
to her not to give her an opportunity to act, he accepted there were
legitimate reasons for delaying the advertisement of the post and
consequently concluded that the employer had not attempted to reserve
the post for Arendse.
[25] In the absence of a substantive justification for delaying advertisement of
the post for so long, and given the timing of Arendse finishing his degree
and the advertisement of the post in the same month it is very difficult to
see how, if the arbitrator had not erred in this respect, that he could have
avoided the inference that the advertisement of the post was being
deliberately delayed until Arendse had obtained the necessary
qualification which made him eligible to apply for the job.
[26] The question which arises from this is , if the arbitrator had not made this
error, could he nonetheless have plausibly found that the failure to
promote Mboya was not unfair , even if was evident that the employer
wanted to mak e sure Arendse would be eligible for appointment before it
advertised the post?
[27] Although Mboya belatedly expressed some doubts about the validity of
[27] Although Mboya belatedly expressed some doubts about the validity of
Arendse’s qualification, it was not seriously challenged. There was no
argument that he was eligible to apply for the post by the time it was
advertised. There was also evidence that, in the process of winnowing out
candidates for the shortlist of those to be interviewed, Mboya had actually
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been rated above Arendse during that stage. However, in the crucial
interview phase Mboya could not demonstrate that the eight questions
asked of each candidate were clearl y easier for someone with more
experience in the post to answer. She could only express her suspicion
that the single black member of the panel had succumbed to the weight of
opinion expressed by her seniors on the panel to during the process of
agreeing on the score to be awarded for each of the candidates’ answers
to the eight questions. There was no other evidence she could adduce of
collusion between members of the panel to shift the weight of opinion in
favour of Arendse. It may be so that by the panellists agreeing to score
answers to each question by consensus this method could have been
used to discourage dissent, but absent any evidence from anyone present
at the panellists’ deliberations to support this , Mboya could only advance
her suspicions in that regard. All be it that those suspicions were not
wholly unreasonable considering the delay in the filling the vacancy until
Arendse was also eligible for appointment , those suspicions are not
enough to show that the panel must be presumed to have acted in bad
faith to deny her the appointment.
[28] Mboya implied that if the post had been advertised within six months of it
falling vacant, as it should have been, she would have been appointed. It
is true that Arendse would not have been in contention if the post had
been advertised within six months of it falling vacant because he would not
have met basic eligibility requirements. However, it cannot be said that,
without Arendse in the mix, there would have been no other suitable
candidates for the post and that Mboya would have been successful. To
reach that conclusion entails speculation about unknown variables which
could have affected a selection process at that time.
[29] It must be emphasised that the thrust of Mboya’s attack on the
[29] It must be emphasised that the thrust of Mboya’s attack on the
appointment process was on the perceived disadvantage she suffered
from the delay in making the appointment which benefitted Arendse by
giving him time to become eligible for appointment and acquiring more
acting experience than she had. Although aspects of the actual interview
process were criticised, even during the arbitration it was made clear that
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the interviews where not the chief focus of her complaints about the
process.
[30] It must also be mentioned that during the arbitration, from time to time,
Mboya expressed in passing a belief that race and or gender might have
played an illegitimate role in the process, but the arbitrator was not seized
with an unfair discrimination case, and could not entertain those
considerations, even if they might have had some validity.
[31] In conclusion, I am not persuaded that the arbitrator’s conclusion that the
applicant had a fair opportunity to compete for the post was plainly an
untenable one, given that there was no evidence that the interview
process itself was contaminated by any improper motive to prefer
Arendse, even if the delay in advertising the post might have suggested
that. It is possible the applicant might have benefitted if the panel had
each submitted their own scores for each question the candidates
answered in their interviews, but it cannot be said with any confidence that
would necessarily have been so.
[32] It is important to stress that the court is not tasked with deciding if the
arbitrator’s decision is the only finding a reasonable arbitrator could have
reached, but simply whether it is one that a reasonable arbitrator might
have reached. Even though another arbitrator might reasonably have
concluded that the actions of the employer prior to the advertisement of
the post irredeemably tainted the post -advertisement process , on the
evidence it cannot be said no reasonable arbitrator could have reached
the same conclusion as the arbitrator.
Order
1. The late filing of the First Respondent’s answering affidavit is
condoned.
2. The review application is dismissed.
3. No order is made as to costs.
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_______________________
R Lagrange
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
J A Nortje instructed by
Halday Attorneys
For the Respondents: C Daniels instructed by
the State Attorney