THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR182/22
In the matter between:
DEPARTMENT OF EDUCATION, FREE STATE
PROVINCE Applicant
and
SUID-AFRIKAANSE ONDERWYSERSUNIE (SAOU)
OBO A TAYLOR First Respondent
M.A. HAWYES N.O. Second
Respondent
EDUCATIONAL LABOUR RELATIONS COUNCIL Third Respondent
Heard: 14 August 2025
Delivered: 30 October 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MAMANYUHA, AJ
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Introduction
[1] This is an application to review and set aside an arbitration award that was
granted against the applicant in a dispute concerning the interpretation and
application of the ELRC collective agreement No. 3 of 2006 (the collective
agreement).
[2] The arbitrator ordered that:
2.1. The respondent immediately regrade Brebner Secondary School
retrospectively from the 1
st of January 2015;
2.2. The applicant likewise qualifies to be upgraded in his principal post
from the 1st of January 2015;
2.3. The respondent is ordered to pay the applicant the difference in his
notch for the period from the 1
st of January 2015 to the 31st of
December 2015, which amounts to R85, 113.00;
2.4. The amount of R85,113.00 (less statutory deductions) must be paid to the
applicant upon or before the 30th of November 2019.
[3] The applicant in this matter contends that the a rbitrator was obliged to give
due consideration to the cases presented by both parties in their respective
written submissions. T he arbitrator’s failure to do so constitutes misconduct,
resulting in a decision that a reasonable decision- maker, presented with the
same facts and circumstances, would not have reached.
[4] It appears from the papers that t his matter had been taken on review before
this court before, and the dispute between the parties was remitted back to
the Council to be heard de novo.
[5] Both parties seek condonation for their late filing of the review application by
the applicant and answering affidavit by the first respondent. I begin by
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addressing the applications for condonation, as I do not intend to be hindered
by this issue.
[6] In Grootboom v National Prosecuting Authority and Another 1, the
Constitutional Court held as follows:
‘the standard for considering an application for condonation is the interests of
justice. However, the concept “interests of justice” is so elastic that it is not
capable of precise definition… it includes: the nature of the relief sought; the
extent and cause of the delay; the effect of the delay on the administration of
justice and other litigants; the reasonableness of the explanation for the
delay; the importance of the issue to be raised in the intended appeal; and the
prospects of success.’
[7] I have taken into account the explanations provided by both parties for the
delay, which relate to bureaucratic processes and the impact of the Covid- 19
pandemic, during which many were working remotely.
[8] I have also considered the significance of the interpretation and application of
the collective agreement at issue. Weighing all relevant factors, I am satisfied
that it is in the interests of justice to grant condonation.
Background facts
[9] The central issue before the arbitrator concerned the interpretation and
application of the collective agreement , specifically with a view of determining
whether the principal of the school was entitled to a higher salary notch with
effect from 1 January 2015 or 1 January 2016.
[10] Clause 4.1(a) of the collective agreement provides that:
‘A school is up-graded to a higher grading level if, for two consecutive years ,
the educator post allocation to the school reaches or exceeds the number of
posts required for the up-grading of the school as indicated in the table.’
[11] Clause 4.1(c) of the collective agreement provides that:
1 [2013] ZACC 37; 2014 (2) SA 68 (CC) at para 22.
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‘Re-grading of schools should be done on an annual basis and should be
effective from 1 January, based on the school's post establishments of the
previous year and of the current year.’
[12] The first respondent held a view that the principal became entitled to receive
the increased salary attendant upon the school’s grading to a higher level at
the commencement of the second year in which the educator ’s post allocation
to the school reached or exceeded the number of posts required for upgrading
of the school as indicated in the applicable table under the collective
agreement.
[13] The applicant, relying on clause 4.1(d) of the collective agreement below,
contends that it should be 1 st of January 2016 and not 1 st of January 2015 as
claimed by the first respondent. Clause 4.1(d) provides that:
‘Where the enrolment of a school increases or decreases substantially,
affecting the post allocation to the school substantially, and sufficient
evidence exists that the new enrolment and accompanying post allocation will
be maintained for a reasonable period, the head of the department may
immediately re-grade the school in accordance with the relevant post
allocation.’
[14] The applicant also relied on clause 4.2(b) of the collective agreement below to
support the contention that performance must be verified at the end of the
second year to assess whether the principal will qualify for the salary
increment. Clause 4.2(b) provides the following regarding Salary Progression:
‘An educator will qualify for an annual notch increment if his/her performance
in respect of the past 12-month was satisfactory/acceptable.’
Submissions before the arbitrator
[15] The applicant’s submissions in its written heads of argument before the
arbitrator were: The resolution provides for a cool -off period of two years to
ensure that the growth in educator post allocation is sustainable, and the
resolution calls for the educator post allocation to be done for two consecutive
resolution calls for the educator post allocation to be done for two consecutive
years. The up- grading of a post can only happen once the two years of
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educator post allocation have been completed. Given that the educator post
allocation was done in September 2013 for implementation in January 2014,
the first year of allocation is 2014 in this case. The second educator post
allocation was done in September 2014 for implementation in January 2015.
The two-year period that is referred to in the resolution is from January 2014
to December 2015. If one were to follow the first respondent’s interpretation of
the resolution, this would mean that the up- grading of th e principal’s post of
Brebner Secondary School should have been done, taking only the teacher
establishment of 2014 as verified, without really checking on the sustainability
over time of the allocation of 2015.
[16] The first respondent’s submissions in its written heads of argument before the
arbitrator were essentially that Brebner Secondary School qualified to be re -
graded due to the fact that the school’s educator post allocation exceeded 47
for two consecutive years:
16.1. On 10 September 2013 = 50 posts for 2014 (Previous year)
16.2. On 19 September 2014 = 52 posts for 2015 (Current year)
16.3. And therefore, the principal qualified for a higher salary notch from the
date of up-grading of the school, namely January 2015.
The arbitration award
[17] The arbitrator considered the surrounding clauses , which may provide clues
on the thinking of the drafters of the legislation on specific aspects . The
arbitrator found these clues in clauses 4.1(d) and (e) of the collective
agreement. Arbitrator concluded that it is clear from these clauses that based
on reasonable evidence at a certain point in time enrolment may be re- graded
immediately by the head of department, there’s no waiting period and that re -
grading after two consecutive years interpretation is not consistent with the
wording of all relevant provisions of the collective agreement.
Grounds for review
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[18] The applicant contends that the arbitrator’s conclusion that the principal ’s
increased salary was payable on the earlier date of 01 January 2015 was
irrational and not one which a reasonable decision- maker could make in
respect of the interpretation dispute.
Evaluation
[19] In Western Cape Department of Health v MEC Van Wyk and Others 2 the
court held that:
‘In interpreting the collective agreement the arbitrator is required to consider
the aim, purpose and all the terms of the collective agreement. Furthermore,
the arbitrator is enjoined to bear in mind that a collective agreement is not like
an ordinary contract. Since the arbitrator derives his/her powers from the Act
he/she must at all times take into account the primary objects of the Act. The
primary objects of the Act are better served by an approach that is practical to
the interpretation and application of such agreements, namely, to promote the
effective, fair and speedy resolution of labour disputes. In addition, it is
expected of the arbitrator to adopt an interpretation and application that is fair
to the parties.’
[20] In Natal Joint Municipal Pension Fund v Endumeni Municipality 3 the court
emphasised that:
‘The ‘inevitable point of departure is the language of the provision itself’, read in
context and having regard to the purpose of the provision and the background to
the preparation and production of the document.’
[21] Central to this review are the allegations that the a rbitrator failed to have
proper regard to both parties’ cases as expounded on their respective written
submissions. The written submissions , which the applicant claims were
ignored, are in their heads of argument to the arbitrator and quoted below:
‘4.1 If we were to follow the applicant's interpretation of the resolution, this
will mean that the up-grading of the principal's post of Brebner
2 [2014] ZALAC 25; [2014] 11 BLLR 1122 (LAC) at para 22.
3 [2012] ZASCA 13; [2012] 2 All SA 262 (SCA) at para 18.
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Secondary School should have been done taking only the teacher
establishment of 2014 as verified without really checking on the
sustainability over time of the allocation of 2015.
4.2 Again in terms of the applicant's interpretation of the resolution the
upgrading would have been done before the educator establishment
of Brebner Secondary School has completed.’
[22] In my view, the arbitrator did not disregard the applicant’s submissions, but
rather did not accept them . The mere fact that each submission was not
addressed in detail does not, in itself, indicate that they were not considered .
In Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union &
others4 we are reminded that:
‘…The test is concerned with outcomes, not the process by which the
outcomes are achieved. Only when the outcome is one which no reasonable
arbitrator, with the material that was to hand, could produce, is an award
liable to be set aside. The frailties of an arbitrator’s reasoning, or inattention to
mentioning every facet of relevance, or clumsiness in articulation are
unimportant, unless they are causally connected to an unfair outcome.’
[23] It is evident that, in interpreting the collective agreement as a whole, the
arbitrator was persuaded by the principle that once the requirements for re-
grading are met, the re- grading takes immediate effect, without any waiting
period to assess continued performance, as suggested by the applicant. I
further agree with the first respondent that Clause 4.1(d) as relied upon by the
applicant has no application in this matter, as there was no substantial or
sudden increase in the school’s post allocation arising from changes in
enrolment. The clause introduces a discretionary exception to the standard
rule, and it appears the arbitrator referenced it merely to demonstrate internal
consistency within the collective agreement regarding the principle of
immediate re-grading.
consistency within the collective agreement regarding the principle of
immediate re-grading.
[24] The applicant appears to misconstrue the nature of the issue by framing it as
one that hinges on the performance of the school or the principal. However,
4 (2018) 39 ILJ 546 (LAC); [2018] 3 BLLR 246 (LAC) at para 18.
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the core of the matter, as correctly identified by the first respondent, relates
not to performance metrics, but rather to the educator post allocation, which
serves as the basis for determining whether the threshold for re -grading has
been met in terms of the collective agreement. It is not in dispute — and was
in fact confirmed by the first respondent — that educator posts, once
allocated, are not subject to reduction during the course of the academic year,
as such posts are planned and budgeted for in advance. This undermines the
applicant’s suggestion that a period of further assessment or monitoring is
necessary before re- grading can take effect. The collective agreement does
not provide for a discretionary waiting period once the requisite post allocation
is in place for two consecutive years. The process is administrative in nature,
and not subject to subjective considerations such as performance.
[25] I hold a view that cl ause 4.1(c) determines the Effective Date and not the
Completion of a Calendar Year. The operative part in the clause is the phrase:
“
based on the post establishments of the previous year and of the current year”.
25.1. In casu, by September 2014, the department had already determined:
25.1.1. Post establishment for the previous year: 50 posts (2014)
25.1.2. Post establishment for the current year: 52 posts (2015)
The argument that "two consecutive years" ( clause 4.1(a)) means the school
qualifies for upgrading after the end of the second year artificially imposes a
calendar-year requirement that is not found in the agreement. The collective
agreement uses the post allocation data, which is determined annually in
September for the following year. This means that by 19 September 2014, the
two required years had already been completed, confirmed, and available
before the start of the next year. If the relevant data to assess “two consecutive
years” is already av ailable, why wait for the end of a full calendar year
(December 2015).
years” is already av ailable, why wait for the end of a full calendar year
(December 2015).
[26] Having considered the evidence presented during the arbitration proceedings,
the findings made by the arbitrator, and the grounds for review advanced by
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the applicant, I am satisfied that the arbitrator’s award falls within the bounds
of reasonableness in the circumstances.
[27] Having considered the parties’ submissions, the requirements of law and
fairness in relation to costs, I am satisfied that this is not a matter in which a
costs order is warranted.
[28] Accordingly, the following order is made:
Order
1. The application to review and set aside the award issued by the
second respondent is dismissed.
2. No order is made as to costs.
__________________________________
T. Mamanyuha
Acting Judge of the Labour Court of South Africa
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Appearances
For The Applicant: Adv A.I.B Lechwano
Instructed by: State Attorney
For The Respondent: Adv Gideon v/d Westhuizen
Instructed by: Louw Erasmus Incorporated
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