Ketsekile v Head of Department, Education, E Cape & others [2026] ZALCD 57

Date of Judgment & Seat of Court: 21 October 2026, Labour Court, Durban

Case No: D385/24

Name of Judge(s): Daniels J

Summary of Factual Matrix:

The applicant, a Deputy Chief Education Specialist in the Eastern Cape Department of Education, had repeatedly acted as Chief Education Specialist: Curriculum Management between 2021 and 2024 under letters stating that acting created no right or expectation of promotion. When the post was advertised in 2023 she was shortlisted and interviewed, together with six others, by the same selection panel, but scored 59 per cent and was ranked fourth; the top-scoring candidate, the fifth respondent, was appointed. A 60 per cent threshold applied to senior appointments.

The applicant referred an unfair labour practice dispute relating to promotion to the ELRC, contending that her acting experience made her the best candidate, that the panel was irregularly composed and unbalanced in race and gender, and that scoring was improperly used as the sole method of assessment. The commissioner dismissed the claim. The applicant applied, out of time, to review the award, and the first and second respondents filed their answering affidavit late; both sought condonation, and the applicant raised technical objections to the answering affidavit.

Summary of Findings:

[2] ‘Although the delay is not short, it is not excessive either. The explanation is not particularly detailed and is weak.’

[3] ‘Here too, although the delay is lengthy, it is not excessive. The explanation is weak, but that is not the end of the matter.’

[5] ‘Recently, in National Union of Metalworkers of SA on behalf of Members v Macsteel Service Centres SA (Pty) Ltd,[2] the appeal court held that this court must consider the prospects of success even if there is no adequate explanation for the delay. Furthermore, the appeal court acknowledged that, when dealing with a large organisation, the party in default may not be able to explain each day of the delay. In this matter too, the Office of the State Attorney is a large organisation operating throughout our country. Like NUMSA, the respondents cannot account for every day of the delay.’

[6] ‘In my view, on consideration of the application and the answering affidavit, both parties have prospects of success.’

[7] ‘Accordingly, when all relevant factors are considered and weighed, it is in the interests of justice to grant condonation to both the applicant and the respondents.’

[8] ‘I don’t accept the objection. This is a technical objection, designed to undermine the first and second respondents' opposition. In any event, the deponent in the answering affidavit does not purport to have personal knowledge of the evidence presented. As a court of both law and equity, this technical approach to litigation is to be discouraged.’

[9] ‘The applicant fails to appreciate that her own supplementary affidavit does not strictly comply with the Regulations, given that the commissioner does not state his designation or the area for which he holds office. This kind of technical approach to litigation is inappropriate. Both affidavits substantially comply with the Regulations.’

[17] ‘Unfortunately, the applicant does not specify (with reference to the record) what evidence she presented to show that she was the best candidate, or that the fifth respondent lacked the required experience in curriculum management and middle-management-level experience. It is not for the court to perform this role on behalf of the applicant.’

[19] ‘On this occasion, the panel was not balanced in terms of race or gender. However, because the panel appointed a black African woman, this imbalance did not affect the outcome.’

[21] ‘On its own terms, the memorandum only recommended certain individuals for the panels, subject to their availability.’

[25] ‘Accordingly, with a score of 59%, the applicant was not eligible for promotion to the position. In her replying affidavit, at paras 24 and 25, the applicant does not dispute that the 60% threshold was applicable.’

[27] ‘Importantly, the applicant did not prove that the questions were irrelevant or that the scoring was improper.’

[29] ‘Thus, applicants who claim their employer unfairly refused to promote them must show they were denied a fair opportunity to compete for the post, despite meeting the promotion criteria. The employee must show that the employer did not assess his or her suitability for the post fairly, despite the element of discretion reserved to the employer. The central question is whether the employer acted in bad faith, with ulterior motives, arbitrarily, capriciously, or in a grossly unreasonable manner, and the onus lies with the applicant employee.’

[30] ‘In her founding and supplementary affidavits, the applicant sets out all the evidence she could have been led at arbitration and leaves it to the court to determine whether she presented it. This is improper. In reviews, it is incumbent on the applicant to clearly state what evidence was presented, why it is alleged that the evidence was not considered, and how that omission materially affected the outcome.’

[31] ‘The test on review in relation to an arbitration award is: … one which no reasonable commissioner could reach on the material before him or her?[11] As to what is reasonable, this must be determined by the circumstances of each case. The circumstances include the nature of the decision, the identity and expertise of the decision maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected.[12]’

[32] ‘The commissioner must apply his or her mind to all the issues that are material to a fair determination of the dispute.[13] Where the commissioner fails to apply his or her mind to the material issues, this will usually indicate that the outcome is unreasonable or it may indicate that the commissioner misconceived the nature of the enquiry.[14] However, when a mistake occurs, whether of fact or law, what matters is its materiality, whether it distorted the outcome.’

[33] ‘An award is unreasonable[15] if it is unsupported by any evidence, based on speculation, disconnected from the evidence, supported only by evidence that is insufficient to justify the decision, or if it was made in ignorance of evidence that was uncontradicted. In addition to unreasonableness, an arbitration award may also be reviewed and set aside if the commissioner misconceived the nature of the enquiry.[16]’

[35] ‘The commissioner found that the applicant could have no expectation of appointment simply because she had acted in the relevant position. This finding is reasonable and supported by the authorities. At best, acting in the position may indicate that the applicant has experience of the post's requirements. The award and the record suggest that the first respondent and the commissioner properly considered her experience. In any event, the applicant was informed on every occasion (that she acted) that acting cannot create any expectation of appointment. Having the required experience does not, by itself, entitle the applicant to appointment, nor does it make her non-appointment unfair.’

[36] ‘The commissioner found that the applicant could not show she was overlooked for the job, that the appointment was arbitrary, or that undue influence affected the process. To the contrary, the evidence indicated that the applicant had a fair opportunity to compete for the post.’

[37] ‘Despite a fair opportunity to compete, the applicant could not show that she was the best candidate for the job. She ranked fourth among those interviewed. This evidence alone showed that the applicant was not the best candidate for the position.’

[38] ‘The commissioner found that the applicant complained about the panel's composition only afterwards, which was inappropriate. The applicant did not show that this finding was unreasonable.[18] In any event, because the same panel interviewed all the candidates, the applicant could not show that the panel's composition prejudiced her. The applicant did not refer the court to any evidence indicating that the panel's composition prejudiced her.’

[39] ‘The applicant contends that her mature age may have counted against her because the panel enquired about her age. Even if she was asked about her age in the interview, it is speculative to suggest the panel considered it an important factor.’

[40] ‘The applicant contends that the panel's use of scoring prejudiced her. This is not fully explained, and lacks substance.’

[41] ‘For the reasons set out above, the applicant failed to show that the outcome was so unreasonable that no reasonable decision maker could have reached it. At arbitration, the applicant failed to prove that the first respondent acted in bad faith, with ulterior motive, arbitrarily, capriciously, or in a grossly unreasonable manner. The review falls to be dismissed.’

Relief: Condonation was granted for the late filing of both the review application and the answering affidavit. The application to review and set aside the arbitration award was dismissed. The order made no provision for costs.

Judgment on SAFLII