E Cape schools launch class action suit for unpaid teachers

Three schools the Mail & Guardian spoke to last week said they are owed R3.15-million by the Eastern Cape education department for teacher salaries it budgeted for over the last three years, but did not pay.

These three schools are part of nine who have come forward wanting to opt in to a class action lawsuit, brought by the Legal Resources Centre (LRC), since it was certified by the high court in Grahamstown on March 21.

The schools will join 32 others who are applicants in a case that was launched in November last year. The LRC, that represented the applicants, and the department, which was one of the respondents, settled the case out of court also on March 21. The settlement agreement directs the department to appoint the schools' temporary teachers as permanent employees and pay back R25-million to them that they had to raise themselves when the department failed to pay their teachers.

"We've worked out that we are owed R1.5-million in teacher salaries that the department should have paid. It didn't pay them so our school governing body had to raise money to pay them," Gert Swanepoel, principal of George Randell Primary School in East London, told the M&G.

When asked if he knew of other schools in this situation, Swanepoel responded: "Oh ja, there are many schools very much in the same predicament as we are. If the department pays us this money I will jump over the school's roof, I will be so happy."

Swanepoel said that, along with many other principals, he had tried numerous times to get the department to pay them back for salaries they should never have had to pay out of their own coffers in the first place. When this was unsuccessful, legal action was used against the department to try to solve this problem, and the LRC has been at the forefront of this battle – a battle that has a decade-long history in the province.

The settlement agreement also stated that the case had been successfully certified to be a class action so any school in the province facing the same problem can also apply to be reimbursed the money owed to them for teachers' salaries. Schools wanting to opt-in as applicants in the class action were directed to provide the LRC with a list of teacher vacancies at their school and a list of payments made by the school for teacher salaries by May 12. The applicants were directed to file this information with a "notice of motion seeking substantive relief on behalf of the class … ", the agreement stated, to the court by May 20. The matter is set down to be heard again on July 31.

Francois van den Berg, principal of Barkly East High School, said last year the department budgeted for the school – which has 470 pupils – to have 18 teachers but it only ended up paying for 11 of them.

"We are owed R700 000 for paying teachers with our own money last year and 2012," he said. "We had to do this, otherwise there would've been five or six classes without a teacher … and you can't imagine that. The whole school would be in chaos."

He said the department was not able to pay many teachers because it is "bankrupt".

"They made such a mess in earlier years over teacher posts. It is paying for ghost teachers whose posts have been empty but they are still getting paid and teachers who are teaching at schools where they are not needed and won't move … but then they don't have the money to appoint teachers to schools where they are needed and pay teachers who are where they need to be."

Last year he did an informal survey of the schools in the Sterkspruit area and found that at 10 schools there were 60 vacant teacher posts.

"We can afford to raise money and pay teachers ourselves but other schools can't," he said. "We are hopeful about the class action. We hope the department will pay money to schools … [because the schools] need that money to use it for other purposes like basic maintenance."

Bold move
The LRC's launch of the class action suit was a bold move in the face of this vast problem, and it is the first certified class action in South African history, LRC's regional director Sarah Sephton said.

Previously, applicants could just launch a class action but in 2011 the Constitutional Court decided that applicants would need to get class actions certified before they were open to anyone to opt in. This means that applicants would need to prove "that the matter involves definition of the class, identification of some common claim or issue, existence of a valid cause of action, suitable representative of the class, and that class action is the appropriate procedure", said Sephton.

An advertisement inviting all Eastern Cape schools to join the class action if they were experiencing the same problems was published in provincial media last week.

Dion Bekker, principal of Gill Primary School in Somerset East, said his school is owed R950 000 by the department.

"This is a great burden on school governing bodies that have to raise money to pay salaries," he said. "I don't think there is a school that doesn't have this problem."

Sephton said it was "astonishing that the department appears oblivious to its constitutional obligations to ensure that every classroom has a teacher and that the teacher is in fact paid for the work he or she does".

Departmental spokesperson Loyiso Pulumani referred the M&G to a joint media statement with the LRC that said the opt-in class action had "been consented to by the department as an indication that it is not only those schools that have launched this application that are of concern to the department".

'Substantive vacant posts'
"All schools have a right to voice their concerns whether in the poverty stricken, far reaches of the province or in the wealthier suburbs."

He said reimbursement of funds was dependent on schools complying to conditions set out in the court order, such as teachers occupying "substantive vacant posts [that are on] the provincial educator posts [list]".

The joint media statement also said the department had recently entered into "Collective Agreement No. 1 of 2014" with teacher unions that "aimed at permanently appointing temporary educators to vacant substantive posts and identifying, profiling and placing the educators in excess to where they are most needed".

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