An Eastern Cape high court has ordered a class action for teachers in the province who were employed in teaching posts paid for by school governing bodies (SGBs) when they should have been paid by the provincial education department.
The high court in Makhanda (formerly Grahamstown) made the order early this month after seven teachers, represented by the Legal Resources Centre (LRC), approached the court last year. They had been in temporary posts paid by SGBs between 2010 and 2014.
The court application arose after the failure by the provincial department to appoint teachers to schools in the province as part of its annual post-provisioning process, which involves determining the number of teaching posts each school is entitled to and then appointing teachers to those positions.
But, according to the founding affidavit by the first applicant in the court case, Arthur Frans Grootboom, the provincial department of education had failed to appoint teachers to the allocated teaching posts between 2010 and 2017.
Schools that had a shortage had to appoint teachers using school fees or money allocated by the department for other purposes.
“The schools did so despite the fact that the department bore an obligation to pay for such teachers and had undertaken to do so by allocating the posts concerned,” reads the affidavit.
The first part of the application dealt with the underpayment of teachers by the SGBs. The seven teachers sought an order directing the department to pay the difference between the amount paid to each educator by the school and the amount the educator was entitled to in terms of the department’s salary scales.
In the affidavit, Grootboom said the teachers “suffered considerable hardships” as a result of not being paid by the department, especially those who taught at no-fee or low-fee paying schools.
Schools were also left with little or no money for other essential activities as a result of paying the teachers’ salaries.
“Many no-fee and low-fee schools were forced to forgo much-needed school maintenance and opportunities to increase resources simply to ensure that no classroom was left without an educator,” reads the affidavit.
In 2014, as a result of a shortage of teachers, 32 schools in the province approached the same court to force the department to reimburse them for the money they had used to pay temporary teachers and also for the department to appoint permanent teachers. The court ordered the department to pay the 32 schools R29.7-million and appoint 145 teachers to vacant posts.
In his affidavit, Grootboom said he was employed by Triomf Primary School in Port Elizabeth from May 2010 to June 2011, filling a vacant fully funded post. The SGB paid him a monthly salary of R10 000.
“This is approximately one-third of what an educator with my experience is paid by the department of education,” Grootboom said in the court papers. He qualified as a teacher in 1984.
Grootboom detailed that, for a month in 2010, he was appointed and paid by the department as a temporary teacher at the same school and had received a salary of R33 000 from the department.
From 2012 to 2014 he was again appointed by the Triomf SGB to fill a vacant, fully funded post and was paid R10 000 a month, which later decreased to R7 000. By 2013 he was being paid just R4 000.
“The SGB explained that my stipend was reduced because Triomf was a no-fee [-paying] school and was running out of funds. As a consequence, the SGB could no longer afford to pay me properly for my services,” his affidavit said.
Grootboom, who now is a permanent teacher at a school in the Western Cape since 2017, currently earns R343 032 a year (about R28 500 a month).
“The financial prejudice I have suffered is apparent from a simple comparison between what I am currently earning and what I did earn while teaching at Triomf Primary and other schools in Port Elizabeth,” he stated in his affidavit.
In other affidavits, the teachers detailed how the stipends caused their families financial hardships and severely reduced their quality of life.
Jesintha Coltman said at some point she was paid a monthly stipend of just R2 333.33. This was despite having the same number of pupils and workload as teachers who were permanently employed.
But, in its opposing affidavit, the department said the applicants “exercised a choice” when they took up the teaching posts with the SGBs. They further argue that nowhere in their affidavits do they say they could not get better paying jobs elsewhere or be self-employed.
“It cannot be said that the department has the same moral duty towards the applicants as government owes, for instance, to those who have no choices, cannot earn and who are dependent on social welfare grants to survive,” reads the opposing affidavit.
The department said its failure was that it did not move teachers from schools with an excess of teachers to schools where there was a shortage. It was not a cost-saving exercise. “Any so-called saving, or under-spending, in the cost of employee budget would also have been returned to the fiscus at the end of the financial year. Departments cannot carry over so-called savings or under-spending, if any, into a new financial year.”
The department further said that if it is ordered to pay damages it would face financial implications of R500-million. It would have to divert funds needed to provide a proper education to pupils to meet the teachers’ claims.
It added that, in the 2014 case, funds mainly set aside for infrastructure had to be used to settle the claims.
In his judgment, Judge Clive Plasket dismissed the teachers’ application. According to the law of prescription, they had waited too long after the three-year period had lapsed before they instituted their claim in January last year.
But he granted the second part of the application for an opt-in class action of all teachers in the province who, between January 2010 and January 2019, among other things, occupied fully funded teacher posts allocated to schools by the department and who were paid by SGBs instead — and those who were paid less than teachers in similar posts paid by the department.
The class action will not deal with teachers who were appointed by SGBs over and above the number of educators allocated to a particular school by the department.
He directed the LRC to act as the legal representative of the class action and for the department to publish the notice of the class action by no later than February 8.
LRC attorney Cecile van Schalkwyk told the Mail & Guardian this week that after talks with the department they would approach the court to change the court order in terms of the class action.
They wish to limit the class action to a date in 2015 onwards in order to minimise the chances of losing it based on the Prescription Act.