Fighting To Learn

Teachers to teach

A vital ingredient in ensuring children receive a quality education is ensuring they are taught by passionate and skilled educators. Unfortunately, in the Eastern Cape, there have been persistent problems in making sure that quality educators are allocated to permanent posts, and are paid their salaries by the Department of Education. These failures have led to ongoing litigation to force the Department to appoint permanent educators.

In early 2012 it was clear that the state of education in the Eastern Cape was in dire need of reform. A major problem was that there were more than 4 000 vacant teaching posts, as well as over 7000 teachers in excess in the Eastern Cape. The result was that a number of schools were forced to take it upon themselves to appoint and pay temporary teachers, meaning that they faced nancial crises, often having to rely on parents and donations from other sources to pay teachers. In other schools, teachers simply worked for little or no pay, or pupils went without teachers.

Since then, there have been numerous rounds of litigation. In August 2012, with the LRC representing the Centre for Child Law (CCL), agreement was reached and made an order of the court that all vacant posts should be filled on a permanent basis within three months of the court order, and that temporary educators be appointed to such posts within one month. There was also a condition that the salaries of the educators be paid from the date on which they assumed duty. This was in addition to a condition regarding the appointment of non-educators to posts (the only condition which the respondents did not agree to).

It soon became clear, however, that the Department was not going to comply with the court order, and as the beginning of the 2013 academic year approached, it was evident that the respondents were blatantly disregarding the order. The result was a further round of litigation, whereby a di erent approach was adopted by the LRC, in anticipation that the Department would not comply. The LRC provided a list of temporary educators who had already been appointed, and an order was made that they be remunerated from the date of duty. In effect, this meant that if the Department did not pay them by the date stipulated in the court order, the debt could be enforced under the State Liability Act. Secondly, the litigation provided for the appointment of permanent teachers. The same approach was taken, in that the schools could take the necessary steps to advertise and recommend teachers to the Department for appointment. If the Department failed to appoint them by a certain time, the posts would be automatically filled.

Again it was anticipated that the Department would fail to pay appointed teachers, and so provision was made in the court order that the failure to do so would become an enforceable debt.

 

First certified class action

Despite this litigation, problems ensuring that educators were in posts and paid by the Department continued, thus prompting further rounds of litigation. It became clear in late 2013 that, once again, schools were suffering as a result of teachers not being appointed to posts and, those teachers who were appointed not being paid by the state.

It was clear that a new strategy was required to force the Department to take action, having so agrantly disregarded the previous court orders. In Linkside and Others v Minister of Basic Education and Others initially, 32 schools asked the court to permanently ll all vacant teacher posts and reimburse them with R25 million for teacher salaries which the schools had been forced to pay out of school funds. These schools also asked the court to certify an opt-in class action so that all schools in a similar situation could become party to the application.

The certified class action, to which the Department agreed, meant that other schools in the Eastern Cape with vacant posts, or which required reimbursement for teacher salaries, could join the litigation as an applicant. In April 2014, the LRC posted an advertisement in the Daily Dispatch newspaper, which called on public schools facing these problems to join the class action voluntarily.

This was a historic step in the ght to ensure access to education for all children, and was the first certified action of its kind in South Africa. By June 2014, the number of applicant schools had risen to 90, and included both rural and urban top public academic schools, as well as no-fee schools.

However, despite this, the Department continued to fail to move teachers in excess to those posts where they were needed, and continued to fail to reimburse the schools for the teachers’ salaries. The case was back in court on 31 July 2014. Following the suspension of the Education Minister, and appointment of a new Education head, Ray Twakadi, the case was postponed until 30 October 2014, to allow Mr Twakadi opportunity to bring himself up to speed on the current crises in the Eastern Cape education system, including the problems regarding the appointment of educators.

Therefore these schools, along with others in the Eastern Cape were still largely in the same position they were in back in 2011, with vacant posts resulting in classes without teachers, or temporary teachers whose salaries are paid by parents and other school funds which are intended for other purposes. On 4 September 2014, the LRC gave the Department 14 days to pay the R28 million debt it owed to the initial 32 applicant schools and to issue the appropriate letters of appointment, before the LRC would issue a writ to seize state assets to justify the debt. The funds were paid within days.

On 12th December 2014, the court handed down a ground-breaking judgement in this matter. Using the example of other jurisdictions such as the USA, Canada and Australia, the LRC argued that a “Claims administrator” should be appointed to oversee implementation of the court order and ensure payment of the outstanding salaries. This would pre-empt the Department’s failure to comply with the order. The court agreed with the LRC, and appointed a claims administrator to ensure the payment of R81 million in outstanding salaries to the 90 applicant schools. In addition, where the Department fails to permanently appoint a teacher, they shall be “deemed” to be appointed. This is the first order of its kind in South Africa, and demonstrates that courts are willing to impose stringent supervision to ensure compliance.

(i) Extracts from founding affidavit: Linkside and Others v Minister for Basic Education and Others

The annexes referred to in the court proceedings are too lengthy to include here. Please contact the LRC for the full court document.

In the Eastern Cape High Court, Grahamstown (Republic of South Africa)
Case No.

In the matter between:

Linkside and Schools Listed in Annexure A1

And

Minister of Basic Education
Director-General (“The DG”) National Department of Basic Education MEC, Department of Basie Education Eastern Cape Province
Head of Department for Basic Education Eastern Cape Province

I, the undersigned, state under oath the following:

Sarah Sephton


Standing

15. The applicant schools approach this court in terms of section 38(a), (c) and (d) of the Constitution in their own interests, in the interests of their learners and the learners at schools throughout the Eastern Cape Province, and in the public interest.

16. The applicant schools seek relief in respect of the applicant schools themselves, as well as leave to certify an opt-in class action on behalf of all public schools in the Eastern Cape who may seek the same relief set out by the applicant schools. In this regard, the applicant schools act as representatives of the class of affected schools described more fully below.

III. Nature of the Present Proceedings and Urgency


17. This is an application that arises from the ongoing failure of the respondents to adhere to their statutory and constitutional obligations and to comply with orders made by this Court – various of which were made with the consent of the respondents.

18. It arises from a process known as “post provisioning”. While this process is described in detail below, for present purposes, it suffices to say that it is a process whereby the respondents themselves determine, on an annual basis, how many teaching posts each public school in the province is entitled to. They do so having regard to the available resources, the numbers of learners at each school, and so on.

19. The respondents are then obliged to permanently appoint teachers to each of these posts and pay these teachers.

20. However, the respondents have repeatedly failed to adhere to their obligations in this regard. For example, in 2013, the respondents allocated set numbers of teaching posts to the applicant schools but then failed to:

20.1 Permanently appoint teachers to these posts; and/or

20.2 Pay the teachers appointed.

21. The same failures of the respondents occurred in respect of many other schools in the Eastern Cape beyond the applicant schools. Moreover, the failures in 2013 in this regard were on top of similar failures in 2011 and 2012.

22. The practical effect of this has been:

22.1 At worst, that the schools have been left without teachers in these posts – that is without enough teachers to function properly even on the respondents’ own version; or

22.2 At best, that the parents of learners at these schools have had to pay, via their school fees, for such teachers, even though the respondents bear an obligation to pay for such teachers and had undertaken to do so by means of allocating the posts concerned, and even though this means there is no money left for other essential school activities.

This Court has itself remarked on the seriousness of the problem:

“It is no exaggeration to say that as a result of what, on the respondents’ own admission, is a crisis of immense and worrying proportions, the right to basic education of those who attend public schools in the Eastern Cape province is affected or threatened.”

Not only are the respondents’ failures in breach of their constitutional and statutory obligations, they are also in breach of orders made by this Court. I refer in this regard to the following orders:

25.1 The order made by this Court on 3 August 2012

25.2 The order made by this Court on 8 November 2012

25.3 The order made by this Court on 6 June 2013

26. As indicated, the respondents have failed to ful l their obligations to ensure an adequate educator complement at schools in the Eastern Cape in 2011, 2012 and 2013. It now appears inevitable that the respondents will fail to ful l their obligations in respect of 2014 as well.

27. As I will demonstrate below, the respondents do not dispute the existence of their obligations, nor do they o er any valid defence to justify their breach of these obligations.

28. This application is not intended to deal with the full extent of the respondents’ non- compliance with their obligations owing form the Constitution, statutes and the orders of this Court. Rather it seeks to deal, in essence, with two critical and urgent issues in respect of the applicant schools and other schools similarly situated:

28.1 First, ensuring that the schools are paid back by the respondents for the money that the schools have spent paying teachers whom the respondents ought to have paid; and

28.2 Second, ensuring that for the 2014 year, the respondents permanently appoint teachers to the allocated posts at the schools and pay such teachers.

29. The applicants expressly reserve their rights to return to this court on papers duly ampli ed to deal with all other issues, including the failure of the respondents to deal with the educators in excess and allocate non-educator post establishments to schools.

30. In an e ort to render the present litigation manageable and practical and to ensure effective relief for all affected schools, this application is brought in two parts.

31. Part A of this application deals only with the applicant schools. It seeks immediate relief, on an urgent basis, to secure the permanent appointment of educators to the vacant substantive posts allocated to them by the respondents and to secure reimbursement of the payments that they have made to the educators lling vacant substantive posts.

32. Part B of this application deals with other similarly situated schools in the Eastern Cape. They face the same di culties and unlawful conduct by the respondents as do the applicant schools. However, due to the number of schools involved and due to the fact that the precise details of their complaints are not currently available, it is not possible for substantive relief to be sought in respect of them immediately. Therefore, in respect of these schools, the applicants seek at this stage only urgent certification of an “opt-in” class action, in terms of which:

32.1 The respondents will be ordered to give notice to the members of the class of the proceedings;

32.2 Affected individual schools falling within the class will be permitted to deliver a notice, setting out details of their vacant substantive posts and amounts paid by the schools to educators occupying vacant substantive posts in 2013, in order to seek appropriate relief and further ancillary relief;

32.3 The court shall give directions regarding the conduct and hearing of the class action proceedings.

33. This will allow the other schools to claim relief in an effective manner as soon as possible.

IV. Post Provisioning – The Appointment of Educators


38. The central issue of concern in this application is the failure of the respondents to fill all vacant substantive posts at public schools in the Eastern Cape on a permanent basis.

39. The magnitude of the failure to appoint and place educators appropriately was recognised by the DBE as far back as 2003. A decade later, the only change has been that the situation has become increasingly dire, with learners and their parents in the Eastern Cape having to bear the brunt of the failure through vastly increased school fees or having to go without an educator. The persistent violation of their right to a basic education has permanent consequences for the learners.

40. The implementation of educator post establishment is known as “post provisioning”. As the only legal mechanism available to deploy educators, post provisioning is critically important because it determines the number of state-paid educators allocated to each public school. The process is intended to ensure that every public classroom has a permanently appointed educator paired to a reasonable number of learners, depending on grade and subject, and with an eye towards the need to redistribute resources and ensure equal and adequate access to education.

41. The first to fourth respondents’ failure to implement the post establishment since 2010 has led to many schools being placed in a situation of crisis and nancial peril. During the course of 2013 the Department had at various times in excess of 8 000 vacant substantive educator posts.

42. It is anticipated that in 2014 there will be 5 342 vacant substantive posts and close to 10 000 educators in excess. In 2013 the ECDOE first filled 2 354 of these posts with temporary educators as an emergency stopgap measure, and then authorised the appointment of a further 570 temporary educators and later a further 997 temporary educators and later a further 1 995 educators. These appointments were made at various stages of the year and the educator contracts were for a period of three, six and nine months.

V. Legal Obligations to Appoint and Pay Educators


The Constitutional Right to a Basic Education

46. At stake in this application is the first to fourth respondents’ continual breach of a learner’s constitutional right to a basic education.

47. Section 29(1)(a) of the Constitution provides that “everyone has the right to a basic education”. The right to a basic education is immediately realisable and is not subject to progressive realisation in the light of available resources.

48. I submit that, in giving meaning to the content and scope of the right to a basic education, regard must be had to its unquali ed nature, and to the purposes of the right.

51. Given the purposes of the right to a basic education, the importance of these purposes in a free and democratic society founded on the values of dignity, equality and freedom, and the unquali ed wording of section 29(1)(a), I submit that the right to a basic education necessarily implies the right to a basic education that is adequate.

52. It is patently obvious that a classroom without a teacher cannot be characterised as an adequate education. As bright and curious as children are, they still require an educator to convey substantive knowledge and to guide their educational journey.

53. Section 29(1) must be read with the duty of the state to ensure accountability, responsiveness, and openness (section 1) and to respect, protect, promote and fulfil the rights contained in the Bill of Rights (section 7(2)); as well as with other constitutional rights, including the right to equality (section 9); the right to human dignity (section 10); the right to freedom and security of the person (section 12); the rights of children (section 28); the basic values and principles governing the public administration (section 195); and the duty on the state to perform its obligations diligently and without delay (section 237).

54. The failure of the respondents to ll the teaching posts allocated to a school creates a disproportionate burden for poor parents who are required to pay an excessively high proportion of their earnings in school fees when schools raise the cost of fees to cover the costs of the missing teaching posts. This constitutes indirect discrimination on the grounds of race contrary to section 9(3) of the Constitution because the parents adversely affected are overwhelmingly black.

55. This also constitutes direct discrimination on grounds of socio-economic disadvantage, which, although not enumerated, should be implied into the list of grounds in section 9(3), which is not exhaustive.

56. I submit that these constitutional rights and principles reinforce the duty imposed on the government under section 29(1)(a) of the Constitution to ensure that public schools have adequate conditions and resources conducive to learning, an irreplaceable component of which must be a suitably quali ed teacher present in every classroom.

IX. Part B of the Application: Opt-in Class Action


118. Part A of this application seeks relief relating to the appointment and payment of educators to the specific applicant schools as against the post establishment.

119. However, it is apparent that many other schools across the Eastern Cape are facing exactly the same problems.

120. Accordingly, In Part B of this application, an order is sought establishing the initial process for the determination of the claims of such schools by means of an “opt-in” class action.

121. In the Constitutional Court in Mukaddamv Pioneer Foods(Pty)Ltd2013(5)SA 89 (CC) stated at paragraph 40 that, in a class action that seeks to enforce constitutional rights, it is not necessary to obtain certification of the class action.

122. To the extent that certification is required and in any event to achieve certainty as to the process, the applicants seek an order under Part B of the application:

122.1 Certifying, to the extent necessary, a class consisting of public schools in the Eastern Cape Province which have vacant substantive posts on their 2013 and 2014 educator post establishment; and seek to ensure that these posts are filled on a permanent basis and that they are reimbursed for all amounts paid to educators to ll vacant substantive posts in 2013;

122.2 Ordering the respondents to publish a notice in accordance with Annexure “D” to the Notice of Motion by:

122.2.1 Posting a copy of the notice on a notice-board in every district o ce in the Province;

122.2.2 Delivering the notice to all public schools under cover of a circular issued by the ECDOE; and

122.2.3 Publishing the notice in two newspapers generally circulating in the Eastern Cape;

122.3 Permitting individual schools falling within the class de nition to deliver a notice to the respondents, the Legal Resources Centre and to court in terms of which they “opt-in” to the class action in order to seek the appointment of educators to their vacant substantive posts and reimbursement of the cost of employing such educators in 2013;

122.4 Permitting the parties to approach the court for directions regarding the further conduct of the class action proceedings in due course.

123 Because of the urgency of the predicament of schools falling within the class, the initial order in terms of Part B – merely setting the procedural parameters for the actual class action – will be sought on an urgent basis together with Part A of this application. It is then envisaged that the process of actually determining the claims of the class will be conducted during the course of 2014 in the ordinary course but subject to reasonably expeditious timeframes.

124. The following considerations are relevant to the certification of a class action:

124.1 The de nition of the class;

124.2 The cause of action;

124.3 Common issues of law and fact;

124.4 The determination and distribution of the award;

124.5 Representation of the class; and

124.6 Whether class action is appropriate.

The Definition of the Class

125. The class is de ned as all public schools in the Eastern Cape Province which have vacant substantive posts on their 2013 and 2014 educator post establishments and seek to ensure that these posts are filled on a permanent basis and that they are reimbursed the full amount that they spent on educators lling vacant substantive posts in 2013. The class is limited to public schools in the Eastern Cape Province.

126. The class period is limited to the 2013 and 2014 post establishments.

127. It is submitted that the de nition of the class is sufficiently clear to enable schools falling within the class to ascertain by reference to objective factors whether they fall within the class.

A Clause of Action Raising a Triable Issue

128. I am advised that an applicant for certification must establish a prima facie case on the evidence that is legally tenable.

129. As set out above, the primary basis on which the applicants seek to pursue their action against the respondents is a breach of the right to education of all learners in the Eastern Cape Province and a breach of statutory obligations due to their failure to appoint educators to all vacant substantive posts in 2012, 2013 and likely in 2014.

130. The only question for this court, therefore, is whether the applicants have made out a prima facie case on the facts that is legally tenable.

Legally Tenable

131. With regard to the legal part of the test, it is sufficient for the applicants to advance a plausible argument that the respondents have a legal duty to appoint and pay educators to all vacant substantive posts. It is submitted that the obligation of the respondents to appoint and remunerate educators occupying substantive posts on the post establishment is not merely plausible, but not disputed by the respondents.

132. The question of appropriate relief in respect of vacancies at independent schools in the class does not fall to be determined at the stage of certification.

133. These issues will be addressed in legal argument when requesting the relief sought by the individual applicants.

134. The experience of the applicant schools set out in this affidavit and the accompanying supporting affidavits establishes that it is inevitable that other schools are in the same position – with unfilled posts and unpaid educators. It is apparent that the causes of these problems at the applicant schools are systemic, and would therefore extend to other public schools that may not have independent legal assistance and may not be aware of the LRC’s work on behalf of some schools.

142. It is therefore submitted that the applicants have demonstrated a prima facie case.

Commission Issues of Law and Fact

143. There is no doubt that the determination of the claims of all the members of the class raises common issues of law and fact. The only material di erence between the various members of the class is how many vacant substantive posts each of the schools have, how many educators have gone unpaid and what steps they have been able to take to remedy the situation.

Remedy

144. A factor relevant to certifying a class action is whether there is a feasible remedy to right the wrong done to the class members.

145. It is submitted that the remedy sought in Part A of this application, suitably adjusted to address the specific circumstances of the class member schools, is a feasible remedy. It may also emerge from the evidence ultimately led in the class action, after the opt-in process, that a more systemic remedy is necessary, in addition to granting orders regarding the appointment and payment of specific educators at specific schools.

Distribution of the Award

146. A further factor relevant to certification is whether it will be feasible to distribute any damages or award obtained as between class members, and whether there is a clear basis for such distribution.

147. There is no dispute about how to distribute the award as it is reward claimed by individual schools based on their entitlement to this relief.

Representation of the Class

148. I am advised that there are two issues that are relevant to the capacity of the representatives to represent the class.

148.1 First, there must be no conflict of interest between the representatives and the members of the class. There is no conflict here.

148.2 Second, the representatives must have the capacity to represent the class. In relation to this issue:

148.2.1 There can be no doubt about the inclination of the applicants duly represented by the LRC to represent the class. The LRC has litigated against the ECDOE in a series of cases mentioned in the founding affidavit which seek to ensure that there is a teacher in front of every classroom.

148.2.2 The LRC is a not–for-pro t law clinic that specialises in public interest litigation. The LRC has sufficient funds to conduct this litigation. The applicants will be represented by experienced attorneys and advocates throughout the litigation. I am the applicants’ attorney of record. I have substantial experience in public interest and some experience of class action litigation, which is relatively new to South Africa.

A Class Action is the Most Appropriate Means to Determine the Claims

149. It is submitted that, in the absence of a class action mechanism, the claims of schools other than the applicants are unlikely to be enforced. Individual schools are unlikely to secure legal representation to bring their own claims for appointment and payment of educators. Each individual’s claim is too small to justify litigation to enforce it. A class action is not only the most appropriate means to determine the claims, it is the only way to do so.

150. To the extent that certification is required, it is submitted that: (a) the class can be adequately de ned; (b) the cause of action is plausible; (c) the remedy will predominantly transfer the bene t of the action to class members; and (d) that the applicants can represent the class, and accordingly that the above Honourable Court should certify the class action.

X. Notification


151. If this Court decides to certify the class action, it will be necessary to notify potential class members so that: (a) they are aware of the class action and can obtain additional information; and (b) they can opt in if they wish to.

152. The applicants propose that notification be given to the classes within two weeks of the date of the order by the respondents circulating a note to all schools, in the terms set out in Annexure “D” to the Notice of Motion and by the advertisement of this order in both print and radio across the Eastern Cape.

153. The applicants submit that this form of notification is vital to ensure that all the class members are made aware of the class action. The applicants also submit that the respondents should be required to pay the costs of the notification. This is a matter for the discretion of the Court, but the applicants submit that the following factors should be taken into account:

153.1 The applicants are individual schools. The respondents are organs of state in breach of their statutory and constitutional obligations.

153.2 The class action is of considerable public interest. Many schools, teachers and learners are affected by the failure to ll all vacant substantive posts.

XI. Conclusion and Costs


155. Through its own actions and inactions, the first to fourth respondents have repeatedly shown that they are unwilling and/or unable to follow through with the necessary appointment processes and resolve their structural human resources problems.

156. Eastern Cape schools and learners cannot and should not have to stagger through another academic year waiting without the educators being appointed to the posts determined by the respondents themselves as being necessary to teach the public school learners of the Eastern Cape Province.

157. In the circumstances we pray for an order in terms of the Notice of Motion to which this affidavit is annexed, with costs including the costs of three counsel.

(ii) “Every Class Should Have a Teacher”

BY FARANAAZ VERIAVA

By Faranaaz Veriava, a human rights lawyer, based part time at public interest organisation Section27. She writes in her personal capacity.

Over the past few years, a core group of public- interest organisations has litigated a string of cases against the South African government to ght for improved education provisioning in under-resourced schools.

Cases have focused on improving school infrastructure, requiring the delivery of textbooks, desks and chairs and ensuring that there are adequate numbers of teachers in schools.

In essence, each of these cases has sought to compel the state to provide an essential component of the right to a basic education and ensure that pupils can enjoy a quality education that may enable them to prosper.

In many instances these legal interventions have produced tangible results. For example, litigation has ensured the promulgation of norms and standards for school infrastructure. Also, even though new rounds of litigation or appeals are ongoing in almost all these cases, improvements in education provisioning, despite being far from perfect, are nevertheless discernible.

This is evident, for example, in the Accelerated School Infrastructure Delivery Initiative, known more widely by its acronym, ASIDI, and in the improved delivery of textbooks in Limpopo.

The litigation has also provided useful insights into some of the structural problems that underlie poor educational provisioning. Many of these relate to failures of governance regarding planning, budgeting and management. These insights have informed renewed civil engagement and monitoring in the furtherance of good governance and delivery.

Perhaps, though, one of the most fraught and complex of all of these ongoing legal disputes is the teacher post provisioning saga in the Eastern Cape. Post provisioning refers to the process whereby the Provincial Department of education declares, every year, the number of state-paid teaching posts that are to be allocated to a public school.

The number of teacher posts allocated is determined according to a formula that weights certain specified factors, such as class size, the range of subjects a school offers and the poverty of the particular community in which a school is situated.

The Schools Act then provides that school governing bodies may establish extra posts and appoint additional teachers. The funding for these posts is generated through school fees and other fundraising initiatives. Schools catering for poor communities, in particular no-fee schools, generally do not bene t from this provision and of necessity have to rely solely on the teacher allocations that the state makes in terms of its post provisioning policy.

The post provisioning case is a particularly di cult one because, apart from the governance failures that beleaguer all areas of education provisioning, especially in the Eastern Cape, the matter of teacher allocation is further compounded by an underlying labour dispute. At the heart of the dispute between the government and teacher unions is the failure to move surplus teachers from some schools to other schools where they are desperately needed.

Since 2012, the Legal Resources Centre (LRC) in the Eastern Cape has spearheaded the post provisioning litigation, on which the Mail & Guardian has reported extensively.

According to the most recent gures the LRC has provided, there are about 3 200 vacant teacher posts affecting some schools, and almost 4 500 excess teachers at other schools in the province. The implication of this is that a signi cant number of classrooms in understa ed schools remain without a teacher, whereas other schools are overstaffed.

The LRC’s latest court application, initiated in June, seeks to enforce the effective implementation of post provisioning on the basis that, as its papers before court say, it “is the only legal mechanism available to deploy and redeploy teachers. It is accordingly essential to the ‘right- sizing’ or rationalisation of the education sector and the establishment of a more equitable and effective educational system.”

Yet, even though for the past few years posts for public schools have been declared, the government has failed to implement post provisioning – either by not appointing permanent teachers to declared posts or by not paying the teachers who have been appointed.

The effect of this for many public schools in the Eastern Cape has been that some have paid for teachers with monies from school fees that would have otherwise been allocated for other essential school activities.

As noted in the latest LRC application (in June): “Schools have spent literally millions of rands paying teachers who ought to have been paid by government. This has resulted in schools cutting other expenditures but has produced massive uncertainty in school planning and budgeting processes.”

On the other hand, schools with no sources of alternative income, such as no-fee schools, have had to function without teachers or, in some instances, have relied on teachers who have worked without pay or have been paid only transport costs to and from school.

In 2012, in the case Centre for Child Law and Others vs Minister of Basic Education and Others, the Centre for Child Law and seven school governing bodies represented by the LRC launched an application compelling the government to implement the 2012 teacher post establishment and declare the 2013 teacher post establishment.

It also asked the government to appoint temporary teachers to all vacant posts by a specific date, make all temporary appointments permanent, pay teachers from the date on which they assumed duty and reimburse governing bodies that had been forced to pay the salaries of temporary teachers from their own budgets.

A settlement agreement was reached in favour of the applicants and made an order of court.

But the state failed to comply with the order to complete the teacher appointment process, citing a failure to move the “teachers in excess” as the reason.

This noncompliance resulted in at least two more rounds of litigation and settlement agreements that were made orders of court. The applicants
in this latest round of litigation argue that there has never been sufficient compliance with these court orders.

Moreover, as a result of these cases, the LRC was approached by schools from other parts of the Eastern Cape that were experiencing similar di culties in respect of post provisioning.

In the latest case (again in June), the LRC has, therefore, embarked on an “opt-in” class action litigation as a more “systemic remedy”. Through a prior court process in March, the LRC obtained the permission of the court to publish – through the media and other sources – a notice to all schools in the Eastern Cape, inviting them to join the existing 32 schools in claiming the reimbursement of unpaid teacher salaries.

To date, 90 public schools have come forward and given notice to opt in to the class action litigation. The claims of these schools amount to slightly more than R81 million.

These applicants want the government to repay monies that the schools have spent on paying teachers that ought to have been paid by the state. They also demand that the government permanently appoints teachers to allocated posts at schools and pays them, as it is required to do.

This class action reflects a drastic and innovative attempt to address the desperate situation of teacher shortages in many schools in the Eastern Cape. Yet, although the litigation may ensure ongoing pressure to solve the problems of post provisioning, ultimately the impasse concerning the movement of surplus teachers requires a political commitment from the state and teacher unions to resolve it.

Indeed, until then, those who will remain prejudiced by this status quo will be the pupils and the teachers who are not being paid. For pupils to enjoy their right to a basic education, it is crucial that there is a teacher in front of every classroom, teaching.

(iii) Court makes unprecedented step appointing “claims administrator” to ensure State compliance with court order

BY SHONA GAZIDIS

(Article by Shona Gazidis: 13 January 2015. Original article can be found at: http://ohrh.law. ox.ac. uk/court-makes-unprecedented-step-appointing- claims-administrator-to-ensure-state-compliance- with-court-order)

A landmark Judgement handed down on 12th December 2014 in the case of Linkside & Others v Minister of Education sees a “claims administrator” appointed to oversee the payment of outstanding teachers’ salaries (amounting to R81 million) in the first certified opt-in class action in South Africa.

The South African government has a duty to ensure that every child’s right to education, as set out in the Constitution, is realised. However, all too frequently the state fails to meet its obligations. The Legal Resources Centre (LRC) has launched extensive litigation over the past six years to force the Department of Education to rectify these failures. A major hurdle is that once court orders are obtained (mostly by agreement), the Department does not comply with them. Foreign courts have often made use of “special masters” and “claims administrators” to oversee the implementation of court orders, but South African courts have been slow to utilise this mechanism prior to Linskide.

The factual background to Linkside can be found in a previous article: “Victory in first Certified Class action sees teachers appointed and paid” (Shona Gazidis, 18th April 2014), which explains that, based on research carried out by Oxford Pro Bono publico, the case was the first certified class action in South Africa. In brief, the case concerns the failure of the Department to appoint permanent teachers to vacant posts, and to pay their salaries, leaving schools having to raise funds to pay them. The initial case comprised of 32 applicant schools, salaries amounting to R28 million were finally paid, only after the court attached the amount as a debt to the Education Minister’s assets. This case did not however address the outstanding salaries of 90 applicant schools that had opted – in to the class action, and it was clear that a solution that pre-empted the State’s non-compliance was needed.

The LRC argued on behalf of the applicant schools that the appointment of a “claims administrator,” i.e. a firm of accountants to verify and pay out each applicant school’s claim would be the appropriate remedy in this case. The LRC drew the court’s attention to foreign jurisdictions, including the USA, Australia and Canada who have already been using such mechanisms. In the US for example, a ”master” (de ned by Federal Rule 53 as “including a referee, an auditor, an examiner, a commissioner, and an assessor”), is often employed to oversee a claim. In addition, in the Canadian case of Peppiat v Nicol (SCJ, 27 Nov 1991), the Defendant was ordered to pay sum into court to be transferred into a trust held by the representative plainti ’s lawyer for distribution to class members.

In South Africa, the recent Supreme Court of Appeal Judgement Meadow Glen Home Owners Association and Others v City of Tshwane Metropolitan Municipality and Another (767/2013) [2014] ZASCA 209 (at para 35), confirmed that courts need to be creative in forming remedies in socio-economic cases, and should secure on- going oversight to ensure implementation of the orders. The court referred to the example of the supervisory measures used in US courts.

The Department of Education’s arguments were scrutinised and dismantled by the LRC. The Department’s claim that progress had been made in appointing teachers in accordance with a previous collective agreement signed, held little weight as, in reality, very little had changed. Their argument of budgetary constraints could not be accepted, given that previous judgements had confirmed that the right to education was not subject to budgetary constraints, and that failure to budget properly was not a valid defence. The Respondent’s nal arguments that the Applicants should have referred to the Education Labour Relations Council (ELRC), and that trade union movements were opposed to the order, were simply without merit. Not only were their defence arguments untenable, but the Department failed to support their arguments with sufficient evidence.

The court agreed with the LRC, and Judge Roberson made the novel and unusual order that a “claims administrator” be appointed to oversee payment of the R81 million. The outcome of this case has extremely signi cant implications for future strategic litigation, where the South African government has so often failed to comply with court orders, secure in the knowledge that they were unlikely to be enforced. This judgement signi es that South African courts are willing to certify class actions, and to implement new and inventive mechanisms to monitor the compliance of the State. It will be possible to litigate future socio-economic cases based on a class of applicants, and to obtain stringent measures to implement long-term solutions.