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The Grahamstown High Court will hear argument on Thursday in the first opt-in class action of its kind in South Africa.
The class action is being spearheaded by the Legal Resources Centre on behalf of 58 schools, who are owed millions by the Department of Basic Education.
The LRC says over the past few years, the Department declared that individual schools are entitled to certain numbers of educators, but then failed to appoint the necessary number of educators to fill those posts at the schools concerned.
"Over the past few years, the DBE have declared that individual schools are entitled to certain numbers of educators, but have then failed to appoint the necessary number of educators to fill those posts at the schools concerned. This has resulted in schools either paying for educators themselves, through their school fees or special fund-raising initiatives, or going without the necessary educators," said LRC director Sarah Sephton.
She said an application to have educators appointed and paid by the DBE was undertaken on behalf of Eastern Cape schools in two parts. "In Part A, 32 named schools sought orders to secure the permanent appointment and payment of educators to the vacant posts allocated to them by the DBE and to claim a reimbursement from the DBE for the payments already made, she added.
"Part A was concluded on the 20 March 2014, when the Grahamstown High Court ordered by consent that the DBE was required to reimburse the 32 schools for educators' salaries, to a total sum of R29,7 million. The DBE was also directed to appoint 145 educators to vacant posts at those schools."
"Part B of the LRC's intervention will now go before the court on behalf of applicant schools that have opted into a class action case against the DBE. This class action was certified during Part A and has allowed Eastern Cape schools in the same position to opt in to the litigation. In total, 90 schools have opted-in and are seeking the reimbursement for the educators' payments they have made since 2011 (a total of R81 445 339.99) and for educators be appointed to the permanent vacant posts concerned (a total of 282 educators)."
Septhon said "on Thursday, the Department of Education will argue that they cannot afford to pay the schools the amount claimed; that the schools must wait for the processes set out in the Eastern Cape Labour Relations Council to facilitate the appointment of teachers; and that schools cannot dictate to the Head of the Department who they wish to be appointed as educators, as he has a discretion to make these appointments. In addition, they will argue that the dominant teachers union (the South African Democratic Teachers' Union) is opposed to this litigation and that it will destabilise the Department if these appointments are made."
"The opposition by the Union comes as a surprise to the LRC, as they were cited as respondents in this litigation and have not come forward to address any concerns with the LRC. In addition, the teachers unions support the principle that every classroom should have an educator."
"The LRC will argue that the DBE's grounds for defence are without merit and that they do not present any reason not to grant relief to the 90 class member schools on the same basis as the relief already furnished by consent to the 32 initial schools. Instead, they have a legal and constitutional obligation to appoint and pay educators.
"These schools have waited many years for the Departmental processes to take place and have the posts filled. The outcome of this court case will determine whether much-needed relief will finally be obtained by the schools that want an educator in front of every classroom and to have that educator paid as per their educator post establishment," Septhon concluded.
