The Grahamstown High Court on Tuesday certified a class action which, if it succeeds, could see the department paying out some R500m to hundreds of teachers who believe they were short-changed in the salaries they received since 2010.
But this significant legal victory by the Legal Resources Centre (LRC) acting on behalf of the teachers, may prove hollow unless those teachers opting in to the class action can prove their case was not prescribed.
The seven teachers who launched the application on their own behalf and on behalf of their colleagues who have yet to opt in to the class, failed at this hurdle as well as on other technicalities.
Arthur Grootboom, Muhammed Ramlan, Chere Bouw, Joy Williams, Jesintha Coltman, Candace Steyl and Elana Hughes, who had worked at schools in Port Elizabeth and Stutterheim, failed in their own high court bid to force the department to pay them the difference in salary between what they would have been paid if they had been employed by the department and the comparatively tiny salaries they were paid by school governing bodies (SGBs).
SGBs of dozens of government schools were, over more than a decade, forced to fund out of their own pockets the filling of vacant teaching posts that the department had failed to advertise or fill.
Most of the cash-strapped schools paid the teachers considerably less than they would have earned had the department appointed and paid them as it was required to do.
While judge Clive Plasket agreed that the class action should be certified, he dismissed the application of the individual seven teachers on the basis that they had not brought their claims within the required three years.
In 2014, a class action resulted in the department being ordered to refund some R100m to 122 of these schools that had been forced to pay teachers that should have been in the employ of the department.
The court also ordered the department to permanently appoint these teachers.
The teachers who filled these posts at such low salaries now say it is unfair that they were paid less than they would have been if the department had employed and paid them as they should have.
They want their salaries supplemented retrospectively plus 37%, which is what they say the cash value of the medical aid and pension benefits would have been.
The certification of the class actions means that any teacher in a similar position who had been disadvantaged by the salary difference can join in the action against the department.
Plasket said the seven teachers had failed to give notice of the application to the education department in terms of the Legal Proceedings Act.
Plasket dismissed their application for condonation for late filing of this notice as he said that, even on their own version, their claims had prescribed. Legal claims have to be brought within three years of the person becoming aware that they had a right to claim. He said they had all known since 2014, if not earlier, that they had been short-changed but waited until January 2018 to launch their case.
LRC attorney Cameron McConnachie said the seven applicant teachers were disappointed with the judgment.
“They made themselves available to teach at public schools in very difficult circumstances and without any payment from the (Eastern Cape education department). It is regrettable that the (department) knowingly allowed vacant substantive posts to remain unfilled, forcing school governing bodies to step in, appoint teachers, and pay them a nominal fee for their services.
“It is also regrettable that when the (department) is asked to pay the teachers what is due and owing to them, they hide behind prescription as a defence.”..