…dismisses their bid for substantive appointment
Moorosi Tsiane
SENIOR teachers in secondary and high schools across the country, who have been serving as acting principals for more than a decade, suffered a major setback this week after the Constitutional Court dismissed their application to be appointed substantive heads.
The teachers — some of whom have been acting for up to 16 years without compensation for the extra responsibilities — had turned to the courts, hoping for relief.
But their hopes were dashed on Tuesday this week when the panel of Justices Polo Banyane, Moneuoa Kopo and Maliepollo Makhetha ruled against their bid.
Through their lawyer, Advocate Fusi Sehapi, the teachers argued that they were shocked to discover that the Ministry of Education and Training had started conducting interviews to fill the posts substantively, ignoring them despite their years of service.
This, they said, violated Regulation 13 (3) and (4) of the Teaching Service Regulations. They also claimed discrimination, pointing out that individuals with equal or even lower qualifications were being appointed on permanent and pensionable terms.
The teachers further contended that government’s refusal to pay them acting allowances infringed on their constitutional rights to property, dignity and freedom from modern slavery as guaranteed under Sections 8, 9 and 17 of the Constitution.
They demanded both the allowances, with interest, and substantive appointments as principals, arguing that they had been compelled to act beyond the lawful period.
In response, the government’s lawyer, Adv Letsie Moshoeshoe, told the court that steps were already being taken to pay the outstanding allowances and that some principals had already received theirs.
Reading the judgment, Justice Kopo emphasised that acting appointments were never open-ended, as they always had a defined beginning and end.
“. . . an acting appointment may be made for a period not exceeding one year and may be renewed. The regulation is clear that an acting appointment is for a period not exceeding one year but it is renewable, and the past casualty returns of the applicants show that their acting period always had a beginning and an end at all material times. They did not have an open-ended period. The argument that the applicants must be appointed or reinstated as permanent principals to the exclusion of all other qualifying candidates is not convincing,” said Justice Kopo.
Justice Kopo went on to dismiss the application, saying that the Constitutional Court could not declare that the acting principals were subjected to slavery or that they were being discriminated against. He added that there was no need to grant relief for instatement or a mandamus order for non-payment of allowances, as the government had already shown that the payments were under way.
“. . . as a constitutional relief this court cannot grant declarators that the applicants have been subjected to slavery, discrimination or any inhuman or degrading treatment by the non-payment of their acting allowances. There is no need to even consider if the relief for instatement can be done. The case for mandamus for non-payment of allowances has not been made. There is no doubt that there are some allowances that have not been paid, even if the government has commenced paying some. This anomaly has to be rectified swiftly.
“However, the applicants have not proved who has not been paid and who has been paid and, for that reason, we make the following order: The application is dismissed and there is no order as to costs,” Justice Kopo said.
