The failure of Limpopo MEC for Education to pay incentives to a certain group of educators was pursued to the highest court in the province, ultimately ending in an order by a full bench of three judges that the educators’ claim for payment of incentives be dismissed with costs.
Aubrey Phalafala, an educator at Tema Secondary School in Blouberg has to pay the costs of an appeal after the Limpopo High Court recently ruled that the appeal lodged by the MEC for Education and the Minister of Basic Education should be upheld.
Phalafala instituted a class action on behalf of a certain class or group of educators employed at various schools in the province. The basis of Phalafala’s claim was that the MEC for Education failed to pay rural incentives to fellow class members and himself because they were employed at schools that are either less than 140 km in weighted distance from Polokwane or are classified as Quintile 1 or 2. The poorest of schools are classified as Quintile 1 and those that are impoverished as Quintile 2 and the criteria for payment of the incentives were contained in a Government Gazette.
Phalafala claimed that there were educators in the same or other adjacent schools who receive the incentives.
The matter was heard in the Limpopo High Court and Judge President Ephraim Makgoba ruled in favour of Phalafala. The MEC and the Minister subsequently applied for leave to appeal and the application was dismissed by Makgoba. The Supreme Court of Appeal was then petitioned and leave to appeal was granted. The Supreme Court of Appeal directed that the matter be referred back to the Limpopo High Court to be heard by a full bench.
In his judgment, Judge George Phatudi said that the criteria set out in the Gazette do not automatically apply to or entitle every teacher to payment thereof. “A determination in terms of clause 8.1 must first be made before incentivising certain academically qualified educators and at certain schools, regard being had to the remoteness, poverty and incidental criteria set,” Phatudi found.
Phatudi said that Phalafala’s recourse taken in proceeding by way of a civil suit for recovery of the incentives claimed was flawed. “If they were indeed aggrieved by the manner and how the implementation of the decision or policy in applying the Gazette was effected, it follows logically that the proper procedure would have been that of a judicial review as opposed to action proceedings,” Phatudi stated.
Phalafala’s action was therefore finally dismissed with costs. Deputy Judge President Mokgohloa and acting Judge Ndlokovane concurred. The costs to be paid will only be known once the fees were taxed.
Attempts to obtain comment from Phalafala proved futile as telephones at the school were left unanswered.
Story: BARRY VILJOEN
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Featured photo: Judge George Phatudi of the Limpopo High Court.
