67 aggrieved school principals up in arms

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RELEBOHILE TSOAMOTSE

MASERU – Sixty-seven primary and secondary school teachers who have been acting as principals for 16 years in different schools around the country are asking the Constitutional Court to declare them as substantive holders of the positions. This follows the ministry’s refusal to comply with that request and, instead, advertised the positions and appointed other candidates. All qualifying candidates including the complainants were allowed to apply.

They are opposed to that decision and are asking the court to declare the government’s decision to advertise their posts unlawful for violating what they say is their “vested rights to be afforded exclusive employment opportunity and preference.” They also allege that they were supposed to be paid acting allowances as principals but were never paid and therefore want a declarator that government’s failure to pay them violated their dignity, freedom against slavery and right to property.

The 67 complainants also want an order directing the Ministry of Education to pay their allowances as acting principals with interest from the date they first acted.  Their confirmation as substantive principals, they say, will be a correction of past injustices and part of affirmative action and humanity in the workplace as provided by sections 8, 18 and 22 of the Constitution. Should the court agree with them, they are seeking a structural interdict wherein the court should request parties to report to court every three months after the issuance of the orders to report on the status of compliance until final compliance.

The disgruntled teachers had written to minister Rapapa last month and warned that they would sue him and the ministry if he does not consider them for the principal’s posts within 15 days of receipt of their letter of demand. “We therefore insist and urge that clients be employed to the positions otherwise they will sue you to the detriment of public purse and resources within 15 days of your receipt of this letter,”

Prof. Rapapa was clear that all posts would be advertised for all those who qualify to apply and that people will be considered on merit. “Just because teachers have been acting for long does not necessarily mean they will automatically be appointed,” he said. The teachers’ lawyer, Advocate Fusi Sehapi, argued that Rapapa’s argument that there is no provision in the Acts and regulations regulating the affairs of teachers providing for legitimate expectation to be automatically employed after acting for too long is misdirected.

“It is not uncommon that there is no written provision in the teacher’s statutes and regulations contemplating teachers’ legitimate expectation to be permanently and pensionably employed once they have acted for so many years. The reason is that the law governing legitimate expectation is non-statutory but unwritten common law,” Sehapi wrote.

One of the aggrieved principals, ‘Mahlabathe Sekonyela, tells the court in an affidavit that the Teaching Service Department (TSD) refused to hire them to the positions despite their experience, qualifications, dedications and stipulated laws but arbitrarily, unfairly and discriminately hired some teachers to the positions “following opaque hiring procedures.”

That recruitment process, she says, was unlawful because of the composition of TSD and the fact that the advertisement was made by government instead of the concerned schools boards in compliance of regulation 13 (3) Teaching Service Regulations of 2000. TSD that hired their replacements, she says, comprised two males and one female instead of two females and one male.

Sekonyela also tells the court in an affidavit that subsection 2 of the Education Act of 2010 formalized their employment as acting principals under a performance contract for five years but it was abolished even before the expiry of five years. “The legal effect was to reinstate the permanent and pensionable employment of teachers which existed before the performance contract. It also abolished the acting appointments of principals countenanced in Regulation 8 (d) of the Teaching Service Regulation, 2000.”

She contends that the government’s conduct in getting rid of performance contracts and thereby suspending section 2 of the Education Act subjected them to inhuman treatment and modern day slavery in violation of their constitutional rights. “It also violated our sense of self-worth and good repute and right to property provided in section 17 of the constitution of Lesotho. Because of deceptive acts sounding in endless acknowledgements of debts and promise to pay us, some of us are in deep accumulating debts owing to budgeting for our moneys held at ransom and never paid forth to us.”

Sekonyela says the situation has even taken a mental toll on them destroying beyond repair their passion for teaching and the career. “As a consequence of the aforesaid act, we suffer mental and physical deterioration and ill health,” she says. Some of the acting principals, she says, have since died while still acting and did not get any benefits with others having retired. The complainants maintain that they have a legitimate expectation to be deployed permanently to the positions they acted in for such a long time or at least be given a hearing before they are advertised.

“This is because the advertisement of these positions and their consequences affect us in our substantive or hoped for confirmations as principals.” In a certificate of urgency accompanying the application, Advocate Mpeli Mohlabula has asked the court to treat the matter as urgent since it has important past, ongoing and future public interest relating to the value of education and future of children in Lesotho. He also said most the complainants are about to retire, while some have died and others are abandoning the teaching profession altogether.

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