The Johannesburg Labour Court has ruled that the Limpopo education department head had no legal right to terminate teachers’ rural allowance.
Judge André van Niekerk ruled on Friday that the termination of the incentive was invalid.
The judgment reads:
City Press reported last week that the SA Democratic Teachers’ Union (Sadtu) had taken the department’s head, Khathutshelo Onica Dederen, to court after she issued a circular on November 30, terminating the rural allowance as of January 1 this year.
In the circular, Dederen cited budget constrains as the reason for stopping the allowances.
Sadtu took the department to court on behalf of its members, who are among 6 057 teachers who received the allowance.
The union wanted the court to declare the circular unlawful, unconstitutional and invalid.
In the union’s founding affidavit, Sadtu provincial secretary Sewele Sowell Tjebane said that, by cancelling the rural allowance, the circular violated the teachers’ fundamental right to fair labour practices.
Tjebane also said that Dederen was acting above the law by ignoring a January 2008 notice gazetted by then education minister Naledi Pandor, which introduced the rural allowance.
In her responding affidavit, Dederen said the department was never provided with funding from the national budget after the 2007/08 financial years and it carried the cost of implementing the incentive.
She said R341 million had been budgeted for the rural allowance in the 2021/22 financial year, but the department could not pay the incentive at the expense of salaries.
Dederen also argued that the court application was not urgent, as Sadtu had known in November that the rural allowance had been terminated, but it failed to challenge the decision in court then.
Van Niekerk did not find that the union “delayed unreasonably in bringing the application”, and said he was satisfied with the time in which the application had been brought to court, considering that it was the holiday season.
The judgment reads:
In his ruling, Van Niekerk also noted that the law required that those in positions of power should act within their powers, and found that Dederen had failed in this regard.
The judge said that, under the Employment of Educators Act, it was the basic education minister who made determinations about the salaries and other conditions of service for teachers, and not the provincial head of the department.
“There is nothing in the act, or in the determination in question, that confers authority on the head of a provincial department to withdraw any incentive ... I fail, thus, to appreciate how the head of department is empowered, in law, unilaterally to terminate the payment of a rural incentive determined by the minister in terms of national legislation,” the judgment reads.
Van Niekerk also said Sadtu had every right to challenge the termination of the incentive. Those receiving the allowance worked in remote schools where, in some instances, it had been hard to recruit teachers, especially in critical subjects such as maths and science.