A landmark judgement handed down on 12^th December 2014 in the case of Linkside & Others v Minister of Education sees a “claims administrator” appointed to oversee the payment of outstanding teachers’ salaries (amounting to R81 million) in the first certified opt-in class action in South Africa.

The South African government has a duty to ensure that every child’s right to education, as set out in the Constitution, is realised. However, all too frequently the state fails to meet its obligations. The Legal Resources Centre (LRC) has launched extensive litigation over the past six years to force the Department of Education to rectify these failures. A major hurdle is that once court orders are obtained (mostly by agreement), the Department does not comply with them. Foreign courts have often made use of “special masters” and “claims administrators” to oversee the implementation of court orders, but South African courts have been slow to utilise this mechanism prior to Linskide.

The factual background to Linkside can be found in a previous article: “Victory in first Certified Class action sees teachers appointed and paid” (Shona Gazidis, 18^th April 2014), which explains that, based on research carried out by Oxford Pro Bono Publico, the case was the first certified class action in South Africa. In brief, the case concerns the failure of the Department to appoint permanent teachers to vacant posts, and to pay their salaries, leaving schools having to raise funds to pay them. The initial case comprised of 32 applicant schools, salaries amounting to R28 million were finally paid, only after the court attached the amount as a debt to the Education Minister’s assets. This case did not however address the outstanding salaries of 90 applicant schools that had opted – in to the class action, and it was clear that a solution that pre-empted the State’s non-compliance was needed.

The LRC argued on behalf of the applicant schools that the appointment of a “claims administrator,” i.e. a firm of accountants to verify and pay out each applicant school’s claim would be the appropriate remedy in this case. The LRC drew the court’s attention to foreign jurisdictions, including the USA, Australia and Canada who have already been using such mechanisms. In the US for example, a ”master” (defined by Federal Rule 53 as “including a referee, an auditor, an examiner, a commissioner, and an assessor“), is often employed to oversee a claim. In addition, in the Canadian case of Peppiatt v Nicol (SCJ, 27 Nov 1991), the Defendant was ordered to pay sum into court to be transferred into a trust held by the representative plaintiff’s lawyer for distribution to class members.

In South Africa, the recent Supreme Court of Appeal Judgement Meadow Glen Home Owners Association and Others v City of Tshwane Metropolitan Municipality and Another (767/2013) [2014] ZASCA 209 (at para 35), confirmed that courts need to be creative in forming remedies in socio-economic cases, and should secure on-going oversight to ensure implementation of the orders. The court referred to the example of the supervisory measures used in US courts.

The Department of Education’s arguments were scrutinised and dismantled by the LRC. The Department’s claim that progress had been made in appointing teachers in accordance with a previous collective agreement signed, held little weight as, in reality, very little had changed. Their argument of budgetary constraints could not be accepted, given that previous judgements had confirmed that the right to education was not subject to budgetary constraints, and that failure to budget properly was not a valid defence. The Respondent’s final arguments that the Applicants should have referred to the Education Labour Relations Council (ELRC), and that trade union movements were opposed to the order, were simply without merit.  Not only were their defence arguments untenable, but the Department failed to support their arguments with sufficient evidence.

The court agreed with the LRC, and Judge Roberson made the novel and unusual order that a “claims administrator” be appointed to oversee payment of the R81 million. The outcome of this case has extremely significant implications for future strategic litigation, where the South African government has so often failed to comply with court orders, secure in the knowledge that they were unlikely to be enforced. This judgement signifies that South African courts are willing to certify class actions, and to implement new and inventive mechanisms to monitor the compliance of the State. It will be possible to litigate future socio-economic cases based on a class of applicants, and to obtain stringent measures to implement long-term solutions.

The Oxford Human Rights Hub, with the support of the Bertha Foundation, will be hosting a free webinar presentation by Professor Sandra Fredman on the Right to Education on 27 February 2015.  All welcome. Further details and registration here.