Moorosi Tsiane
A group of primary school teachers who have served as acting principals for over a decade — without promotion or full compensation — have escalated their fight to the Court of Appeal, challenging a recent Constitutional Court judgment that dismissed their case.
Last month, the Constitutional Court ruled against the teachers’ bid to be appointed as substantive principals, despite some having acted in those roles for as long as 16 years without remuneration for their added responsibilities.
The judgment, delivered by Justices Polo Banyane, Moneuoa Kopo, and ‘Maliepollo Makhetha, has prompted the teachers to appeal, arguing that the court misdirected itself both in law and fact.
In papers filed this week, the teachers, represented by Advocate Fusi Sehapi, contend that the Constitutional Court erred by narrowing its jurisdiction to a single issue, thereby overlooking broader constitutional questions concerning their employment status.
“The Court a quo erred and misdirected itself by having decided the Appellants’ case in its entirety, but subsequently held that it only had jurisdiction on the sole issue of whether Appellants were subjected to indignity, slavery and forced labour,” argues Adv Sehapi.
He also contends that the Constitutional Court should have considered the full scope of the teachers’ claims — including past, ongoing, and imminent harm — rather than restricting itself to one aspect.
“The Court ought to have heard the entire claim as it had done and held that it had jurisdiction over all issues raised, which included but were not limited to the following: whether Section 22(1) of the Constitution provides for appropriate and effective relief over three different causes of action — harm that occurred in the past, harm that is continuous and recurring, and harm that is imminent and likely to occur in the near future.”
Adv Sehapi further contends that the Constitutional Court misapplied the precedent already set by the courts and failed to recognise distinctions between various types of legal harm and categories of claimants.
“The Court ought to have held that the decision in the Makamane case was a judgment in personam and not in rem, and was decided only in relation to the equality between private litigants and the government — not the nature of the three different causes of action protecting distinct categories of claimants under Section 22(1) of the Lesotho Constitution, 1993.
Furthermore, Section 6 of the Government Proceedings and Contracts Act was invalid for indiscriminately clamping together all three causes of action, thereby disabling differently circumstanced claimants from seeking relief and violating their right to appropriate and effective remedies.”
The core of the teachers’ grievance lies in the government’s failure to appoint them to permanent positions, despite their long-term service in acting capacities. According to Adv Sehapi, this failure constitutes a continuing violation of their rights and an ongoing cause of action.
“The appellants’ cause of action was ongoing and recurring daily, as the government continued to fail or refuse to hire them permanently. By its very nature, it was immune from expiration or prescription, akin to a cause of action based on impending harm.”
Adv Sehapi also maintains that the teachers’ extended acting appointments — without any recorded misconduct or incompetence — created a legitimate expectation of permanent employment.
“The Court ought to have held that the mere fact that the appellants had been acting far beyond the legitimate acting period, without any fault attributed to them, created a legitimate expectation and a positive duty on the part of the government to hire them on permanent and pensionable terms.
“Given the inherent inequality between the state and its employees, the appellants effectively worked under the menace of penalty, without freely or voluntarily offering to do unpaid work, and with the expectation of eventual promotion to principal positions.”
Lastly, he criticised the Constitutional Court for acknowledging that the teachers were owed unpaid acting allowances but failing to translate that finding into a binding order.
“The Court a quo erred and misdirected itself by making an obiter dictum (judge’s opinion) statement that it was illegal for the government to fail to pay the applicants their arrear acting allowances and that the government must effect such payment soon, but failed to elevate that statement into a ratio decidendi (legal principle) and an enforceable order.
“The Court ought to have declared the government’s failure to pay the appellants their allowances illegal and directed it to do so.”