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[1]        The applicants were, at various times, employed by School Governing Bodies (SGBs) as teachers. They were employed by the SGBs because the respondents had not appointed teachers to posts on the teaching establishment of public schools as they should have done. The applicants allege that they were paid a great deal less than they would have been paid if they had been employed by the second respondent, the Superintendent-General of the Department of Education in the provincial government.

[2]        In paragraph 2 of Part A of the notice of motion, the applicants seek an order directing the respondents to pay them ‘the amount that they would have been paid for the period during which they occupied a substantive post on the establishment, had they been appointed by the Eastern Cape Department of Education (“the Department”) and remunerated in terms of the Department’s salary scales for temporary teachers (i.e. the remuneration that would have been paid to an educator appointed to temporarily fill a substantive vacancy at the Applicant’s school) and been afforded the benefits granted to temporarily appointed educators’.

[3]        The applicants did not quantify their claims. Instead, an order was sought to direct the respondents to appoint and pay a firm of chartered accountants to ‘verify each Applicant’s claim and determine the amount that is owed by the Department to each Applicant’. An order to prescribe the method of determining each applicant’s entitlement is also sought in the notice of motion.

[4]        In Part B of the notice of motion, the applicants apply for orders certifying an opt-in class action in which the class is defined, the method of notifying members of the class about the proceedings is specified, the method of opting-in is provided for and the means of initiating the class proceedings are provided for.

[5]        It is common cause that the applicants have no claims against the respondents in terms of the common law – whether in contract, delict or unjust enrichment – and no statutory basis either. They base their claims on the Constitution, seeking the payment of constitutional damages to them by the respondents.[1]

[6]        The respondents did not file answering papers. Instead, they filed a notice in terms of rule 6(5)(d)(iii) of the uniform rules in which they raised a number of points of law as defences to Part A. Their opposition to the granting of the relief claimed in Part B was abandoned at the hearing of the matter.

[7]        One of the points taken was that the applicants had ‘not pleaded that the notice requirements contained in the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 have not been complied with’. (I shall refer to this Act as the Legal Proceedings Act.)

[8]        The applicants later gave notice in terms of the Legal Proceedings Act and have applied for condonation for having failed to give their notice timeously. It is to this application for condonation that I now turn.